A barrister should be awarded his costs against a District Court judge of his successful appeal to the Court of Appeal (COA) over costs issues in proceedings arising from an order made by the judge, the Supreme Court has ruled.

The ruling in favour of Brendan Kilty, a qualified barrister and quantity surveyor, is against Judge Cormac Dunne and applies only to the costs of Mr Kilty’s COA appeal.

Mr Kilty appealed to the Supreme Court over the COA’s refusal, based on judicial immunity from costs, to award costs to him against Judge Dunne, who took part in the COA appeal for the purposes only of resisting any costs order against him.

Litigation

Giving the Supreme Court judgment, Ms Justice Iseult O’Malley said the matter dates back to separate lengthy litigation between Mr Kilty and Campion Property (CPC), an auctioneering firm which acted for Mr Kilty in the disposal of certain property.

A dispute over Mr Kilty’s refusal to pay certain fees had led to a €350,000 judgment being entered against him in favour of CPC. Part of that dispute related to the role played in the sale by Mr Kilty’s then solicitor, Rory O’Donnell, of the firm then known as Eversheds O’Donnell Sweeney (Eversheds).

Mr Kilty objected in 2009 to a District Court application by CPC for the certificate of qualification necessary for its annual licence to the Revenue Commissioners.

Mr Kilty made various allegations against Mr Campion and CPC and also alleged a conflict of interest by Judge Dunne in relation to Eversheds arising from their representing the judge in unrelated proceedings.

Judge Dunne granted the certificate in January 2010 when, according to the evidence, he said he was putting a “warning note” on the court file to warn other District Judges not to have regard to any objections Mr Kilty might make about CPC in the future.

Mr Kilty took judicial review proceedings, to which the Chief State Solicitor was the respondent, over that decision, alleging, among other claims, a conflict of interest by Judge Dunne in relation to Eversheds representing him in unrelated proceedings.

Bias

The High Court found a “strong case” for objective bias on Judge Dunne’s part, quashed the certificate granted to CPC [which had expired by the time of the court hearing], and awarded costs against Judge Dunne, whom the High Court earlier excused from participating in the case.

In 2015, the Supreme Court returned the case to the High Court after finding it breached fair procedures in respect of the costs order against Judge Dunne.

After the High Court in 2016 made no order for costs of the judicial review, meaning each side pays their own costs, Mr Kilty appealed to the COA and Judge Dunne participated in the appeal to resist any costs order against him.

The COA found the High Court erred in its understanding of the 2015 Supreme Court decision and returned the costs matter to the High Court but refused Mr Kilty his costs of the appeal against Judge Dunne.

Mr Kilty appealed the COA refusal to award the appeal costs against Judge Dunne and a five judge Supreme Court, in a judgment published in recent weeks, allowed the appeal.

Ms Justice O’Malley said the COA refusal relied on the concept of the complete immunity of judges from liability in tort in respect of acts done or things said while exercising their judicial functions.

In contesting Mr Kilty’s appeal over the High Court’s refusal to make a costs order, Judge Dunne could only be seen as having acted as a litigant who pursued a line of argument that failed, she said.

Costs

Whether Judge Dunne did so in good faith or conducted his appeal in proper fashion was no more relevant to the costs issue than in the case of any other litigant and had nothing to do with the principles by which costs are awarded, she said. On that basis, the court allowed the appeal.

This case, she observed, began before the superior courts rules were amended in 2015 to provide, where a judicial review seeks to quash a judge’s order, the judge is not a respondent/notice party unless bad faith or personal misconduct by them is alleged which would deprive them of immunity from being sued.

Mr Kilty had in 2011 obtained the main relief sought by him, the quashing of Judge Dunne’s order granting the certificate to CPC, she noted.

The litigation since was exclusively about costs with Mr Kilty seeking to establish he “can” recover his costs against Judge Dunne as opposed to establishing a right to recover costs from the personal funds of the judge, she said.