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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> PP v Commissioner of An Garda Siochana & Ors (Approved) [2025] IEHC 123 (13 March 2025)
URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC123.html
Cite as: [2025] IEHC 123

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APPROVED                                                                                               [2025] IEHC 123

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THE HIGH COURT

Record No.: 2023/3398 P

BETWEEN:

 

PP

                                                                                                            Plaintiff

 

-and-

 

THE COMMISSIONER OF AN GARDA SIOCHÁNA, THE MINISTER FOR JUSTICE, IRELAND and THE ATTORNEY GENERAL

 

                                                                                                            Defendants

 

RULING of Mr Justice Rory Mulcahy delivered on 13 March 2025

 

Preliminary

 

1.         This ruling concerns the plaintiff's application for costs arising from an adjournment of these proceedings in the days leading up to a scheduled four-week trial.

 

2.         The proceedings were instituted subject to an order made on 22 June 2023 by this court (O'Moore J) that the entire proceedings be heard otherwise than in public ("the Order"). It was further ordered that the name of the intended plaintiff in the title of the proceedings be in anonymised form, using initials. It was also ordered that the publication or broadcast of any matter relating to the proceedings which might tend to identify the plaintiff be prohibited. The Order was made in accordance with the principles identified in Gilchrist v Sunday Newspapers Limited [2017] IESC 18; [2017] 2 IR 284. Though, as made clear by the Supreme Court, appropriate only in exceptional cases, such an order has come to be referred to as a Gilchrist order.

 

3.         The parties have taken significant steps to ensure that the terms of the Order are complied with in as complete a way as possible. No issue arises regarding the Order. Neither party contends that it prohibits, or that it would be appropriate to prohibit, rulings or judgments on any aspect of the proceedings being made public. However, any such ruling or judgment must respect the terms of the Order. Although this ruling is being delivered in public (by being published in electronic form), care has been taken to ensure that nothing in the ruling undermines the steps which the parties have taken to protect the plaintiff's identity. The description of the circumstances giving rise to the application has been significantly abbreviated in order to avoid providing any information which might tend to identify the plaintiff.

 

4.         In addition, this ruling was provided to the parties in draft form to enable them to identify any changes which might be required to further disguise the identities of the parties. Following submissions from the parties, and at the request of the defendants, minor changes have been made to omit references to certain sensitive information. The decision to do so is taken for pragmatic reasons and does not reflect a concluded view that referring to that information would constitute a breach of the Gilchrist order, or is otherwise required for like reasons as those which warranted the making of the Order. The information omitted is not necessary for the purpose of understanding this ruling, is clearly sensitive, and for the reasons identified by counsel for the defendants, the possibility cannot be ruled out at this stage that its disclosure would give rise to security concerns for third parties.

 

The proceedings

 

5.         For the purpose of this ruling, it is, in any event, only necessary to give a very brief description of the nature of these proceedings. It is not in dispute between the parties that the plaintiff is a person who has provided confidential information to the first defendant, which it has used in the course of its work. The plaintiff has been registered as a so-called 'human intelligence source' by the first defendant. Arising from those circumstances, the plaintiff advances two categories of claims against the defendants.

 

6.         The first category of claim relates to the refusal by the defendants to admit the plaintiff to the State's Witness Security Program ("WSP"). The defendants' position is that the plaintiff does not meet the conditions for entry to the WSP. Various reliefs are sought relating to this issue.

 

7.         The second set of issues is, it is fair to say, more complex, and arises from the engagement between the parties at a time when the plaintiff was providing confidential information to the first defendant and certain consequences which have arisen for the plaintiff. It is not necessary to detail those issues further at this time.

 

The adjournment

 

8.         The proceedings have been heavily case managed, initially by my colleague, Cregan J, and as the trial approached, by me. The trial was scheduled to last four weeks. It was initially scheduled to commence on 28 January 2025, a date first proposed on 15 November 2024 and confirmed on 12 December 2024. However, due to issues with discovery documentation occasioned by the necessity to comply with the Order, on 22 January 2025, it was agreed that the commencement of the trial would be delayed by one week to 4 February 2025.

 

9.         On 29 January 2025, i.e., after the trial had originally been due to commence, the defendants' solicitor sent an email to the plaintiff's solicitor addressing a number of issues which the parties were dealing with in preparation for trial. At the end of that letter, under the heading 'Assessment for entry into WSP', the email stated as follows:

 

"As you are aware the primary reason that An Garda Siochána refused to consider the plaintiff for entry into the WSP in late 2022 was primarily based on the fact that he was not a witness. Since then [additional] information has come to light ...

 

In light of this the Commissioner has directed that the plaintiff be assessed, not for entry into the WSP, but rather to ascertain whether [the plaintiff] would be suitable for equivalent relocation. This would involve [the plaintiff] engaging with the Gardai who normally administer the WSP for the purpose of such an assessment.

...

Any such assessment would obviously be dependent upon the consent and cooperation of the plaintiff. You might indicate [the plaintiff's] position in that regard."

 

10.     The proceedings had been listed before me for further case management on 30 January 2025. On that date, the above email was brought to the court's attention. The plaintiff's lawyers indicated that they were meeting with the plaintiff that day and would take instructions on the plaintiff's position in light of this email. It was indicated that if the offer was taken up, it would be likely that the trial would not go ahead.

 

11.     In the event, the plaintiff indicated willingness to engage in the assessment suggested in the email of 29 January 2025 and the court was notified immediately. The indication in the email was that the process of assessment, which the court understands is complex, could take up to six months. Counsel for the plaintiff characterised the first defendant's offer as a very significant development in the proceedings, fundamentally altering what was in dispute between the parties. In the circumstances, she applied to adjourn the trial pending the conclusion of the assessment process. She indicated that she may have an application for certain orders, including orders for costs, in the event of such an adjournment.

 

12.     Counsel for the defendants accepted that it was a significant development and that the timing of the offer was "sub-optimal", but suggested that it was possible that the aspect of the case not concerned with the WSP could proceed. In this regard, he characterised the claim in relation to the WSP as a "judicial review-type" claim and contended that the bulk of the time and evidence in the four-week trial would be addressed to the other aspects of the plaintiff's claim. He very fairly acknowledged, however, that the plaintiff's suggestion that an adjournment was appropriate was not unreasonable.

 

13.     In circumstances where it was not obvious that the two aspects of the case could be entirely de-coupled and where, in any event, developments in relation to one aspect of the case might well have a bearing on how the parties approached the other aspect of the case, I accepted the plaintiff's argument that it was more appropriate to adjourn the trial, and agreed to do so. The matter was listed on 5 February 2025 to deal with any applications arising. On that date, the plaintiff made an application for the full costs of the hearing "on a thrown away basis or as otherwise may be described" from 15 January 2025 to 13 March 2025.

 

The costs application

 

14.     There were two aspects to the plaintiff's costs application. The first was that the defendants should be fixed with some costs by reason of the lateness of their offer to consider the plaintiff for equivalent protection to that provided to participants in the WSP, which had necessitated the adjournment of the proceedings. The second was the identification of the costs for which the plaintiff contended that the defendants should be liable.

 

15.     In relation to the first aspect, the plaintiff argued that the adjournment had been triggered by the defendants' offer in its email of 29 January 2025. It was further highlighted that the email had suggested that the decision of the first defendant to invite the plaintiff for assessment was made on foot of information that had come to light in relation to a number of other cases. However, as the plaintiff suggested was clear, that information had come to light at some point in 2024. In particular, it had been indicated to the court on 25 October 2024 that it would be necessary to serve an amended defence in order to correct a certain matter. That amended defence was delivered on 8 November 2024 and, for the first time, referenced the additional information relied on in the email of 29 January 2025.

 

16.     The plaintiff argued that the offer to consider the plaintiff for protection equivalent to that afforded in the WSP is, in substance, what the plaintiff has been seeking in the first element of the proceedings. Although not contending any bad faith on the part of the first defendant, and at pains to stress that no blame attached to the defendants' legal representatives, the plaintiff's counsel stressed that significant costs had been incurred in preparing for a trial, and setting aside four weeks for the hearing of that trial, which could have been avoided had the first defendant acted on the 'new' information sooner. There was, on the plaintiff's case, blameworthy delay on the part of the defendants in making the proposal on 29 January 2025, which resulted in costs being accrued, which would not have been accrued had the offer been made at an earlier date.

 

17.     The plaintiff relied on earlier reported decisions in which equivalent costs were made to that sought here. Reference was made to the decision of the High Court (Herbert J) in Wolfe & Anor v Wolfe & Ors [2001] 1 ILRM 389 as containing a "useful summary of the principles arising". That was a case in which the court consented to an application to amend pleadings but on condition that the party seeking the amendment pay the costs arising therefrom, including such costs "as relate solely to the preparation of the adjourned trial and which will require to be repeated or will be of no value at the next hearing." There is a well-established jurisdiction to allow an amendment of proceedings on such terms, a recognition that where one party's conduct of the litigation causes the other party to incur costs which are wasted, for instance, by necessitating an adjournment, the party responsible for those wasted costs should be made liable for them.

 

18.     The plaintiff's counsel argued that the jurisdiction identified in Wolfe has been retained following the introduction of the Legal Services Regulation Act 2015 as reflected in ss. 168 and 169 of the 2015 Act. She referred to the judgment of the Court of Appeal (Murray J) in Chubb European Group SE v The Health Insurance Authority [2020] IECA 183, and in particular the statement of applicable principles contained at paragraph 19 of that judgment.

 

19.     It is accepted, on the plaintiff's side, that much of the preparation for trial would have occurred in any event, i.e., irrespective of the offer. However, it is argued that had the offer to assess the plaintiff been made earlier, the case would not have been set down for trial in advance of the assessment taking place, and the work done in the immediate preparation for trial would not have been required. That work, it is argued, will have to be repeated or will be of no value at the next hearing. The plaintiff argues that the defendants should, therefore, be liable for those costs.

 

20.     As regards what costs could have been avoided but have, in effect, been "thrown away", the plaintiff seeks an order for the full costs of the period covering 15 January to 13 March 2025. The earlier date seems to be the plaintiff's calculation of the latest date on which work specific to preparing for a trial starting on 28 January 2025 - meeting with witnesses, preparing books, etc. - could be said to have commenced. The plaintiff argues that this work will need to be repeated for any new trial and has therefore been 'wasted', particularly so in light of the potentially significant delay between the original trial date and any prospective new trial date. The latter date, 13 March 2025, is the date on which the original trial was scheduled to conclude.

 

21.     Counsel for the defendants, again very fairly, accepted that there may be some force to the plaintiff's contention that the defendants should bear some costs liability because of the adjournment, without conceding such liability. However, he argued that it was premature to determine liability for costs at this juncture. In effect, he identified three objections to the plaintiff's application. First, he contended that it would not be clear until the trial of the action whether, in fact, the adjournment was necessitated. Second, and with perhaps greater emphasis, he argued that even if it was accepted that the defendants' actions had necessitated the adjournment, such as to trigger a potential liability, it was not clear what, if any, costs were attributable to the adjournment and had been wasted or thrown away. This would only become apparent following the conclusion of the assessment process and any subsequent trial on whatever issues remained between the parties. And third, he argued that any adjudication on the defendants' costs liability arising from the adjournment would most fairly be determined in the context of determining the overall costs of the proceedings in light of the outcome of the proceedings, noting that the proceedings were being fully defended by the defendants.

 

Discussion

 

22.     The first issue to consider is whether there is a jurisdiction to award costs in circumstances such as these, that is, where it is argued that costs have been wasted by one party's conduct of the proceedings. The defendants did not dispute that the jurisdiction discussed in Wolfe remains intact following the introduction of the 2015 Act. That is clearly correct.

 

23.     Order 99, rule 3(1) provides as follows:

 

The High Court, in considering the awarding of the costs of any action or step in any proceedings, and the Supreme Court and Court of Appeal in considering the awarding of the costs of any appeal or step in any appeal, in respect of a claim or counterclaim, shall have regard to the matters set out in section 169(1) of the 2015 Act, where applicable.

 

24.     This clearly envisages that costs may be awarded in relation to any "step" in a proceeding. This reflects the provisions of section 168 of the 2015 Act which provides that an order for costs may be made "at any stage" in proceedings.

 

(1)   Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings—

(a)   order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings...

(2)   Without prejudice to subsection (1), the order may include an order that a party shall pay—

(a)   a portion of another party's costs,

(b)   costs from or until a specified date, including a date before the proceedings were commenced,

(c)   costs relating to one or more particular steps in the proceedings...

 

25.     An award of costs thrown away readily falls within the scope of both the rule and the statutory provision and I am satisfied that the court retains discretion to make such an award in appropriate circumstances.

 

26.     I am also satisfied that this is a case in which, in principle, the defendants should be made liable for some of the plaintiff's costs arising from the adjournment of the trial. Having regard to the nature of the proceedings and the importance of the offer made by the defendants in the context of these proceedings, it was entirely appropriate that they be adjourned pending the assessment of the plaintiff for entry into a WSP-equivalent type program. Although the defendants were correct in suggesting that the two aspects of the case were quite separate, it is very clear that they both arise from the same historical factual context. From the plaintiff's perspective, it would be unreasonable for the court to require that one aspect of the proceedings advance just as a significant development had occurred in the other. The WSP element of the proceedings may be narrower and give rise principally to questions of law rather than fact, especially when compared with the other element of the proceedings, but it hadn't previously been suggested that the two elements of the proceedings could or should be dealt with separately; no application had been made to modularise the trial. Irrespective of the merits of the second element of the proceedings, which the defendants vigorously contest on jurisdictional, procedural and substantive grounds, the plaintiff's legal advisers are now entitled to consider with their client the approach to that element in light of the changed circumstances, and, indeed, in light of the outcome of the assessment.

 

27.     In determining the issue of costs, it is appropriate to have regard to the criteria in section 169(1) of the 2015 Act. Even without attributing any bad faith to the defendants, it is apparent that costs have been incurred by reason of the defendants' late offer to the plaintiff, which costs would not have been incurred had the offer been made when, or shortly after, the relevant information came to the attention of the first defendant. Any wasted or thrown away costs are directly attributable to the defendants' delay in making an offer, and the defendants, therefore, should be liable for those costs (see, by analogy, Indaver NV v An Bord Pleanála [2013] 1 IEHC 11; [2013] 1 IR 357, where the applicant, having become aware of facts which prompted it to withdraw the proceedings, delayed in so doing, causing additional costs to be incurred. It was made liable for those additional costs).

 

28.     The difficulty, in this instance, is in determining with any precision what additional costs can be said to have been incurred by the plaintiff by reason of the defendants' delay in making the offer on 29 January 2025. In circumstances where that offer is directly relevant to only one element of the plaintiff's case and where both elements of the case may yet proceed, it is entirely unclear what costs have been incurred by the plaintiff which will prove to have been wasted if the trial proceeds at some future date. Much may depend on the outcome of the assessment for WSP-type protection. As regards that aspect of the claim, it is not yet known whether, or on what terms, that aspect of the claim will proceed at all. If it doesn't, it may be that any work attributable solely to that aspect of the claim in preparation for the January trial will be shown to have been wasted. If it does proceed, however, it may be that only a small portion of the preparatory will have been wasted. Similarly, as regards the second element of the claim, although it seems likely that some work will have to be repeated, it is not possible to know at this stage how much work that will be.

 

29.     I accept entirely that the fact that four weeks had been assigned to the hearing will have resulted in costs being incurred, which costs have been entirely wasted. Solicitors, counsel, and witnesses will, to a greater or lesser extent, have reserved those days to ensure that they were available for the hearing. It is certainly possible that the plaintiff has incurred a liability arising therefrom. Of course, the court doesn't know on what basis the lawyers and witnesses were retained or asked to appear, and therefore, the costs for which the plaintiff may, in fact, liable. One might reasonably expect that the lawyers, in particular, will have been engaged elsewhere in the days originally assigned for hearing in these cases. If that is so, it is difficult to see how the plaintiff could incur a liability, or at least any liability for which the defendants should be made responsible.

 

30.     I have been assigned to hear any such trial. Any order for costs made at this stage could, having regard to the uncertainty as to the outcome of the proceedings, only be made subject to a stay, i.e., the plaintiff will not benefit immediately from any costs order made at this time. In the circumstances, having indicated that the plaintiff is entitled in principle to an order for costs which have been thrown away or wasted by reason of the defendants' delay in extending the offer on 29 January 2025, there seems little purpose in speculating at this stage on what precisely those costs might be or, put another way, what costs have been thrown away.

 

31.     Order 99, rule 2(3) requires the court to determine the costs of any interlocutory application "save where it is not possible justly to adjudicate upon liability for costs" at that interlocutory stage. Although this is not, strictly speaking, an application for the costs of an interlocutory application, the same principle must apply to an application for costs thrown away. It is possible at this stage to determine that the defendants should be liable for costs thrown away, but it is not possible to justly adjudicate on what those costs might be without engaging in speculation.

 

32.     In the circumstances, the fairer course is to reserve the question of the costs occasioned by the adjournment to the trial of the action.

 

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