Wasted Costs and Adjournment Liability: Clarifying the Jurisdiction under Order 99 and the Legal Services Regulation Act 2015 in PP v Commissioner of An Garda Síochána & Ors

1. Introduction

PP v Commissioner of An Garda Síochána & Ors ([2025] IEHC 123) is a High Court ruling delivered by Mr Justice Rory Mulcahy on 13 March 2025. The case arose from a plaintiff (“PP”) who, as a registered human intelligence source, challenged the State authorities’ refusal to admit him to the Witness Security Programme (“WSP”) and certain other operational consequences flowing from his confidential cooperation with An Garda Síochána. Proceedings were conducted under a Gilchrist order (anonymisation and publication ban), reflecting the exceptional sensitivity of the plaintiff’s identity.

In the run-up to a four-week trial, the State defendants made a late offer to reassess the plaintiff for “equivalent relocation” (a variation of WSP protection). PP accepted this offer, prompting an application to adjourn the trial and to recover “thrown away” costs incurred in preparation for the originally scheduled hearing. The judgment addresses two central questions:

Does the High Court retain jurisdiction to award costs incurred by reason of an adjournment (“thrown away” or “wasted” costs)?
If so, should the court make an order now fixing those wasted costs?

2. Summary of the Judgment

The High Court affirmed that:

Under Order 99 rule 3(1) of the Rules of the Superior Courts and sections 168–169 of the Legal Services Regulation Act 2015, the Court retains a broad discretion to award costs at any stage, including costs relating to specific steps in proceedings.
There is a well-established jurisdiction, exemplified by Wolfe & Anor v Wolfe & Ors [2001] 1 ILRM 389, to order one party to bear the costs wasted by another party’s conduct—such as a late offer requiring trial adjournment.
In principle, the defendants should bear liability for costs directly caused by their delay in making the offer on 29 January 2025, which provoked the adjournment.
However, given the uncertainty as to which preparatory costs will ultimately prove wasted—pending the outcome of the assessment process and any subsequent trial—quantification cannot justly be undertaken at this interlocutory stage.
The appropriate course is to reserve the question of detailed costs liability to the final trial, with any costs order made now to be stayed until the proceedings conclude.

3. Analysis

3.1 Precedents Cited

Gilchrist v Sunday Newspapers Limited [2017] IESC 18; established the exceptional circumstances in which anonymity and publication bans are granted.
Wolfe & Anor v Wolfe & Ors [2001] 1 ILRM 389; recognised the jurisdiction to conditionally permit amendments or adjournments on terms that the applicant pay “thrown away” costs.
Indaver NV v An Bord Pleanála [2013] 1 IEHC 11; applied the principle that a party who delays withdrawal of proceedings causing wasted costs can be made liable for those additional costs.
Chubb European Group SE v The Health Insurance Authority [2020] IECA 183; set out a modern statement of the principles governing costs awards under the 2015 Act (paras 19–20).

3.2 Legal Reasoning

The Court’s reasoning unfolded in three stages:

Jurisdictional Basis: Order 99 r. 3(1) mandates the High Court to have regard to section 169(1) of the 2015 Act in awarding costs “of any action or step” in proceedings. Section 168 empowers the Court to award costs “at any stage” and to apportion costs to “particular steps.” A “thrown away” costs order clearly falls within this scope.
Principles Governing “Thrown Away” Costs: Drawing on Wolfe and subsequent authorities, the Court recognised that when one party’s conduct—such as a late material concession—renders preparatory work theatrically obsolete, the responsible party should bear those wasted costs. Factors under s. 169(1) (conduct, reasonableness, proportionality, etc.) guide whether and to what extent costs should follow the event or be fixed at interim stages.
Quantification and Timing: Although the principle of liability was clear, the Court found it impossible to delineate with precision which elements of the January trial preparation would be wasted. The eventual liability would depend on (i) the outcome of the WSP-equivalent assessment (which may moot or narrow that element of the claim) and (ii) how the remaining issues are tried. Absent such clarity, any present costs order would be speculative. For fairness, detailed adjudication is reserved to the final hearing, with any costs order stayed pending conclusion.

3.3 Impact

This ruling provides important guidance on interlocutory costs disputes:

It reaffirms that the jurisdiction to award costs thrown away by one party’s late conduct remains robust post-2015 Act.
Courts should distinguish between establishing liability in principle (which can be done early) and quantifying wasted costs (which may require hindsight of subsequent developments).
Practitioners must be alert to timing in making offers or concessions: delays may attract a costs penalty even absent bad faith.
Future litigants can expect judges to reserve detailed costs computations when preparatory steps have uncertain utility pending later stages of the case.

4. Complex Concepts Simplified

Gilchrist Order: An exceptional High Court order anonymising a party and prohibiting identifying publications—named after Gilchrist v Sunday Newspapers. Used where privacy or security considerations outweigh open justice.
“Thrown Away” Costs: Costs incurred in preparation for a hearing or step that later becomes unnecessary because of another party’s conduct (e.g., late settlement offer, amendment, or adjournment).
Order 99 r. 3(1): A rule of the Superior Courts empowering the High Court to award costs in respect of any “step” in civil proceedings, with reference to s. 169 of the Legal Services Regulation Act 2015.
Sections 168–169, Legal Services Regulation Act 2015: Statutory provisions confirming that courts can award costs at any stage, apportion costs to particular steps, and must consider conduct, reasonableness, proportionality, and other fairness criteria.

5. Conclusion

PP v Commissioner of An Garda Síochána & Ors clarifies and confirms a three-fold principle:

The High Court retains a clear and broad discretion to award “thrown away” costs under Order 99 and the 2015 Act whenever one party’s conduct renders another party’s preparatory work futile.
Liability for such wasted costs can and should be recognised at the interlocutory stage once the causative conduct is identified, even absent any finding of bad faith.
Where the precise quantum of wasted costs cannot yet be ascertained without speculation—due to ongoing assessments or future trial developments—the court should reserve detailed assessment to the final hearing and, if necessary, stay any interim costs order.

This judgment provides a roadmap for litigants and judges in managing interlocutory costs disputes, striking a balance between early recognition of cost liability and the practical difficulties of quantification in an evolving litigation context.