Cunningham v The President of the Circuit Court & anor

Factual and Procedural Background

The Appellant, a former employee of a blood-product provider, was charged in 2003 with seven counts under section 23 of the Offences Against the Person Act 1861 for alleged contamination of blood products in 1977 and 1991. After being returned for trial in the Circuit Criminal Court, she commenced judicial-review proceedings in November 2003 seeking to prohibit the prosecution on grounds of delay. The High Court, in July 2007, found prosecutorial delay but ruled that the trial should proceed, making no order as to costs.

The Appellant appealed. While the appeal was pending, Respondent B (the Director of Public Prosecutions) entered nolle prosequi in January 2009, rendering the substantive issue moot. The only matter left for the Supreme Court was the allocation of costs for both the High Court and the appeal.

Legal Issues Presented

1. What principles govern the award of costs when proceedings become moot after a unilateral act by one party?
2. Should the Appellant receive the costs of the High Court proceedings and the pending appeal after Respondent B discontinued the prosecution?

Arguments of the Parties

Appellant's Arguments

• The proceedings became moot solely because Respondent B chose to discontinue the prosecution; therefore, costs should follow that unilateral act.
• Had the appeal proceeded on the merits and succeeded, the ordinary rule (“costs follow the event”) would have entitled her to costs in both courts.
• The absence of evidence explaining why the prosecution was abandoned prevents Respondent B from claiming external factors justified its decision.

Respondent B's Arguments

• The High Court’s “no-order” costs ruling was not specifically appealed and should stand.
• The Court cannot assume the Appellant would have succeeded on the merits.
• The prosecution was properly maintained and reviewed; discontinuance stemmed from evidential changes, not simply the death of Witness A.
• No blame should attach to Respondent B, who informed the Appellant promptly of Witness A’s death.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Clarke, delivering the judgment for the Court, reaffirmed that Order 99 Rule 4 of the Rules of the Superior Courts establishes a default position that costs follow the event. He then addressed how that rule operates when the substantive dispute is rendered moot:

• The Court distinguished between cases becoming moot through external events and those becoming moot by a party’s unilateral choice.
• If mootness results from a unilateral act, costs should ordinarily be borne by the party taking that act unless strong countervailing factors exist.
• Respondent B argued that external evidential changes—not solely Witness A’s death—necessitated discontinuance, but provided almost no evidence to substantiate this claim.
• The burden lay on Respondent B, as a statutory decision-maker, to place sufficient information before the Court to justify treating the mootness as externally driven; that burden was not met.
• Consequently, the Court characterised the discontinuance as a unilateral act by Respondent B, bringing the case within the Telefonica rule that costs should be awarded against that party.
• No other equitable or public-interest considerations displaced this conclusion.

Holding and Implications

HOLDING: The appeal on costs was ALLOWED. The Appellant is awarded the costs of both the High Court proceedings and the Supreme Court appeal, to be taxed in default of agreement.

Implications: The decision reinforces the principle that when a public authority unilaterally renders litigation moot, it will normally bear the resulting costs unless it can prove that genuine external factors compelled the change. The ruling provides clear guidance to statutory bodies on the evidential burden they face when seeking to avoid adverse cost orders in such circumstances.