O'Neill v The Commissioner of An Garda Siochana & Ors (Approved)

Factual and Procedural Background

The Plaintiff, a Garda Superintendent suspended on pay, brought a motion seeking, among other reliefs, an interlocutory injunction to lift his suspension. The suspension had been effected by five successive orders under the Garda Síochána (Discipline) Regulations, 2007, covering a period from May 2019 to May 2020. The grounds for suspension included alleged disclosure of confidential information related to a criminal investigation, alleged presence in a public house with a colleague suspected of ingesting a controlled substance, and alleged inappropriate interference with fixed charge penalty notices and related court summonses. The Plaintiff’s affidavit supporting the motion was sworn on 27th April 2020, prior to the final suspension order that took effect on 1st May 2020. The High Court refused all reliefs in a judgment delivered on 11th September 2020. The present judgment addresses submissions relating to the costs of that interlocutory application.

Legal Issues Presented

1. Whether the Plaintiff should be ordered to pay the costs of the interlocutory application or whether the costs should be reserved to the trial judge.
2. The correct interpretation and application of the Rules of the Superior Courts regarding costs awards on interlocutory applications, specifically Order 99, rule 2(3).
3. The extent to which the court can justly adjudicate on costs liability for interlocutory applications where the facts and merits may be revisited at trial.

Arguments of the Parties

Defendants' Arguments

• The Plaintiff’s interlocutory application was unsuccessful in its entirety.
• The Plaintiff failed to make out a fair or strong case that his suspension was invalid.
• The court can adjudicate upon costs liability without risk of injustice in this case.

Plaintiff's Arguments

• Costs of interlocutory injunctions should be reserved to the trial judge, based on a purported surviving general rule post-2008 amendment.
• The interlocutory motion does not finally decide factual or legal issues; evidence and law may be different and more fully debated at trial.
• New evidence or discovery may arise that could change the outcome, making it unjust to fix costs now.
• The defendants cannot assert that the evidence at trial will be the same as that presented on the motion.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the historical and current rules governing costs awards on interlocutory applications, noting that the previously assumed general rule reserving costs to the trial judge no longer exists. The modern regime, codified in Order 99, rule 2(3), requires courts to award costs on interlocutory applications unless it is unjust to do so. The rationale is to discourage frivolous or unreasonable interlocutory applications and to place costs decisions in the hands of the judge who heard the motion, who is better positioned to assess the reasonableness of the parties' positions at that stage.

The court considered the Plaintiff’s motion and found that he had not established a strong or likely successful case to justify lifting the suspension. However, the court acknowledged that the facts presented at interlocutory stage were incomplete, particularly regarding the duration and substance of the criminal investigation into alleged disclosure of confidential information. The court recognized the possibility that discovery or new evidence at trial might support the Plaintiff’s assertions, thus altering the outcome.

In balancing these factors, the court drew on precedents where interlocutory costs orders were tailored to avoid injustice when the interlocutory application’s merits might differ from the trial outcome. The court concluded that although the Plaintiff’s application was unsuccessful and founded on mere assertion, it would not be just for the Defendants to pay the Plaintiff’s costs. Conversely, fixing the Plaintiff with the costs of the interlocutory motion could be unjust if the Plaintiff ultimately succeeds at trial.

Therefore, the court decided to make no order as to the Plaintiff’s costs of the motion and to make the Defendants’ costs of the motion costs in the cause, ensuring the costs will be determined in the context of the final resolution of the action.

Holding and Implications

The court made no order as to the Plaintiff’s costs of the interlocutory motion and ordered that the Defendants’ costs of the motion be costs in the cause. This means that the costs of the interlocutory application will be determined at the conclusion of the trial.

This decision balances the policy of discouraging unmeritorious interlocutory applications with the need to avoid injustice where the interlocutory application was refused but the Plaintiff’s case might ultimately succeed. The ruling does not establish new precedent but applies existing principles to the facts, ensuring that neither party is unfairly burdened with costs before the substantive issues are resolved.