PP v Commissioner of An Garda Siochana & Ors (Approved)

Factual and Procedural Background

The Plaintiff initiated proceedings against the Commissioner of An Garda Síochána, the Minister for Justice, Ireland, and the Attorney General (Defendants). The proceedings were subject to a court order made on 22 June 2023, requiring the hearing to be conducted otherwise than in public and mandating anonymisation measures to protect the Plaintiff's identity, in accordance with principles established in Gilchrist v Sunday Newspapers Limited. The Plaintiff, registered as a 'human intelligence source' by the first Defendant, advanced two categories of claims: firstly, challenging the Defendants' refusal to admit the Plaintiff to the State's Witness Security Program (WSP), and secondly, more complex claims arising from the Plaintiff's engagement with the first Defendant while providing confidential information.

The trial was case-managed and scheduled to last four weeks, initially set to commence on 28 January 2025 but later adjourned to 4 February 2025 due to discovery issues related to the protective order. On 29 January 2025, after the original trial start date, the Defendants made a late offer to assess the Plaintiff for a program equivalent to the WSP, which the Plaintiff accepted. This development prompted an application to adjourn the trial pending the assessment process, which could last up to six months. The court granted the adjournment and listed the matter to address any arising applications, including costs.

Legal Issues Presented

1. Whether the Defendants should be liable for costs incurred by the Plaintiff as a result of the adjournment caused by the Defendants' late offer to assess the Plaintiff for a WSP-equivalent program.
2. The extent and quantum of costs that can be attributed to the adjournment and whether such costs should be awarded at this interlocutory stage or reserved for determination at trial.

Arguments of the Parties

Plaintiff's Arguments

• The adjournment was necessitated by the Defendants' late offer on 29 January 2025 to assess the Plaintiff for protection equivalent to the WSP, an offer based on information known to the Defendants since 2024 but only formally referenced in an amended defence served in November 2024.
• Significant costs were incurred preparing for a four-week trial which could have been avoided if the offer had been made earlier.
• Reliance on precedent, particularly Wolfe & Anor v Wolfe & Ors, establishing the jurisdiction to award costs for wasted preparation when an adjournment is caused by one party's conduct.
• The full costs of the period from 15 January to 13 March 2025 should be awarded as these represent work specific to trial preparation that will need to be repeated or will be of no value.

Defendants' Arguments

• While acknowledging the offer was a significant development and its timing "sub-optimal," the Defendants contended it was premature to fix costs liability at this stage.
• It is unclear whether the adjournment was strictly necessitated by the offer, as the non-WSP aspects of the case might proceed.
• Uncertainty exists as to what costs were wasted and attributable to the adjournment, which can only be determined after the assessment process and any subsequent trial.
• Any costs liability arising from the adjournment should be considered in the overall costs determination at the conclusion of the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court confirmed the existence of a jurisdiction to award costs for wasted preparation or adjournments caused by one party's conduct, as preserved under the Legal Services Regulation Act 2015 and reflected in Order 99 of the Rules of the Superior Courts. The court found that the Defendants' late offer to assess the Plaintiff for a WSP-equivalent program constituted a significant development that justified adjourning the trial. This offer was made after relevant information had been known for some time, resulting in costs incurred by the Plaintiff in preparing for trial that could have been avoided or rendered wasted.

However, the court acknowledged the complexity in precisely quantifying the costs attributable to the adjournment at this interlocutory stage. Given that the proceedings comprise two distinct elements—only one directly affected by the offer—and the uncertain outcome of the assessment process, it was unclear which costs would ultimately be wasted. The court also noted the practical difficulties in assessing the costs of reserving four weeks for trial, including the retention of legal representatives and witnesses, where the extent of any liability remains unknown.

Consequently, the court exercised its discretion to find, in principle, the Defendants liable for some costs arising from the adjournment but declined to specify the amount or quantum at this time. Instead, the question of costs occasioned by the adjournment was reserved for determination at the trial, consistent with the requirement to avoid unjust speculation at interlocutory stages.

Holding and Implications

The court held that the Plaintiff is entitled in principle to an order for costs thrown away or wasted due to the Defendants' delay in making the offer to assess the Plaintiff for a WSP-equivalent program. However, the precise costs liability is not determined at this interlocutory stage and is reserved for the trial of the action.

The direct effect of this decision is that the Defendants bear a prospective liability for costs arising from the adjournment, reflecting the principle that parties causing wasted costs should be responsible for them. The court made no new precedent but applied established principles to the procedural circumstances of this case, emphasizing fairness and the avoidance of speculative cost awards before the full factual and procedural context is resolved.