Burke v The College of Law & Anor

This is the ruling of the Court in light of the further submissions of all the parties to which we have given careful consideration.

We are satisfied that this is an appropriate case in which to make an order for costs. There is no reason to depart from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party. However, we have come to the conclusion that the appellant should be liable for only one set of costs. We recognise that the respondents have been represented separately throughout but on this appeal their interests were not separate and distinct requiring separate representation. They could have been represented by one set of solicitors and counsel. Further, we are satisfied that the costs order should be made in favour of the first respondent, which bore the principal burden of preparing the case.

As to quantum, we regret it has not been possible for the parties to reach agreement. We note that the first respondent seeks only counsel’s brief fees, and not the costs of in-house solicitors in preparing the case. We are satisfied it was appropriate for the first respondent to instruct leading and junior counsel. The appeal raised a point of law of considerable importance to the first respondent which justified instructing leading counsel. We also accept it was proportionate for existing junior counsel for the first respondent to remain instructed, given the lengthy history of the case. A detailed assessment would add unnecessarily to the costs and we believe we should carry out a summary assessment. Having regard to the length of the hearing and the complexity and importance of the issues raised by the appeal, we believe that a fair and proportionate sum to award to the first respondent by way of costs is £10,500 (including VAT).

This appeal does not fall within the exceptional category of appeals for which this court will give permission to appeal to the Supreme Court and accordingly the appellant’s application for permission to appeal is dismissed.

That leaves the question of a stay of the order for costs until after the determination of any application by the appellant to the Supreme Court for permission to appeal and, if permission is granted, his appeal. The appellant says it would not be fair to stifle an appeal. However, the suggestion that requiring the appellant to pay the costs of this appeal would have the effect of stifling any further appeal is unsupported. In all the circumstances we are not persuaded it is appropriate to grant a stay.