Eamon Butterly has been ordered to pay the legal costs of the families of the 47 who died in the 1981 Stardust nightclub fire for their representation at his failed last ditch High Court attempt to prevent an inquest jury bringing in its unlawful killing verdict.
Just before Easter weekend last, the former Stardust manager brought an emergency application before Mr Justice Tony O’Connor seeking to challenge a decision made by Dublin city coroner, Myra Cullinane, to allow the jury return a verdict of unlawful killing.
In November, 2022, before the inquest began, Mr Butterly failed in another similar High Court application. The court ruled the inquest could go ahead and make a finding of unlawful killing but this can only be in “appropriate circumstances” and only where no person(s) is identified or identifiable.
In his decision, which was not published until after the inquest verdict, Mr Justice O’Connor refused Mr Butterly’s application for both leave to bring the challenge and for the inquest to be put on hold pending the outcome of the challenge.
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The application was made shortly before the coroner commenced her final address to the inquest jury.
Following Mr Justice O’Connor’s decision, lawyers for the families, who were notice parties in the High Court hearing, applied to the judge for their costs relating to the application to be paid by Mr Butterly.
Mr Butterly strongly opposed the application on grounds including that he had applied for leave on a one-side only represented (ex parte) basis which is the normal course in judicial review applications.
While this means it is not formally on notice to a respondent or to third parties, the families’ lawyers had been alerted when the coroner adjourned the inquest to allow the High Court application to take place. As a result, they attended the High Court hearing.
Mr Butterly also argued the families lawyers’ fees for the inquest were already being paid for by the State so their High Court costs should not have to be paid by him.
Mr Justice O’Connor said that although the families had not been notified of the High Court application by direction of the court, there was no objection to the appearances by lawyers for the families and the coroner when it came before him at Easter.
“The submission for the applicant [Mr Butterly] that a direction of the court would have afforded an opportunity for [him] to prepare for the resistance of the families does not withstand scrutiny”, the judge said.
Whether the jury at the inquests could have withstood the long delay arising from the granting of leave was not the determining factor, he said.
The judge said he had concluded that it had always been open to Mr Butterly to object to the submissions made on behalf of the families.
“The applicant and the court acquiesced to the making of submissions by counsel for the families,” he said.
The court was also entitled to exercise its discretion under the rules of the superior courts, he also said.
In relation to the claim that the families could have their fees paid for by the State, as it is doing for the inquest, the judge said it was “not axiomatic” that they will be entitled to recover fees for the High Court application.
The court does not determine the amount of the costs but only whether costs should be awarded. That was a matter for the High Court costs adjudicator, he said.
No matter what way the court looked at the arguments advanced on behalf of Mr Butterly, there was merit in the families engaging solicitors and counsel to represent their interests at the hearing of the leave application, he said.
“Fairness and justice” compelled the court to exercise its discretion to direct Mr Butterly to discharge the costs incurred by the families, he said. This was to be limited to costs for the appearance of one senior counsel, one junior counsel and the families’ solicitor.
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