Ian Bailey has lost his appeal over orders requiring him to pay the substantial legal costs, estimated at between €2 million and €5 million, of his failed action for damages over the conduct of the Garda investigation into the murder of Sophie Toscan du Planter.
The costs ruling was issued on Wednesday by the Court of Appeal following its judgment last month overturning its earlier decision to permit a retrial of one part of Mr Bailey’s action.
The appeal court overturned the retrial decision after accepting arguments by the State its decision was based on a misinterpretation by it of certain comments made by the High Court judge who presided over the damages action.
A High Court jury had in November 2015, after a 64-day hearing, rejected Mr Bailey’s claim that three gardaí had conspired to frame him for the murder and the effect of last month’s court of appeal judgment was that Mr Bailey lost his entire appeal over the dismissal of his case.
The matter returned to the appeal court on Wednesday to address liability for costs in the High Court and in the Court of Appeal.
Paul O’Higgins SC, for the Garda Commissioner and State, said it was entitled to its costs up to the date of the appeal court’s original judgment of July 26th 2017, which had dismissed Mr Bailey’s appeal on all grounds except the one which itself was dismissed last month.
‘Highly unusual’
The State did not seek its costs concerning the hearing of its successful application to amend the Court of Appeal July 2017 judgment.
Martin Giblin SC, for Mr Bailey, argued the “highly unusual” circumstances of the case were grounds for the Court of Appeal to depart from the normal rule that costs go to the winning party.
Those included the State’s decision to apply on day 62 of the 64 day High Court case, rather than much earlier, to have most of Mr Bailey’s claims dismissed as out of time with the effect only a conspiracy claim was addressed by the jury. There was a public policy not to have juries taken away from their lives and work longer than necessary but the State did that so a number of gardaí could have their day in court, he argued.
Giving the Court of Appeal costs ruling, Ms Justice Mary Finlay Geoghegan, sitting with Mr Justice George Birmingham and Mr Justice Gerard Hogan, said it would not, either in full or in part, reverse or vary the High Court costs order.
She said the costs arguments related to the State’s late application to have most of the claim statute barred but the Court of Appeal had already rejected Mr Bailey’s appeal on the statute point.
Overarching conspiracy
Mr Bailey’s claim was a complex one of an “overarching conspiracy” by gardaí and the issue whether it was statute barred did not lend itself to easy adjudication, she said.
The Court of Appeal had in its July 2017 judgment ruled the State’s approach to the statute point was justified because of the nature of Mr Bailey’s claim. That applied notwithstanding the public policy not to take jurors away from their normal work longer than usual, she said.
The State was also entitled to the costs of the appeal up to the date of the COA’s original judgment, she ruled.
The State earlier told the court it accepted Mr Bailey was not liable for the costs of the application to correct the error in the judgment.
Separately, Mr Bailey’s lawyers have appealed to a French court over a decision by the French authorities to charge him with the murder of Ms Toscan du Plantier. He has always denied any involvement in the murder.
