hearing before me yesterday afternoon and for part of this morning.
a call over in January to 25 and 26 of February 2026, and it was further adjourned
a call over in February to 24 and 25 March 2026.
the March 2026 call over, it was indicated on behalf of the applicants that the matter was not ready for hearing, nor was the bill of costs in compliance with O.99, and the Chief Legal Costs Adjudicator gave leave to the applicants to issue a Form 9, returnable before him. This was the first Form 9 already referred to by me, dated 20 March 2026, and it set out the background to the costs issues and to the claimed non-compliance with O.99, and the materials or documentation then outstanding.
tention in advance.” Thereafter, the applicants lodged another Form 9 dated 06 May 2026, in advance of the directions hearing on 07 May 2026, with which the notice parties took issue given the late notification. That Form 9 again set out difficulties including a lack of invoices, lack of supporting documentation and contemporaneous time records, reconciliation issues, lack of information regarding Page 3 of 25 VAT treatment, and it stated that the applicants were not “in a position to properly engage with or proceed to adjudication on a fair and informed basis”. On 07 May
the directions hearing, having heard Mr Fitzpatrick and Mr O’Sullivan, the Chief Legal Costs Adjudicator indicated that he was satisfied that the matter could proceed, and that if there were any issues with the invoices they could be dealt with as part of the determination of costs in the ordinary way. He also stated that VAT was VAT and that it was either chargeable or not chargeable in the ordinary way, and that he was not directed, or not required should I say, to direct proofs or make any determinations in advance of the adjudication hearing on 14 May. It has to be noted that whilst I have had sight of a transcript for the hearings on 24 March 2026 and 23 April 2026, I did not have sight of a transcript for 07 May 2026, and in that regard an
tendance note taken by Mr Landers was exhibited to his affidavit. The affidavit of Mr Landers sets out the above chronology and other matters, and I do not think it pertinent or necessary to refer to that affidavit any further
this juncture. 7. The adjudication of costs is provided for
of the Act, by way of O.99 of the RSC and by way of the guidelines already referred to. In brief, s.142 of the Act provides for the preparation of the guidelines; and s.154 to 157 of the Act deal with adjudication of legal costs, insofar as this particular decision is concerned. S.151
tempts to agree to the bill of costs. S.154
tempt to agree a bill of costs. 9. S.155 refers to Schedule 1 of the Act, relating to the principles relating to legal costs, and that they shall apply to an adjudication. S.155
, (ii) the Legal Costs Adjudicator must be satisfied that the bill of costs is in the Legal Costs Adjudicator’s opinion sufficient when read together with the documents served and filed together with that bill, to enable the paying party to assess and dispute or oppose the work undertaken, and disbursements incurred, in respect of which the charges are claimed and (iii) it is in the Legal Costs Adjudicator’s opinion sufficient when read together with the documents served and filed together with that bill, to enable the Legal Costs Adjudicator to adjudicate the matters and items in dispute in accordance with the Act. 15. O.99, r.27
adjudication hearings, including what is set out
s.156 of the Act, and states that there is an obligation on the Legal Costs Adjudicator to have regard to the matters set out in s.155 of the Act. Further, it sets out Schedule 1 of the Act, which prescribes the principles to be applied when undertaking an adjudication.
of that affidavit, Mr O’Sullivan avers that he has a positive and professional working relationship with Mr Fitzpatrick, the legal costs accountant for the notice parties. Mr O’Sullivan then goes on to aver that it is usual practice consistent with the terms of the relevant court orders for legal costs accountants to engage directly with each other with a view to agreeing on costs and, if necessary, to reducing the number of matters, if any, requiring determination, thereby assisting the Legal Costs Adjudicator in the efficient conduct of the adjudication. 23.
, Mr O’Sullivan avers that he is aware of the 2021 guidelines to which I have already referred, and that those guidelines place the engagement between the Legal Costs Adjudicators as a precursor to the issuance of the notice of application for adjudication. He goes on to aver that the guidelines are not merely practice guidance but are matters which the Legal Costs Adjudicator is obliged to have Page 9 of 25 regard under the various provisions I have already referred to.
, he avers that
the time of the issuance of the notice of application for adjudication on 03 October 2025, returnable for 21 and 22 of January 2026, that engagement between respective legal costs accountants had not progressed to the stage where cost issues between the parties had been fully identified or addressed. And he then goes on to aver that, in fact, it was his view that the discussions regarding a joint review of the costs were only
an early stage. 24. He then sets out
the sum of the provisions of O.99, and goes on to note that O.99, r.23 sets out that
the time of the service of the notice of application, all of the preparatory work is required to have been carried out and furnished to the other party by way of scheduling of invoices, timesheets and other documentation so that he and his peers can carry out their role efficiently and effectively. He then goes on to say that he believed that the notices were issued prematurely and were inconsistent with the statutory sequence contemplated by s.154 of the Act. 25.
, he avers that it is for the savings of costs and for the efficiency that he and other legal cost accountants can carry out their roles, that all the relevant claims are supported by invoices, timesheets, VAT information, the particulars of the expert witnesses and their invoices and all other supporting documentation which evidence or support the various claims. This makes efficient use of his time and resources when
tending for inspection, that all the relevant information is laid out so that it will be apparent to him that the claims are properly made, and what claims are unsupported. 26.
he avers that he believes that the provisions of O.99 were not complied with in the service of documents, and I believe that that is a matter to which the applicants are not laying much claim
this stage. Moving on then, §10 was not opened because it refers to O.99, r.23 and I have already referred to that. Then he goes on to deal with
, the fact that his office received a notice of application on the 03 October 2025, and he exhibits that notice of application. 27. He states
that, as is apparent from that communication, the full papers were not served in October 2025, and the relevant notice did not comply with O.99, r.23 Page 10 of 25 with regard to proof of service and the contents required under the rules. Moving on,
he deals with the documents furnished in October 2025, and he sets out for the Court in tabular form the various documents that were received, that were partially received and that were not received. For the purpose of timing today, I do not intend to set out those in detail but suffice it to say that there is almost two pages of a table compiled by Mr O’Sullivan in this regard and, as I say, mentioned or averred to
28. He avers
of his affidavit that he sent a letter to Mr Fitzpatrick on 13 November 2025, setting out the information requested in advance of an inspection. Those requests were for the terms of engagement of the solicitor, including s.68 and s.150 notices; s.150 notices for counsel; copies of all invoices raised from solicitor to client, including any interim bills, together with any supporting documents and particulars of time records if available; copies of all invoices from each expert, together with a detailed breakdown of the expert’s accounts and given that fees have been charged on a time basis, the details in that regard; and copies of all orders referred to in the bill of costs. And again, that letter is exhibited to Mr O’Sullivan’s affidavit. He then goes on to say that on 06 January 2026, and this is
of his affidavit, he avers that he received a reply to his communication from Mr Fitzpatrick, including time records of O’Flynn Exhams Solicitors, referred to as OFX, and of PricewaterhouseCoopers only, as in, the only time records received were those from OFX solicitors and PwC, and Mr Fitzpatrick was also seeking to agree dates for inspection. And again, that letter is exhibited to Mr O’Sullivan’s affidavit. Mr O’Sullivan then goes on to deal with
tending
the various call overs, and I have alluded to those already in this decision. 29.
then, Mr O’Sullivan avers to the fact that in the week preceding the hearing dates there was a call over on Thursday 19 March, and that matter was
tended to by junior counsel Mr Kieran Falvey for the applicants and Mr Setanta Landers, the applicants’ solicitor. Mr O’Sullivan was also in
tendance and during which he avers that submissions were made to the Legal Costs Adjudicator by Mr Falvey that there were deficiencies in the information and documentation provided to Mr O’Sullivan to date, and that it would be necessary to adjourn/vacate the hearing dates, in default of which it would be necessary to bring an application to the High Page 11 of 25 Court seeking a stay pending the issuing of High Court proceedings, pending provision of the outstanding information and documentation. Mr O’Sullivan, continues to aver that the application of counsel for the applicants – or plaintiffs, in that case, the applicants now – was that the matter was not ready for hearing or in compliance with O.99 of the RSC. On that occasion, the Legal Costs Adjudicator indicated that the appropriate course of action would be for the applicants to file a Form 9, and indicated that if this was to be done, it should be filed by the following day. The Chief Legal Costs Adjudicator gave the applicants leave to do so, returnable before him. The Chief Legal Costs Adjudicator, also averred to by Mr O’Sullivan, noted that any applications regarding non-compliance with the rules should be made to him in the first instance. 30. Mr O’Sullivan then,
of his affidavit, explains what a Form 9 is, and given that I have not explained that to date I think it pertinent to record that it is averred
, that a Form 9 is the form created by the Legal Costs Adjudication Office, to make an application to the office for a stay or other directions. A Form 9 was issued on the 20 March, that is within the one-day period allowed by the Chief Legal Costs Adjudicator, and that is exhibited in Mr Lander’s affidavit, and I have had sight of that. I do not propose to deal with that Form 9 in any greater detail
the moment. Mr O’Sullivan, then,
of his affidavit, avers that the matter came before the Chief Legal Costs Adjudicator on Tuesday, 24 March, and that he
tended on that date. And he refers to the fact that an
tendance note is set out in the affidavit of Mr Landers. Now, that
tendance note is actually a transcript of the hearing. 31.
of Mr O’Sullivan’s affidavit, he avers that the Chief Legal Costs Adjudicator delivered his decision on page 28 of 40 as set out
the transcript, and that the Chief Legal Costs Adjudicator expressly flagged that and I quote “I operate on foot of the court orders, of a High Court order, ordering me to adjudicate costs and I have a Court of Appeal order ordering me to adjudicate costs. I am not entitled to look behind those orders and, more importantly, I cannot grant a stay on those orders not that it was framed in that way. It was more that it would be more efficient if matters were adjourned and all matters could be dealt with Page 12 of 25 together that is a matter for the court. There is no stay on the orders so I will be proceeding with the adjudications.” 32. Now, I will insert here that that application for a stay is a different application than the application for a stay before me today, and the application for a stay referred to in the transcript of the determination on 24 March is not a stay or an application that the applicants are now progressing before me.
of Mr O’Sullivan’s affidavit he goes on to aver that counsel for the applicants argued on 24 March that there was, again, material non-compliance with O.99 of the RSC in terms of outstanding materials, and the full Form 9 was opened to the Chief Legal Costs Adjudicator. Mr O’Sullivan avers that counsel may refer to the full transcript of the hearing in due course, but he goes on to aver then, that it is apparent the Chief Legal Costs Adjudicator did not seriously or in any substantive way address the documentary deficiencies which existed
that time, even
that stage, nor were the documentary deficiencies properly explained by the representatives for the notice parties. When matters concluded on 24 March 2026, the Chief Legal Costs Adjudicator did not make any directions as regards the documentary deficiencies.
there is an averment, but I am going to move on because the applicants before me are not challenging the matter on that basis, and I then move to §25 of Mr O’Sullivan’s affidavit,
which he avers that O.99, r.26
this juncture that Mr O’Reilly did accept
hearing on 12 May, that is yesterday, that there were perhaps parts of Mr O’Sullivan’s affidavit Page 13 of 25 that were more by way of legal submission as opposed to factual matters. But given the short period of time between 07 May and 12 May, and also given the very short period of time between the hearing and the proposed adjudication tomorrow, I am prepared, for the purpose of this decision, to accept that there are certain legal submissions in the affidavits. And clearly issue may be taken with those in due course, if that is what the respondent or the notice parties wish to do. 34.
of Mr O’Sullivan’s affidavit, he avers that to the extent that the adjudicator has any discretion to “accept for adjudication” a bill of costs which does not conform with the requirements of the rules, that discretion may be found in O.99, r.26
of his affidavit that, taken
its height, O.99, r.26
its height, the exercise of the discretion requires that the adjudicator“so directs”.
of his affidavit, Mr O’Sullivan avers that on 24 March 2026, when the difficulties with the conformity were again raised by the applicants before the adjudicator on that occasion, the Legal Costs Adjudicator set the matter down for hearing on 14 and 15 May, without giving any further direction. And he said, and I quote, “I do not like giving formal directions unless they are required so I will not give a direction in it. I will just list it for hearing on the 14th and 15th and if there is any difficulty then you can come back to me in the meantime”. 35.
, Mr O’Sullivan goes on to aver that on that occasion, although the lack of conformity had been specifically raised on a number of occasions by that stage, the Legal Costs Adjudicator did not give any direction that the bill of costs “may be accepted for adjudication, notwithstanding lack of conformity”. Not only that, he gave no direction whatsoever, in fact, stating that he was not giving any direction, even if any discretion were to be argued to have somehow been exercised
that stage, it is clear that no such discretion was exercised in conformity with O.99, r.26
all, as was made clear by the Chief Legal Costs Adjudicator in his express statement to this effect. He goes on then, in §30, to note that the Chief Legal Costs Page 14 of 25 Adjudicator listed the matter for hearing on 14 May 2026, with liberty to apply if any issues arose, and with the matter listed for mention on 23 April 2026. 36.
he notes that he received a letter from Mr Fitzpatrick on 09 April seeking inspection dates, and that an actual inspection of the High Court file was carried out on 15 and 16 April 2026, and the Court of Appeal filed subsequently on 06 May 2026. Obviously, those files being the solicitor’s files dealing with the matters before the High Court and the Court of Appeal.
he then avers that the matter came before the Chief Legal Costs Adjudicator on 23 April 2026, for mention, and that he was in
tendance on that date. And again, he refers to a copy of the
tendance exhibited by Mr Landers, and that again is a transcript. And the Chief Legal Costs Adjudicator indicated that if any issues arose that there was liberty to apply. 37. He then goes on
to note that he wrote to Mr Fitzpatrick by letter on 05 May 2026, and he exhibits that communication, and that communication, for the purpose of time I am not going to deal with each issue, but it sets out that a complete and coherent set of invoices had not been furnished, time records had been sought but not been provided, and Mr Fitzpatrick’s response to Mr O’Sullivan did not address queries raised. It sets out that there remained a clear reconciliation issue, that the position was not limited just to reconciliation issues, there were also other issues as regarding invoices. And, in terms of time records, in circumstances where fees were claimed that any supporting time or narrative records, it was not possible to assess the nature, extent or necessity of the work undertaken. And then it also deals with the lack of clarity as to the correct VAT treatment and liability. Mr O’Sullivan then goes on
to refer to the lack of supporting documentation and lack of specificity, and that in simple terms, with regard to invoices rendered, it was impossible for him to form a cogent and informed professional view that such claims were properly made, or indeed he could not challenge same because without the details of the underlying calculations, he could not formulate a view on whether the calculations were appropriate and in line with best practice and
acceptable charge out rates, or whether the quantum of time incurred was commensurate with the quantum of the claim raised. In other words, were all claims properly made and in the right amount. Then he goes on to deal with the inspection on the Court Page 15 of 25 of Appeal file on 06 May, and then
he avers that given the breadth of unresolved issues, it was appropriate to file a further Form 9 on 06 May, seeking the guidance of the Chief Legal Costs Adjudicator in addressing the outstanding issues, and that that Form 9 again raised the issues with respect to documentary deficiencies, and again sought directions to include that the hearing be stayed pending the provision of the outstanding information and documentation in order to secure a fair hearing. And again, that second Form 9, dated 06 May, is exhibited in the affidavit of Mr Landers. 38. He then sets out in §39, that the notice parties objected to the filing of the Form 9, given the very short period between the filing of the Form 9 and the matter coming before the Chief Legal Costs Adjudicator the following day. Indeed, there may be an issue as to the fact that it was served in an even shorter time frame. But in any event, Mr O’Sullivan then avers
of his affidavit that the matter appeared before the Chief Legal Costs Adjudicator on Thursday 07 May, and he refers to an
tendance prepared by Mr Landers, solicitor, and that he believes that it is an entirely accurate record of what occurred before the Chief Legal Costs Adjudicator on that date, and it is an accurate record of the decision of the Chief Legal Costs Adjudicator on that date. As I have mentioned already, there is no transcript available for that. The memorandum prepared by Mr Landers is, I suppose, the best evidence before me
the moment. 39. Mr O’Sullivan then goes on to note
of his affidavit that the Chief Legal Costs Adjudicator had indicated that he had read the Form 9 but that, notwithstanding the issues that were identified as outstanding, he intended to go on with the hearing on 14 and 15 May for adjudication. Mr O’Sullivan avers
of his affidavit, that on 07 May, the Chief Legal Costs Adjudicator again did not exercise any discretion in any express manner, nor did he give any direction to the effect that the bill of costs “may be accepted for adjudication notwithstanding lack of conformity”. And the adjudicator actually stated, “I am not required to direct any proofs or make any determinations in advance of the adjudication hearing itself and on that basis I will set the matter down for hearing on 14 and 15 May
10am”. Page 16 of 25 40. Mr O’Sullivan then avers that it is again apparent that even if any discretion were to be argued to have been exercised, for example implicitly
that stage, it is clear that no such discretion was exercised in conformity with O.99, r.26
all, as was made clear by the Chief Legal Costs Adjudicator in his express statement to that effect.
, he avers that the uncertainty as regards VAT affected not merely his quantum and liability assessment, but also his ability to advise the applicants on considering statutory tender/lodgment options. And that in addition, the missing vouchers may also preclude the confirmation of disbursements.
, he observes that his impression from the hearings and from the approach adopted by the Chief Legal Costs Adjudicator was that he was minded to allow the adjudication Page 17 of 25 process to continue notwithstanding the outstanding documentation and issues raised, with those matters to be dealt with more fully
the substantive hearing of the bill of costs. In other words,
the adjudication tomorrow. He goes on to aver that one could understand that this might be done with the motivation to establish efficiency but he states that this approach actually creates more inefficiency and more work and more uncertainty. He goes on to aver that the costs hearing is presently listed for hearing on Thursday 14 and Friday 15 May, and that he did not yet have a full understanding of either the High Court or Court of Appeal file, that communication was issuing to him piecemeal as late as Friday 08 May, which was less than a week prior to the hearing. He then avers that his understanding of the guidelines to which I have already referred, is that they provide a regime where notices are required to be complete and all supporting documentation is to be provided for
the time the matter is set down for hearing, after the parties have had an opportunity to engage with the papers, and after the parties have had a reasonable opportunity to be heard. He avers that he is aware that there are provisions to allow the Legal Costs Adjudicator to make directions and to accept notices that might not be in strict compliance with the orders and the guidelines, but the facts of this particular case is that no meaningful engagement took place prior to the service of the notices and, in Mr O’Sullivan’s view, no meaningful consideration of the outstanding information set out in the Form 9s took place. He then observes that the breadth of the omissions are not minor stray invoices, but there are significant and material gaps in the entire bundle, that he had already identified in the Form
the moment. When hearing the application yesterday, I Page 18 of 25 raised a question and that was dealing with the “normal”, if I can put it that way, time interval between submitting a bill of costs and making an application for adjudication, and Mr O’Sullivan averred to that in an affidavit sworn by him today, that is 13 May. He avers
to the question that I have just referred to that in respect of the Court’s question as to whether the notice of adjudication was precipitous, the usual process is that the bill of costs would be served, and a period of time would be given to allow for agreement in advance of serving the notice of adjudication. He goes on to aver that there are no set timeframes for this other than a notice of adjudication cannot be served
the same time as a bill of costs.
the commencement of the adjudication tomorrow, could Mr O’Sullivan deal with it overnight, which might have been possible if the volume of material were small, or was it likely to require a lengthier consideration by Mr O’Sullivan, and that clearly was more likely if the volume of documentation were large. Mr O’Sullivan did swear to that in his affidavit sworn today, and
he avers that it was on my request to query the extent of the information that is outstanding and how quickly it could be dealt with, that I indicated that I appreciated that, that I might be asking him to prove a negative, but I was looking for a guesstimate on the volume of documentation awaited.
of his affidavit, he averred that it was difficult
present to provide any reliable estimate by reference solely to page numbers. The issue was less whether the outstanding material amounts to 50 or 500 pages, but more whether the documentation ultimately produced was capable of meaningful review, reconciliation and Page 19 of 25 verification against the file and the papers. He also averred that further documentation and correspondence, including time records, were furnished late last Friday, following the inspection process that had already been undertaken. He then averred that concerns identified
of his affidavit, to which I have referred, and the Form 9 application, principally related to time records, invoices and supporting documentation across multiple firms and entities, together with the need to reconcile same against the bills and liability material furnished. He averred that given that the bill advanced is a claim of €3.2 million approximately, spanning multiple firms and entities, the review required was not simply one of volume but of proper reconciliation and verification. 46.
, he averred that based on his experience in reviewing bills of this nature, the outstanding documentation in issue appeared to extend to substantial time records, invoices, accounting material and VAT-related documentation, requiring detailed consideration and reconciliation. In those circumstances, he averred that it was difficult to see how such material could realistically be reviewed in any meaningful way, if only produced
the commencement of the adjudication or shortly before the adjudication. He also averred that, for the assistance of the Court, as set out in §46 of his affidavit that he had received further information on Friday last, and had spent significant time reviewing same, including today, 13 May, in preparing as best as he could for the hearing scheduled tomorrow and Friday. But the delivery of outstanding information on a piecemeal basis, given that the bill has advanced a claim of approximately €3.2 million spanning multiple firms and entities, did not allow for proper reconciliation and verification and, as he understood it, was neither in conformity with the rules nor the guidelines. And that is the extent of the expert evidence available before me. 47. Moving on then to the substantive part of my decision, and I have taken a significant period of time in outlining the factual matters and the expert evidence from Mr O’Sullivan, because I am mindful of the orders that I am about to make. They are in essence in favour of the applicants, but I am very mindful that they are orders being made
very much the last minute and again, I take no issue with the applicants in this regard, given that the matter was last before the Chief Legal Costs Adjudicator only last Thursday. So first and foremost, and as regards the Page 20 of 25 application for leave to issue judicial review proceedings, the applicants have to satisfy me that they have an arguable ground or grounds. I am satisfied that the applicants have such arguable grounds, in circumstances where firstly, the Chief Legal Costs Adjudicator does not appear to have made any determination on the two Form 9s and whether or not the applicants can properly engage with the adjudication on a fair and informed basis, in circumstances where the bill of costs does not conform with O.99, r.23 of the RSC. Secondly, the Chief Legal Costs Adjudicator does not appear to have made any determination or direction that the bill of costs may be accepted for adjudication, notwithstanding lack of conformity, and that determination or direction could be made pursuant to O.99, r.26
the moment and based upon the expert evidence of Mr O’Sullivan. It is for this reason and given the information deficits in this case, I am satisfied that the applicants do not have an effective alternative remedy available to them, if the Chief Legal Costs Adjudicator were to proceed to an adjudication on 14 and 15 May, as intimated by him last Thursday, 07 May. 49. In coming to this conclusion, I am mindful of the decision of the Supreme Court, the recent decision of the Supreme Court in LA v. The Chief Appeals Officer [2026] IESC 22, where Donnelly J, in giving judgment for the Court, set out
the following principles in relation to the Court’s discretion to refuse judicial review where an alternative remedy exists. Inter alia, she states that the default position is that a party should pursue a statutory appeal or review rather than initiate judicial review proceedings and that the rationale for this principle was multifaceted, but in effect it is to give effect to the legislative intent in the creation of alternative remedies; that there may be advantages to having an appeal over judicial review, that is, to safeguard judicial resources so that the courts remain available to provide speedy relief in other cases where intervention is required; and the implication for costs and/or for delay for both claimants and for the State and public bodies in applying for judicial review instead of using the alternative appellate machinery. The exercise of discretion to refuse to grant a remedy of judicial review which may otherwise be justified is tightly bounded by legal and constitutional considerations. The High Court’s judicial review power over administrative bodies and courts of limited jurisdiction acts as a safeguard to the rule of law, and the balancing of these important legal and constitutional considerations is central to the exercise of this Court’s discretion. Cases where judicial review will be permitted are exceptions to the general rule, an applicant may not have to exhaust an alternative remedy where it is not adequate, or where there is a particular exigency in the interests of justice which requires judicial review to lie. And in the circumstances of this case and primarily that there would appear to be a significant information deficit, and given the matters referred to by Mr O’Sullivan on affidavit, I am satisfied to exercise my discretion and grant leave to issue judicial review proceedings. Page 22 of 25 50. I then must turn my
tention to the request for a stay, and in so doing, I am mindful of the decision of Clarke J in Okunade v. Minister for Justice [2012] IESC 49; [2012] 3 IR 152, in respect of which I was referred to §31-158 of the most recent edition of Delany and McGrath on Civil Procedure by Mr O’Reilly for the applicants. And again, I think it is important to quote so that the applicants and indeed the respondent understand where I am coming from in terms of granting a stay, and I quote from the most recent edition of Delany and McGrath on Civil Procedure as follows. It is stated therein
-158: “The seminal authority which sets out the test for a grant of a stay in judicial review proceedings is Okunade v. Minister for Justice, Equality and Law Reform. Clarke J stated that when faced with the question as to what is to happen pending a full trial the Court has to balance the competing legitimate interests involved, and that it did not seem to him that the task of balancing those interests was different depending on whether the measure sought to be challenged was one which should be quashed by certiorari or prohibition, or whether an injunction was considered the appropriate means of intervening. In his view, the Court must in all cases act so as to minimise injustice. And he stated as follows: The underlying requirements of justice are not dependent on the form of judicial review order ultimately sought or the form of temporary order applied for. It does not seem to me, therefore, that the criteria to be applied in deciding whether a stay should be excluded under O.84 r.20
(c) that “The court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages", and I will return to that shortly. And then
(d) “In addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant’s case.”
ground 1(ii) of the ex parte docket, (and not ground 1(i), noting while that counsel for the applicant indicated
hearing that leave was solely being sought on ground 1(ii), no concessions were being made as to what occurred
1(i)); ground 1(ii); ground 1(iv); ground 1(v); ground 1(vi); ground 1(vii); ground 1(viii); ground 1(ix). I am not granting leave on ground 1(x). Ground 1(xi) is damages, and I suppose that can flow in due course, whether or not the ultimate court hearing the application is prepared to award them or not. And I will reserve the question of costs both in relation to the ex parte leave application and the stay application.
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.