Supreme Court dismisses appeal and awards costs to University College Dublin as entirely successful party.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Record No. S:AP:IE2023:000102

O’Donnell C.J. Charleton J. O’Malley J. Collins J. Donnelly J.

Between/

PATRICK KELLY

Appellant/Plaintiff

-and-

UNIVERSITY COLLEGE DUBLIN, NATIONAL UNIVERSITY OF IRELAND

DUBLIN

Respondent/Defendant

-and-

THE LAW SOCIETY OF IRELAND AND THE GENERAL COUNCIL OF THE

BAR OF IRELAND

Amici Curiae

RULING of the Court as to costs delivered electronically on the 1st day of May, 2025

1. Judgment in this appeal was delivered on the 12th February, 2025 (O’Donnell C.J., nem. diss.), in which the appeal of the plaintiff appellant (“the Appellant”) was dismissed. The parties were given time to consider the judgment and made submissions on the appropriate order as to costs. As a result of exchanges in Court on the date of delivery of the judgment it was directed that the Respondent, University College Dublin, National University of Ireland, Dublin (“UCD”) and the amici curiae, the General Council of the Bar of Ireland (“the Bar Council”) and the Law Society of Ireland (“the Law Society”) should deliver submissions to which the Appellant would be given time to respond.

2. In the event, the amici curiae delivered submissions to the same effect: both stated that they would bear their own costs, and were not seeking any order for costs, but would resist any application for costs against them, the Appellant having intimated that he would make such an application.

3. UCD for its part submitted that it had been entirely successful in the appeal. Accordingly, the provisions of s. 169 of the Legal Services Regulation Act, 2015 were applicable in principle, which provides that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in these proceedings, unless the court orders otherwise. In this case, UCD had been entirely successful against the plaintiff/appellant in the appeal.

4. However, UCD acknowledged that this Court in Little v Chief Appeals Officer [2024] IESC 53 (“Little”), had set out a general approach to the award of costs in cases in which this Court had granted leave to appeal on grounds that the appeal involved a matter of general public importance and in which it could be said there was a public interest in the appeal. The judgment of Murray J. addressed the question of litigation brought in what was contended to be the public interest, against the State or a State body. No difficulty arose in cases in which a claimant or appellant was successful against the State in such proceedings: the normal order would provide that their costs in such a case were to be paid by the State consistent with s. 169. However, it was necessary to consider the more difficult position in respect of a claimant or appellant who was unsuccessful in what could be described as public interest proceedings brought against the State.

5. Paragraph 77 of the judgment sets out the presumptive position in such cases: “This Court should now adopt a starting position in the exercise of its discretion whether to award costs against an unsuccessful claimant in public interest proceedings as I have defined them at paragraph [34] of this judgment. In such proceedings the starting position should apply to cases in which the Court has granted leave to appeal on the basis that proceedings disclose a matter of general public importance, and where the Court, following the hearing of the full appeal, has not differed from the view of the Panel granting leave that the appeal discloses such an issue. In such cases, the starting position should be that the Court will exercise its discretion not to order costs of the proceedings against that unsuccessful plaintiff or applicant. In such cases, the defendant/respondent may request the Court to order otherwise. The factors on the basis of which the Court will exercise its discretion to make an order for costs are set out at paragraphs [35]and [53] of this judgment in the case of the costs of the appeal. Presumptively, the same principles should apply to the costs incurred before the case reached this Court in the High Court and, where applicable, Court of Appeal. However, if the proceedings in the other courts involved issues that were not before this Court, or there are particular features of the earlier conduct of the case relevant to the allocation of costs, different cost orders as between the various courts may apply.”

6. UCD argued that although it is a university regulated by statute and benefitting from State funding, it could not be considered to be the same as “the State” envisaged in the Little judgment. It also argued that the case was not necessarily a truly “public interest” civil suit as such. UCD pointed out that the issues in respect of which leave was granted to appeal, (whether the judge hearing the appeal was disqualified from hearing it by reason of the fact that his son was employed in the firm acting for UCD) was unconnected to the issues in the suit, and did not concern any alleged act or omission of either party, but rather concerned the court process itself. UCD also pointed to a number of other factors which it said could weigh against the Appellant and warrant an order that he pay some or all of the costs of his own successful appeal. It should be said that the Appellant challenged these contentions on the part of UCD, but it is not necessary to come to a conclusion on these matters as UCD did not seek costs but rather invited the Court to exercise its discretion in accordance with the presumptive position in Little, i.e. that there would be no order for costs on the appeal.

7. However, UCD argued, as indeed contemplated by the judgment in Little at paragraph 77, that different considerations should apply to the costs already awarded in respect of the Circuit Court proceedings and the appeal in the High Court. The costs in the Circuit Court and High Court had been awarded following the event, and the Respondent had been successful in the question at issue in those proceedings, namely discovery/production of documents, against the Appellant. The issue of general public importance only arose after the hearing and decision in the High Court and was advanced for the first time on the application for leave to appeal to this Court. The particular point certified, namely the fact that a son of the judge in question was employed in one of the departments of the firm then on record for UCD, was not a matter for which UCD could be said to be responsible and of which it does not appear that UCD was aware before the hearing of the Circuit Court appeal. In those circumstances, it was argued that it was appropriate to distinguish between the question of the costs of the Supreme Court (on which no order for costs should be made), and the costs of the Circuit and High Court (where the order for costs made in both courts should not be disturbed).

8. The Appellant delivered his submissions on the 3rd March 2025. At that point the position was that neither the Respondent nor the amici curiae were seeking any order for costs against the Appellant in respect of the appeal, notwithstanding the fact that he had been wholly unsuccessful in the appeal. However, the Appellant argued that he was entitled to a positive order for the costs of the appeal against UCD, and also against the amici curiae. Furthermore, he argued, the Court should go further and make an order setting aside the costs order made against him in the Circuit Court and High Court and also order that UCD pay his expenses in relation to the interlocutory application in both the Circuit Court and the appeal to the High Court. Finally, the Appellant also seeks an order correcting what he describes as “basic factual errors in paragraphs 15, 21, 26, 30, 37, 38 and 39 of the judgment of the Chief Justice”, the judgment delivered on the 12th February, 2025. It is necessary to address these matters separately.

The Appellant’s application to be awarded costs against UCD

9. The Appellant’s submission also makes reference to s. 169 of the Legal Services Regulation Act 2015, but for the purposes of invoking the exception to the general rule (i.e. that a party that has been wholly successful is generally entitled to their costs) and which exception provides that the Court may nevertheless order that a party who is entirely successful in civil proceedings may not be entitled to an award of costs against a party who is not successful and may do so having regard to, inter alia, the conduct of the proceedings.

10. In this case however, this provision, even if potentially applicable, is not of assistance to the Appellant, since the party which was entirely successful in the appeal (UCD) has not sought an award of costs against him. However, for the purposes of this ruling the Court will assume that the Appellant seeks to rely on the same matters, namely the conduct of the litigation, as justifying a positive award of the costs of the appeal in his favour. For reasons which do not require much elaboration this argument cannot be accepted. The sole matter relied on by the Appellant in this regard is a complaint that although UCD had obtained a number of orders for costs against him in these proceedings, it had not yet had those costs adjudicated, and had not sought to enforce them against him. He considered that UCD had already incurred costs in the proceedings which a judge in the High Court had previously described as “immense” (Kelly v University College Dublin [2013] IEHC 23 Hedigan J para 4 ) and suggested that UCD did not want the amount that they had spent on legal costs to become generally known. It is not necessary to analyse this contention in any depth. It is difficult to see how the fact that orders for costs have not yet been enforced against the Appellant should be a basis not just for refusing to make an order for costs against him, but rather for making a positive award for costs in his favour.

11. There are very exceptional cases in which an unsuccessful party has succeeded in obtaining an award of costs, whether full or partial, in their favour. There is nothing in the facts of this case which would justify such an approach. The position taken by UCD in respect of costs of this appeal was reasonable. There is no reason to go further.

12. It may also be relevant to note that the Appellant was informed of the ad hoc scheme under which solicitors and barristers make their services available to unrepresented parties in respect of appeals which have been granted leave to appeal to this Court. The Appellant, as he was entitled to, refused the offer of assistance under this scheme, and as he was entitled to, argued the case himself. It follows, that even if successful, or if the Court was minded to make any order in his favour it could not be of costs which he did not incur, but rather only to any expenses he might have incurred.

The Appellant’s application for costs against the Amici Curiae

13. The standard practice in respect of the costs of an amicus curiae is that they are permitted to attend and participate in an appeal normally on terms that they will bear their own costs, and furthermore not seek costs against another party, see e.g. I v Minister for Justice Equality and Law Reform [2003] IESC 42, [2003] 3 I.R. 197, and Clare County Council v McDonagh [2022] IESC 15. However, the Appellant, relying on an unreported judgment of first instance in the High Court in South Africa in Fourie v Minister van Binnelandse Sake and Another (Lesbian and Gay Equality Project as Amicus Curiae )(delivered 18 October 2002, “Fourie”), sought to contend that both amici curiae in this case should, together with the Respondent, be ordered to pay his costs of his unsuccessful appeal, because it was said that the amici curiae had become partisan, and/or made common cause with a party.

14. There are compelling arguments against making such an order in this case, on grounds of principle, but also for reasons of practicality and common sense. For the purposes of this ruling, the Court is prepared to assume, without deciding, that it might be possible for a court to order costs against an amicus curiae if the court considered that the amicus had become so partisan as to be identified with a party, and had become so zealous in the advancement of that party’s case that it could not be said to bring the level of objectivity necessary to provide assistance to the court. However, where such a possibility arises, it must normally be the case, (as it was in Fourie at first instance) that the party with whom the amicus curiae has made common cause, has been unsuccessful, and costs have been awarded against them as well. In such circumstances however there must be a threshold question as to why it would be necessary to go further and make a duplicate order for costs against an amicus curiae, unless perhaps there was some doubt as to the solvency of the unsuccessful party. In this case however, that point has not been reached since the party with whom it is alleged the amici made common cause, UCD, has been wholly successful, and no order of costs or expenses has been made against it.

15. Again, the Court is prepared to assume, for the purposes of this ruling, and without deciding, that there may also be circumstances in which an amicus curiae has so far exceeded their appropriate function, and has been so zealous in the pursuit of the interests of a party that it can be said to have become partisan in promoting that party’s case, that even where the arguments advanced were successful (and perhaps even when the party with whom the amicus is alleged to have made common cause has obtained an order for costs in its favour), a court might nevertheless consider that the conduct of the amicus was so reprehensible that it should be marked by an award of costs against the amicus curiae.

16. Such a case must however be wholly exceptional. Nothing in this case approaches that type of extreme case in which a court might have to give consideration to awarding costs (or expenses) against an amicus curiae because it was alleged to have become partisan and advanced the case of a party, even when that party’s case was successful.

17. Here, the Appellant pointed to the fact that counsel for the amici curiae in the case were seen to have communicated with each other and counsel for UCD and sat on the same side of the court. There is nothing in this that would give rise to the type of exceptional case the law would require. It is indeed regrettable that this argument was advanced at all. It may be that it flows from a misunderstanding of the proper role of an amicus curiae. The decision of a court, and particularly a court of final appeal, may have a significant impact on the law more generally, and in particular, law which is applicable to similar or analogous circumstances. The impetus for any change in the law comes from the fact that a party, pursuing his or her own self-interest, may advance an argument which has the effect of significantly changing the law. However, that party’s interest is normally only in advancing their own case and securing a favourable result. The party may be unaware of other analogous circumstances and the possible wider impact of any decision made in the case.

18. An amicus curiae may therefore, either apply to join the proceedings or may be invited to do so. In most cases an amicus will point to considerable experience in the field which may allow the court to better understand the sweep of the issues involved and their possible impact. It follows therefore that an amicus will almost always have an interest in the case and if it is to perform its role in assisting the court in deciding the case, may well offer views as to the proper resolution of the case. As explained by Keane C.J. In I. v Minister for Justice, “there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterised as a meddlesome busy body”. Having an interest in the issue, and therefore the outcome, is a qualification for joinder as an amicus rather than a cause for criticism. It is noteworthy that the professional bodies were permitted to appear as amici in cases such as O’Brien v PIAB (No.1) [2005] IEHC 100, [2005] 3 I.R. 328, and Sheehan v Corr [2017] IESC 44, [2017] 3 I.R.

252. It is normal for counsel and solicitors to communicate with each other, coordinate submissions and agree on approaches and time allocation even if on opposite sides and to arrange themselves in court in a way that recognises the thrust of the submissions being made (In this case for instance it was provided that the amici should deliver their submissions allowing the facility for a response by the Appellant as it was apparent that their submissions were adverse to the case being made by him). None of this makes an amicus overzealous or partisan or could justify an award of costs or expenses against them.

19. In this case, there can be no valid criticism of the approach of the amici curiae. They had a legitimate interest in making submissions since the issue raised the question of representation which was of relevance to members of each branch of the legal profession. The submissions made were of assistance, and objective. Notably, for example, the amici argued that the law set out in O’Reilly v Cassidy [1995] 1 ILRM 311 could no longer be regarded as good law for reasons elaborated upon by them and accepted in the judgment. This was consistent with a disinterested desire to assist the Court with submissions as to the general law, in keeping with the role of amici curiae. There is no valid basis for making an order for costs against the amici.

The setting aside of the order for costs made in respect of the application for documentation in the Circuit Court and the appeal to the High Court.

20. It is argued by the Appellant that the point of law of general public importance in this appeal would not have arisen had he not sought documentation pursuant to rule 6(6) of Order 57A of the Circuit Court Rules, and when that was refused, appealed the Court’s refusal of such an order to the High Court. But there is a clear distinction between the issues argued in the Circuit Court and High Court, which themselves raised no issue of general public importance, and the issue considered by this Court on appeal. The Court has already decided that the Appellant should not recover costs or expenses of this unsuccessful appeal, and no party has sought the costs of the appeal against him. The effect of this is he is not penalised for having raised the issue, but is not rewarded either. On the other hand, UCD should not be deprived of the benefit of the award of costs properly made in both courts.

The Appellant’s application for the expenses incurred by him in the Circuit Court application and High Court appeal.

21. This is a further consequential order which the Appellant now seeks. It appears however that it can only logically arise if the Appellant obtained the costs/expenses of the appeal (notwithstanding the fact that he was unsuccessful) and if the Court had then gone further and set aside the order for costs in the Circuit Court and the High Court. In those circumstances, it might be possible to argue that the Court should go further again and substitute an order that the Appellant should recover his expenses in those courts. However, in the light of the decisions the Court has come to on the questions of the costs in the Supreme Court appeal and the setting aside of any order for costs in the Circuit Court and High Court, the Appellant’s application in this respect cannot succeed. If there is no proper basis for setting aside the order of costs made against the Appellant in the Circuit Court and High Court, there can be no basis for making a positive order in his favour that he should recover the expenses incurred in the Circuit Court application and the High Court appeal.

Order

22. The order of the Court in respect of costs is accordingly that no order of costs will be made on this appeal in favour of any party, and this Court will not interfere with the order for costs made in the Circuit Court and the High Court, in favour of the Respondent UCD against the Appellant.

Alleged factual errors in the judgment.

23. In Nash v DPP [2017] IESC 51 delivered on 13 July 2017, O’Donnell J. addressed the question of errors in a judgment. The judgment in Nash distinguishes between three types of error: first an error which goes to the heart of the decision, and which may justify setting it aside under the exceptional jurisdiction first recognised in Re Greendale Developments Ltd. (No. 3) [2000]

2 I.R. 514 (“Greendale”). Second, there are errors which may be neither central to the reasoning of the case nor capable of establishing such a fundamental departure from the administration of justice as would justify the application of the Greendale jurisdiction. Nevertheless, the error, if it be such, may be considered to be of some significance either because of its impact on an individual, or its potential for confusion and worse in relation to separate matters, or perhaps for the sake of simple accuracy. In such a case it should be possible, without making a formal application, to have the court consider whether any such error has occurred, and if so, correct the judgment, in any approved version. Finally, there are matters which may be errors but which are self-evidently trivial and inconsequential. In such circumstances the party should recognise that the issue is indeed inconsequential and that no point is served by seeking to require its correction and that there is certainly no question of it justifying an application to set aside the judgment.

24. While the Appellant in his application seeks an order correcting alleged errors, it does not appear that he seeks to have the judgment set aside on this basis. In this regard, it seems that he is plainly correct: even if he established that each of the matters identified was in error, it cannot be said that any of them is inextricably bound up in the central reasoning of the Court so that their correction would or could undermine the decision. Accordingly, this Ruling will proceed on the basis that these are alleged to be errors falling into the second category. The Appellant says he seeks correction because of what he fears will be the impacts on public perception of any future hearing of this litigation of leaving them uncorrected. This seems unlikely, and it is possible that some of these matters, even if established, might properly be regarded as trivial or inconsequential. In all the circumstances of the case, which by any standards has been long running and contentious, it is preferable to address each of the issues raised by the Appellant.

Paragraph 15

25. This paragraph of the judgment records that UCD contends that although the Appellant was unsuccessful in his initial application for admission for the Master’s of Social Science (Social Work) – Higher Diploma in Applied Social Studies for the academic years 2002-2004, UCD contended that he had been subsequently offered a place from the waiting list, and referred to the High Court

decision recording this in Kelly v Director of the Equality Tribunal [2008] IEHC

112 (para. 8). The Appellant contends that it is wrong to state that he was offered a place on the course. He refers for his part to sentences in Kelly v UCD [2017 IECA 161, [2017] 3 I.R. 237, and the decision of the ECJ in Kelly v National University of Ireland (University College Dublin) C-104/10 EU:C:2011:506 (para. 19) which he says supports his contention that he was not offered a place on the course.

26. The judgment in this appeal does not make any finding that the Appellant was offered a place on the course, nor could it, since no evidence was addressed to that issue. Instead, the judgment recorded UCD’s contention in this regard but concluded that nothing turned on this issue for the purposes of this appeal. It is difficult to see that this can be properly characterised as an error, but in ease of the Appellant the Court will amend the approved version of the judgment so that it reads “University College Dublin contends that the Appellant was subsequently offered a place from the waiting list – see Kelly v Director of Equality Tribunal [2008] IEHC 112 (para. 8). The Appellant for his part denies this and refers to Kelly v UCD [2017] IECA 161, [2017] 3 I.R. 237 (at para. 5) and Kelly C-104/10 EU:C:2011:506 (para. 19). However, nothing turns on this issue for the purposes of this appeal”.

Paragraph 21

27. This paragraph of the judgment states that the Appellant requested that McKechnie J. recuse himself from further hearing of the matter. The Appellant contends that this is incorrect, and that the true position is that Mr. Justice McKechnie recused himself of his own motion, having been presented with that option by the then President of the High Court, Mr. Justice Kearns. It should be remembered that this portion of the judgment was merely setting out the background to the litigation and its progress, before addressing the single issue arising on the appeal, namely the question of disqualification. The account in this paragraph does not purport to be a finding of any disputed fact. The reference in paragraph 21 is taken from the judgment of the High Court in Kelly v National University of Ireland & Anor [2012] IEHC 169 (9 May 2012). At paragraph 12 of that judgment Hedigan J. had stated that the “Article 234 reference was determined by the ECJ. When the matter came back to the High Court the plaintiff made an application that McKechnie J. recuse himself. The matter then came before this Court in March 2012”. The Appellant has not identified any evidence or other record suggesting that McKechnie J. recused himself of his own motion. However, in ease of the Appellant, the Court will amend the judgment to read as follows: “Subsequently the High Court was required to consider the case in light of the CJEU ruling. The matter was heard by Hedigan J. The Appellant also brought a number of interlocutory injunctions …”.

Paragraph 26

28. The Appellant complains that in this paragraph it is not acknowledged that the offer made by UCD to provide redacted copies of the documents was an open offer. It is difficult to understand why this might be characterised as an error of fact in the judgment. Moreover, the following paragraph 27 recites that the Appellant’s application was for copies of redacted documents which he alleged UCD had “confirmed on an open basis” its “willingness to provide”. The Appellant also suggests that the offer was not connected to his initial application under rule 6(6) Order 57 of the Rules of the Circuit Court. Since the offer made by UCD was of documentation or information (redacted) in respect of which the Appellant had made a formal application under rule 6(6) for the same documentation (unredacted) the question of whether the two matters were connected or not is perhaps one of interpretation or nuance, does not appear to be in any way relevant, and does not seem to rise to the status of an error of fact which requires to be corrected.

29. It appears that at best this is a matter of interpretation far removed from the issue of law for which the decision of the Supreme Court stands as authority. It is difficult to see that the account in the judgment can have any adverse impact on the Appellant. Accordingly, no adjustment to the judgment in this regard will be made.

Paragraph 30

30. The Appellant takes issue with the statement in this paragraph that “the Appellant again asked the Judge to recuse himself, this time on grounds that he had made a complaint against the Judge under the provisions of s. 51 of the Judicial Council Act, 2019 (“the 2019 Act”) … .” The Appellant’s complaint in this regard is, apparently, that he considers that his application for recusal was not on the grounds that a complaint had been made against the judge, but rather because of the content of that complaint. He also sets out in a footnote that complaints under the 2019 Act are not made under s. 51, but rather s. 50(1) of the Act.

31. Accepting for this purpose that the Appellant’s complaint related to the substance of the complaint made to the Judicial Council rather than to the fact itself, it seemed from the transcript that the judge understood the application as one for recusal because a complaint had been made. The full exchange is as follows:- “Dr Kelly: you are not functus officio yet. I have made a complaint against you under Section 51 of the Judicial Council Act 2019. No rightminded person who read that complaint or reviewed the relevant evidence would think you are a proper or appropriate person – Mr Justice Meenan: Mr Kelly, if you think for one minute I am going to recuse myself on the basis of a complaint which you are making to the Judicial Conduct Committee, I certainly will not. …” It is also apparent that the transcript (perhaps inaccurately) recorded the Appellant as referring to a complaint being made “under Section 51”, and that was faithfully recorded in the judgment. Again it is difficult to see that anything turns on this. However, and for the sake of clarity, the judgment will be amended to read “On that occasion the Appellant again asked the judge to recuse himself, this time on the basis of a complaint he had made against the Judge under the provisions of s. 50(1) of the Judicial Council Act 2019 …”

Paragraphs 37 and 38 of the judgment

32. These paragraphs record the development of a complaint by the Appellant in relation to the judge’s connection to UCD from that raised in his initial application for leave, to his replying submissions and ultimately that expressed in a fresh application for leave to appeal from the decision which was determined by a panel of this Court (Charleton, O’Malley and Collins JJ) immediately after the hearing of the appeal [2024] IESCDET 86. Paragraph 37 described the further matters raised in his replying submissions as in relation to the judge’s “father, uncle and two of his aunts”. Paragraph 38 described the matters set out in that application as relying on the judge’s connection to UCD and that of his family being matters in respect of the judge’s “father, uncle and aunt’s connection to UCD”. The Appellant objects that in his written submission in response to the written submission of the Law Society he had pointed out that the judge was hearing a case against “his, his wife’s, his son’s, his daughter’s, his father’s, his sister’s, his grandfather’s, his uncles’ and his aunts’ alma mater, and his, his grandfather’s, his uncles’, and his aunts’ former employer”. In the fresh application for leave to appeal he states that he relied on the “Mr Justice Meenan’s wife’s, his father’s, his sister’s, his grandfather’s, his uncles’ and his aunts’ ties with the respondent” and details were set out in that application.

33. It should be said that in these paragraphs of the judgment reference is being made to a claim in respect of which the Appellant had been refused leave to appeal to this Court, where an application was made to extend the grounds which was refused, and a further and fresh application for leave to appeal which was also refused. They are, therefore, not relevant to the issue upon which leave was granted, and which was the subject of the hearing and the decision. Nevertheless, and in the interests of accuracy, paragraph 37 of the judgment will be amended so that it reads “the Appellant sought to raise yet further matters in relation to the judge and his family’s connection to UCD, and positions held in the University by members of the judge’s family …” Paragraph 38 of the judgment will also be amended to read “the Appellant brought a fresh application for leave to appeal from the decision of Meenan J. on 22 June 2023, relying on matters set out in respect of the judge, and his family’s connection to UCD as constituting objective bias”. It should be noted that the two applications for leave to appeal, and the Court’s determination, are publicly available documents which in this respect speak for themselves.

Paragraph 39

34. This paragraph states “the Appellant maintained that the Respondent was obliged to give evidence on this matter and furthermore insisted that he had a right to cross-examine any witness giving evidence”. The Appellant objects that this paragraph “fails to record that the respondent [UCD] ’maintained’ that evidence was required”.

35. It is perhaps difficult to accept that this can be said to amount to an error of fact let alone one which demands correction. The position is that both parties accepted that in the light of Nicholas v Cyprus Application No. 63246/10, 9 January 2018, evidence was necessary. However, the Appellant went further and insisted that he had a right to cross-examine any witness giving evidence which meant that an oral hearing was required. Nevertheless, the judgment will be amended to read “The Appellant and Respondents accepted that evidence was necessary on this matter. Furthermore, the Appellant contended that he had a right to cross-examine any witness giving evidence and wished to do so …”.

36. It has been necessary to address these matters in some detail, not least because the Appellant maintains that these matters were all adverse to him. On analysis it is very doubtful that they constitute errors of fact which merit a formal application, or the alteration of the judgment. Nevertheless, there may be some benefit in the context of the legal saga which is still live, in having an account of facts which the Appellant accepts. Furthermore, since these matters were raised in the context of a very detailed costs application, which had to be determined in any event, it is convenient to deal with them in this ruling so that the changes and the reasons for them should be clearly recorded.