Former Justice Minister Alan Shatter is to appeal the rejection of his High Court bid to quash parts of the Guerin report concerning his handling of allegations made by Garda whistleblower, Sergeant Maurice McCabe.
Mr Shatter did not oppose an application on behalf of barrister Sean Guerin for him to pay the costs of the failed challenge but his lawyers asked for, and secured, a stay on that costs order pending appeal to the Court of Appeal.
Paul Anthony McDermott BL, for Mr Guerin, said they were seeking their costs, including reserved costs, but were not opposing a stay as there was a statutory right of appeal.
Paul Sreenan SC, for Mr Shatter, said he was instructed to appeal and wanted the stay on the costs order in those circumstances. There was no basis in the High Court judgment for him to oppose the costs order, counsel said.
Mr Justice Seamus Noonan said he would make the costs order as sought but stay it pending the determination of the appeal.
Last month, the judge rejected Mr Shatter's challenge on all grounds. He said he could not see how Mr Shatter, as a member of the Government that decided to obtain and publish the report compiled by barrister Sean Guerin into the handling by relevant public bodies of the McCabe allegations, "can complain of the consequences".
The "principal focus" of Mr Shatter's case following commencement was an attempt to prevent the Commission of Investigation, set up by the Government in line with the Guerin report recommendations, investigating Mr Shatter's role in relation to Sgt McCabe's complaints, the judge said.
Mr Shatter sought to mount "a collateral attack" on the Commission where a conscious decision was made not to join it, or the government, to this case, the judge said. "That cannot be permitted." Jusdicial revew was intended to protect citizens against unjust attack, not "to facilitate the adoption of stratagems or tactical positions designed to achieve a different purpose".
The Guerin report involved an expression of expert opinion, was "legally sterile" and Mr Shatter's complaints appeared, in reality, to concern its publication and later political consequences, he observed.
Nowhere in Mr Shatter's evidence did he appear to say the report's conclusions were in fact wrong and, if so, why, the judge noted. Mr Shatter must also have appreciated the absence of documents in his Department relevant to any investigation of Sgt McCabe's complaints called for an explanation but he "offered none".
In judicial review proceedings against Mr Guerin, Mr Shatter challenged sections of the report compiled by Mr Guerin, and published in May 2014, after his review of the handling of the McCabe allegations.
Mr Shatter claimed Mr Guerin made a number of highly critical "findings" concerning the then Minister's handling of the allegations, leaving Mr Shatter with no alternative but to resign as Minister. Mr Guerin denied any unfairness and said his report contained "observations", not conclusions, based on documents provided for the review by the Department of Justice.
The disputed aspects of the report included statements by Mr Guerin the Minister had accepted the response of then Garda Commissioner Martin Callanan to the McCabe complaints “without question” and that there was no independent investigation of Sgt McCabe’s complaints.