Doyle v Commissioner of Police (No 5)

In *Doyle v Commissioner of Police (No 5)*, the Court of Appeal considered the appropriate orders for costs following an appeal where the appellants achieved partial success. The dispute concerned the costs of both the appeal and the original proceedings at first instance, with particular attention paid to the varying degrees of success of the parties and the timing of certain issues being raised.

The central legal issues before the Court of Appeal were how to apportion costs given the partial success of the appellants on appeal, the fact that one appellant was not initially a party to the proceedings, and the other appellant's limited involvement after the principal appeal hearing. The court also had to determine whether to make a global order for costs or to make separate orders relating to different aspects of the litigation, including the costs incurred before and after specific dates and those related to claims of privilege.

Leeming JA reasoned that a nuanced approach to costs was required, reflecting the specific circumstances of the litigation. The court considered the timing of the successful point raised by the appellants, which was only advanced on the first day of the trial, and the subsequent withdrawal of one appellant from the proceedings. This led to a detailed apportionment of costs, distinguishing between the costs of the appeal and the costs at first instance, and further dividing these based on the dates of incurrence and the nature of the claims.

The court made specific orders regarding the payment of costs. The Commissioner was ordered to pay 80% of Mr Doyle’s and Mr Barbeliuk’s costs in the Court of Appeal incurred up to 14 February 2020. Mr Barbeliuk was ordered to pay the Commissioner’s costs incurred after that date, excluding the costs of the present application. Mr Doyle was ordered to pay the Commissioner’s costs of the proceedings incurred before 2 April 2019, excluding privilege claims. Finally, the Commissioner was ordered to pay 60% of Mr Doyle’s and Mr Barbeliuk’s costs at first instance incurred after 2 April 2019, excluding privilege claims, with no order as to the costs of the application for costs or privilege claims, meaning each party was to bear their own costs for those aspects.