The State has won its appeal over an order that it pay half the legal costs of the family of Seamus Ludlow of their failed bid to compel commissions of inquiry into the "inexcusable" handling of the Garda investigation into his murder.
The costs order was made on public interest grounds.
Mr Ludlow, a 47-year-old forestry worker from Co Louth with no paramilitary connections, was shot after leaving a bar in Dundalk and his body was found on May 2nd 1976 in a lane near his home.
No one has ever been charged with his murder and his family say gardaí failed to pursue an important line of inquiry – that he was an innocent victim of either loyalist or British forces who mistook him for a senior member of the IRA.
Despite the RUC having identified suspects north of the border, the Garda investigation was suspended after three weeks without explanation and on foot of what a Garda told the family were "orders from Dublin", they claimed.
A report by a retired High Court judge, Henry Barron, found the murder was “a random, sectarian killing of a blameless Catholic civilian by loyalist extremists”.
In 2015, then Minister for Justice Frances Fitzgerald apologised to the family over the "inexcusable" handling of the Garda investigation, but said there was no "new or substantial" information that warranted commissions of inquiry.
Thomas Fox, a nephew of Mr Ludlow, took proceedings on behalf of the family against the Minister for Justice and State. These aimed to compel commissions of inquiry to examine failures in the Garda investigation and to look into what documents might have been created by the State authorities in respect of the murder.
In a 2017 judgment, the High Court concluded the courts cannot force the executive to set up any kind of inquiry. However, Ms Justice Mary Faherty said it was "undeniably acknowledged" the State had failed Mr Ludlow and his family and, on public interest grounds, she directed it to pay half their legal costs.
The family appealed but the Court of Appeal last May agreed the State could not be compelled to set up inquiries as sought.
In its judgment today on costs issues, the three judge Court if Appeal granted the State’s application to replace the order requiring it to pay half of the family’s High Court costs with an order that each side pay their own High Court costs.
The family had urged the court to see the costs issue in light of the June 2020 programme for government (POG) containing a commitment to ensure access by an independent judicial figure to all documents concerning a number of controversial historical events, including Mr Ludlow’s murder. It was argued that commitment was a result of the family’s proceedings.
Rejecting that argument, Mr Justice Birmingham said this case related only to the murder of Mr Ludlow and the POG commitment dealt with several different historical events which, “to a greater of lesser extent, have been subject of public disquiet and political controversy over many years”.
Far from the POG providing a justification for this case, it showed this was "an issue that should always have been pursued in the political arena, rather than the courts". The State had wholly succeeded on appeal and a necessary consequence of the family having brought this appeal was that they lost the benefit of getting half their costs in the High Court, he said. The State was also entitled to its costs of the appeal against the family, he ruled.