Court told Arlene Foster should not pay damages in inquest case

DUP leader Arlene Foster
DUP leader Arlene Foster

Former First Minister Arlene Foster should not be directed to pay damages over a ruling that she unlawfully blocked a plan to fund legacy inquests, the High Court has heard.

Attorney General John Larkin QC argued on Friday that the case against the DUP leader should end now without any order for costs against her.

But lawyers for the widow of a civilian who was shot dead along with eight IRA men countered that Mrs Foster is liable as the “main culprit” for stopping discussion of an initiative to examine Troubles-related killings.

They also urged a judge to formally compel the British Government and the devolved administration to reconsider releasing financial resources needed to clear a backlog of inquests.

Last week judge Sir Paul Girvan held that Mrs Foster wrongly took into account the absence of an overall agreed package to deal with outstanding issues from Northern Ireland’s violent past.

He said her decision to refuse to put a funding paper forward was unlawful and procedurally flawed.

Stormont departments and the Secretary of State were told to look again at whether to provide the extra cash for hearings into nearly 100 deaths without waiting for any political agreement.

The verdict came in a challenge mounted by Brigid Hughes, whose husband Anthony died after being unwittingly caught up in the SAS ambush of an IRA unit at Loughgall, Co Armagh, in May 1987.

She issued judicial review proceedings against the Secretary of State, the Stormont Executive and Mrs Foster personally due to her alleged responsibility for the logjam.

Following Mrs Hughes’ victory lawyers returned to court to deal with costs and whether any further declarations or orders should be made.

Resisting the bid to have Mrs Foster exposed to any pay-out, Mr Larkin said there is “no basis for it”.

But Barry Macdonald QC, for Mrs Hughes, replied: “The former First Minister was really the main culprit in all this.

“She blocked consideration of the proposal, she promoted the notion that it was permissible and lawful to withhold funding for legacy inquests pending a resolution of overall legacy issues. Costs are appropriate against her.”

Counsel representing the Northern Ireland Office, the Department for Justice, and the Executive Office also argued against making an order compelling action.

However, Sir Paul suggested there was a need to issue directions with “proper teeth” to ensure no drift in any obligations.

He will give a final ruling on costs and any orders next week.

More than 50 legacy inquests remain outstanding, with potentially 72 more cases on the Attorney General’s desk for consideration.

Each of them could cost over £1m to run, the court heard.

Although the Stormont House Agreement includes a £150 million package to deal with all legacy issues, the Government has said financial resources will not be released until political consensus is reached on dealing with the past.

Northern Ireland’s Lord Chief Justice, Sir Declan Morgan, had advanced a plan for having all cases dealt with within five years.

In 2016 a paper was drawn up by the DoJ to bid for funds based on Sir Declan’s blueprint.

Lawyers for Mrs Hughes went to court alleging Mrs Foster stopped it from being discussed by her Executive colleagues for political reasons.

It was claimed that she would not allow a process which would “rewrite the past” because most of the inquests concerned state killings.

However, the Attorney General insisted she behaved impeccably in preventing an “undercooked” paper going forward at that stage.

She had been focused on balancing the limited £150m budget for dealing with all outstanding legacy issues, the court heard.