McDowell & Ors v Sea Fisheries Protection Authority - Appeal Judgment

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  McDowell & Ors v Sea Fisheries Protection Authority (No.2) (Approved) [2026] IECA 37 (18 March 2026)

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AN CH ? IRT ACHOMHAIRC

THE COURT OF APPEAL

???????????? 2023/321CA

[2026] IECA 37

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????????????

Hogan J.

Pilkington J.

Butler J.

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Between/

NOEL MCDOWELL, KILLYBEGS FISHING ENTERPRISES LIMITED, KILLYBEGS SEAFOODS UNLIMITED AND THE KILLYBEGS FISHERMEN'S ORGANISATION LIMITED.

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Appellants

AND

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SEA FISHERIES PROTECTION AUTHORITY (NO.2)

Respondent

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JUDGMENT OF Mr. Justice Gerard Hogan delivered on the 18 th day of March 2026

Part I - Introduction

1. In these proceedings the appellants have challenged the validity of a decision of the Sea-Fisheries Protection Authority ("the Authority") to insist on the quayside weighing at Killybegs, Co. Donegal of certain fishing catch in the presence of authorised officials at a time (October 2020) when a derogation, by means of a control plan, for the Member State in question was in existence for the purposes of Article 61(1)) of the Council Regulation (EC) No. 1224/2009 of the 20 th of November 2009 ("the Control Regulation"). In the High Court, Phelan J. dismissed this challenge in a judgment delivered on 3 rd November 2023: see McDowell v. Sea Fisheries Protection Authority [2023] IEHC 603.? The appellants have now brought an appeal against that decision to this Court. We initially gave judgment in what I shall term the first appeal on 11 th July 2024: McDowell v. Sea Fisheries Protection Authority (No.1) [2024] IECA 171 and I will explain the significance of this in the course of my judgment.

2. The original appeal concerned the proper interpretation of one of the regulatory powers of the Authority, namely, Article 60(6) of the Control Regulation (EC) No. 1224/2009 ("the Control Regulation") and the Commission Implementing Regulation (EU) No. 404/2011 of the 8 th April 2011 (as amended by Commission Implementing Regulation (EU) No. 2015/1962 of the 28 th of October 2015) ("the Commission Implementing Regulation").

3. Article 61(1) of the Control Regulation allows for a derogation from aspects of Article 60 where Member States have been given a derogation pursuant to a Control Plan approved by the Commission. In such circumstances the "fisheries products [may] be weighed after transport from the place of landing provided that they are transported to a destination on the territory of the Member State concerned".

4. The present appeal arises from events which took place in October 2020. There was, at the time, a particular Control Plan (subsequently revoked) operated by Ireland with Commission approval. (The Control Plan was essentially a form of on-going derogation contemplated by the Council Regulation but which depended on the approval of the European Commission.) The appellants contend that the existence of the derogation reflects the fact that in Ireland (along with a range of other Member States) the peculiar topography of our fishing ports has meant that fish processing factories are not immediately adjacent to the quayside. Even though Killybegs is one of the major European fishing ports, the Court was informed at the first hearing that the fish factories are located some 1km. from the actual port and quayside.

5. It is, I think, agreed that at that precise time there was no fully satisfactory weighing system at the Killybegs quayside. Some of these deficiencies were explored by Simons J. in his judgment of 4 June 2021: see Pelagic Weighing Services Ltd. v. Sea-Fisheries Protection Authority [2021] IEHC 345 where he observed:

"25. The weighbridge is not specifically designed for weighing fish.? It appears from the affidavit evidence filed that certain of the fishermen in Killybegs regarded themselves as presented with an unattractive choice between (i) protecting the quality and value of the fish by weighing the same in its protective envelope of refrigerated sea water but thereby recording the water as fish, or, alternatively, (ii) dewatering the catch prior to weighing, with a risk of damaging the quality and value of the fish.

1. The local fishermen decided that it would be preferable to put in place a dedicated fish weighing system so as to accurately measure weight on the pier, while at the same time preserving the quality of the fisheries product. More specifically, it was proposed to put in place a conveyor belt weighing system known colloquially as a "flowscales".

6. The principal issue in Pelagic Weighing was whether the Authority had acted ultra vires in refusing to give its approval for these new quayside weighing facilities. The Authority had refused to give its approval of these facilities and it cited the European Commission's concerns in respect of the ownership of the new weighing facilities. As it happens, Simons J. held that the Authority had acted ultra vires in this respect. While that is not of direct relevance to this case, the background facts to Pelagic Weighing nonetheless demonstrate that the quayside weighing facilities in Killybegs then in operation in October 2020 were not fully satisfactory. The flow scales weighing system was finally installed by the local fishing industry representatives as of December 2020 and it appears only to have become fully operational in August 2021, i.e., a few weeks after the judgment in Pelagic Weighing in June 2021.

7. The appellants contend that in light of the facilities then available the weighing of the dewatered fish at the quayside would have impaired the quality of the catch. At the first hearing it was submitted that although Article 61(1) of the Control Regulation does not in terms derogate from Article 60(6), they argued that it would be inconsistent with the nature of the derogation if this provision could operate in such circumstances. Their case on this point was essentially that the existence of the Article 61(1) derogation effectively overrides or suspends the operation of the Article 60(6) power, if only by implication.

8. The interpretation of this provision was central to the first judgment and, indeed, it resulted in this Court making an Article 267 TFEU reference to the Court of Justice of the European Union. That Court delivered its judgment on 30 th October 2025: see Case C-546/24 PN, Killybeg Fishing Enterprises Ltd.? (EU:C:2025:844). It is probably fair to say that this argument was comprehensively rejected by the Court of Justice in its judgment. Consequently, the legal position governing the remaining issues in this appeal is that notwithstanding the existence of a Control Plan which permitted weighing the catch in a factory setting, the Court of Justice confirmed that the Authority retained the power to conduct an inspection and for that purpose to weigh the catch immediately upon landing at the quayside.

9. The issue which now arises in this second appeal relates to rationality and reasonableness rather than vires. The case made here by the appellants was that these inspection powers were not reasonably exercised because, in essence, the then weighing systems which were in operation at Killybegs did not allow for the separation of the species and there was, accordingly, no provision for an accurate weighing of the fish that were in fact landed.

??????????????????????????????????????? Part II - Background facts

10. It is next necessary to repeat the background facts, although many of these details have already been set out in the first judgment. The first applicant, Noel McDowell, was the master at the relevant time of an Irish registered fish processing vessel, the MFV Atlantic Challenge ("the vessel"). The second applicant, Killybegs Fishing Enterprises Limited ("Killybegs Fishing"), is a limited liability company engaged in the business of catching and selling fish. It is the registered owner of the vessel and is the holder of the appropriate sea fishing licence. ?The vessel itself is part of the refrigerated sea water segment of the Irish fishing fleet and the vessel's share of the national quotas attaches to the vessel itself. The third applicant, Killybegs Seafoods Unlimited ("Killybegs Seafoods"), is one of the shareholders in the second applicant and is the buyer and processor of the fish landed by the vessel. ?Killybegs Seafoods operates a fish processing factory equipped with approved flow scales. The permit which was issued to Killybegs Seafoods authorising the weighing of fishery products following their transfer to the factory provides that the "weighing of fishery product as stated in Council Regulation (EC) No. 1224/2009, Article 60(6) may be conducted in the course of conducting official controls."

11. The fourth applicant, the Killybegs Fishermen's Organisation Limited, is a representative organisation and recognised fish producer organisation ("KFO") which was formed to represent and defend the interests of the fishing industry operating out of Killybegs and fishing the waters around the island of Ireland. In the High Court there was some discussion as to whether KFO had the requisite locus standi to pursue this claim, but as this matter was not pursued in this Court, there is no necessity to address it.

12. The Authority is an independent statutory body established pursuant to the provisions of the Sea Fisheries and Maritime Jurisdiction Act 2006 ("the 2006 Act.") The principal functions of the Authority are set out in s. 43 of the 2006 Act including to promote "the efficient and effective enforcement of sea-fisheries law and to secure compliance with and deter contraventions of sea-fisheries law".? The Authority is designated by s. 41(1) of the 2006 Act to perform these statutory functions. It is the designated body in Ireland for ensuring compliance with the rules of the Common Fisheries Policy and the Control Regulation.?

13. Up until the events giving rise to these proceedings, the standard weighing practice - so far, at least, as the refrigerated sea water ("RSW") segment of the fleet was concerned ? in respect of fish catch which operated in Killybegs, County Donegal was as follows: The catch was stored on board the vessel in RSW and transported, still in sea water, to a fish processing facility. The facility would, of course, have to be an approved facility for the purposes of the Control Plan and it would also have to possess either a flow scale facility or a conveyor belt weighing system which also complies with national metrology requirements. This was what was provided for in the control plan for Ireland which had been approved by the Commission in accordance with the Article 61(1) derogation.

14. When the fish arrived at the fish processing facility they were first sorted by species and then weighed. The use in this way of the flow scales at the factory for the weighing of fishery products such as mackerel was said to be essential by the appellants in order to ensure that the quality, freshness and value of the fish during the weighing process was thereby preserved. They pointed to the need to minimize the potential for the degradation of the fish catch by permitting the fish to remain in refrigerated sea water for the purpose of transportation to the factory premises where dewatering, sorting and weighing would occur.? The Authority maintained, however, that it is possible to mitigate the effects of dewatering in the weighing process when the weighing does not take place at a factory premises.?

15.? The Commission Implementing Regulation (as amended) envisages that at least 7.5% of the quantities of listed pelagic species are fully inspected. Prior to a change of practice which was announced in December 2019, it appears that the Authority did not in fact exercise its power to conduct quayside inspections. All of this changed because of concerns about the manner in which the Control Plan was in fact operated by Ireland and irregularities which came to light as a result of a criminal prosecution and, indeed, a subsequent audit by the European Commission. This in turn had prompted the Authority to announce a public change in policy whereby a percentage of inspections would? henceforth be carried out at the quayside. ?

16. The Authority contended that quayside weighings were considered preferable and more reliable because they allowed for the weighing of fish at a neutral venue, rather than at a factory which is controlled by fish processors. From the Authority's perspective, such controls could be run more efficiently. It seems likely that this change of practice was also prompted by the Commission's concerns, since the audit had revealed that the weighing processes used at certain fish processing facilities had been manipulated from time to time. There is no suggestion that these appellants were involved in any such irregularities.

17. At the time the Authority announced a change in practice, the quayside landing weighing infrastructure in Killybegs was somewhat underdeveloped. As I have already indicated, this was in essence the background to the question at issue in Pelagic Weighing. The Department of Agriculture, Food and the Marine had operated a somewhat old-fashioned weighbridge at Killybegs, so that if the water was not separated from the fish in the receptacle to be weighed, the resulting weight included both fish and water. T o facilitate the separation of fish catches from the water in which they had been stored and consequently achieve a more accurate weighing of the fish, the Authority arranged for the availability of a water separator or "hopper" at the quayside at Killybegs. This suggestion, however, was met with a variety of objections raised by the appellants (and others) who maintained that the water separator did not meet modern hygiene and food safety standards. They also contended that the removal of the fish from the RSW in which it was stored prior to its transport to the fish processing facility damaged the quality of the fish. The appellants emphasised the fastidiousness of many Japanese (and other) buyers when it came to fish quality and ?drew attention to their personal experiences of these buyers who would refuse to purchase if there had been even the slightest drop in the quality of the fish.

18.?The events giving rise to the present proceedings took place on the 11 th and 12 th October 2020. On that evening the Master of the vessel transmitted to the Authority what is officially known as a "Prior Notification of Arrival" in accordance with Article 17 of the Control Regulation.?? The electronic logbook returns made by the Master pursuant to Article 14 of the Control Regulation recorded a catch of 3,000 kg of herring and 450,000 kg of mackerel.

19.?The Atlantic Challenge was then selected for inspection and a monitored quayside weighing of the fish catch on landing control pursuant to Article 60(6) of the Control Regulation. The Authority had originally (erroneously) concluded that the vessel ** had not been subject to a full inspection for two years. The Authority was also conscious of its obligation under Article 107 of the Implementing Regulation to ensure that 60% of landings inspected were from vessels belonging to the fleet segments in the two risk level categories identified. As it happens, the two categorisations of risk for vessels in Ireland in 2020 were medium risk and high risk. This vessel was in the medium risk category and the Authority maintained therefore that it qualified for inspection with reference to the 60% benchmark.?

20.?The Authority was incorrect in its belief that the Atlantic Challenge had not been so inspected in the previous two years. This oversight was due to the fact that a full factory inspection which had taken place in the previous January had not been properly recorded. The Authority nevertheless contended that this error did not undermine its selection of the vessel for inspection. It also relies on its powers to inspect on a random basis.? In her judgment in the High Court Phelan J. concluded that the selection of the Atlantic Challenge for quayside inspection was nonetheless lawful and there has been no appeal from this decision.

21.?Returning now to the facts of the case, the High Court found that the Atlantic Challenge was boarded by officers of the Authority when it arrived in Killybegs on the morning of 12 th October 2020 pursuant to their powers under the 2006 Act. At that point, as I have already indicated, ?the master was informed that the vessel had been selected for a quayside weighing and inspection in accordance with Article 60(6). The Authority then furnished the master with a statutory notice which stated that it required: "that fishery products landed from the landing referenced above are weighed in accordance with Council Regulation (EC0 1224/2009 Article 60(6)."

22.?The notice further stated that:

" The operator responsible for the weighing of fishery products shall ensure that all fishery products are dewatered prior to weighing on a calibrated weighbridge scale. The legal allowance permitted for water and ice in pelagic products for human consumption landed in bulk is a maximum deduction of 2% from the total weight. There shall be no deduction for water or ice for landings of pelagic products for non-human consumption.? The operator responsible for the weighing of fishery shall ensure that the figure resulting from the weighing shall be used for the completion of the official weigh record and associated documentation (Landing Declarations, Transport Document and Sales Notes).? The operator weighing fisheries products prior to transport from the place of landing shall record the weighing carried out as required in Regulation 404/2011 Article 70(1).? This shall be undertaken using the SFPA official pelagic weigh record to detail the weighing undertaken."

23.?The Authority's officers then informed the master that they required the entire catch to be weighed over the weighbridge on the pier as part of a controlled quayside weighing. The master objected on the ground that this process would include the weighing of the accompanying sea water. The Authority offered the use of the water separator, but this was declined by the master. The master in turn requested that the tanks on board be "dipped" (so that there could be an unofficial estimate of the weight of the catch), with an official weighing at the fish processing facility. The Authority refused this request.

24.?The Authority then advised the master that the final weight from the weighing on the weighbridge was the official weight which was to be used for the completion of the landing declaration and sales note. It drew the master's attention to the fact that the responsibility to dewater and weigh the fish accurately lay with the operator.

25.?The fish catches were then weighed under protest using the weighbridge. Critically, however, the fish were not dewatered after being discharged from the vessel and prior to their weighing on the weighbridge at the quayside. An Official Pelagic Weighing Record ("OPWR") was then completed by Killybegs Seafood, which was then marked with the words "under protest" in respect of the weighing operation on the pier.?

26.?The figures for mackerel and herring as subsequently weighed in the certified flow scales in Killybegs Seafoods' fish processing facility came to 449,985 kg of mackerel and 12,189 kg of herring respectively. These weighings were recorded in the Killybegs Seafood's own logbooks with different weights and serial numbers. There was a differential of some 11-12% between the weight for mackerel recorded from the weighbridge on landing and that recorded on the flow scales at the Killybegs Seafood's factory. There is, accordingly, a significant differential between the figures returned by Killybegs Seafoods to the Minister of Agriculture, Food and the Marine and those returned by the Authority to the Commission under Article 33 of the Control Regulation.

27.?At a subsequent meeting between the master and the Authority on 3 rd November 2020 it was suggested that the former might be guilty of fishing offences by reason of not using the weights recorded at the quayside weighing. It does not, however, appear that the matter has been referred to the Director of Public Prosecutions by the Authority. Yet as Phelan J. observed (at paragraph 17) in her judgment, it is common case that "the monitored weighing on landing did not give an accurate weight as the fish had not been dewatered.? It is not in dispute that a by-catch of herring was not sorted from the mackerel catch and separately weighed over the weighbridge on landing under supervision by the Authority."? It appears that the figure obtained for the weight of the herring after the fish had been separated at the factory was subsequently deducted from the overall figure obtained from the quayside weighing to produce two separate figures in the return made by the Authority.? The appellants complain, for the reasons already discussed, that these were still not accurate figures.

???????????????????????????????????????????? Part III: The relevant legislative provisions

28.?I have already described how the Authority has been vested with a range of regulatory powers by the 2006 Act in Irish domestic law. In addition, however, s. 11 of the 2006 Act provides that a contravention of the CFP including (under s. 11(5)) a failure to comply with obligations imposed by a Community Regulation in relation to weighing or documenting fish, is an offence. Section 17 of the 2006 Act provides for a broad power on the part of a Sea-Fisheries Protection Officer to stop any person and search any vehicle, equipment or package believed to be conveying sea fish of any kind and to inspect such fish. Section 17 also expressly provides for a power on the part of a Sea-Fisheries Protection Officer to verify the accuracy of the information in any document or record which relates to the CFP (s. 17(1)(d)) and to check the weight of fish (s. 17(1)(e)).

The Control Regulation

29.?The first case turned on the proper interpretation of Article 5(1) of the Control Regulation. Article 5(5) recites that Member States are required to designate a "single authority" with responsibility for the collection and certification on fishing activities and the transmission of information to the Commission. In this State, the Authority has been designated for this purpose by Article 3 of the Sea-Fisheries (Community Control System) Regulations 2016 (S.I. No. 54 of 2016).? The Control Regulations also contains detailed arrangements regarding the duty to keep accurate records and to record weights. Article 119 delegates power to the Commission to lay down detailed rules for implementation of the principles established in the Control Regulation.

The Irish derogation

30.?Ireland exercised the derogation provided for by Article 61(1) of the Control Regulation by submitting the Weighing of Fishery Products Control Plan? to the Commission.? The Control Plan was approved by the Commission by Article 1(3) of Commission Implementing Decision of the 13 th of August 2012 (2012/474/EU) and it was operative at the time of the quayside inspection in October 2020. (As it happens the Control Plan was subsequently revoked by the Commission in April 2021 following the emergence of discrepancies as a result of a Commission audit). The Control Plan also created specific provisions in the State for the weighing after transport in approved facilities of fishery products.

Part IV: The interpretation of Article 60 and

Article 61(1) of the Control Regulation and the

?reasonableness of the Authority's actions

31. The central argument which had been advanced by the appellants in the first appeal was that it was, in effect, incongruous for the Authority to exercise its Article 60(6) powers in circumstances where a Control Plan is in place. They contended that the entire point of the derogation provided for in Article 61(1) was in recognition of the topography associated with a variety of European Union fishing ports (including Ireland) such that it was impractical to have the fish dewatered at the quayside in order to be weighed. This was because - it was said - it was necessary to dewater the fish to have an accurate weighing of the fish, yet if this occurred at the quayside, the intervening delay between dewatered weighing and the ultimate transport of the dewatered fish post such weighing to the factory for processing presented the real risk that the quality of the fish would be degraded. This was disputed by the Authority.

32.?At all events, the Court of Justice rejected the appellant's argument following the Article 267 reference from this Court. The Court pointed (at para. 27 of its judgment) to the objectives of the CFP before concluding that:

"it would be incompatible with the objective of the conservation of living aquatic resources of the CFP if the competent authority of a Member State did not have the power to require that any quantity of fisheries products first landed in that Member State is weighed in the presence of officials of that authority before being transported elsewhere from the place of landing, in accordance with Article 60(6) of Regulation No. 1224/2009."

33. In these circumstances there can be no issue in respect of the Authority's vires to conduct quayside inspections. As I have indicated, the focus in the second appeal then switched to the reasonableness of the Authority's actions. ?The appellants contended that the Authority knew that the weighbridge and water separator then in existence at Killybegs were unsatisfactory and that huge quantities of fish that were landed - some 460,000kg - could not be separated as between different species of pelagic fish. They say that the Authority knew perforce that this catch would not be accurately weighed via this method and that the Authority would be obliged to accept returns which they knew would be inaccurate.

34. ? While I accept that this submission is not without force if viewed by reference to the discrete circumstances of this particular inspection, I nonetheless feel that it fails to have regard to the fuller picture. If the appellants are correct, then it would follow that the Authority could not exercise the Article 60(6) inspection power for so long as the weighing facilities at Killybegs were not suited to the type of precise quayside inspections which are a cornerstone of the CFP. This would set at naught one of the objectives of the CFP which the Court of Justice has described in the passage from the judgment in the Article 267 reference which I have already quoted.

35.?While counsel for the appellants accepted that this was the logical corollary of his argument, he nonetheless sought to stress that the Authority would have found itself disabled from conducting quayside inspections only for a relatively short period of time. I am not convinced that this was so, since the Authority would not necessarily have known how long it would have taken for the new flow scales at the Killybegs Quay to be installed or, indeed, as the Pelagic Weighing litigation itself shows, when these new flow scales would be become operational. In that respect, it cannot be said that the period from October 2020 to August 2021 represents a short period during which the Authority would be essentially precluded from conducting random quayside inspections such that it was as somehow de minimis.

36.?Even if the period in question had been much shorter, this still would not have altered this perspective. It is perfectly clear from the Court of Justice's judgment that, as I have already observed, the right to conduct quayside inspections is a fundamental feature of the entire CFP regulatory regime. Our task as a national court which has been called upon to apply EU law is to ensure that the requirements of that EU regulatory regime are fully and completely enforced. That would not be the case if this Court were to hold that the Authority had acted unreasonably in conducting quayside inspections for so long as the quayside weighing facilities were less than satisfactory.

37.?While I quite appreciate the appellants' arguments in this regard, if this Court were nonetheless now to accept that the Authority had acted unreasonably by insisting on a quayside inspection, this would in substance be at odds with? both the spirit and the letter of what the Court of Justice has already ruled. The appellants' real complaint is that the quayside weighing facilities in Killybegs in October 2020 were unsatisfactory. Even if that argument were to be accepted, it does not follow that quayside inspections at Killybegs were effectively to be suspended pending the installation and approval of the new flow scales. In effect, therefore, this Court could not interpose a national administrative law argument (i.e., reasonableness) in order to disable the exercise of the Article 60(6) inspection power, when the existence of such a power has already been deemed by the Court of Justice to be essential to the proper functioning of the EU law.

38. The appellants place significant emphasis on the need for accuracy in the recorded weight of the catch to be contained in the returns made to the EU authorities.? This, they say, is a central part of the monitoring function which, in turn, is linked to the conservation of fish stocks and the allocation of TACs or "quotas" to Member States, They argue, correctly on the facts, that the returns made in this case over-stated the amount of fish caught because the weight of the sea water in which they were stored was also recorded. ?However, in the circumstances of this case, this does not make the Authority's actions unreasonable in law.?

39. Whilst accuracy in the recording of catches is undoubtedly important, the real risk to fish stocks lies in the under-reporting of catches which could lead the EU authorities to assume that less fish were caught than actually have been and, as a result, to over-allocate quotas.? Over-reporting of catches is likely to lead to an even more precautionary approach on the part of the regulatory authorities to the benefit of fish stocks.? In any event, the appellants' conduct in refusing to de-water the fish at the quayside could never be a sound basis for deeming unreasonable the Authority's conduct in continuing to carry out an inspection which - as the Court of Justice has held - they had full power to carry out in the manner in which they did.?

Part V - Conclusions

40. ?? In summary, therefore, I would reject the argument that the Authority acted unreasonably in conducting a quayside inspection at Killybegs in October 2020, even if it is accepted that the then weighing facilities at the time in respect of pelagic fish were not fully satisfactory. The Court of Justice has ruled in the reference made by this Court in its first judgment that the Authority must have the right to carry out such inspections as an integral part of the CFP, even where there was a Control Plan then in place. It is perhaps sufficient to say that this Court could not invoke a national administrative law argument (i.e., reasonableness) in order to disable the exercise of the Article 60(6) inspection power in a manner deemed to be essential by the Court of Justice to the proper functioning of the EU law.

41.?In these circumstances I find myself obliged to dismiss this appeal. Since this judgment is being delivered electronically, I am authorised to state that Pilkington and Butler JJ are in agreement with this judgment.

Result:     Appeal dismissed.

Costs

42. Although all members of the Court are naturally conscious of the provisions of both s. 169 of the Legal Services Regulations Act 2015 and Ord. 99 RSC, we nonetheless invite the parties to make such written submissions on this issue as they may think appropriate. ?In this regard it is only fair to observe that the provisional view of the Court is that the State parties are entitled to their costs as against the first three applicants, such costs to be adjudicated in default of agreement. We accordingly direct the parties to file submissions (no greater than 1,500 words) by 5pm on Thursday, 26 th March 2026 should they wish to avail of this opportunity. The Court will then rule on the issue of costs.

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