C.I. v The Member in Charge of Dun Laoghaire Garda Station (No.2)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] IEHC 656
• Docket Number: [2020 No. 1290 SS]
• Date: 21 December 2020

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2° OF THE CONSTITUTION

BETWEEN

C. I.

APPLICANT

AND

THE MEMBER IN CHARGE OF DÚN LAOGHAIRE GARDA STATION

RESPONDENT

(NO. 2)

[2020] IEHC 656

Richard Humphreys

[2020 No. 1290 SS]

THE HIGH COURT

JUDGMENT of Mr. Justice Richard Humphreys delivered on Monday the 21st day of December, 2020

1 In C.I. v. Member in Charge of Dún Laoghaire Garda Station (No. 1) [2020] IEHC 512, [2020] 10 JIC 2001 (Unreported, High Court, 20th October, 2020), I dismissed an application for release under Article 40.4 of the Constitution.

2 Both sides now apply for their costs and I have received helpful submissions from Mr. Tony McGillicuddy B.L. for the respondent and from Ms. Eilis Brennan S.C. (with Mr. Kevin Roche B.L.), for the applicant.

3 While Ms. Brennan accepts that the normal order is that costs follow the event, she relies on a number of matters to contend that the court should exercise its discretion to depart from that. While she describes the discretion as being “ at large”, I don't accept that it is as wide as that. The residual discretion must be exercised judicially and in accordance with established principles.

4 The main matters relied upon by Ms. Brennan are as follows:

(i). Section 169(1)(b) of the Legal Services Regulation Act 2015 allows the court to consider whether it was reasonable for the unsuccessful party to raise or pursue a particular issue, and here certainly the main legal issue raised by the applicant was one which it was reasonable to put forward, although that could be said in many cases.

(ii). Reliance is placed on Zalewski v. Workplace Relations Commission [2020] IEHC 226 (Unreported, High Court, Simons J., 21st May, 2020), whereby an applicant who unsuccessfully challenged the validity of the Workplace Relations Act 2015 received an order for partial costs. Reference was made by Simons J. to the need for litigants not to be deterred from raising significant issues, but that is of no great relevance here because of the existence of the Legal Aid - Custody Issues Scheme which provides for legal aid in Article 40 applications.

(iii). Reliance is placed on the argument, also an issue in Zalewski, that the points raised were important and novel. That in itself is an elastic concept and as Mr. McGillicuddy says, “ every case has some novel dimension” (indeed, why litigate otherwise), but it is a question of degree.

5 Ultimately, and...