Colum Browne v Minister for Agriculture, Fisheries and Food, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 24 February 2022 |
| Neutral Citation | [2022] IECA 41 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2019/183 |
[2022] IECA 41
Edwards J.
Donnelly J.
Noonan J.
Record No: 2019/183
THE COURT OF APPEAL
Costs – Test case – Hardship – Parties seeking costs – Whether costs should follow the event
Facts: The Court of Appeal (Edwards J), on the 10th of July 2020, dismissed the appeal of the plaintiff/appellant, Mr Browne, against the dismissal of his claims against the defendants/respondents, the Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General, by the High Court (Ní Raifeartaigh J) seeking various declarations and damages from the respondents for alleged tort and alleged breach of his right to earn a livelihood and to own property pursuant to Article 40.3.1˚ of the Constitution of Ireland and Article 1 of the First Protocol of the European Convention on Human Rights. With regard to costs, Edwards J’s provisional view was that as they follow the event, the respondents were entitled to the costs of the appeal. The appellant filed written submissions contending for an alternative order to that proposed. He contended that, notwithstanding that he was unsuccessful in his appeal, the Court should award him his costs against the respondents (and it follows, should make no order for costs in favour of the respondents). The appellant sought this order on two grounds. First, he maintained that the appeal involved a test case, and secondly, he contended that he had suffered great hardship by the matters complained of in the proceedings and that an order for costs would exacerbate that hardship.
Held by Edwards J that as the respondents were entirely successful in the appeal and as no cogent reasons had been advanced which would justify a departure from the general rule stated in s. 169(1) of the Legal Services Regulation Act 2015, they were entitled to their costs against the appellant. Edwards J rejected the reasons advanced as justifying such a departure because he was not persuaded that the issues that were raised were of general importance, or that they resulted in a significant clarification of the law. He held that all the court had to do to resolve the issues raised was to apply established law; moreover, there was no constitutional dimension to the case, and in so far as issues of European law were raised, the relevant legislation was acte clair and did not require a reference either to interpret it or to determine the scope of its application. He held that there was nothing to suggest a failure to comply with the principles of equivalence and effectiveness. Accordingly, he did not consider that the case was properly to be characterised as having been a test case. On the question of hardship, he agreed with the respondents that the circumstances of the case were wholly different and readily distinguishable from MN v SM (Costs) [2005] 4 IR 461. While Edwards J accepted that it may be onerous for the appellant to have to satisfy a costs order against him, and to have to be responsible for his own costs, this was misconceived litigation that was initiated by him. Edwards J did not think it was an appropriate case in which to exercise the court’s discretion in his favour.
Edwards J refused the appellant’s application to be awarded his costs and confirmed the Court’s provisional ruling on costs. Edwards J considered that the respondents were entitled to the full costs of the appeal against the appellant, to include the costs of the costs application, all such costs to be adjudicated in default of agreement.
Costs awarded to respondents.
RULING of Mr Justice Edwards delivered (electronically) on the 24 th day of February, 2022 .
On the 10 th of July 2020, in my judgment with which Donnelly and Noonan J.J. agreed, this Court dismissed the plaintiff/appellant's appeal against the dismissal of his claims against the defendants/respondents by the High Court (Ní Raifeartaigh J.) seeking various declarations and damages from the defendants/respondents for alleged tort and alleged breach of his right to earn a livelihood and to own property pursuant to Article 40.3.10 of the Constitution of Ireland and Article 1 of the First Protocol of the European Convention on Human Rights.
The High Court's judgment had ruled upon several preliminary issues that had been set down for determination prior to the hearing of the substantive case. The ruling on those issues was adverse to the plaintiff, resulting in the dismissal of his claim with costs to the defendants. He then appealed against the entirety of the High Court's judgment and Order to this Court.
The background to the case and the reasons for the Court's decision are set out in my judgment of the 10 th of July 2020.
The defendants/respondents were wholly successful in the appeal proceedings, in circumstances where the plaintiff/appellant's appeal was dismissed unconditionally and in its entirety. That being the position, I stated the following with respect to costs at the end of my judgment of the 10 th of July 2020.
“With regard to costs, my provisional view is that as they follow the event, the defendants are entitled to the costs of this appeal. If the plaintiff wishes to contend for an alternative order, he will have 14 days to deliver a written submission not exceeding 2,000 words and the defendants will have 14 days to reply. In default, an order in the proposed terms will be made.”
The plaintiff/appellant has filed written submissions contending for an alternative order to that proposed. He contends that, notwithstanding that he was unsuccessful in his appeal, the Court should award him his costs against the defendants/respondents (and it follows, should make no order for costs in favour of the defendants/respondents).
The plaintiff/appellant seeks this order on two grounds. First, he maintains that the appeal involved a test case, and secondly, he contends that he has suffered great hardship by the matters complained of in the proceedings and that an order for costs would exacerbate that hardship.
In elaboration on his first ground of appeal, the appellant says that the appeal raised two issues which had been undecided until considered by this Court. The first issue was the question of whether or not the failure to seek judicial review (within the judicial review time frame allowed by national law) absolutely precluded a claim for damages for negligence (brought within the time frame allowed for bringing a claim in tort in national law) even though the negligence complained of was a breach of European law; the second issue was the question of whether or not the first issue, as now decided by this Court, was sufficiently acte clair to not require a reference to the Court of Justice of the European Union.
In elaboration on the second ground of appeal, i.e., the asserted hardship, the appellant says that the Court found that if the plaintiff/appellant had challenged the acts of the Minister in 2006 as being contrary to European law he would have succeeded in having the correct criteria applied to the measurement of the length of his boat, the MV Áine Ide, and he could have continued to fish using his boat in the over 65 foot class as he had done since 1994. He had borrowed at that time to purchase the MV Áine Ide and her fishing licences and quota, all of which he has now lost together with his livelihood. It is said that his finances have been consumed in lengthy and costly litigation and that he now relies on such casual work crewing the boats of others as he can obtain, in order to make ends meet.
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