Deirdre Little v The Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection (No2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan,Mr. Justice Brian Murray
• Judgment Date: 19 November 2024
• Neutral Citation: [2024] IESC 53
• Docket Number: S:AP:IE:2022: 0000142

Between/

Deirdre Little

Applicant/Appellant

and

The Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection (No2)

Respondents

[2024] IESC 53

Charleton J.

Woulfe J.

Hogan J.

Murray J.

Collins J.

S:AP:IE:2022: 0000142

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Costs – Public interest – Legal Services Regulation Act 2015 – Appellant seeking no order as to costs – Whether the approach to the costs of unsuccessful claimants should be modified where the claims presented a matter of general public importance

Facts: The appeal of the appellant, Ms Little, revolved around the proper construction of s. 317(1)(a) of the Social Welfare Act 2005 as applied to her application for domiciliary care allowance (DCA). Following the delivery by the Supreme Court of its judgment in the substantive appeal, she filed submissions in which she urged that account should be taken of the economic hardship that an order for costs would entail for an unsuccessful litigant. The Court requested the parties to deliver further submissions addressed to the following questions: (1) Should the Court modify its approach to the costs of unsuccessful claimants in the light of the Thirty-Third Amendment to the Constitution and/or the enactment of ss. 168 and 169 of the Legal Services Regulation Act 2015, where the Court has determined that the claims of those parties present a matter of general public importance? (2) If so, should any such modification apply to all legal proceedings, or does the fact that an applicant is bringing a challenge to the legality of State action merit a different approach to such cases? Is the exemption granted by the State from a costs award against unsuccessful parties to environmental claims relevant to this issue? (3) Is the decision of the Court in Dunne v Minister for the Environment [2007] IESC 60 still good law? (4) If not, are any modifications to the principles in that decision necessitated by some or all of the foregoing limited to cases before the Court in which leave to appeal has been granted, or do they also apply in the High Court and the Court of Appeal where an applicant challenges the legality of Government action?

Held by Murray J that: (1) the Court should adopt a starting position in the exercise of its discretion whether to award costs against an unsuccessful claimant in public interest proceedings - in such proceedings the starting position should apply to cases in which the Court has granted leave to appeal on the basis that proceedings disclose a matter of general public importance, and where the Court, following the hearing of the full appeal, has not differed from the view of the Panel granting leave that the appeal discloses such an issue; (2) the approach is applicable only to public interest proceedings - it is not affected by the statutory exemptions from orders for costs granted in respect of certain environmental law claims; (3) there is no need for the Court to reverse the decision in Dunne - this judgment prescribes a starting position in the exercise of the Court’s discretion not to award costs against an unsuccessful claimant in a particular category of cases which keeps that discretion intact, while providing greater guidance to the factors relevant to its exercise; (4) the starting position is applicable only to appeals before the Court, although it carries through to the costs of a case for which the Court has granted leave to appeal incurred before the High Court and Court of Appeal - the High Court and Court of Appeal continue to have a power to both exempt an unsuccessful litigant in public interest proceedings from the cost consequences of their defeat, and to award some or all of the costs of such an action to such a party.

Murray J held that, having had regard to the concession made by the State, an order should be made setting aside the order for costs made against the appellant by Owens J.

Costs order set aside.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19 ^th day of November 2024

Introduction

1 . I agree with the judgment which Murray J. is about to deliver. In this concurring judgment I simply wish to address one aspect of that judgment, namely, the troublesome question of what, exactly, is or are the foundational statutory basis or bases for those Rules of the Superior Courts which deal with the issue of costs. As Murray J. will explain, there are at least three separate legislative provisions dealing with the general question of costs which are still (potentially) extant on the statute books, namely, s. 53 of the Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”); s. 14(2) of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) and ss. 168 and 169 of the Legal Services Regulation Act 2015 (“the 2015 Act”).

2 . One could also add that s. 94 of the Courts of Justice Act 1924 prescribed a general rule in respect of costs in civil actions tried by a jury. As it happens, this provision (which has never been expressly repealed) was applied by Barton J. in a costs matter arising from a jury action, Gordon v. Irish Racehorse Trainers Association [2020] IEHC 446. He held that this provision had not been impliedly repealed by the general words of s. 169 of the 2015 Act.

3 . To illustrate the potential difficulty which this all of this causes, I propose to examine briefly the distinct question of whether one of these potentially foundational statutory provisions, namely, s. 53 of the 1877 Act, still forms part of that statutory foundation in respect of those rules of court dealing with the award of costs or whether it now or, indeed, ever, applied to the courts established under Article 64 of the Constitution of the Irish Free State in 1922 or Article 64 of the Constitution of Ireland.

Has s. 53 of the 1877 Act survived?

4 . As Murray J. will explain, s. 53 of the 1877 Act was designed to provide a legal basis for rules of court dealing with costs following the procedural fusion of law and equity and the creation of one Supreme Court of Judicature. As Palles C.B. observed in Whitmore v. O'Reilly [1906] 2 IR 357 at 393, the main object of s. 53 was to unite the practice of costs at both common law and equity. The common law courts had been required by statutes going as far back as the Statute of Gloucester 1278 to award costs where a party had succeeded, so that the common law judges had no discretion in the matter: see generally, Keane, “From Gloucester to judicature: tracing the roots of the Indemnity Rule on Costs” (2014) 51 Irish Jurist 149. The common law courts were therefore required by statute to apply the costs follow the event formula. But as Palles C.B. explained in Whitmore, “Costs in the Court of Chancery, on the other hand, were always in the discretion of the court”: see [1906] 2 IR 357 at 394.

5 . Section 53 of the 1877 Act largely reflected the thinking of equity by providing that the award of costs to the successful party was not to be automatic. But some elements of the pre-1877 common law statutory practice were nonetheless reflected in s. 53 in that it also provided that in the case of civil actions tried with a jury, costs should follow the event unless the trial judge should, for special cause, rule otherwise. It should be recalled, of course, that in 1877, the vast majority of common law civil actions were tried with a jury. That is, of course, no longer the case, as the right to trial by jury in contract cases was (effectively) removed by s. 94 of the Courts of Justice Act 1924 and in personal injuries actions the right to jury trial was later removed by s. 1 of the Courts Act 1988.

6 . Article 64 of the Irish Free State Constitution Act 1922 contemplated the establishment of a new High Court and Supreme Court. This was duly accomplished by the enactment of the Courts of Justice Act 1924 (“the 1924 Act”). Section 22 of the 1924 Act had provided that:

“The jurisdiction vested in and transferred to the High Court and the Supreme Court … respectively shall be exercised so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided by such rules of court as may be made pursuant to this Part of this Act, and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred, by this Act.”

7 . While s. 22 was a general rule as to costs, s. 94 of the 1924 Act also provided for a special rule for costs in the case of civil actions tried by jury. Section 94 accordingly provided that costs should follow the event in civil actions tried by a jury unless the trial judge should otherwise rule for special cause which was to be mentioned in the court's order. Although this language was very similar to and covered the same ground as the corresponding provisions dealing with costs in civil actions tried by jury which were contained in s. 53 of the 1877 Act, neither s. 94 – or, for that matter, any other provision of the 1924 Act – purported to repeal s. 53 of the 1877 Act as such.

8 . The late 1920 and early 1930s saw two major decisions of this Court dealing with costs and, specifically, the question of whether s. 53 of the 1877 Act still had application to these newly established courts. In the first of these judgments which was delivered in July 1929, Little v. Dublin United Tramways Ltd. [1929] IR 642, Kennedy C.J. stated that the provisions of the 1877 Act dealing with the jurisdiction of the courts created by that Act “were repealed by implication or at least rendered obsolete”, although he held that it was otherwise in the case of the substantive rules contained in the 1877 Act: see [1929] IR 642 at 651. He then...