J.M. v The Commissioner of an Garda Síochána ; D.H. v The Commissioner of an Garda Síochána ; L.B. v The Commissioner of an Garda Síochána ; R.G. v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mark Heslin |
| Judgment Date | 08 June 2022 |
| Neutral Citation | [2022] IEHC 572 |
| Court | High Court |
| Docket Number | [2021 276 JR] [2021 695 JR] [2021 692 JR] |
[2022] IEHC 572
[2021 276 JR]
[2021 688 JR]
[2021 695 JR]
[2021 692 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Statutory interpretation – Costs – Respondents seeking costs – Whether costs should follow the event
Facts: Four applications seeking judicial review came before the High Court for hearing on 14 January 2022. Although there was a somewhat different approach adopted on behalf of the fourth applicant, it was contended on behalf of all that the proper interpretation of s. 23(1)(a) of the Children Act 2001 is to entitle the applicants and their legal advisors to be provided with all material contained in the Garda investigation file. On 1 February 2022, the court held that the ‘right’ which all four applicants contended for, pursuant to s. 23, ran “contrary to the will of the Oireachtas as clearly expressed in the plain meaning of the words used in the legislation” ([2022] IEHC 149). The court also found that the contended-for right did not arise by “virtue of European directive or constitutional provision”. The applicants submitted that it was in the interests of justice to grant the costs of the applicants, on the grounds that, inter alia, the proceedings concerned a novel, important and previously unexplored point of law and it was in the broader public interests that the nature and extent of the right to legal advice pursuant to s. 23 should be clarified, which had a significance extending beyond the sectional interests of each applicant. It was also emphasised that the issue raised in relation to Part 4 of the 2001 Act had not previously been determined by the court. It was also stressed that the primary beneficiaries of the proceedings would have been children who relied upon their parents to invoke the court’s jurisdiction. In arguing for an entitlement to costs, the applicants also focused on the acknowledgement in the court’s judgment that the applicants’ legal advisers “have no doubt been acting in accordance with the highest standards of their profession, motivated exclusively by the aim of asserting their respective clients’ rights vigourously and professionally”. The respondents, the Commissioner of An Garda Síochána and the Director of the Juvenile Diversion Programme, submitted that no circumstances existed to displace the presumption that they were entitled to their costs and they asserted that there was no basis for the court to exercise its discretion to depart from the ‘normal’ or ‘general’ rule as to costs (i.e. that ‘costs follow the event’).
Held by Heslin J that the proceedings did not comprise what might properly be called “public interest” litigation in the manner explained in the jurisprudence. He held that the case could not fairly be considered to be one which clarified a matter of ‘systemic importance’. It did not seem to him that, as a result of the proceedings, clarity had been brought to an issue which was, hitherto, opaque.
Heslin J held that the justice of the situation was met by not departing from the ‘normal’ rule that ‘costs’ should ‘follow the event’.
Costs awarded to respondents.
RULING of Mr. Justice Mark Heslin delivered on the 8 th Day of June 2022
. This short ruling in relation to the question of costs must be read in conjunction with the judgment delivered on 1 February 2022, ( [2022] IEHC 149), in which this court held that the ‘right’ which all four Applicants contended for, pursuant to s.23 of the Children Act, 2001 (“the 2001 Act”) ran “contrary to the will of the Oireachtas as clearly expressed in the plain meaning of the words used in the legislation”. For the reasons set out in that Judgment, the court also found that the contended-for right did not arise by “virtue of European directive or constitutional provision”. The Applicants were not entitled to any of the reliefs sought and the Respondent was entirely successful.
. Written submissions were furnished by both sides. Although there were 4 sets of submissions furnished on behalf of the Applicants, it is fair to say that all 4 are similar. I have carefully considered all submissions. The Respondents propose that the following order been made (i) that the application be dismissed; (ii) an order for costs be made in favour of the Respondent to be adjudicated in default of agreement.
. By contrast, the Applicants submit that it is in the interests of justice to grant the costs of the Applicants, on the grounds that, inter alia, the proceedings concerned a novel, important and previously unexplored point of law and it was in the broader public interests that the nature and extent of the right to legal advice pursuant to s. 23 of the 2001 Act should be clarified, which had a significance extending beyond the sectional interests of each applicant. It is also emphasised that the issue raised in relation to Part 4 of the 2001 Act had not previously been determined by the court. It was also stressed that the primary beneficiaries of the proceedings would have been children who relied upon their parents to invoke this court's jurisdiction. In arguing for an entitlement to costs, the Applicants also focus on the acknowledgement in this Court's Judgment that the Applicants' legal advisers “have no doubt been acting in accordance with the highest standards of their profession, motivated exclusively by the aim of asserting their respective clients' rights vigourously and professionally”.
. Section 169(1) of the 2015 Act (“the 2015 Act”) states:
“A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including–
• conduct before and during the proceedings
• whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
• the manner in which the parties conducted all or any part of their cases,
• whether a successful party exaggerated his or her claim,
• whether a party made a payment into court and the date of that payment,
• whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
• where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.
Order 99, Rules 2, of the Rules of the Superior Courts (“RSC”) provide:
“2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided by these Rules:
(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.
(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.
(4) An award of costs shall include any sum payable by the party in favour of whom such an award is made by way of value added tax on such costs, where and only where such party establishes that such sum is not otherwise recoverable.
(5) An order may require the payment of an amount in respect of costs forthwith, notwithstanding that the proceedings have not been concluded.
. In light of the foregoing, the ‘starting point’ is that (as the entirely successful party) the Respondents enjoy a presumptive right ( per. s. 169(1) of the 2015 Act) to an award of costs against the Applicants (who were entirely unsuccessful). Whereas Order 99 Rule 2(1) of the RSC provides that costs are in the discretion of the court, this court is not ‘at large’ in the exercise of that discretion; and the court is mandated to have regard, in particular, to the various items set out in s.169(1) of the 2015 Act. In short, the Respondents are entitled to an award of costs unless the nature or circumstances of this particular case, including the conduct of the parties, means that the interests of justice require otherwise.
. In essence, the Respondents submit that no circumstances exist to displace the presumption that they are entitled to their costs and they assert that there is no basis for this Court to exercise its discretion to depart from the ‘normal’ or ‘general’ rule as to costs (i.e. that ‘costs follow the event’).
. In the Applicants' submissions, reliance is placed on the Supreme Court's decision in Dunne v. Minister for the Environment [2008] 2 IR 775, wherein it was held that the Court has a discretionary jurisdiction to depart from the general rule that costs follow the event, stating (from para. 26) that:
“…the Court has a discretionary jurisdiction to vary or depart from that rule of law if, in...
To continue reading
Request your trial