Kerins -v- McGuinness & ors,  IEHC 217 (2017)
|Docket Number:||2014 431 JR|
|Party Name:||Kerins, McGuinness & ors|
THE HIGH COURT
DIVISIONAL COURT[2014 No. 431 JR]The President
Mr. Justice Noonan
Ms. Justice Kennedy
JOHN McGUINNESS, MARY LOU McDONALD, SHANE ROSS, AINE COLLINS, PAUL J. CONNAUGHTON, JOHN DEASY, ROBERT DOWDS, SEAN FLEMING, SIMON HARRIS, EOGHAN MURPHY, GERALD NASH, DEREK NOLAN, KIERAN O’DONNELL, THE CLERK OF DÁIL ÉIREANN, THE CLERK OF THE PUBLIC ACCOUNTS COMMITTEE, IRELAND AND THE ATTORNEY GENERALRESPONDENTS
JUDGMENT of the Court delivered on the 5th day of April, 2017.
On 31st January, 2017 the applicant’s claim was dismissed.
This is the judgment of the court in respect of the costs of these proceedings.
All of the respondents seek costs orders against the applicant. She contends that such orders should not be granted but, instead, she should have an order for costs made in her favour against all but the last two respondents. Insofar as those two respondents (Ireland and the Attorney General) are concerned she contends that there should be no order as to costs made by the court.
Before considering the merits of these applications it is desirable to identify the principles governing applications of this type.
The Legal position
Order 99, rule 1(1) of the Rules of the Superior Courts provides:-
“The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.”
Order 99, rule 1(4) provides:-
“The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.”
Thus, while a losing party is usually the subject of an order for costs, the court retains a discretion to depart from the ordinary rule as provided for in Order 99, rule 1(1). This discretion may be exercised in different ways. In some cases the court may make no order as to costs. In others, it may make a costs order in favour of a losing party. The court’s discretion falls to be exercised in the particular circumstances and context of a case. The applicant contends that the circumstances of this case justify the court departing from the normal rule and making orders of the type sought by her.
As was said by the Divisional Court in Collins v. The Minster for Finance & Others  (IEHC79):-
“(11) The starting point for any consideration of this question is to be found in the judgment of Murray C.J. in Dunne v. Minister for the Environment  IESC 60 and  2 I.R. 755 where he observed ( 2 I.R. 755, 783-784) that:-
‘The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party has an obvious equitable basis. As a counterpoint to that general rule of law the Court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the Courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.
Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasoned basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible or desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue.’”
In Collins the Divisional Court summarised principles which it extracted from the case law concerning the award of costs to unsuccessful litigants in constitutional cases. This is what the court said:-
“(12) It is true that the pre-existing case law in respect of the award of costs to unsuccessful litigants in constitutional cases can be described as heterogeneous and as revealing a variety of distinct themes. Yet certain principles nonetheless emerge which may now be summarised.
(13) First, costs (either full or partial) have been awarded against the State in cases where the constitutional issues raised were fundamental and touched on sensitive aspects of the human condition. Examples here might include Norris v. Attorney General  I.R. 36 (homosexuality); Roche v. Roche  IESC 10 (the constitutional status of human embryos) and Fleming v. Ireland  (assisted suicide).
(14) Second, costs have similarly been awarded to losing plaintiffs in constitutional cases of conspicuous novelty, often where the issue touched on aspects of the...
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