Nicolae Dumitran v Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Sanfey
• Judgment Date: 04 October 2021
• Neutral Citation: [2021] IEHC 623
• Docket Number: [2020/2815 P]
• Year: 2021
• Court: High Court

Between

Nicolae Dumitran

Plaintiff

and

Ireland and The Attorney General

Defendants

and

The Director of Public Prosecutions

Notice Party

[2021] IEHC 623

[2020/2815 P]

THE HIGH COURT

RULING of Mr. Justice Mark Sanfey delivered on the 4th day of October, 2021.

1 On 27th August, 2021, I delivered a judgment in relation to a challenge by the plaintiff to the constitutionality of s.78(5)(a) of the Finance Act 2005 as amended. That judgment (‘the substantive judgment’) should be read in conjunction with the present ruling, which concerns the costs of the action, in respect of which the parties have each proffered written submissions.

2 As the substantive judgment makes clear, the only relief sought by the plaintiff – that the subsection was invalid having regard to various articles of Bunreacht Na hÉireann – was refused by me. The defendants therefore submit that they were wholly successful in the proceedings, and that the court “wholly rejected” all of the arguments raised by the plaintiff. It is submitted that “there are no reasons why the court should depart from the usual rule that a wholly successful party should receive their costs”.

3 The plaintiff on the other hand argues that the case “…raised issues of importance which had a much more general application [than] solely the Plaintiff's own interests. It resolved the issue of fairness in the minimum penalty that may be imposed on any person committing the same offence as the Plaintiff coming before the District Court, it gave guidance to the District Court on how to deal with the sentencing parameters set and it comprehensively addressed minimum penalties that may be set by the Oireachtas. These are all significant issues, affecting a great many people coming before the courts”. It is submitted that “the particular nature and circumstances of the case are such that it would be appropriate for the court to make an order for costs in favour of the Plaintiff”. [Plaintiff's written submissions]

4 The applicable statutory provisions governing the award of costs are sections 168 and 169 of the Legal Services Regulation Act 2015 and the recast O.99 of the Rules of the Superior Courts as introduced by the Rules of the Superior Courts (Costs Order) 2019 SI 584/2019. The principles set out in these provisions are admirably summarised by Murray J at para. 19 of his judgment in Chubb European Group SE v. The Health Insurance Authority [2020] IECA 183:-

• “(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and 0.99, r.2(1)).

• (b) In considering the awarding of costs of any action, the Court should ‘ have regard to’ the provisions of s.169(1) (0.9, r.3(1)).

• (c) In a case where the party seeking costs has been ‘entirely successful in those proceedings’, the party so succeeding ‘ is entitled’ to an award of costs against the unsuccessful party unless the court orders otherwise (s.169(1)).

• (d) In determining whether to ‘order otherwise’ the court should have regard to the ‘ nature and circumstances of the case’ and ‘the conduct of the proceedings by the parties’ (s.169(1)).

• (e) Further, the matters to which the court shall have regard in deciding whether to so order otherwise include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues (s.169(1)(a) and (b)).

• (f) The Court, in the exercise of its discretion may also make an order that where a party is ‘partially successful’ in the proceedings, it should recover costs relating to the successful element or elements of the proceedings (s.168(2)(d)).

• (g) Even where a party has not been ‘ entirely successful’ the court should still have regard to the matters referred to in s.169(1)(a)-(g) when deciding whether to award costs (0.99, r.3(1)).

• (h) In the exercise of its discretion, the Court may order the payment of a portion of a party's costs, or costs from or until a specified date (s.168(2)(a)).” [Emphasis in original]

5 In Corcoran v. Commissioner of An Garda Síochána [2021] IEHC 11, Simons J stated as follows:-

“19. The courts have discretion, to be exercised on a case-by-case basis, to depart from the general rule that a successful party is entitled to its costs. One of the...