P.C. v Minister for Social Protection

JudgeMr. Justice Binchy
Judgment Date14 June 2016
Neutral Citation[2016] IEHC 343
Docket Number[Record No. 2013/6753 P]
CourtHigh Court
Date14 June 2016
P. C.



[2016] IEHC 343

Binchy J.

[Record No. 2013/6753 P]


Constitution – Right to livelihood – Validity of S. 249(1) of the Social Welfare (Consolidation) Act, 2005 – Disqualification to receive state pension (contributory) – Award of costs – Departure from rule

Facts: Following the unsuccessful challenge of the plaintiff to seek a declaration that s. 249 (1) of the Social Welfare (Consolidation) Act, 2005, was contrary to various provisions of the Constitution and the European Convention on Human Rights, the defendants sought an order for costs against the plaintiff. The plaintiff contended that the present case should be treated as a test case and award of costs should be made keeping in mind the personal circumstances of the plaintiff who had been serving a long term of imprisonment in the prison and public interest involved in the subject. The defendant argued that for a case to be qualified as a test case, there must be an issue requiring clarification and the fact that the plaintiff was an affected party would not suffice.

Mr. Justice Binchy held that the plaintiff, despite being unsuccessful, would be entitled for two-third of his costs. The Court held that it had discretion to depart from the rule that costs should follow the events in exceptional circumstances such as issues of public importance and test cases. The Court found that test cases would include those cases in its ambit where a successful challenge to the constitutionality of a statute would bring a series of claims against the State subject to the condition that such a challenge was substantive in nature. The Court found that since the issue involving payment of social insurance contribution to the prisoners was not decided prior to the present decision, it was likely that it could have been brought at some stage as it had far-reaching implication. The Court found that the plaintiff being in receipt of benefits prior to his imprisonment was required to know the basis of his sudden disqualification from receipt of those benefits owing to his imprisonment, which could have remained unknown but was made known through the present proceedings for the advantage of the plaintiff and similarly situated persons.

JUDGMENT of Mr. Justice Binchy delivered on the 14th day of June, 2016.
Ruling on Costs

The plaintiff brought proceedings seeking declarations that s. 249(1) of the Social Welfare (Consolidation) Act, 2005 (the 'act of 2005') is incompatible with various provisions of the Constitution and the European Convention on Human Rights.


At the heart of the proceedings was the question as to whether or not social insurance contributions made over a lifetime of work could give rise to a property right such as to entitle the plaintiff to an interest in the state pension contributory (the 'SPC') which he could not be denied once he had met conditions as to entitlement thereof. The impugned section states that a person is disqualified from the benefit while undergoing imprisonment or detention in legal custody.


The plaintiff was unsuccessful in his challenge. Accordingly, the defendants now seek an order for costs against the plaintiff.


However, the plaintiff argues that he should be awarded his costs in the very particular circumstances of this case. Mr. Fitzsimons S.C. for the plaintiff argues that this case should be treated as a test case and relies upon the decision of Clarke J. in Cork County Council v. Shackleton [2007] IEHC 334 where he said:-

'Test cases can arise in very many different circumstances. Where there is doubt about the proper interpretation of the common law, the Constitution, or statute law involving the private relations between parties, and where the circumstances giving rise to those doubts apply in very many cases, then it is almost inevitable, as a matter of practice, that one or a small number of cases which happen to be first tried will clarify the legal issues arising.'

Mr. Fitzsimons submits that these proceedings fall 'fairly and squarely' within that broad definition of a test case.


In addition, Mr. Fitzsimons argues that this was an unusual case, involving as it did a prisoner serving a long sentence challenging the constitutionality of a long standing statutory provision. He argues that the plaintiff here was not asserting a new entitlement, but an entitlement to continue to receive a benefit for which he had contributed and to which he had an entitlement, and was in receipt of, before his imprisonment. He submits that there is a public interest element to the challenge and that the State itself expressed concerns about the possible implications of an adverse outcome, not just in relation to those who are denied entitlement to SPC by reason of the impugned section, but in relation to the possibility of more widespread implications concerning other provisions relating to disqualification from other social welfare benefits during a term of imprisonment.


Mr. Fitzsimons also relied upon the case of Enright v. Ireland [2003] 2 I.R. 321 where the plaintiff challenged the constitutionality of the retrospective application of the reporting requirements imposed upon sex offenders pursuant to the provisions of the Sex Offenders Act 2001. He informed the Court that in that case Finlay Geoghegan J. had awarded the plaintiff his costs, and submitted that the nature of the challenge in this context) was analogous to these proceedings.


Ms. Barrington S.C., for the defendants, argues that this case does not meet the criteria either for a test case or a public interest case. She submits that the fact that a plaintiff is one of a category of persons who may have an interest in the outcome of proceedings does not of itself qualify the case as a test case. If it were otherwise, she submits, almost any constitutional challenge would be a test case.


She further submits that for a case to qualify as a test case, there must be an issue requiring clarification and in this regard relies upon the decisions in F. v. Ireland [Supreme Court, 27th July, 1995] and Curtin v. Dáil Éireann [2006] 2 I.L.R.M 99. In the former case, which...

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