Patrick Costello v The Government of Ireland, Ireland and The Attorney General

JudgeMs. Justice Butler
Judgment Date26 October 2021
Neutral Citation[2021] IEHC 675
Docket Number[2021 No. 1282 P.]
CourtHigh Court
Patrick Costello
The Government of Ireland, Ireland and The Attorney General

[2021] IEHC 675

[2021 No. 1282 P.]


JUDGMENT of Ms. Justice Butler delivered on the 26th day of October, 2021


This is my ruling on the issue of costs in the above proceedings in which I delivered judgment on 16th September, 2021. That judgment found against the plaintiff on the key issue of the constitutionality of the proposed ratification of CETA by means of placing it before Dáil Éireann to secure its approval pursuant to Article 29.5.2 of the Constitution. In doing so, I accepted the main argument made by the defendants to the effect that as CETA is an international agreement operating only at the level of international law, it cannot be understood as effecting a transfer of either the State's legislative or judicial power. However, because of the importance of the issues raised and the likelihood of the matter proceeding on appeal, I also considered the balance of the arguments made by both sides and reached conclusions on those issues, albeit on occasion on an expressly obiter basis. Both parties now seek their costs as against the other.


The plaintiff advances a number of grounds for his application. Firstly, he contends that the standard rule that costs follow the event, now given legislative expression in s. 169(1) of the Legal Services Regulation Act, 2015, should not apply because of the court's findings that the plaintiff had locus standi to pursue the claim and, that as an elected public representative, he was especially well placed to do so.


Secondly, whilst recognising that there is no category of case automatically immune from the application of the general rule (per Dunne v. Minister for the Environment [2008] 2 IR 775), it is contended that the case was of an exceptional nature which merits an award of costs to the unsuccessful plaintiff. Reference was made to the fact that the case raised novel questions of constitutional law; that it operated as a test case in respect of future investment protection treaties; that it raised fundamental constitutional questions as regards the administration of justice; it raised significant questions of the constitutionality of adherence to international treaties; and, in general, that it raised issues of clear public interest in circumstances where the plaintiff had no personal interest in the outcome of the case. I note that the latter is effectively the category of case which the Supreme Court did not accept was automatically immune from the application of the general rule in Dunne v. Minister for the Environment (above). The plaintiff relies on the ruling of the Divisional High Court in Collins v. Minister for Finance [2014] IEHC 79 and of the High Court in Kerins v. McGuinness [2017] IEHC 217. The plaintiff argues, in particular, that the court should make an award of costs in his favour without any reduction.


Finally, the plaintiff points to the issues which were raised by the defendants on which the court preferred the plaintiff's position, to argue that although the plaintiff did not obtain the relief he sought, the defendants were not entirely successful.


The defendants, on the other hand, contend that having been successful in the proceedings, they are now entitled to an order for costs against the plaintiff. They indicate that they are happy that any order for costs made in their favour should be stayed in the event of an appeal. The defendants rely on the provisions of ss. 168 and 169 of the 2015 Act, the Recast Order 99 of the Rules of the Superior Courts introduced in 2019 in response to the 2015 Act and the analysis of the interplay between these various instruments by Murray J. in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183. The defendants make the not unreasonable point that because the plaintiff made a very broad claim, it was necessary for them to respond to it in great detail. However, the defendants say they advanced a core argument in response to the entire claim on which they were successful. Consequently, it is argued that they should not be penalised because they did not succeed on all elements of the pleadings they raised to meet the detail of the plaintiff's broad claim which was fundamentally unsuccessful.


In relation to the potential public interest argument, the defendants say the onus is on the plaintiff to satisfy the court that the case is an exceptional one justifying a departure from the normal rule. Further, recent Supreme Court authority ( Minister for Communications, Energy and Natural Resources v. Wymes [2021] IESC 63) has found that the mere fact that litigation raised a question of general public importance is not sufficient to justify a departure from the normal rule that costs follow the event. In looking at this particular judgment it should be borne in mind that establishing that an appeal raises a question of general public importance is one of two potential threshold requirements which must be satisfied for the Supreme Court to accept jurisdiction of an appeal under Article 34.5.3(i) of the Constitution. Consequently, if the Supreme Court were to treat the mere fact that a case raised an issue of general public importance as a basis for awarding costs to a losing party, it could have a potential impact on a very large number of appeals before that court. Finally, the defendants point out that it is only in very rare cases that unsuccessful parties have been awarded costs on the grounds of the public interest and importance of the litigation and, even when this has been done, the courts have tended to award partial rather than full costs. A number of cases are cited as examples of such orders.


I do not propose to rehearse all of the authorities which have been cited to the court in the written submissions of the parties, most of which are all by now well established. It seems to me that the basis on which I should approach the issue of costs is as follows:-

  • • The Oireachtas has legislated to the effect that the general rule should be that a party who is entirely successful in litigation is entitled to an award of costs. This puts the former practice of the courts on a statutory footing.

  • • By expressly including the phrase “ entirely successful”, the Oireachtas allows a court to look at discrete aspects of a case on which the successful party may not have succeeded or on which the unsuccessful party succeeded in order to determine whether the costs awarded should include the costs of those issues or, conversely, whether the unsuccessful party should be awarded costs in respect of the issues on which they succeeded.

  • • Furthermore, the court retains a discretion as regards the award of costs in each case which must be exercised in light of the particular nature and circumstances of the case and the conduct of the parties. Factors potentially relevant to an assessment of the conduct of the parties are set out in s. 169(1) of the 2015 Act.

  • • The court must provide reasons for any departure from the normal rule (see s. 169(2)).

  • • There is no category of case which is automatically immune from the application...

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