Patrick McGovern v The Chief Appeals Officer, Minister for Employment Affairs and Social Protection, Ireland, and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Miriam O'Regan
• Judgment Date: 12 May 2021
• Neutral Citation: [2021] IEHC 325
• Docket Number: [Record No. 2020/398 JR]
• Court: High Court
• Date: 12 May 2021

In the Matter of the Constitution of Ireland

And in the Matter of the European Convention on Human Rights Act 2003

Between

Patrick McGovern

Applicant

and

The Chief Appeals Officer, Minister for Employment Affairs and Social Protection, Ireland, and The Attorney General

Respondents

[2021] IEHC 325

[Record No. 2020/398 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Stay – Legal Services Regulation Act 2015 s. 169(1) – Respondents seeking their costs – Whether costs should follow the event

Facts: The High Court delivered judgment on 19 March 2021 dismissing the claim of the applicant, Mr McGovern, for judicial review in respect of a decision of the Appeals Officer to refuse him the payment of the Widower’s (Contributory) Pension and the Widowed or Surviving Civil Partner Grant under the provisions of the Social Welfare Consolidation Act 2005 as amended. Subsequently, the parties delivered submissions on the issue of costs, the respondents, the Chief Appeals Officer, the Minister for Employment Affairs and Social Protection, Ireland and the Attorney General, seeking their costs and the applicant seeking no order as to costs. The applicant suggested that the proceedings raised issues of significant general importance so that it would be appropriate that the matter be litigated in the public interest relative to the interpretation of the 2005 Act and the Constitution as well as the application of both EU and ECHR law. It was suggested that the matter was a test case. It was said that the matters raised in the proceedings were fundamental and touched on sensitive aspects of the human condition. The applicant highlighted that a finding of personal advantage was not fatal to the applicant’s claim seeking no order as to costs, but rather this was a factor to be taken into consideration as part of the overall circumstances. The applicant relied on the jurisprudence identified in C.A. & T.A. v Minister for Justice and Equality & Ors. [2015] IEHC 432.

Held by O’Regan J that in the principal judgment no relief was secured by the applicant. Although in the principal judgment the failure to exhaust alternate remedies was taken into account in the exercise of the court’s jurisdiction (as opposed to dismissing the judicial review application outright), it did not in O’Regan J’s view amount to a partial success on the part of the applicant, but rather accorded with the jurisprudence on the topic of applying for judicial review in circumstances where an alternate remedy has not been exhausted. O’Regan J held that none of the matters set out in s. 169(1) of the Legal Services Regulation Act 2015 impacted on costs incurred. In the circumstances, it appeared to O’Regan J that the respondents had been entirely successful in the proceedings and she had no basis to depart from the general rule of law as to costs, or to afford the applicant costs or a portion of his costs, or indeed to provide for no order as to costs under the provisions of s. 169(1) of the 2015 Act.

O’Regan J held that an order would be made for the respondent’s costs against the applicant to be adjudicated upon in default of agreement. The applicant sought a stay on the order for costs pending an appeal and in the circumstances O’Regan J held that she would afford a stay until the end of the period within which an appeal should be maintained, and in the event that such an appeal was maintained such stay would continue until the first directions date before the Court of Appeal.

Costs to the respondents.

JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 12th day of May, 2021.

Issue

1 This Court delivered judgment on 19 March 2021 dismissing the applicant's claim for judicial review in respect of a decision of the Appeals Officer to refuse him the payment of the Widower's (Contributory) Pension and the Widowed or Surviving Civil Partner Grant under the provisions of the Social Welfare Consolidation Act 2005 as amended (the 2005 Act).

2 Subsequently, the parties delivered submissions on the issue of costs, the respondents seeking their costs and the applicant seeking no order as to costs. This judgment is addressing the issue of costs in those circumstances.

3 The applicant's position might be summarised as follows:

• (a) The applicant suggests that the proceedings raised issues of significant general importance so that it would be appropriate that the matter be litigated in the public interest relative to the interpretation of the 2005 Act and the Constitution as well as the application of both EU and ECHR law.

• (b) It is suggested that the within was a test case. Reliance is placed on P.C. v. Minister for Social Protection [2016] IEHC 343 wherein Binchy J. held against the plaintiff in that constitutional and ECHR challenge, however awarded the plaintiff two-thirds of his costs. Binchy J. identified a test case as including cases with a constitutional challenge to a statutory provision, which, if successful, would inevitably result in a large...