A.Q. v Minister for Health

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 13 October 2016
• Neutral Citation: [2016] IEHC 556
• Docket Number: [2015 No. 5 CT]
• Court: High Court
• Date: 13 October 2016

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5(15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACTS 1997 – 2006

IN THE MATTER OF A DECISION OF THE HEPATITIS COMPENSATION TRIBUNAL TO THE CLAIMANT, A.Q., ON 6TH OCTOBER 2015, REFERENCE 413/08

AND IN THE MATTER OF AN APPEAL OF THE CLAIMANT A.Q.

BETWEEN

A.Q.

APPELLANT

AND

THE MINISTER FOR HEALTH

RESPONDENT

[2016] IEHC 556

[2015 No. 5 CT]

THE HIGH COURT

Practice & Procedures – S. 5(15)of the Hepatitis C Compensation Tribunal Acts 1997 – 2006 – Costs of unsuccessful party – Discretion of the Court – Deviation from the normal rule – Interpretation of the statutory provision – Test case – Beneficial to the future claimants – Interest of justice

Facts: In the present case, both the appellant and the respondent sought orders for their costs of the main proceedings. The appellant contended that the circumstances of the case were such that to warrant a deviation from the ordinary rule, the costs should follow the event. The appellant further submitted that the case was a test case where an order for costs of the proceedings for an unsuccessful party could be made, as it involved interpretation of a statute surrounding uncertainty and complexity, which would be beneficial to the future claimants. The respondent contended that there was no reason or basis to deviate from the ordinary rule. The respondent contended that it was not established that there were any potential future claimants in such matters and thus, the important criteria to meet the threshold of test case was absent.

Mr. Justice Bernard J. Barton made an order as to the costs of the appellant's proceedings, but limited to the costs of and incidental to the proceedings on appeal. The Court found that the proceedings filed by the appellant were qualified to be a "test case" as that was an important issue, involving the interpretation of statutory provision that cleared the law for the parties and also ensured benefit for the future claimants and Tribunals in the determination of such claims. The Court, in line with the principle enunciated in Dunne v Minister for the Environment, Heritage and Local Government [2008] 2 I.R. 775, held that in the interests of justice, the Court was authorized to exercise its discretion to depart from the ordinary rule that the costs should follow the event.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 13th day of October, 2016

Background

1 At the conclusion of the judgment in this case delivered on the 19th of July last, the Appellant and the Respondent both sought orders for their costs of the proceedings. Although the Court had dismissed her Appeal, the Appellant submitted that the special circumstances of the case were such as to warrant a departure by the Court from the ordinary rule that the costs of the proceedings should follow the event. The Respondent resisted that application and submitted that the circumstances of the case did not found a basis in law upon which the Court could or should make such an order; the Respondent had succeeded in defending the appeal, accordingly, the costs should follow that event. Judgment was reserved so that I could consider the matter and the submissions made on behalf of the parties.

2 It is not thought necessary to summarise here the submissions which have been made and considered; suffice it to say that the controversy between the parties centres on whether or not, having regard to well established legal principles, there were special circumstances and/or reasons which would justify the Court, in the exercise of its discretion, departing from the ordinary rule and making an order for some or all of the costs of the unsuccessful party, the Appellant.

The law

3 The general law governing the question of costs in civil proceedings is to be found in S.14 (2) of the Courts (Supplemental Provisions) Act, 1961, the Civil Liability and Courts Acts 1961 to 2013 and in O. 99 of the Rules of the Superior Courts 1986 as amended. The default position or 'normal rule'as it was described by Denham J, (as she then was) in Grimes v. Punchestown Developments Co Ltd [2002] 4 IR 515, is that costs of every proceeding follow the event whether at first instance or on appeal; in complex cases the identification of the event which costs are to follow can be quite difficult and may result in orders for costs being made in favour of differing and opposing parties to the litigation. See Veolia Water UK plc v. Fingal County Council (No2) [2007] 2 IR 81.

4 Whether the litigation is comparatively straight forward or complex, when it comes to the making of an order for costs the Court is possessed of a discretion which is to be exercised in a reasoned fashion in accordance with certain well established criteria or principals about which, for present purposes, it is considered necessary to refer.

5 There is no hard and fixed rule or principle which determines the ambit of the Court's discretion and in particular there is no overriding principle which directs that it must be exercised in favour of an unsuccessful party in specific circumstances or in a certain class or category of case rather it is to be exercised in a reasoned fashion having due regard to the special circumstances of the particular case, if such exist, and where the interests of justice so require. See Hewthorn & Co. v. Heathcott [1905] 39 ILTR 248, Grimes v. Punchestown Developments, supra, Fyffes plc v. DCC plc [2009] 2 IR 417 and Dunne v. Minister for the Environment, Heritage and Local Government [2008] 2 I.R. 775 where the basis for and exercise of the jurisdiction was enunciated. Delivering the unanimous judgment of the Supreme Court in Dunne, Murray C.J. stated at para. 26, p. 783 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...