Ryanair DAC v an Taoiseach

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 31 December 2020
• Neutral Citation: [2020] IEHC 673
• Court: High Court
• Docket Number: 2020 No. 547 J.R.

BETWEEN

RYANAIR DAC

APPLICANT

AND

AN TAOISEACH

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AER LINGUS LTD

NOTICE PARTY

[2020] IEHC 673

Garrett Simons

2020 No. 547 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Garrett Simons delivered on 31 December 2020

INTRODUCTION

1 The principal judgment in these proceedings had been delivered on 2 October 2020, Ryanair DAC v. An Taoiseach [2020] IEHC 461. This second judgment addresses the appropriate costs order to be made in the proceedings. In accordance with the protocol of 24 March 2020 on the delivery of judgments electronically, the parties have exchanged written legal submissions on the question of costs. Each party maintains that its costs should be paid by the other side.

2 The three core issues to be addressed in this costs judgment are as follows. First, whether the proceedings presented issues of general public importance such as to justify a departure from the normal rule that the successful party is entitled to its costs. Secondly, whether Ryanair can be said to have been “partially successful” in the proceedings notwithstanding that the application for judicial review was dismissed. Thirdly, whether it can be inferred that a change in the wording of the government's travel advice had been introduced in response to these proceedings.

3 These issues are addressed under separate headings below. Before turning to that task, however, it may assist the reader in a better understanding of the issues to pause here and identify the relevant aspects of the statutory costs regime.

LEGAL SERVICES REGULATION ACT 2015

4 The within proceedings were instituted subsequent to the commencement, in October 2019, of Part 11 of the Legal Services Regulation Act 2015 (“ the LSRA 2015”). The allocation of costs thus falls to be determined by reference to that Act, and the amended version of Order 99 of the Rules of the Superior Courts.

5 Part 11 of the LSRA 2015 draws a distinction between a party who is “entirely successful” in proceedings, and a party who has only been “partially successful”. The default position is that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court, in the exercise of its discretion, orders otherwise. The reasons for such an order must be stated. A non-exhaustive list of the factors to be taken into account by a court in exercising its discretion are enumerated under section 169(1).

6 No such default position applies in respect of a party who has only been “partially successful”. As explained by Murray J. in Higgins v. Irish Aviation Authority [2020] IECA 277 (at paragraph 10), such a party may nevertheless be entitled to recover all of their costs in an appropriate case.

“[…] it is particularly important to bear in mind that whether a party is ‘entirely successful’ is primarily relevant to where the burden lies within process of deciding how costs should be allocated. If a party is ‘entirely successful’ all of the costs follow unless the Court exercises its discretion to direct otherwise having regard to the factors enumerated in s.169(1). If ‘partially successful’ the costs of that part on which the party has succeeded may be awarded in its favour, bearing in mind those same factors. Indeed, having regard to the general discretion in s.168(1)(a) and O.99 R.2(1) a party who is ‘partially successful’ may still succeed in obtaining all of his costs, in an appropriate case.”

7 Murray J. goes on in his judgment in Higgins to explain that in determining whether a party has been “entirely successful” for the purposes of section 169(1), the correct approach is to look beyond the overall result in the case and to consider whether the proceedings involve separate and distinct issues. If so, it is appropriate to determine which side succeeded on those issues.

8 The Court of Appeal has confirmed in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183 that even where a party has not been “entirely successful”, the court should still have regard to the matters set out in sub-section 169(1) when deciding whether to award costs. That sub-section reads as follows.

169.(1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,

(c) the manner in which the parties conducted all or any part of their cases,

(d) whether a successful party exaggerated his or her claim,

(e) whether a party made a payment into court and the date of that payment,

(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and

(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.

9 As appears, there are two broad categories of considerations which a court may take into account in determining costs: (i) the particular nature and circumstances of the case, and (ii) the conduct of the proceedings by the parties. The criteria enumerated at subparagraphs (a) to (g) appear to be directed principally to the second of the two categories, that is, the conduct of the proceedings. The criteria provide examples of what might be described as litigation misconduct, such as, for example, the unreasonable pursuit of issues in the proceedings. The use of the introductory words “including” indicates that the criteria enumerated at subparagraphs (a) to (g) are not intended to be exhaustive; rather, they are illustrative.

10 There is no reference in the legislative provisions to public interest litigation. This is to be contrasted with other provisions governing costs, such as those applicable to certain categories of environmental litigation under section 50B of the Planning and Development Act 2000, and Part 2 of the Environment (Miscellaneous) Provisions Act 2011. In each of these instances, the relevant costs rules are expressly stated not to affect the court's entitlement to award costs in favour of a party in a matter of exceptional public importance.

11 There is nothing in the statutory language of the LSRA 2015 which suggests that the discretion previously enjoyed by the courts under the pre- 2019 version of Order 99 of the Rules of the Superior Courts has been removed. Rather, it seems to me that the type of considerations identified in the case law discussed under the next heading below—such as, for example, whether the proceedings raise issues of general importance which transcend the facts of the case and which are novel—continue to inform the exercise of the costs jurisdiction. These considerations come within the rubric of the “particular nature and circumstances of the case” as per section 169(1) of the Legal Services Regulation Act 2015.

(I). PUBLIC INTEREST LITIGATION

12 Ryanair submits that the proceedings presented issues of general public importance such as to justify a departure from the normal rule that the successful party is entitled to its costs. In particular, it is submitted that the principal judgment addressed important issues in respect of the separation of powers as between the executive and legislative branches of government.

13 The parties were in broad agreement as to the principles governing an application for costs in circumstances where the moving party asserts that their proceedings had advanced a public interest. Both parties referenced the judgment of the Supreme Court in Dunne v. Minister for the Environment (No. 2) [2008] 2 I.R. 775(“ Dunne”), as follows. (It should be emphasised that Dunne had been decided prior to the enactment of the LSRA 2015).

“26. 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 general rule of law, the court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.

27. Where a court considers that it should exercise a discretion to depart from the normal rule as to costs, it is not completely at large but must do so on a reasoned basis, indicating the factors which, in the circumstances of the case, warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue.”

14 As appears from the...