Sweeney and Another v The Voluntary Health Insurance Board

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,Charleton J.,O'Malley J.,Collins J.,Donnelly J.
• Judgment Date: 01 May 2025
• Neutral Citation: [2025] IESC 15
• Court: Supreme Court
• Docket Number: Record No. S:AP:IE2023:000102

Between/

Patrick Kelly

Appellant/Plaintiff

and

University College Dublin, National University of Ireland Dublin

Respondent/Defendant

and

The Law Society of Ireland and The General Council of the Bar of Ireland

Amici Curiae

[2025] IESC 15

O'Donnell C.J.

Charleton J.

O'Malley J.

Collins J.

Donnelly J.

Record No. S:AP:IE2023:000102

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Costs – Judicial disqualification – Production of documents – Appellant seeking costs – Whether judgment should be amended

Facts: The decision in the High Court on appeal from the Circuit Court on an interlocutory motion in respect of the production of documents was made by Meenan J. A son of the judge was a senior associate solicitor employed in the Capital Markets division of Arthur Cox LLP, the firm on record for the respondent, University College Dublin (UCD). The issue of whether that connection meant that the judge was disqualified from hearing the case fell to be resolved. On 12 February 2025, the Supreme Court (O’Donnell CJ) held that it had been established beyond any doubt, and beyond any standard required by the law, that the judge’s son had no involvement in or connection to the case, or interest financial or otherwise in its outcome; accordingly, the judge was not disqualified from hearing the case, and the appeal of the appellant, Mr Kelly, was dismissed. Neither UCD nor the amici curiae, the Law Society of Ireland and the General Council of the Bar of Ireland, sought any order for costs against the appellant, notwithstanding the fact that he had been wholly unsuccessful in the appeal. However, the appellant argued that he was entitled to a positive order for the costs of the appeal against UCD, and also against the amici curiae. Furthermore, he argued, the Court should go further and make an order setting aside the costs order made against him in the Circuit Court and High Court and also order that UCD pay his expenses in relation to the interlocutory application in both the Circuit Court and the appeal to the High Court. Finally, the appellant also sought an order correcting what he described as “basic factual errors in paragraphs 15, 21, 26, 30, 37, 38 and 39 of the judgment of the Chief Justice”, the judgment delivered on 12 February 2025.

Held by the Court that there are very exceptional cases in which an unsuccessful party has succeeded in obtaining an award of costs, whether full or partial, in their favour and there was nothing in the facts of the case which would justify such an approach; the position taken by UCD in respect of costs of the appeal was reasonable. The Court held that there could be no valid criticism of the approach of the amici curiae and there was no valid basis for making an order for costs against the amici. The Court had already decided that the appellant should not recover costs or expenses of the unsuccessful appeal, and no party had sought the costs of the appeal against him; the effect of this was that he was not penalised for having raised the issue, but was not rewarded either. The Court held that UCD should not be deprived of the benefit of the award of costs properly made in both courts. The Court held that if there was no proper basis for setting aside the order of costs made against the appellant in the Circuit Court and High Court, there could be no basis for making a positive order in his favour that he should recover the expenses incurred in the Circuit Court application and the High Court appeal.

The Court held that no order of costs would be made on the appeal in favour of any party, and the Court would not interfere with the order for costs made in the Circuit Court and the High Court, in favour of UCD against the appellant. The Court amended paragraphs 15, 21, 30, 37, 38 and 39 of O’Donnell CJ’s judgment.

No order of costs.

RULING of the Court as to costs delivered electronically on the 1 ^st day of May, 2025

1 . Judgment in this appeal was delivered on the 12 ^th February, 2025 (O'Donnell C.J., nem. diss.), in which the appeal of the plaintiff appellant (“the Appellant”) was dismissed. The parties were given time to consider the judgment and made submissions on the appropriate order as to costs. As a result of exchanges in Court on the date of delivery of the judgment it was directed that the Respondent, University College Dublin, National University of Ireland, Dublin (“UCD”) and the amici curiae, the General Council of the Bar of Ireland (“the Bar Council”) and the Law Society of Ireland (“the Law Society”) should deliver submissions to which the Appellant would be given time to respond.

2 . In the event, the amici curiae delivered submissions to the same effect: both stated that they would bear their own costs, and were not seeking any order for costs, but would resist any application for costs against them, the Appellant having intimated that he would make such an application.

3 . UCD for its part submitted that it had been entirely successful in the appeal. Accordingly, the provisions of s. 169 of the Legal Services Regulation Act, 2015 were applicable in principle, which provides 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 these proceedings, unless the court orders otherwise. In this case, UCD had been entirely successful against the plaintiff/appellant in the appeal.

4 . However, UCD acknowledged that this Court in Little v Chief Appeals Officer [2024] IESC 53 (“ Little”), had set out a general approach to the award of costs in cases in which this Court had granted leave to appeal on grounds that the appeal involved a matter of general public importance and in which it could be said there was a public interest in the appeal. The judgment of Murray J. addressed the question of litigation brought in what was contended to be the public interest, against the State or a State body. No difficulty arose in cases in which a claimant or appellant was successful against the State in such proceedings: the normal order would provide that their costs in such a case were to be paid by the State consistent with s. 169. However, it was necessary to consider the more difficult position in respect of a claimant or appellant who was unsuccessful in what could be described as public interest proceedings brought against the State.

5 . Paragraph 77 of the judgment sets out the presumptive position in such cases:

“ This Court should now adopt a starting position in the exercise of its discretion whether to award costs against an unsuccessful claimant in public interest proceedings as I have defined them at paragraph [34] of this judgment. In such proceedings the starting position should apply to cases in which the Court has granted leave to appeal on the basis that proceedings disclose a matter of general public importance, and where the Court, following the hearing of the full appeal, has not differed from the view of the Panel granting leave that the appeal discloses such an issue. In such cases, the starting position should be that the Court will exercise its discretion not to order costs of the proceedings against that unsuccessful plaintiff or applicant. In such cases, the defendant/respondent may request the Court to order otherwise. The factors on the basis of which the Court will exercise its discretion to make an order for costs are set out at paragraphs [35] and [53] of this judgment in the case of the costs of the appeal. Presumptively, the same principles should apply to the costs incurred before the case reached this Court in the High Court and, where applicable, Court of Appeal. However, if the proceedings in the other courts involved issues that were not before this Court, or there are particular features of the earlier conduct of the case relevant to the allocation of costs, different cost orders as between the various courts may apply.”

6 . UCD argued that although it is a university regulated by statute and benefitting from State funding, it could not be considered to be the same as “the State” envisaged in the Little judgment. It also argued that the case was not necessarily a truly “public interest” civil suit as such. UCD pointed out that the issues in respect of which leave was granted to appeal, (whether the judge hearing the appeal was disqualified from hearing it by reason of the fact that his son was employed in the firm acting for UCD) was unconnected to the issues in the suit, and did not concern any alleged act or omission of either party, but rather concerned the court process itself. UCD also pointed to a number of other factors which it said could weigh against the Appellant and warrant an order that he pay some or all of the costs of his own successful appeal. It should be said that the Appellant challenged these contentions on the part of UCD, but it is not necessary to come to a conclusion on these matters as UCD did not seek costs but rather invited the Court to exercise its discretion in accordance with the presumptive position in Little, i.e. that there would be no order for costs on the appeal.

7 . However, UCD argued, as indeed contemplated by the judgment in Little at paragraph 77, that different considerations should apply to the costs already awarded in respect of the Circuit Court proceedings and the appeal in the High Court. The costs in the Circuit Court and High Court had been awarded following the event, and the Respondent had been successful in the question at issue in those proceedings, namely discovery/production of documents, against the Appellant. The issue of general public importance only arose after the hearing and decision in the High Court and was advanced for the first time on the application for leave to appeal to this Court. The particular point certified, namely the fact that a son of the judge in question was employed in one of the departments of the firm then on...