Thomas Pringle v Government of Ireland and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 04 April 2014
• Neutral Citation: [2014] IEHC 174
• Court: High Court
• Date: 04 April 2014

[2014] IEHC 174

THE HIGH COURT

[No. 3772P/2012]

Pringle v Government of Ireland & Ors

BETWEEN

THOMAS PRINGLE

PLAINTIFF

AND

THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

PRINGLE v GOVT OF IRELAND & ORS 2013 AER (EC) 1 2013 2 CMLR 2

EEC DECISION 2011/199

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 136

DUNNE v MIN FOR THE ENVIRONMENT & ORS 2008 2 IR 775 2007/16/3368 2007 IESC 60

NATIONAL MONUMENTS (AMDT) ACT 2004 S8

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S3(1)

RSC O.99

CURTIN v CLERK OF DAIL EIREANN & ORS UNREP SUPREME 6.4.2006 2006/13/2688 2006 IESC 27

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 IR 556 2006 2 ILRM 99 2006/13/2692 2006 IESC 14

CONSTITUTION ART 35.4.1

CONSTITUTION ART 35

CROTTY v AN TAOISEACH & ORS 1987 IR 713 1987 ILRM 400

EUROPEAN STABILITY MECHANISM ACT 2012

CONSTITUTION ART 29.4.4

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION TITLE VIII

Costs – Ratification of European Treaty – Constitutional Obligations - European Union Law – Issues of special and general public importance

Facts: This judgment was to decide upon the appropriate order for costs to be made in relation to High Court proceedings. The High Court refused all of the reliefs sought by the plaintiff except one. This exception concerned the plaintiff “s claim that the ratification of the European Stability Mechanism (ESM) Treaty would be invalid, void and of no effect. The Court adjourned the matter pending referral to the Court of Justice of the European Union (CJEU) of a preliminary reference pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU). However, this did not happen and instead the plaintiff filed a notice of appeal. The Supreme Court expedited the appeal hearing and considered whether it was necessary to make a preliminary reference to the CJEU regarding the validity of the European Council Decision 2011/199/EU and whether by ratifying the ESM Treaty Ireland would undertake obligations incompatible with EU Law. The Supreme Court decided it was necessary to refer questions of EU law to the CJEU in relation to this issue. The full CJEU ruled that the right of a Member State to conclude and ratify the ESM Treaty was not subject to the entry into force of Decision 2011/199. This addressed the concerns raised in the judgment of the High Court. The Supreme Court dismissed the substance of a further appeal hearing but adjourned the issue of costs to allow either side to re-enter it for the purpose of making a costs application. The plaintiff re-entered the High Court proceedings and made a costs application. The plaintiff argued that the High Court should exercise its discretion in this instance to award costs against the defendants. The defendants argued that the unsuccessful plaintiff made no case to warrant an exceptional order for costs being made against them. Furthermore, the defendants argued that it would not be in the interests of justice to make an order for costs in favour of the plaintiff and the most he could expect was a portion of his costs.

Held by Laffoy J,

The Court had to consider two issues. The first was whether the plaintiff, who was unsuccessful on all of the issues raised in the High Court except the one where the Court indicated a willingness to refer to the CJEU for a preliminary ruling, should be awarded costs against the successful defendants. The second issue was whether the plaintiff should get full costs or merely a portion of his costs. In both instances the Court had to determine whether the case warranted a departure from the normal rule that costs follow the event. Laffoy J said these circumstances did warrant a different approach to costs because the legal issues were of special and general public importance not only for Ireland but the whole of the European Union. The Court subsequently decided to exercise its discretion in favour of the plaintiff. On the question of whether it should be all or some of the costs the Court considered the importance of the legal issues raised in relation to the application of EU law; the complexity of the issues raised in the constitutional challenge; the significance of the resolution for European and national law and the fact that the plaintiff had no private interest in the outcome of the case. Laffoy J concluded by exercising the Court”s discretion to award full costs to the plaintiff.

1 Judgment of Ms. Justice Laffoy delivered on 4th day of April, 2014.

Decision to which this judgment relates

2 1. This judgment addresses the appropriate order for costs to be made in relation to the High Court proceedings in this matter. It is pertinent to explain why the decision is being given at this juncture.

3 2. Because of the importance of the issues raised in the proceedings, the hearing in the High Court was expedited. The hearing concluded on 29 ^th June, 2012. The decision of the High Court was announced on 9 ^th July, 2012 and the judgment was delivered on 17 ^th July, 2012. In the decision as announced and in the judgment and the order of the High Court made on 17 ^th July, 2012, with one exception, the Court refused all of the reliefs sought by the plaintiff in the proceedings. The exception was that the Court ordered that the plaintiff's claim that any purported ratification of the European Stability Mechanism (ESM) Treaty would be invalid, void and of no effect be adjourned pending the referral to the Court of Justice of the European Union (CJEU) of a preliminary reference pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU). Having regard to what happened subsequently, the reference by the High Court to the CJEU did not come to pass.

4 3. What happened was that on 19 ^th July, 2012 the plaintiff filed a notice of appeal from the order of the High Court, which was perfected on 18 ^th July, 2012, in the Supreme Court. Adopting the summary of what happened next in the defendants' written submissions, following an initial case management hearing before the Supreme Court on 20 ^th July, 2012, the Supreme Court decided to expedite the hearing of certain issues raised by the appeal, namely:

5 (a) whether the ESM Treaty was incompatible with the Constitution;

6 (b) whether it was necessary for the Supreme Court to make a preliminary reference to the CJEU regarding the validity of European Council Decision 2011/199/EU and whether Ireland by entering into the ratification by the State of the ESM Treaty would undertake obligations incompatible with EU law; and

7 (c) whether the Supreme Court should reverse the decision of the High Court and grant the plaintiff an interlocutory injunction pending the determination of the appeal.

8 The Supreme Court heard submissions on those issues on 24 ^th and 26 ^th July, 2012. On 31 ^st July, 2012 the Supreme Court gave its rulings on each of the three issues on the basis that the reasons for its ruling would be given in judgments delivered later. On the first issue, the Supreme Court found that the ESM Treaty did not involve a transfer of sovereignty so as it make its ratification incompatible with the Constitution. On the second issue, the Supreme Court found that it was necessary to refer three questions of EU law to the CJEU. On the third issue, the Supreme Court ruled that the appeal by the plaintiff of the refusal of the High Court to grant an interlocutory injunction should be refused.

9 4. As appears from the order of the President of the Court dated 4 ^th October, 2012, the reference from the Supreme Court was received at the CJEU on 3 ^rd August, 2012. By the order of 4 ^th October, 2012, the request of the Supreme Court that the accelerated procedure provided for in the Statute of the CJEU and in the Rules of Procedure of the Court was granted. Having in the order (at para. 4) recited the jurisdiction of the President to apply an accelerated procedure "where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency", the order stated:

10 2 "5. In support of its request, the referring Court observes that the timely ratification by Ireland of the [ESM] Treaty is of the utmost importance for other members of the European Stability Mechanism and, in particular, for those who are in need of financial assistance.

11 6. While, in the interim, Ireland and all other Member States which are signatories of the [ESM] Treaty have ratified that treaty, it is nonetheless apparent from the questions referred to the Court in this case that there is uncertainty as to the validity of that treaty.

12 7. The use of the accelerated procedure in this case is necessary in order to remove as soon as possible that uncertainty, which adversely affects the objective of the [ESM] Treaty, namely to maintain the financial stability of the euro area.

13 8. Accordingly, in the light of the exceptional circumstances of the financial crisis surrounding the conclusion of the [ESM] Treaty, the request of the referring Court that the accelerated procedure be applied to Case C ndash; 370/12 should be granted."

14 5. In the event, the opinion of Advocate General Kokott on Case C ndash; 370/12 was delivered on 26 ^th October, 2012 and the judgment of the Court (Full Court) was delivered on 27 ^th November, 2012. In very general terms, the Court ruled:

15 (a) that the examination of the first question referred had disclosed nothing capable of affecting the validity of the European Council decision 2011/199/EU amending Article 136 of TFEU with regard to a stability mechanism for Member States whose currency is the euro:

16 (b) that various articles of the Treaty on European Union (TEU) and TFEU cited, and the general principle of effective...