W. v Geraldine Gleeson (Appeals Officer)

CourtHigh Court
JudgeMr Justice Garrett Simons
Judgment Date30 July 2019
Neutral Citation[2019] IEHC 579
Date30 July 2019
Docket Number2018 No. 45 MCA

[2019] IEHC 579


Simons J.

2018 No. 45 MCA



Practice & procedure – Costs – Statutory appeal – Residential Institutions Fund Act 2012 – Costs of proceedings at High Court

Facts: The appellant was a former resident of a scheduled Residential Institution who had benefited from grants under the Residential Institutions Fund Act 2012. An appeal was made under s 22 of that Act but was dismissed. The matter now came before the Court in respect of the costs of the earlier proceedings ([2019] IEHC 472).

Held by Simons J, that the Court was satisfied that the matter did not justify a costs award against the appellant, but he in turn was not entitled to recover his costs from the respondent. On that basis, and considering the conduct of the case, the parties would bear their own costs.

JUDGMENT of Mr Justice Garrett Simons delivered on 30 July 2019.

This judgment addresses the question of which party, if any, should be liable for the costs of the within proceedings. The proceedings were heard over two days in June 2019, and a written judgment was delivered on 28 June 2019 ( W. v. Gleeson [2019] IEHC 472). I will refer to this earlier judgment as the ‘ principal judgment’.


The proceedings came before the High Court by way of a statutory appeal on a point of law pursuant to section 22 of the Residential Institutions Statutory Fund Act 2012. The dramatis personae are as follows. The appellant is a former resident of a scheduled residential institution, and a person who has previously benefited from grants pursuant to the statutory fund (‘ the Appellant’). The respondent to the appeal is a statutory appeals officer appointed by the Minister for Education and Skills (‘ the Appeals Officer’). The statutory board which is entrusted with the distribution of funds under the Act had successfully applied to be joined as a notice party to the appeal, and had participated fully at the hearing before the High Court (‘ the Board’).


As appears from the principal judgment, the appeal has been dismissed in its entirety. Notwithstanding this, the unsuccessful Appellant now applies for an order directing that his costs be paid by the Appeals Officer and/or the Board. It is submitted that the appeal represented a ‘test case’, and that the principal judgment has clarified the law. The Board has made a cross application to have its costs paid by the Appellant. The Appeals Officer submits that each party should bear its own costs, i.e. no order as to costs should be made.


In order to put the costs applications into context, it is necessary to say something about the underlying appeal. The matter had come before the High Court by way of a statutory appeal on a point of law from a decision of the Appeals Officer. The Appellant had sought to challenge the manner in which the Board is distributing funds pursuant to the Residential Institutions Statutory Fund Act 2012. More specifically, the Appellant had sought to challenge the introduction of a monetary limit on the aggregate value of benefits which any one individual could receive. (The Board had introduced a monetary limit of €15,000 when prescribing revised statutory criteria in May/June 2016).


In truth, the gravamen of the appeal was that the revised statutory criteria prescribed by the Board were ultra vires. Strictly speaking, such a claim should have been brought by separate judicial review proceedings naming the Board as legitimus contradictor. In the event, however, the Board successfully applied to be joined to the appeal as notice party, and all parties agreed at the hearing before me in June 2019 that it would be preferable that the substantive issue be determined rather than that this aspect of the case be dismissed on a narrow procedural ground. This issue was addressed as follows in the principal judgment.

‘27. Notwithstanding the fact that a challenge to the validity of the prescribed criteria cannot, strictly speaking, be pursued by way of statutory appeal, all of the parties urged the court to determine this issue as part of the appeal. It seems that the present case has been advanced as a form of “test case”, and there are a number of other statutory appeals outstanding, all of which raise a similar issue as to the validity of the introduction of the €15,000 monetary limit. Given that there is some urgency in having this issue resolved—one way or another—in circumstances where it is intended to complete the distribution of the fund by the autumn of this year (2019), it seems preferable that these issues be determined now notwithstanding the irregular form of the proceedings.

28. With some hesitation, therefore, I have decided that it is appropriate to address all issues in this judgment. This is so notwithstanding that the proceedings are irregular. Any appellant in future proceedings should not assume, however, that another court would show such indulgence.’


This procedural history is, nevertheless, relevant to the costs applications. I will return to this point at paragraph 25 below.


The other aspect of the proceedings which is relevant to the costs application is the nature of the statutory fund. The fund had been established by the Oireachtas in order to support the needs of former residents, such as the Appellant himself, who had suffered abuse (as defined) in scheduled residential institutions. Former residents were entitled to apply for approved services, which would be provided either (i) by the Board making a direct payment to an approved service provider, or (ii) by the payment of a grant to the former resident which could then be used to defray the cost of an approved service. The approved services included inter alia medical and dental services. The statutory fund is a finite fund of some 110 million euros. The affidavit evidence indicates that the fund is almost exhausted, and that it will be wound up shortly.


The Board had sought to ensure an equitable distribution of the fund by introducing a monetary limit on the value of benefits which any one individual could receive. The logic of the Appellant's case, if successful, would have been that persons in the same position as him, i.e. persons who had made early applications to the fund, would have been preferred over those who came late. Put otherwise, this is not a case where a litigant can claim to be acting on behalf of an entire class. Rather, the Appellant was seeking to advance his own position at the expense of other former residents.


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 advance a public interest. Reference was made, in particular, to the judgment of the Supreme Court in Dunne v. Minister for Environment (No. 2) [2008] 2 I.R. 775.

‘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.’


As appears from the foregoing, there is no predetermined category of cases which falls outside the general rule that costs follow the event.


Counsel on behalf of the Board also referenced the judgment of the High Court (Binchy J.) in P.C. v. Minister for Social Protection (No. 2) [2016] IEHC 343. Those proceedings involved a challenge to the constitutional validity of legislation which disqualified an individual undergoing a sentence of imprisonment from receiving the State contributory pension. (The substantive judgment in those proceedings was subsequently overturned on appeal to the Supreme Court in P.C. v. Minister for Social Protection [2017] IESC 63).


In deciding to award the unsuccessful applicant in those proceedings two-thirds of his costs, the High Court made the following observations as to the nature of ‘test cases’.

‘12. It follows from this that whether or not a case qualifies as a test case or a public interest challenge is not determinative of the issue, but rather it is a factor that the Court may take into account in considering an application to depart from the general rule. The plaintiff has argued that this case qualifies as a test case and should be treated as such...

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