Supreme Court allows appeal against High Court costs order, upholding 'costs follow the event' rule.

THE SUPREME COURT

444/04, 133 & 139/05

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

BETWEEN

DOMINIC DUNNE

PLAINTIFF / APPELLANT

AND

THE MINISTER FOR THE ENVIRONMENT,

HERITAGE AND LOCAL GOVERNMENT, IRELAND

AND THE ATTORNEY GENERAL AND

DUN LAOGHAIRE – RATHDOWN COUNTY COUNCIL

DEFENDANTS / RESPONDENTS

JUDGMENT of Murray C.J. on the question of costs delivered on the 6th day of December 2007

In its substantive judgment on the merits in this case the Court unanimously upheld the judgment of the High Court Judge and

dismissed the appeal.

The appeal was concerned with questions as to whether s. 8 of the National Monuments (Amendment) Act, 2004 offended Articles 5,

10, 15 and 40 of the Constitution and whether it breached the law of the European Communities and in particular the provisions of

Council Directive 85/337/EEC of 27th June, 1985 as amended by Council Directive 97/11/EC of 3rd March, 1997.

Although the appellant lost his case in the High Court, the learned High Court Judge awarded him costs against the respondents

notwithstanding the normal rule that the losing party should pay the costs of the proceedings.

The respondents have appealed against the High Court Order awarding costs of the High Court proceedings to the appellant. When

judgment was delivered on the substance of the appeal the issue concerning the costs of the High Court and the costs of the appeal

to this Court was adjourned for submissions on a later date.

The appellant seeks to uphold the Order awarding him costs and, as regards the appeal to this Court, asks the Court to exercise its

discretion by awarding him his costs of the appeal or in the alternative making no Order as to costs.

The High Court costs

The appellant primarily relied on the terms of the judgment of the High Court delivered on 18th March, 2005 on the question of costs.

In her separate written decision on the question of costs the learned High Court Judge referred to the submission made by the parties

and in particular considered two decisions of the High Court, namely McEvoy –v- Meath County Council 2003 1 IR 208 and Sinnott –v-

Martin 2004 1 IR 121 relied upon by the appellant. Having considered those authorities, both of which she noted cited a decision of

the English High Court in R –v- Lord Chancellor, ex parte Child Poverty Action Group (1991) 1 WLR 347, the learned High Court Judge

concluded stating “I am satisfied that Counsel for the Plaintiff has correctly identified the principles established in the recent

jurisprudence of this Court in accordance with which the Court should exercise its discretion in considering an application for costs by

an unsuccessful plaintiff or applicant in public law litigation, at any rate, against a protagonist which is a public body. I now propose

applying those principles to the instant case.”

The two principles identified by the learned High Court Judge were:

“(1) That the Plaintiff was acting in the public interest in a matter which involved no private personal advantage; and

(2) That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs

being made in his favour.”

These were described as the principles which governed the Court’s discretion to depart from the normal rule that costs follow the

event. The fact that the respondent or defendant was a public body was also considered relevant.

In reaching her conclusion the learned High Court Judge also stated that

“However, as a matter of principle I do not consider that the Court’s discretion as to costs in this type of public law

litigation is in any way dependant on one or more of the issues of fact or law raised being decided in favour of the Plaintiff

or the Applicant. Accordingly, there will be an order for costs in favour of the Plaintiff against all the Defendants.”

Counsel for the respondent submitted that the learned High Court Judge was incorrect in applying these two principles as

determinative factors and in effect was establishing a category of cases in which the normal rule of costs following the event would

not apply. It was submitted that in any event the learned High Court Judge did not exercise her discretion correctly in placing

excessive reliance on the two principles referred to the exclusion of all the circumstances, including the fact that the respondent had

won the case.

A second aspect of the respondents’ argument was the submission that the learned trial Judge wrongly considered as relevant the

fact that the Plaintiff had been successful in obtaining an interlocutory injunction halting the road project in question in earlier and

separate proceedings referred to as “Dunne No. 1”, and also that this had in turn led to a successful challenge by another party in

other proceedings to a Ministerial Order concerning the same road project. The passage in the decision on costs to which Counsel for

the Respondents referred reads as follows:

“Of particular significance on the issue of costs, in my view, is the fact that the plaintiff was successful in obtaining an

interlocutory injunction in Dunne No. 1, which effectively halted road works at Carrigmines Castle without a valid consent

under s. 14 of the National Monuments Act, 1930, as amended. This led to the making on 3rd July, 2003 of the joint

consent and the Ministerial Order which were subsequently successfully challenged in Mulcreevy –v- Minister for the

Environment, Heritage and Local Government and Dun Laoghaire County Council 2004 1 I.L.R.M. 419. That successful

challenge, in turn, provoked the enactment of a special provision in s. 8 of the Act of 2004 in relation to the south

eastern route, which I have concluded was given by a policy designed to ensure the completion of the motorway without

any input in relation to national monument protection implications from any external party to the first and fourth

defendants and their respective advisors. Against that background, I consider that the issues raised in these proceedings,

adopting the words of Dyson J. in the CPAG case at p. 358, were “truly ones of general public importance”. They were

difficult issues of public law. It was in the public interest that they be clarified.”

In the course of the appeal Counsel for the respondent submitted that the previous proceedings were not factors which the learned

trial Judge should have taken into account in determining that the issues in this particular case were of general public importance.

Counsel for the appellant submitted that firstly the learned High Court Judge was correct in the approach which she adopted and

secondly she was, in any event, exercising her discretion in the ordinary way having regard to all the circumstances of the case and

that this Court should not interfere with the exercise of that discretion.

As regards the second aspect of the respondents’ submission Counsel for the appellant submitted that on a correct interpretation of

the learned trial Judge’s decision she did not rely on the previous proceedings as a material fact in her decision to award costs. In any

event it was submitted that the decision which she made was within the ambit of her discretion.

At least on one view of the learned trial Judge’s judgment the question of costs was decided on the basis that this case fell into a

particular category of cases in which a discretion to depart from the normal rule would invariably be governed by the two principles

identified by Counsel on the basis of the case-law cited as establishing two determining principles. In the course of her decision the

learned High Court Judge stated “that the Plaintiff was within that rare category of litigants who truly have no private interest in the

outcome of the proceedings.” I am not sure that it is such a rare category but if the alternative view advanced by Counsel for the

appellant were taken, namely that the learned trial Judge’s decision was within the normal ambit of her discretion to depart from the

general rule the question still arises as to whether any undue weight was given to the two principles relied upon.

The basic law governing the question of costs in civil proceedings may be found in s. 14(2) of the Courts (Supplemental Provisions)

Act 1961 which provides that the jurisdiction of the High Court “shall be exercised so far as regards pleading, practice and procedure,

generally, including liability to costs, in the manner provided by the Rules of Court…” Order 99 of the Rules of the Superior Courts

provides that the costs of and incidental to every proceeding shall be in the discretion of the Superior Courts and in particular, at

sub-rule 4, that costs shall follow the event unless the Court otherwise orders. Moreover the Act of 1961 and the Rules of the

Superior Courts adopt and incorporate the procedure and practice which applied in our courts for a very long time. There has been no

fixed rule or principle determining the ambit of that discretion and in particular no overriding principle which determines that it must be

exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case. In Hewthorn & Company –v-

Heathcott 39 ILT 248 (1905) Kenny J. stated “It is well settled law, as is shown by the authorities cited to me, that when costs are

in the discretion of a judge he must exercise that discretion upon the special facts and circumstances of the case before him and not

be content to apply some hard and fast rule.”

Undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general

public importance are factors which may be taken into account, along with all other circumstances of the case, in deciding whether

there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event. However, insofar as the

learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors

in a category of cases which may be described as public interest litigation, I do not find that the authorities cited support such an

approach.

In the first of those authorities, McEvoy –v- Meath County Council, Quirke J. in his ruling on costs took into account the fact that the

proceedings in that case fell into a category which he described as “public interest challenges.” He relied on a description of a “public

law challenge” as set out in an English case by Dyson J. in R –v- Lord Chancellor, Ex Parte Child Poverty Action Group. The only

passage cited from that judgment by Quirke J. was one in which Dyson J. set out what he saw to be the essential characteristics of a

public law challenge. The passage cited was as follows: “The essential characteristics of a public law challenge are that it raises

public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is

obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This

is because even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some

private interests of his or her own.”

The description is a succinct and useful one. Its descriptive nature does not involve the statement of any principle of law. Neither do

I consider the description to be definitive or exhaustive of what might generally be referred to as public interest litigation where an

applicant does not seek to protect some private interest of his or her own. Such proceedings may be brought for a whole range of

reasons and may be motivated by the most altruistic objectives in the community interest, the pursuit of a political agenda of a

pressure group or a speculative strategy to at least delay the proposed project of a public body. I do not think it necessary to

hypothesise further, suffice it to say that each case would need to be assessed according to its own context, facts and

circumstances. Indeed Quirke J. cited a dictum from the judgment of Denham J. in Lancefort Limited –v- An Bord Pleanala (No. 2)

1999 2 IR 270 to the effect that a contention by an applicant in proceedings that he is acting in the public interest must be analysed

in the circumstances of each case. The Lancefort case was concerned with locus standi rather than an issue as to costs.

In any event, apart from the descriptive passage referred to, Quirke J. did not rely further on any other aspect of the English case

which is perfectly understandable since it concerned an application under English law for a pre-emptive costs order where an

applicant sought an order awarding him costs of the proceedings prior to any hearing on the merits. The parties in that case agreed

that the English Court had jurisdiction to make such an order on the basis of English law, including statute law and practice.

Furthermore, decisions of other common law jurisdictions concerning matters of their practice and procedure, must, because of their

very nature be considered with caution. (See observations of Kennedy C.J. in Little –v- Dublin Tram Co. & Anor. 1929 I.R. 642 at

657).

However, it is the case that Quirke J. took into account, in deciding to award costs to the unsuccessful applicants in judicial review

proceedings, that neither of them were seeking to protect some private interest of their own and that they acted solely by way of

furtherance of a public interest in the environment. These are of course legitimate factors which a Court may take into account in

exercising its discretion pursuant to Order 99 of the Rules. But Quirke J. did not hold them to be determinative factors. On the

contrary he went on to say that in exercising his discretion as to costs he was also taking into account certain findings of fact which

he had made. These included his finding that “the trial of these proceedings was unnecessarily prolonged by reason of the fact that a

vast amount of documentation had to be analysed and considered in order to determine questions of fact which could have been

readily determined by agreement between the parties. The overwhelming majority of those issues of fact were determined in favour of

the Applicants …” He also added “Furthermore, the contention on behalf of the Respondent, that zoning decisions which were

inconsistent with the guidelines could be explained by the fact that the guidelines contained “long term” objectives, was not

supported by any credible evidence and required a complete examination of the minutes of the various meetings at which decisions

were made. This examination disclosed no record which would support the contention.” Quirke J. in conclusion stated “In all of the

circumstances, I am satisfied that the appropriate exercise of my discretion requires that the Respondent pay 100% of the costs of

an associated daily transcript of the proceedings and 50% of the Applicant’s costs of and incidental to the proceedings.” Furthermore

there was not a simple award of costs to the losing party but an apportionment of costs.

In short it is clear that Quirke J. was exercising his discretion pursuant to Order 99 having regard to all the circumstances of the case

and that he did not award costs on the basis that the public interest aspect of the litigation put it into a special category which

determined the manner in which he could exercise his discretion.

The second authority relied upon was Sinnott –v- Martin. In that case Kelly J., who cited Quirke J. in the McEvoy case with approval,

refused to award costs to petitioners in an election petition for a range of reasons which included a finding that the petitioners had a

private interest in the outcome of the proceedings and did not fall within the ambit of public interest litigation and that the issues,

important as they were, did not raise “public law issues of such importance as to entitle me, as a matter of discretion to award costs

in favour of the unsuccessful petitioner or other parties claiming costs against the Minister.” In that light any observations of Kelly J.

on the awarding of costs in so-called public interest litigation could be considered obiter but in any event I did not find there is

anything in the judgment of Kelly J. in that case which would support the contention that the public interest element coupled with

issues of general public importance govern or determine the exercise of a Court’s discretion on the issue of costs. On the contrary, his

judgment indicates, there are other factors which may also have to be taken into account according to the circumstances of the

case.

As previously indicated these elements are, of course, relevant factors which may be taken into account in the circumstances of a

case as a whole. Because these elements are found to be present it does not necessarily follow that an award of costs must

invariably be made in favour of an unsuccessful plaintiff or applicant. Equally the absence of those elements does not, for that reason

alone, exclude a Court exercising its discretion to award an unsuccessful applicant his or her costs if in all the circumstances of the

case the Court is satisfied that there are other special circumstances that justify a departure from the normal rule.

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.

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 or 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.

Accordingly any departure from the general rule is one which must be decided by a Court in the circumstances of each case. In Curtin

–v- Clerk of Dail Eireann & Others (Supreme Court, Unreported 6th April 2006) this Court stated:

“The general rule is that costs follow the event subject to the Court having a discretion, for a special reason, to make a

different order. It is a discretion to be exercised in the circumstances and context of each case and is one which is so

exercised from time to time.”

Counsel for all parties referred to previous decisions of this Court and the High Court, in which a discretion was exercised to make an

order concerning costs which did not follow the general rule. It would neither be possible nor desirable to lay down one definitive rule

according to which exceptions are to be made to the general rule. The discretionary function of the Court to be exercised in the

context of each case militates against such a definitive rule of exception and it is also the reason why previous decisions of such a

question are always of limited value.”

Even accepting the submission of Counsel for the appellant that the learned trial Judge did not approach the question of costs on the

basis that there was a category of cases which, by reference to the two principles in question, costs should invariably be awarded to

unsuccessful applicants or plaintiffs, I do feel nonetheless that there was undue weight given to those principles as determining

factors. I think it goes too far to say that

“… the Court’s discretion as to costs in this type of public law litigation” is not “in any way dependant on one or more of

the issues of fact or law raised being decided in favour of the plaintiff or applicant.”

Such an approach seems to discount excessively, if not altogether exclude from consideration, the normal rule that if the issues in the

case have been decided in favour of one party that normally means that the successful party is entitled to his or her costs.

I now turn to the question of the learned trial Judge’s reference to previous proceedings brought by the appellant in this case and the

Mulcreevy proceedings to which the learned trial Judge also referred. I think it is evident that these proceedings were a material part

of the learned trial Judge’s conclusion that the issues raised in this particular case fell within the second principle which she

announced namely that they were of sufficient general public importance. This is clear from her statement where it is said “of

particular significance on the issue of costs, in my view, is …” and she went on to refer to the plaintiff’s earlier proceedings and then

to the other successful proceedings. She concluded by stating immediately after the reference to those proceedings “Against that

background, I consider that the issues raised in these proceedings … were “ truly ones of general public importance””.

While one could not say that earlier litigation was never relevant from some contextual point of view on an issue of costs, in the

circumstances of this case I find it difficult to see how the earlier proceedings referred to could have a material bearing on whether

the issues in this particular case could be considered to be of such general public importance to justify an exceptional departure from

the ordinary rule that costs follow the event. I think the learned trial Judge was incorrect in taking either one of those cases into

account for the purpose of determining whether issues in this particular case fell into that category.

In the circumstances I feel that this Court is required to review the decision of the costs awarded in the High Court and exercise its

own discretion on the issue as appealed by the respondent.

Turning to the substantive question of costs of the High Court the appellant argued that, in dealing with the issue in the exercise of

its discretion, this Court should nonetheless conclude that the particular circumstances of this case does indeed warrant a departure

from the normal rule in awarding costs to the appellant of the proceedings in the High Court. The appellant relied, as the factors to be

taken into account, on the fact that he was not defending any personal interest in bringing these proceedings and was seeking to

ensure that the project in question, and particularly insofar as it affected a national monument, was carried out in accordance with

law. He reiterated that the case involved issues of such public importance that this factor should also be weighed in the balance in

deciding to award him his costs.

Accepting that the appellant brought the proceedings in the interests of promoting compliance with the law and without any private

interest in the matter I do not consider that the issues raised in the proceedings were of such special and general importance as to

warrant a departure from the general rule. Undoubtedly it could be said that issues concerning subject matters such as the

environment or national monuments have an importance in the public mind but a further factor for the Court is whether the legal

issues raised, rather than the subject matter itself, were of special and general public importance. In this case nothing exceptional

was raised in the issues of law which were before the Court so as to warrant a departure from the general rule.

In my view, having regard to all the circumstances of the case, the ordinary rule should apply to the costs of the High Court

proceedings and that costs should follow the event.

Accordingly I would allow the appeal against the order for costs made in favour of the plaintiff in the High Court and substitute an

order awarding costs to the respective defendants/respondents of the High Court proceedings.

Costs of the Appeal

The appellant appealed the decision of the High Court dismissing these proceedings. This Court having upheld the decision of the

learned High Court Judge the appellant was unsuccessful. Costs should follow the event there being, in my view, no circumstances

arising in the appeal which would justify departure from the normal rule. Accordingly the appellant must pay the costs of the

respondents of his unsuccessful appeal.