High Court awards full costs to plaintiff in constitutional challenge to ESM Treaty despite unsuccessful appeal.

Neutral Citation: [2014] IEHC 174

THE HIGH COURT

[2012 No. 3772P]

BETWEEN

THOMAS PRINGLE

PLAINTIFF

AND

THE GOVERNMENT OF IRELAND, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

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

Decision to which this judgment relates

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.

2. Because of the importance of the issues raised in the proceedings, the hearing in the High Court was expedited. The hearing

concluded on 29th June, 2012. The decision of the High Court was announced on 9th July, 2012 and the judgment was delivered on

17th July, 2012. In the decision as announced and in the judgment and the order of the High Court made on 17th 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.

3. What happened was that on 19th July, 2012 the plaintiff filed a notice of appeal from the order of the High Court, which was

perfected on 18th 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 20th July, 2012, the Supreme Court decided

to expedite the hearing of certain issues raised by the appeal, namely:

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

(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

(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.

The Supreme Court heard submissions on those issues on 24th and 26th July, 2012. On 31st 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.

4. As appears from the order of the President of the Court dated 4th October, 2012, the reference from the Supreme Court was

received at the CJEU on 3rd August, 2012. By the order of 4th 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:

“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.

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.

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.

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 – 370/12 should be

granted.”

5. In the event, the opinion of Advocate General Kokott on Case C – 370/12 was delivered on 26th October, 2012 and the judgment

of the Court (Full Court) was delivered on 27th November, 2012. In very general terms, the Court ruled:

(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:

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

judicial protection, does not preclude the conclusion between the Member States whose currency is the euro of an

agreement such as the ESM Treaty or its ratification by the participating Member States; and

(c) 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.

6. The answer to the third question addressed the concerns raised in the decision and judgment of the High Court in respect of which

the High Court indicated a willingness to refer a question to the CJEU for a preliminary ruling.

7. It is disclosed in the written submissions filed on behalf of the defendants that the appeal was listed for further hearing before the

Supreme Court on 11th June, 2013. On that occasion the Supreme Court was informed that the plaintiff regarded that the judgment

of the CJEU on foot of the reference disposed of all EU law issues on the appeal, and that the plaintiff no longer wished to pursue his

appeal regarding the outstanding constitutional law issues raised which had not been determined by the Supreme Court on 31st July,

2012 and in the judgments of the Supreme Court subsequently delivered on 19th October, 2012. The Supreme Court then dismissed

the substance of the appeal but adjourned generally the issues of costs, so as to permit either side to re-enter it for the purpose of

applying for costs.

8. On 21st June, 2013 the High Court acceded to the plaintiff’s request to re-enter the High Court proceedings for the purposes of

hearing an application for costs from the plaintiff. That application was heard by the Court on 19th July, 2013, when the Court had

the benefit of written submissions on behalf of both sides and heard oral submissions. This judgment, the delay in delivery of which I

regret, is based on those submissions.

Respective positions of the parties

9. Notwithstanding that the plaintiff was effectively unsuccessful on all of the claims in the proceedings before the High Court, the

plaintiff has requested that the Court, having regard to the specific circumstances of the case and the relevant legal principles,

should exercise its discretion and award costs in favour of the plaintiff against the defendants.

10. The position of the defendants was that the unsuccessful plaintiff has made no case such as would warrant the Court to make

such an exceptional order for costs against them and, in any event, no such case could be made out. The defendants advanced an

alternative proposition, which was advanced strictly in the alternative and without prejudice to their principal submission which I have

just outlined, namely, that the circumstances of the case are not such as would justify the Court making “a full order for costs” in the

plaintiff’s favour. At most, there should be “an apportionment of costs”. Finally, and importantly, the defendants, although successful,

did not seek an order for their costs against the unsuccessful plaintiff, because they recognise the public importance of some of the

issues raised by the plaintiff. Nonetheless, the defendants’ position was that it would not be in the interests of justice to make an

order for costs against the defendants in favour of the plaintiff.

The relevant legal principles

11. The authority which gives most guidance to this Court, and which is binding on this Court, on the manner in which this Court

should determine whether the plaintiff should be awarded costs of the proceedings against the defendants is the decision of the

Supreme Court in Dunne v. Minister for the Environment [2008] 2 I.R. 775. In that case, the High Court had dismissed the plaintiff’s

claim, but subsequently had acceded to an application for costs by the unsuccessful plaintiff against the defendants. The plaintiff

appealed the decision on the substantive matter to the Supreme Court and the appeal was dismissed by the Supreme Court. The

defendants appealed the ruling of the High Court in relation to costs to the Supreme Court and that appeal was allowed. Delivering

judgment in the Supreme Court, Murray C.J., with whom the other four Judges agreed, outlined the basic law governing the question

of costs in civil proceedings as follows (at para. 17):

“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 1986 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 1986 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.”

12. In the Dunne case the plaintiff had challenged the validity of a statutory provision (s. 8 of the National Monuments (Amendment)

Act 2004) having regard to the provisions of the Constitution and European Union law. The defendants were the Minister for the

Environment, Ireland, the Attorney General and a local authority, Dun Laoghaire-Rathdown County Council. Murray C.J. stated in his

judgment (at para. 18):

“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 High Court may have considered that the two principles to which it 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.”

Having considered the authorities which had been cited, Murray C.J. continued (at para. 25):

“As previously indicated, these elements are 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.”

13. The rationale underlying the basic law was then considered by Murray C.J. (at para. 26) where he stated:

“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.”

To digress, in support of their contention that the overall interests of justice in the case under consideration here do not require

awarding the plaintiff costs against the defendants, counsel for the defendants referred to the code which has been recently

established by legislation in respect of certain environmental cases by the Protection of the Environment (Miscellaneous Provisions)

Act 2011 to provide access to justice in environmental cases covered by certain EU Directives at reasonable cost. In particular, they

referred to s. 3(1) of that Act which provides, in respect of civil proceedings instituted for the purpose of enforcing the planning code

and/or preventing damage to the environment, that Order 99 of the Rules of the Superior Courts shall not apply and that, subject to

succeeding sub-sections, in proceedings to which the section applies, “each party (including any notice party) shall bear its own

costs”. I cannot see that the existence of that legislative provision has any bearing on the issue the Court has to determine here.

14. Returning to the judgment of Murray C.J. in the Dunne case, he elaborated on the exercise of the Court’s discretion (in para. 27)

as follows:

“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.”

15. In considering the facts in the Dunne case, in a passage on which counsel for the defendants laid particular emphasis, Murray C.J.

(at para. 35) stated:

“Accepting that the plaintiff 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.”

(Emphasis added in the defendants’ written submissions).

At that stage, Murray C.J. stated that, having regard to all of the circumstances of the Dunne case, the ordinary rule should apply to

the costs of the High Court proceedings and that the costs should follow the event. He also held that the plaintiff there should pay

the costs of the defendants of the unsuccessful appeal to the Supreme Court.

16. In delivering judgment in the Dunne case, Murray C.J., in the context of the principle that any departure from the general rule

that costs follow the event is one which must be decided by a court in the circumstances of each case, quoted from the ruling of the

Supreme Court, which he had delivered, on the question of costs in Curtin v. Dáil Éireann [2006] IESC 27 (Unreported, Supreme

Court, 6th April, 2006). In the passage quoted, it had been stated, inter alia,:

“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. For 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.”

In their submissions, counsel for the plaintiff in this case, referred the Court to decisions of the Supreme Court and of the High Court

which pre-dated the decision of the Supreme Court in the Dunne case. I am satisfied that those decisions are, indeed, of limited value

and I find it unnecessary to consider them. However, I do consider that it is useful to consider the Curtin case in more detail.

17. In the ruling in the Curtin case it was stated that the appellant, Mr. Curtin, had been refused any of the reliefs which he had

sought in the High Court and on appeal in the Supreme Court and that the Supreme Court had ruled against him on a number of

discrete issues which had been argued on his behalf. It was made clear that the appellant could not be treated as if he had

succeeded in the appeal. Accordingly, the Court went on to consider whether discretion should be exercised to make an order other

than the normal order that costs follow the event. In the ruling it was stated:

“At the core of the jurisdiction of this Court, as a constitutional court of final instance, lie issues concerning the

distribution of constitutional powers of government among the three organs of State identified in Article 6 of the

Constitution, the Executive, the Legislature and the Judiciary, the limits of such powers and the manner in which they

may be exercised.

Fundamental issues of this nature underlay and were interwoven with the several discrete issues raised by the Appellant

in his appeal.”

In the judgment of the Court on the substantive issue (Curtin v Dáil Éireann [2006] 2 I.R. 556), Murray C.J., having stated that on

the appeal the Court was asked to interpret the provisions of Article 35.4.1 of the Constitution regarding the parliamentary procedure

for the removal of judges from office, stated that it was “one of the few occasion in the annals of legal history that such a proposal

has been considered by a court and the first time since the foundation of the State”. In the costs ruling, the task of the Supreme

Court was characterised as having been “to address novel but crucial constitutional questions in an uncharted constitutional terrain”.

Having stated that, before the Court addressed the discrete issues arising between the parties in the Curtin case, it was necessary

to interpret and define the meaning and ambit of Article 35 as a whole, it was stated in the ruling as follows:

“For this purpose, the Court, as a constitutional court, had to consider questions that went, at least to some extent,

beyond the specific issues raised, and determined, by way of constructive interpretation, how the final adjudication

process must be addressed by the Houses of the Oireachtas when and if they come to a final decision. In addressing the

broader issues the Court has provided certainty and obviated the risk of later litigation regarding them as well as providing

a guide for the Oireachtas as to the procedures to be followed in the future.

In doing so the Court has clarified for the future the constitutional norms in a core area of constitutional governance as

between the three organs of State, irrespective of the issues in this case. In this sense the case is exceptional and sui

generis.”

The decision of the Court in the Curtin case was that the appellant should be refused his application for full costs and be awarded

half the costs of the proceedings in the High Court and half the costs of the appeal against the Attorney General. No other order for

costs, for or against any other party, was made.

The plaintiff’s submissions/discussion

18. It is the plaintiff’s contention that these proceedings raised genuine, serious and substantial questions of exceptional public

importance in both national and European Union law and that this is reflected in the manner in which the courts which were seised of

the case dealt with it, referring in particular to the following circumstances:

(a) that both the High Court and the Supreme Court expedited the hearing of the proceedings;

(b) that the High Court considered that the proceedings raised a question requiring a preliminary ruling by the CJEU and

that the Supreme Court considered on its own motion that a question on the validity of Council Decision 2011/199 be

referred to the CJEU and that it considered it necessary to refer three questions to the CJEU for preliminary ruling;

(c) that the case was assigned to a Supreme Court of seven Judges;

(d) that the reference was dealt with in accordance with the accelerated procedure of the CJEU for the reasons set out

in the order of the President of the Court quoted earlier; and

(e) that the CJEU considered the matters referred to be of such fundamental constitutional importance that the case was

assigned to a Full Court of twenty seven Judges, which was historic and unprecedented for a preliminary reference,

suggesting that the arrangement was a recognition of the uncharted character of many of the issues arising.

While this Court is concerned with the proceedings up to and including the point in time at which judgment was delivered and the

order of the Court made, 17th July, 2012, it is the case that what subsequently transpired, including the foregoing circumstances,

does point to the issues raised involving genuine, serious and substantial questions of national and European law at a level of

exceptional importance. The order of the President, which was made on the proposal of the Judge-Rapporteur and after hearing

Advocate General Kokott, recorded the concern that there was uncertainty as to validity of the ESM Treaty, not merely an necessity

to use the accelerated procedure because of the factual implications of the issues, as suggested by counsel for the defendants,

although of course ultimately the CJEU did not find any such uncertainty.

19. It is also the plaintiff’s case that judicial consideration, at both national and European Union level, of the issues raised, served the

public interest, in that it ensured that the measures at issue were scrutinised, and it provided much needed clarity on fundamental

issues of a constitutional character concerning the national and European Union legal orders. That submission needs to be considered

from two perspectives: the application of national law and the application of European Union law.

20. On the first, the application of national law, the plaintiff submits that clarity has been provided as to the scope and application of

the decision of the Supreme Court in Crotty v. An Taoiseach [1987] I.R. 713 and other constitutional issues arising from the plaintiff’s

contention that the ESM Treaty was incompatible with the Constitution and the assertion that the European Stability Mechanism Act

2012 was repugnant having regard to the provisions of the Constitution.

21. On the second, the application of European Union law, perhaps the most precise outline of the issues which were clarified by the

CJEU is to be found in the reference by the Supreme Court to the CJEU and, in particular, the questions raised in the reference which

related to:

(a) whether Council Decision 2011/199/EU was valid;

(b) whether having regard to the Articles of TEU and TFEU identified and general principles of Union law (outlined at six

bullet points), a Member State of the European Union whose currency is the euro is entitled to enter into and ratify an

agreement such as the ESM Treaty; and

(c) whether the entitlement of a Member State to enter into and ratify an international agreement such as the ESM

Treaty was subject to the entry in force of Council Decision 2011/199/EU, assuming it to be held valid.

There is absolutely no doubt but that clarity was brought to all of the issues raised by those questions by the judgment of the CJEU.

It is also the case that, even though in the events which happened, the High Court did not refer any question for a preliminary ruling

on those issues, the High Court proceedings were a step in that outcome.

22. On the application for costs, the Court was referred to correspondence between the plaintiff’s solicitors, Noonan Linehan Carroll

Coffey, and the Chief State Solicitor, on behalf of the defendants. The plenary summons having issued on 13th April, 2012, the

plaintiff’s solicitors wrote to the Chief State Solicitor on 2nd May, 2012 suggesting, inter alia, that the Irish courts would wish to refer

certain questions on the matters raised in the proceedings to the CJEU prior to making a decision on the plaintiff’s case, accepting,

however, that it would be for the Irish courts to decide whether to make such a reference and to decide the contents of the

questions to be submitted to the CJEU, having heard the views and suggestions of the parties. In that letter, the plaintiff’s solicitors

set out their suggestions as to certain questions which they thought arose and which they considered the Irish courts might refer to

the CJEU, stressing, however, that the questions were at that stage tentative and no way intended to be definitive, final or

exhaustive. The prospect of the invocation of the accelerated procedure being utilised on a preliminary reference was also adverted

to. One of the matters which the plaintiff’s solicitors asked the Chief State Solicitor to address in that letter was whether the

defendants would agree that the Irish courts should refer certain issues to the CJEU by way of reference and suggesting “without

prejudice” discussions between counsel on each side with a view to identifying the relevant questions and generally expediting the

hearing of the case. The response of the Chief State Solicitor was dated 8th May, 2012. I do not regard that response as an outright

rejection of the plaintiff’s proposal, as submitted on behalf of the plaintiff. The Chief State Solicitor did agree to the two legal teams

liaising in relation to identifying issues which might be referred to the CJEU, but that was without prejudice to the entitlement of the

defendants to raise a question as to the admissibility of any preliminary reference. In any event, the High Court action proceeded and

was at hearing for seven days, and, in due course, the reference was made by the Supreme Court, following an appeal from the

decision of the High Court, which was found to be admissible and was determined by the CJEU. The extent to which the proceedings

in this jurisdiction could have been truncated if the defendants had adopted a different approach on the reference issue is

speculative, but it is probable that they could have been truncated to a certain extent.

23. It is the plaintiff’s position that the Court should conclude that the proceedings constitute a case of special and general public

importance within the meaning of the decision in the Dunne case. Further, the Court should conclude that the plaintiff, who is a

member of Dáil Éireann, initiated and pursued the proceedings as a result of his concern for the interests of the State and of the

public good, rather than for any personal gain.

Submissions of the defendants/discussion

24. In outlining the relevant legal principles, some of the submissions made on behalf of the defendants have already been outlined

and, in some cases, commented on.

25. It is the defendants’ position that, adopting the terminology used in the ruling in the Curtin case, there was no “uncharted

constitutional terrain” raised by the plaintiff’s case. The defendants point out that, having regard to the detailed judgments of the

Supreme Court in the Crotty case, the constitutionality of the ratification of the ESM Treaty did not involve “uncharted constitutional

terrain”, as was reflected in the extensive guidance which this Court was able to draw from the Crotty judgment, leading to the

determination that the ESM Treaty is not incompatible with the Constitution.

26. In replying to that submission, counsel for the plaintiff referred to what had been described as the third limb of the plaintiff’s

constitutional argument and addressed in paragraph 137 of the judgment of the High Court. That limb was premised on the ESM

Treaty being in fundamental contradiction to the Union Treaties and, in particular, to the provisions on economic and monetary union

introduced in the Maastricht Treaty, which had been put to, and approved by, the People in a referendum. The plaintiff’s argument

had been that any fundamental alteration of the substance of the matters on which the People had voted in that referendum,

required a further referendum, Article 29.4.4 of the Constitution being invoked by the plaintiff. Having come to the conclusion earlier in

the judgment that the ESM Treaty was not incompatible with the various provisions of the TEU and the TFEU, it was observed (at

para. 139) of the judgment that “that debate is for another case and another day”, which was not strictly speaking correct. The

debate remained in the case and was ultimately resolved by the judgment of the CJEU. The position of counsel for the plaintiff in reply

was that this argument was central to the plaintiff’s case on the challenge to the constitutionality of the ESM Treaty and was

ultimately going to have to be determined by the CJEU.

27. As regards the issues of EU law raised by the plaintiff, while acknowledging that they were clearly important, the defendants’

position is that they could not be classified as “uncharted” simply because the CJEU had not, prior to the judgment on the reference

from the Supreme Court, previously considered several of the provisions of Title VIII, TFEU, upon which the plaintiff relied, because

the provisions in question had been in the E.C. Treaty, and subsequently the TFEU, since the Treaty of Maastrict came into effect in

November 1993. Further, the defendants rely on the fact that this Court had rejected the plaintiff’s contention of incompatibility,

referring to various paragraphs of the judgment of the High Court, and also to the fact that the CJEU ultimately agreed “in very

substantial measure” with the interpretation of those provisions by this Court. The defendants further rely on the fact that this Court

was able to find that Council Decision 2011/199/EU was valid in accordance with European Union law referring to paragraph 163 of the

judgment of the High Court.

28. While the defendants accept that the plaintiff acted properly in the initiation and conduct of the proceedings, which it was stated

was a factor in the defendants’ decision not to seek costs against him, the defendants’ position is that that does not justify an order

that would require the defendants to bear his costs given that he was unsuccessful at each level in the process. Further, the Court

was informed that, while the defendants do not doubt the bona fides of the concerns that underlay the plaintiff’s decision to initiate

the proceedings, they do not accept that the plaintiff had a wholly altruistic objective in so doing, submitting that the plaintiff had “a

private political interest in the proceedings as a Dáil Deputy politically opposed to the State’s ratification of the ESM Treaty and its

approval of Council Directive 2011/199”. In their written submissions the defendants go to some length to demonstrate why they do

not accept that the plaintiff “had no personal political interest in obtaining confirmation from the Court that a referendum was

required before the State could ratify the ESM Treaty”. I do not consider it necessary to outline how it is suggested that the plaintiff

“could have aspired to a potentially greater role as a national parliamentarian”, if the CJEU had upheld his challenge to the validity of

Council Decision 2011/199/EU, because I think it is inconceivable that the plaintiff would have contemplated the consequence of such

an outcome as is suggested by the defendants. Looking at the matter objectively, I am satisfied that the plaintiff’s proceedings raised

public law issues which are of general importance, in circumstances where the plaintiff has no private interest in the outcome of the

proceedings and, in reality, could gain no private personal advantage if his challenge succeeded.

29. The defendants emphasise that on an application such as the application being considered, where an unsuccessful plaintiff seeks

costs, an important factor for the Court is to consider whether the plaintiff has been successful in relation to any of the issues raised

in the proceedings before the Court. The defendants emphasise, which is the case, that the plaintiff was unsuccessful in regard to

each and every one of the claims made before the High Court, including the claim for interlocutory relief, and was unsuccessful

regarding each claim which was pursued in the Supreme Court on appeal.

Conclusion

30. Having regard to the position adopted by the defendants, the Court has to consider two issues. The first is whether the plaintiff,

notwithstanding that he was unsuccessful on all of the issues raised in the High Court except the issue which the Court indicated a

willingness to refer to the CJEU for a preliminary ruling, should be awarded the costs of the proceedings against the successful

defendants. The second issue is whether, if the answer to the first is in the negative, the plaintiff should be awarded part of the

costs, which is what I understand the defendants to mean by the phrase “an apportionment of costs”. On both of those issues the

Court has to determine whether it can conclude that the particular circumstances of the case warrant a departure from the normal

rule that costs follow the event. In my view, the particular circumstances are such.

31. The proceedings were entirely concerned with legal issues. As I noted in the judgment of the High Court (at para. 29), the only

evidence adduced at the hearing was the evidence of the plaintiff. Such factual basis as there was to the proceedings turned on how

the ESM Treaty came into being and how it was to be operated and all of that information was derived from consideration of legal

instruments. The legal issues were unquestionably of special and general public importance.

32. As regards the legal issues the determination of which turned on the application of European Union law, those issues were referred

by the Supreme Court to the CJEU for a preliminary ruling. Those issues were ultimately determined by the CJEU (Full Court) on foot of

an order of the President of the Court that the accelerated procedure be applied, because it was necessary in order to remove as

soon as possible the uncertainty as to the validity of the ESM Treaty. The CJEU rejected claims by the defendants that the first two

questions referred for preliminary ruling were inadmissible. The CJEU determined all of the questions. It cannot be gainsaid that all of

the questions determined were, as counsel for the plaintiff submitted, not merely of exceptional public importance for Ireland, but also

for the European Union as a whole. It would be absurd if this Court were to find otherwise.

33. As regards the issues raised by the plaintiff which involved the application of national law, even if those issues cannot be

characterised as “novel” or as traversing “uncharted constitutional terrain” in the manner in which the issues in the Curtin case were

so characterised, nonetheless, because of the context in which they arose, that is to say, in the implementation of unprecedented

measures affecting the European Union as a whole, for example, the amendment of Article 136 TFEU and the entry of the euro zone

Member States into the ESM Treaty, the application of legal principles derived from the Crotty case and subsequent jurisprudence,

was, in my view, more complex than had been encountered by the national courts previously. The complexity was compounded by the

fact that the bases of the constitutional challenge by the plaintiff were wholly intertwined with his challenge under European Union

law. Given that backdrop to the constitutional challenge, the clarity and certainty which the ultimate outcome of the proceedings has

embedded in Irish law must mean that that aspect of the proceedings is of exceptional importance in the Irish legal order.

34. I have no doubt that it is appropriate for the Court in this case to depart from the basic rule that costs follow the event and to

exercise its discretion in favour of the plaintiff. What is more difficult to determine is whether the plaintiff should get full costs or

merely a portion of his costs. In the defendants’ written submissions, the reality of the imposition of all or some of the costs on the

defendants is highlighted. In the context of the defendants’ offer not to seek its costs and the plaintiff’s dissatisfaction with that

offer, it is stated that, accordingly, it is the plaintiff’s belief that “the taxpayers” should “also bear his costs” and submit that the

circumstances are insufficiently exceptional to justify that situation. As I have already stated, I consider that the circumstances are

sufficiently exceptional to justify the Court departing from the basic rule, so that the State bears the burden of all or some of the

plaintiff’s costs of the proceedings in the High Court. On the question of whether it should be all or some of the costs, having regard

to the combination of the following factors:

(a) the unquestionable importance of the legal issues raised in relation to the application of EU law;

(b) the complexity of the legal issues raised in the constitutional challenge because of the context in which they require

to be resolved;

(c) the significance of the ultimate resolution of the legal issues both in European Union law and in national law; and

(d) the fact that, unlike the position of the plaintiff in the Curtin case, I have found that the plaintiff had no private

interest in the outcome of the case;

I have come to the conclusion that the proper exercise of the Court’s discretion is to award full costs to the plaintiff against the

defendants.

35. While this factor has not influenced the foregoing decision, I consider it appropriate to record that in the High Court the legal

teams, solicitors and counsel, on both sides conducted the proceedings in an exceptionally efficient manner having regard to the

urgency of the matter.

Order

36. There will be an order that the defendants pay the plaintiff’s costs of the proceedings, including any reserved costs, the costs to

be taxed in default of agreement.