High Court dismisses plaintiff's costs application, applying normal rule due to insufficient legal novelty despite novel facts.

[2017] IEHC 377

THE HIGH COURT

RECORD NO: 2015/4888P

Denis O’Brien

Plaintiff

AND

Clerk of Dail Eireann, Sean Barrett, Joe Carey, John Halligan, Martin Heydon, Paul Kehoe, John Lyons, Dinny McGinley, Sean

O Fearghail, Aengus O’Snodaigh and Emmet Stagg (Members of the Committee on Procedure and Privileges of Dáil

Éireann), Ireland and the Attorney General

Defendants

Judgment of Ms. Justice Ni Raifeartaigh delivered on the 2nd May 2017

1. This judgment deals with the issue of costs following the judgment of the Court in the substantive action delivered on the 31st

March, 2017. Both sides applied to the Court for an order directing that the other pay their costs; the defendants, on the basis that

the normal rule that costs follow the event should apply, the plaintiff, on the basis of the Court’s exceptional jurisdiction to award

costs to the losing party in certain circumstances.

2. I do not propose to set out in any detail the relevant principles with regard to costs, as they have been comprehensively discussed

in cases such as Dunne v. The Minister for the Environment, Heritage and Local Government [2008] 2 I.R. 775, Collins v. Minister for

Finance [2014] IEHC 79, and Kerins v. McGuinness and others [2017] IEHC 217. It is clear that while a losing party is usually the

subject of an order for costs, the Court retains a discretion to depart from the ordinary rule, provided it does so on a reasoned basis.

Among the reasons or types of case in respect of which such departure may be warranted are, as described in the Collins case;

i. Cases where the constitutional issues raised were fundamental and touched on sensitive aspects of the human

condition

ii. Constitutional cases of conspicuous novelty, often where the issue touched on aspects of the separation of powers

between the various branches of government

iii. Where the issue was one of far-reaching importance in an area of law with general application

iv. Where the decision has clarified some otherwise obscure or unexplored area of the law.

v. Where the litigation has not been brought for personal advantage and the issues raised were of special and general

public importance.

3. Clearly, the present case does not fall within the first category identified above, that of cases touching upon sensitive aspects of

the human condition, which speaks to cases such as those involving the end of life, or sexuality.

4. As regards the fifth category or factor, it seems to me that the plaintiff brought the proceedings primarily to protect and vindicate

his own personal interests, but that the issues raised necessarily would have a consequential impact upon other persons who found

themselves in the same position in the future and therefore, that the issues raised were of general public importance, and that he

voiced his recognition of this aspect of the proceedings in the course of his evidence. However, it was not a case of a plaintiff who

brought proceedings in respect of a matter of general public importance without any potential for personal benefit. It was the more

typical case of a plaintiff who brought proceedings in respect of a constitutional issue for personal reasons, in this case, in order to

have his position vindicated, albeit not through an award of damages, which, as a side-effect, would necessarily have implications for

other persons who might find themselves in a similar position in the future and therefore, it had a public interest dimension. This

factor, therefore, does not particularly appear to me to advance the plaintiff’s case for costs.

5. One of the main issues and points of contention as between the parties in the present application concerning costs, was the

degree to which the actual points raised by the plaintiff were novel and required judicial clarification. This is perhaps, in summary,

what is covered by categories (2), (3) and (4) above, which possibly contain a degree of overlap. It was argued on behalf of the

plaintiff that there were several novel aspects to the case, including the factual matrix, namely that there had been a deliberate

uttering in the Dáil of confidential information that was the subject of a court order, something which had never happened before;

which in turn raised a number of novel legal questions, including questions as to the precise scope of sub-Articles 15.12 and 15.13, as

well as questions relating to a potential ‘extraordinary’ jurisdiction which might be exercised in exceptional cases. However, it was

argued on behalf of the defendants that the plaintiff’s case amounted to no more than a series of skilful arguments with a veneer of

novelty but in reality requiring from the Court no more than the application of principles which had been well settled in the existing

authorities concerning Article 15 of the Constitution.

6. Some further arguments were raised on behalf of the parties. Counsel on behalf of the Attorney General, in particular, relied upon

the manner in which the plaintiff had advanced his case, arguing that there had been shifting goalposts in the plaintiff’s case from

start to finish, requiring constant adjustments on the part of the defendants, together with the use by the plaintiff of tactical devices

designed to circumvent obvious constitutional barriers, such as suing the Clerk of Dáil Éireann rather than the two deputies who had

uttered the words complained of, and deciding not to seek damages.

7. Counsel on behalf of all defendants also pointed to the fact that the plaintiff in his evidence had said that he would have brought

the proceedings even if the Committee had found in his favour. Counsel on behalf of the defendants, in particular on behalf of the

Oireachtas defendants, pointed to the means of the plaintiff and said that the absence of any hardship that might be suffered by a

particular litigant was also something that could be taken into account, although there appeared to be no direct authority on point.

8. Counsel on behalf of the plaintiff also argued that the Court should take into account the damage suffered by the plaintiff as a

result of the Deputies’ utterances, and referred to the Kerins judgment on costs as authority for this proposition.

9. I have considered these arguments in light of my substantive judgment in the case and reached the following conclusions. As

regards the shifts in the plaintiff’s position from correspondence through pleadings and submissions to final positions in oral argument,

I am not persuaded that this reflected some kind of bad faith, which may have been the sub-text to the suggestion that this factor

should be taken into account against the plaintiff. However, it did make the task of responding to the plaintiff’s arguments more

complex and time-consuming for the defendants.

10. As regards the tactical devices employed on behalf of the plaintiff, that of not suing the individual deputies, and not seeking

damages, this seems to me likely to have been done on the basis of legal advice directed towards making the best possible case in

the circumstances. Again, I am not persuaded that this reflected some kind of bad faith on the part of the plaintiff. There is, in my

view, a distinction between a hard-headed tactical decision and an improper motivation, although they sometimes are found together.

11. I have reflected upon the fact that the plaintiff indicated that he would have brought proceedings even if the Committee had

found differently in respect of his complaint. This could be interpreted in a number of ways. One possibility is that it indicated a

stubborn determination to invoke the jurisdiction of the Courts on a basis that was neither proportionate nor considered, and which

reflected a degree of contempt for the Oireachtas procedures. Another possibility is that it simply reflected a view that the damage

had already been done by the utterances on the floor of the Dáil, which could not be undone by any ruling of the Committee, and

that the utterances would be at the core of any court proceedings that would be brought. I have decided to leave this factor to one

side in deciding the issue of costs because of the variety of ways in which this could be interpreted.

12. On the issue of damage to the plaintiff, and the citation of the Kerins judgment in this regard, I am not prepared to take into

account any damage suffered by the plaintiff as this would seem to me indirectly to do what my substantive judgment declined to do,

namely to censure the Oireachtas for the conduct of its Deputies and/or Committee. It seems to me that the damage suffered by the

plaintiff in the Kerins case was of an extreme kind and that the case is clearly distinguishable on that basis.

13. As regards the financial means of a losing party, there appears to be no direct authority on point, but it seems to me that such

references as there are in previous authorities point more in the direction of saying that this can be taken into account if necessary

to prevent severe financial hardship to the losing party. Where a losing party has sufficient means to pay the costs if the normal rule

is applied, the means of the losing party seems to me to recede into a position of neutrality as a factor in the costs application. In

other words, I am not going to take the means of the plaintiff into account in deciding the issue of costs, since there is no issue of

hardship, and will decide the issue on the basis the other factors.

14. Having stripped away what seem to me to be factors that should not be taken into account, as identified above, it seems to me

that the issue of costs in this case should be decided on the basis of whether the normal rule should be displaced by the public

importance of the issues raised and their degree of novelty. There were, in my view, some aspects of the plaintiff’s case which

involved no more than the relatively straightforward application of existing legal principles as set out in other authorities. I would say

this in particular in relation to the second limb of the plaintiff’s case, involving the justiciability of the Committee proceedings, as well

as a particular section of the first limb of the case, namely the question of whether the utterances of the Deputies had ‘determined’ a

justiciable controversy reserved for the Courts. However, in my view, the remaining aspects of the first limb of the case arguably

involved somewhat more than the simple application of pre-existing principles. Certainly, the factual matrix was novel, involving as it

did the deliberate revealing of information, which was both confidential and the subject of a court injunction, on the floor of Dáil

Éireann on a number of successive dates. No such scenario had ever arisen in this jurisdiction before. Further, in circumstances where

the proceedings had not been brought against the Deputies themselves, the Court had to engage in a detailed examination of the

precise scope of the respective privileges and immunities in Article 15.12 and 15.13, as well as a consideration of whether there

existed an exceptional jurisdiction to cross into what appeared to be an absolute zone of non-justiciability as regards utterances and

if so, whether this case was sufficiently exceptional to warrant the exercise of such a jurisdiction. Of course, the fact that the

judgment was lengthy does not of itself mean anything in this context, as it may simply be an indication of the prolixity of the judge,

but in my view there was some degree of novelty in the core issues presented to the Court and therefore in what needed to be

addressed. However, there was also a substantial body of pre-existing jurisprudence in relation to Article 15 and the novelty of the

issues lay primarily in the teasing out and application of the principles identified in those cases to the novel factual scenario

presenting. I have therefore reached the conclusion that, while the factual matrix was undoubtedly novel, and the treatment of the

pre-existing jurisprudence involved somewhat more than a straightforward application of identifiable principles, there was an

insufficient degree of novelty in the legal issues raised to warrant the exercise of what is undoubtedly an exceptional jurisdiction to

depart from the normal rule.

15. Accordingly, I will make an order that the plaintiff pay the costs of the defendants.