“From Winner-Takes-All to Presumptive No-Order” –
A Commentary on Little v Chief Appeals Officer & Minister for Social Protection
[2024] IESC 53, Supreme Court of Ireland

1. Introduction

Little v Chief Appeals Officer, Social Welfare Appeals Office & Minister for Social Protection concerns the scope of the High Court’s and Supreme Court’s discretion to award costs where an unsuccessful litigant has raised issues of general public importance. While the substantive appeal failed (the Court upheld a restrictive interpretation of revision powers under s.317(1)(a) of the Social Welfare Act 2005), the judgment of Murray J. (for a unanimous five-judge court) delivers an extensive review of Irish costs law and, crucially, lays down a new starting-point that:

Given the frequency with which public-law disputes reach the Supreme Court under Article 34.5.3° post-Court-of-Appeal reform, the decision reshapes the financial landscape for litigants challenging State action.

2. Summary of the Judgment

• The Court dismissed Ms Little’s substantive appeal on the meaning of “new evidence or new facts” in s.317(1)(a).
• On costs, the State conceded “no order” both for the High Court and Supreme Court stages.
• Murray J. nonetheless issued a full, precedent-setting judgment answering four questions the Court had circulated on the interaction of:
  • the Legal Services Regulation Act 2015 (LSRA) ss.168–169,
  • the Thirty-Third Amendment (creation of the Court of Appeal),
  • the earlier leading case Dunne v Minister for the Environment [2008] 2 IR 775, and
  • developing practice in public-interest litigation.
• Key holding: Where (i) the proceedings fall within a defined class of “public-interest proceedings” against the State, and (ii) leave to appeal was granted for a matter of general public importance, the “starting position” is that the unsuccessful claimant will not be ordered to pay the State’s costs. The State may still seek costs, but must move the Court and rely on factors such as weakness of the case, misconduct, or commercial self-interest.
• The Court preserved (but refined) Dunne and stressed that any outright rule must come from the Oireachtas, not the judiciary.
• No positive costs were awarded to Ms Little; awards in favour of unsuccessful parties remain “genuine rarities” reserved for exceptional, foundational constitutional cases.

3. Detailed Analysis

3.1 Precedents Cited

The judgment canvasses over 40 cases. The most influential include:

• Dunne v Minister for the Environment [2008] 2 IR 775 – established that although “costs follow the event” is the norm, the court retains a broad discretion to depart from it, especially in public-interest litigation.
• Veolia Water UK plc v Fingal CC (No 2) [2007] 2 IR 81 – allowed “issue-based” costs splitting in complex cases, challenging the simplistic winner-takes-all view.
• Godsil v Ireland [2015] 4 IR 535 – endorsed the pragmatic test: “Who, in substance and reality, has won?”
• Lee v Revenue Commissioners [2021] IECA 114 – denied costs against a losing taxpayer because the dispute arose from avoidably unclear legislation. Cited as illustration of systemic benefit to State clarity.
• Recent Supreme Court Rulings on Costs (2021–2024): Fox, Sobhy, An Taisce, Right to Know, PMcD, Mallon – collectively show emerging practice of “no-order” in Article 34.5 public-interest appeals.

3.2 Legal Reasoning

1. Statutory Framework Clarified
   Murray J. undertakes a historical tour (1877–2019) to locate the source of the costs jurisdiction. He concludes that, post-LSRA, sections 168–169 both confer and regulate the power to award costs, subject to the overriding discretion preserved in Order 99 RSC. The pivotal statutory command is s.169(1): the wholly successful party is “entitled” to costs unless the court orders otherwise, considering specified factors.
2. Interaction with the Constitution
   The Court reads the Thirty-Third Amendment as creating a constitutional filter (matter of general public importance) whose very purpose is systemic clarification. This justifies a different costs stance where the State is the successful party: the State already benefits from the clarification.
3. Defining “Public-Interest Proceedings”
   The Court sets four criteria (para 34): (a) claim against State body, (b) public-law relief, (c) point of general public importance, (d) personal benefit irrelevant. This tight definition avoids opening the floodgates.
4. Starting-Point, not Rule
   Respecting parliamentary supremacy, the Court refuses to create an immutable category immunity but adopts a presumption. The burden shifts: the State must apply for costs and overcome the presumption by pointing to factors like frivolity, commercial motive, misconduct, or minimal systemic importance.
5. Consistency with Dunne
   Dunne is preserved: it disapproved inflexible categories but never barred indicative starting-points. The new guidance merely articulates current practice, ensuring predictability and lower satellite litigation over costs.

3.3 Potential Impact

• Access to Justice – Individuals and NGOs may litigate points of law of broad significance without crippling costs fear if they lose at Supreme Court level.
• State Litigation Strategy – Departments and agencies must weigh the public-interest benefit of clarity against the potential unenforceability of costs orders.
• High Court & Court of Appeal – While the new presumption directly governs only Supreme Court appeals, Murray J. restates factors for lower courts, likely influencing their practice.
• Predictability – By requiring the State to move for costs and identify specific objections, the ruling should reduce ancillary disputes and promote early sensible agreements.
• Legislative Prompt – Oireachtas may now consider whether to codify or further refine costs treatment in areas beyond environmental law.

4. Complex Concepts Simplified

• “Costs follow the event” – Traditional rule: whoever wins the case recovers their legal costs from the loser.
• Public-Interest Proceedings – Court’s shorthand for lawsuits against the State challenging laws or decisions in a way that affects the public at large, not just the claimant.
• Article 34.5.3° Leave – The Supreme Court only hears most appeals if it first grants permission (“leave”) on grounds that the case involves an issue of “general public importance” or that an appeal is necessary in the “interests of justice”.
• Starting-Point vs Rule – A starting-point is a default position that can be displaced; a hard rule would apply automatically. The Court adopts the former to stay within statutory discretion.
• LSRA ss.168–169 – Modern statute that regulates how Irish courts decide on costs. Section 169 creates the “entirely successful = entitled to costs” principle, but lets courts depart from it for good reason.

5. Conclusion

Little v Chief Appeals Officer does more than decide a social-welfare point; it recalibrates Irish costs law at the apex-court level. The Supreme Court signals that, where it itself has certified the public importance of a point and the claimant is taking on the State in the public interest, fairness usually dictates that the loser should not bankroll the winner. While not an absolute shield—and while positive cost awards for losers remain exceptional—the judgment meaningfully lowers financial risk for future public-law appellants and clarifies the delicate balance between the statutory “entirely successful” entitlement and the Constitution’s mandate to resolve questions transcending individual disputes.