Abuse of Process Precludes Public‑Interest Costs Relief: Commentary on Browne v Registrar General of Fishing Boats & Ors [No. 2] [2025] IEHC 553

Abuse of Process Precludes Public‑Interest Costs Relief: Browne v The Registrar General of Fishing Boats & Ors [No. 2] [2025] IEHC 553

Introduction

This High Court costs judgment, delivered by Mulcahy J on 22 October 2025, arises in the aftermath of the Court’s earlier decision to strike out plenary proceedings as an abuse of process. The plaintiff, Colum Browne, had sought to challenge decisions made at the latest in 2006 by the Minister for Agriculture concerning the registration of his fishing vessel, the Aine Íde, asserting breaches of EU law. He first issued proceedings in 2012, which were dismissed by both the High Court and the Court of Appeal as out of time because the decisions were of a type that had to be challenged by judicial review within the applicable time limits. The Supreme Court refused leave to appeal.

While those 2012 proceedings were still pending, Mr Browne issued fresh proceedings in December 2017, advancing the same core complaint. Following the conclusion of the 2012 case, he delivered a Statement of Claim in the 2017 proceedings. The State defendants—namely, the Registrar General of Fishing Boats, the Minister for Agriculture, Ireland and the Attorney General—applied to strike out the 2017 proceedings under Order 19, rule 28 of the Rules of the Superior Courts. In a judgment dated 9 September 2025 ([2025] IEHC 486), Mulcahy J struck out the 2017 proceedings as an abuse of process, holding that it is impermissible to relitigate a complaint that has already been finally determined unless exceptional circumstances exist, which had not been shown.

The present judgment addresses costs. The key question was whether the general rule—that costs follow the event—should apply, or whether “exceptional and special circumstances” justified a departure. The plaintiff advanced arguments reiterating the merits of his original complaint and alleging fraud in relation to the 2012 proceedings; the defendants contended there was no basis to deviate from the statutory framework and principles governing costs.

Summary of the Judgment

The High Court awarded the defendants their costs of the motion to strike out and of the proceedings, including any reserved costs. Applying Order 99 of the Rules of the Superior Courts and sections 168–169 of the Legal Services Regulation Act 2015 (as amended), and guided by the Court of Appeal’s synthesis in Chubb European Group SE v Health Insurance Authority [2020] IECA 183; [2022] 2 IR 734, the Court held that:

  • The defendants were “entirely successful” and thus presumptively entitled to their costs.
  • No conduct by the defendants in these proceedings justified “ordering otherwise.”
  • Complaints about alleged failures in the earlier (2012) litigation, or dissatisfaction with the Court’s strike-out judgment, could not ground a departure from the default rule.
  • The “public interest” costs principles identified by the Supreme Court in Little v The Chief Appeals Officer [2024] IESC 53 did not apply: proceedings that are an abuse of process “could never be in the public interest,” and this case raised no point of law of general public importance.

Accordingly, the Court affirmed its provisional view and made an order that the defendants recover their costs of the motion and of the proceedings.

Analysis

1) Legal Framework and Precedents Cited

Order 99, Rule 2 RSC and the Legal Services Regulation Act 2015. Order 99, rule 2 confirms that costs are in the discretion of the Superior Courts, subject to statute. Section 169(1) of the 2015 Act establishes a clear starting point: a party who is entirely successful is entitled to an award of costs against the unsuccessful party, unless the court “orders otherwise” having regard to the nature and circumstances of the case and the parties’ conduct before and during the proceedings, including specific factors listed in s.169(1)(a)–(g).

Chubb European Group SE v Health Insurance Authority [2020] IECA 183; [2022] 2 IR 734. The Court of Appeal (Murray J) distilled the operative principles under the 2015 Act and Order 99, including that:

  • The court’s general discretion is preserved, but is exercised within the statutory framework.
  • Where the party seeking costs is “entirely successful,” costs should be awarded to that party unless the court orders otherwise for reasons anchored in s.169(1).
  • Partial success may lead to tailored costs orders; and temporal or proportionate costs orders remain available.

Mulcahy J expressly applied this framework, asking whether any factor justified “ordering otherwise.” None did.

Little v The Chief Appeals Officer [2024] IESC 53. The Supreme Court (Murray J) provided a taxonomy of “public interest” litigation for costs purposes and identified guiding principles for when courts might depart from the “costs follow the event” rule. Key themes include:

  • Public interest litigation typically involves claims against the State or statutory bodies, challenges to public law measures, and direct points of law of general public importance.
  • A point of law of general public importance is a necessary (but not sufficient) condition for cost relief; the point must be stateable and usually of real substance on the merits.
  • Systemic importance, test-case status, and avoidably unclear legislation can sustain cost leniency.
  • Relevant case references include Pervaiz, ELG v HSE, Lee v Revenue Commissioners, O’Keefe v Hickey, and Cork County Council v Shackleton, which illustrate categories where cost relief may be warranted.

Mulcahy J held that none of these public interest features were present. The proceedings were struck out as abusive—rendering them incapable of being in the public interest—and raised no general point of law for determination.

Mongans v Clare County Council [2020] IECA 317. The Court of Appeal deprecated attempts to use the costs stage to re-litigate or impugn a judgment. Mulcahy J cited this to reject the plaintiff’s complaint-based approach: dissatisfaction with reasons belongs in an appeal, not in a costs application.

English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Cited by the plaintiff but distinguished; that decision concerned appellate review of adequacy of reasons. Mulcahy J highlighted that even there appeals failed, and in any event the appropriate vehicle for such concerns is an appeal—not a costs application in the High Court after dismissal.

Order 19, Rule 28 RSC and the prior strike-out ([2025] IEHC 486). Although this costs judgment does not revisit the merits of the strike-out, the underlying principle matters: relitigation of a complaint already finally determined is impermissible absent exceptional circumstances. The Court had earlier found no such circumstances; this finding frames the costs analysis by characterising the 2017 proceedings as an abuse of process.

2) The Court’s Legal Reasoning Applied

  • Entire success and the default rule: The State defendants were entirely successful in their strike-out motion and the proceedings. Under s.169(1), they were prima facie entitled to costs.
  • No basis to “order otherwise”: The plaintiff’s submissions did not engage with the statutory factors. Instead, he attempted to:
    • Re-argue the merits of the original EU law complaint;
    • Allege fraud and non-disclosure of statutory instruments by the Minister in the 2012 proceedings;
    • Criticise perceived omissions in the Court’s strike-out judgment.
    The Court held that none of these lines of argument relate to the parties’ conduct in the present proceedings in a manner that could justify a costs departure. Moreover, the alleged non-disclosure had no causal relevance to the dismissal of the 2012 proceedings (which turned on delay and procedural route), and alleged defects in the judgment must be pursued via appeal, not via costs submissions.
  • Conduct and expedition: The defendants could not sensibly have moved to strike out the 2017 proceedings until the 2012 proceedings concluded. Once the plaintiff delivered his Statement of Claim in the 2017 proceedings post‑Supreme Court refusal, the defendants moved with reasonable expedition and did not cause unnecessary costs.
  • Public interest criteria: The case did not meet the Little criteria:
    • These were abusive proceedings replicating a finally determined dispute.
    • No novel or unclear point of general public importance was advanced or resolved.
    • There was no test case status, no systemic clarification gained, and no avoidably unclear legislation at play.
    The Court stated categorically that proceedings which are an abuse of process cannot be in the public interest, foreclosing reliance on public interest costs leniency.

3) What This Decision Adds

While the judgment largely applies settled principles, it crystallises several important points at the intersection of abuse of process and costs:

  • Abusive proceedings categorically fall outside public interest costs relief. The Court’s statement that “proceedings which are an abuse of the court process could never be in the public interest” sets a clear limit on the Little line of authorities. Even if a litigant invokes public law or EU law, an abusive procedural posture precludes public interest cost leniency.
  • Complaints about earlier litigation are irrelevant to costs in fresh proceedings absent causal and current relevance. Alleged disclosure failures or fraud in the 2012 proceedings could not influence costs for the 2017 proceedings, especially where those allegations had no bearing on the earlier dismissal ground (out of time) and did not relate to conduct in the case at hand.
  • Costs are not a forum for re‑arguing the merits or the reasoning of the judgment. Dissatisfaction must be channelled through appeal. Attempts to re‑ventilate merits at the costs stage are inappropriate and cannot justify a departure from the default costs position.

Impact and Implications

For Public Law and Regulatory Litigation

  • Boundary of public interest costs relief: Litigants cannot rely on the public interest to shield against adverse costs where their proceedings are duplicative, time‑barred in substance, or otherwise abusive. The public interest exception is for genuine, stateable, and substantively weighty points of law—often with systemic implications—not for attempts to re‑open concluded disputes.
  • Strategic sequencing matters: Issuing fresh plenary proceedings while earlier proceedings remain live, and then pressing the duplicate claim after final determination, will likely be viewed as abusive. A party taking such a course should expect costs to follow the event on strike‑out.
  • Focus on conduct in the proceedings at hand: For s.169(1) purposes, allegations about conduct in previous litigation will rarely justify cost deviations unless they have a clear causal connection to the present costs and proceedings.

For State Defendants and Public Bodies

  • Defensive costs protection confirmed: When a state body is entirely successful, costs should ordinarily follow. The judgment underscores that reasonable expedition in bringing dispositive applications supports recovery of costs.
  • No penalty for not striking out earlier: Where parallel or antecedent litigation remains unresolved, defendants are not criticised for waiting until final determination before moving to strike out duplicative proceedings.

For Practitioners

  • Craft costs submissions within the statutory matrix: Engage expressly with s.169(1)(a)–(g) and Chubb. Generalised pleas of unfairness, re-arguments of the merits, or critiques of the judgment’s content are misdirected at the costs stage.
  • Public interest claims must be principled: Identify a direct point of law of general public importance, show that it is stateable and of real substance, and demonstrate systemic importance or test-case characteristics where applicable. Absent these features, cost relief is unlikely.
  • Use the right procedural avenue: Challenges to the adequacy of reasoning belong in appellate proceedings. They should not be repurposed as costs arguments.

Complex Concepts Simplified

  • Costs follow the event: The winning side usually gets its legal costs from the losing side. The court can “order otherwise,” but only for good reason within the statutory criteria.
  • Entirely successful: A party who has achieved complete success in the proceedings (e.g., secured a strike‑out) is presumptively entitled to costs.
  • Abuse of process: Using the court’s procedures in a way that is unfair or oppressive, such as re-litigating a matter already finally determined without exceptional circumstances.
  • Public interest cost relief: An exception to the usual costs rule in cases that raise stateable, important questions of public law that may clarify the law for the benefit of many; it does not apply to abusive or purely private disputes.
  • Reserved costs: Costs that a court has postponed deciding upon (for example, at earlier interlocutory stages) and later includes in the final costs order.
  • Order 19, rule 28 RSC: Allows the court to strike out proceedings that are frivolous, vexatious, disclose no reasonable cause of action, or amount to an abuse of process.
  • Sections 168–169 of the Legal Services Regulation Act 2015: The statutory regime governing costs in civil proceedings, setting the default rule and the factors that may justify exceptions.

Conclusion

Mulcahy J’s decision in Browne v Registrar General of Fishing Boats & Ors [No. 2] reinforces the modern Irish costs framework: the successful party is entitled to costs unless cogent, statutorily anchored reasons justify otherwise. Three clear messages emerge. First, costs are not a stage for re‑arguing the merits or critiquing a judgment; such contentions belong on appeal. Second, conduct in earlier, distinct proceedings will not generally unsettle the default rule for costs in later proceedings, especially where the earlier conduct had no bearing on the outcome. Third—and most notably—proceedings struck out as an abuse of process cannot be rebranded as public interest litigation to escape adverse costs: abuse and public interest are conceptually incompatible for costs purposes.

As a practical precedent, the judgment will guide both litigants and public bodies. Litigants contemplating follow‑on or parallel proceedings to revisit finally determined complaints should expect costs to follow the event on strike‑out. By contrast, those pursuing genuine, stateable, and systemically important public law issues retain access to the Little jurisprudence on costs relief—but only where the proceedings are procedurally proper and raise issues of real public importance. The decision thus contributes to procedural discipline, promotes efficient resolution of disputes, and preserves the integrity of the public interest costs exception for cases where it truly belongs.

Citations and Authorities Referenced

  • Browne v Registrar General of Fishing Boats & Ors [No. 2] [2025] IEHC 553 (costs)
  • Browne v Registrar General of Fishing Boats & Ors [2025] IEHC 486 (strike‑out; abuse of process)
  • Order 99, rule 2 RSC; Legal Services Regulation Act 2015, ss. 168–169
  • Chubb European Group SE v Health Insurance Authority [2020] IECA 183; [2022] 2 IR 734
  • Little v The Chief Appeals Officer [2024] IESC 53 (including references therein to Pervaiz, ELG v HSE, Lee v Revenue Commissioners, O’Keefe v Hickey, Cork County Council v Shackleton, Corcoran)
  • Mongans & ors v Clare County Council [2020] IECA 317
  • English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605
  • Order 19, rule 28 RSC

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