Introduction

Costello v The Government of Ireland & Ors (Approved) ([2021] IEHC 675) is a pivotal judgment delivered by Ms. Justice Butler of the High Court of Ireland on October 26, 2021. The case centered around the constitutionality of the ratification process of the Comprehensive Economic and Trade Agreement (CETA) by placing it before Dáil Éireann pursuant to Article 29.5.2 of the Constitution. Patrick Costello, an elected public representative, challenged the proposed ratification, asserting that it might infringe upon the State's legislative and judicial powers. The central issue revolved around whether CETA, as an international agreement, necessitated a constitutional amendment for its ratification process.

Summary of the Judgment

In her judgment, Ms. Justice Butler found against the plaintiff, Patrick Costello, on the primary issue concerning the constitutionality of ratifying CETA through placement before Dáil Éireann. The court accepted the defendants' main argument that CETA, operating strictly under international law, does not constitute a transfer of the State's legislative or judicial powers. However, recognizing the significance and potential for appeal, the judge also addressed ancillary issues, rendering obiter dicta on several points. The subsequent dispute concerned the allocation of legal costs, with both parties seeking to recover their respective costs from each other based on their success or failure in the litigation.

Analysis

Precedents Cited

The judgment extensively referenced established precedents to guide the determination of costs in constitutional litigation. Key cases include:

• Dunne v. Minister for the Environment [2008] 2 IR 775: Established that there is no automatic immunity from cost rules for any category of case.
• Collins v. Minister for Finance [2014] IEHC 79: Outlined principles for courts to exercise discretion in awarding costs to unsuccessful plaintiffs.
• Kerins v. McGuinness [2017] IEHC 217: Further elaborated on cost awards in constitutional challenges.
• P.C. v. Minister for Social Protection (No. 2) [2016] IEHC 343: Defined what constitutes a 'test case' in legal terms.
• Minister for Communications, Energy and Natural Resources v. Wymes [2021] IESC 63: Affirmed that public interest alone does not justify departing from the general cost rules.

These precedents collectively informed the court's approach to determining whether exceptional circumstances warranted deviating from the standard rule that costs follow the event.

Legal Reasoning

The High Court's legal reasoning was structured around the provisions of the Legal Services Regulation Act, 2015, specifically sections 168 and 169, which govern the general rule and the discretion for awarding costs, respectively. The court emphasized that:

• The general principle is that the successful party is entitled to costs.
• Discretion to deviate from this principle is granted when cases are of an exceptional nature, such as those raising novel or fundamental constitutional questions with far-reaching implications.
• The onus lies on the party seeking deviation to demonstrate that such exceptional circumstances exist.

In evaluating the plaintiff's arguments, the court acknowledged that while the case raised significant constitutional issues and public interest, it did not fully meet the stringent criteria set forth in previous rulings for automatically awarding costs to the unsuccessful party. However, recognizing the complexity and public significance of the issues, the court exercised its discretion to award the plaintiff a proportionate share of the costs.

Impact

This judgment has notable implications for future constitutional litigation in Ireland, particularly concerning the allocation of costs:

• Clarification of Cost Principles: Reinforces that costs typically follow the event unless exceptional circumstances merit deviation.
• Guidance on Exceptional Cases: Provides clearer guidance on what constitutes an exceptional case, emphasizing the need for novel constitutional questions and their broader impact.
• Discretionary Power Affirmed: Affirms the judiciary's discretionary power in cost awards, ensuring flexibility based on case specifics.
• Precedent for Public Interest Cases: Sets a benchmark for how public interest and constitutional significance can influence cost decisions without automatically overriding general rules.

Lawyers and litigants can reference this case when arguing for or against cost awards in similar high-stakes constitutional matters, balancing the general rule with the unique aspects of their cases.

Complex Concepts Simplified

Costs Follow the Event

This legal principle means that the losing party in a lawsuit typically pays the legal costs of the winning party. It serves to encourage settlement and discourage frivolous lawsuits.

Locus Standi

Locus standi refers to the right or capacity of a party to bring a lawsuit to court. It ensures that only those with a sufficient interest in the matter can initiate legal proceedings.

Obiter Dicta

These are remarks or observations made by a judge in a legal decision that are not essential to the ruling and do not have binding authority but can be persuasive in future cases.

Discretionary Power in Cost Awards

This refers to the court's authority to decide whether to deviate from the standard rule of awarding costs to the winning party. Discretion is exercised based on the specifics of each case, such as its complexity, conduct of parties, and public interest.

Conclusion

Costello v The Government of Ireland serves as a critical reference point in Irish jurisprudence concerning the awarding of legal costs in constitutional litigation. The High Court's decision underscores the balance courts must maintain between upholding general cost rules and recognizing exceptional cases that warrant deviation. By meticulously analyzing the nature and circumstances of the case, as well as the conduct of the parties, the judgment provides a nuanced approach to cost allocation. This case reinforces the judiciary's role in promoting fair litigation practices while acknowledging the broader implications of significant constitutional challenges.