Costs in Failed Constitutional Judicial Review: Applying Little to Make “No Order as to Costs” Where Public Importance and Deterrence Justify Departure

1) Introduction

This ruling in S.N. [A Minor] and Anor v The Minister for Foreign Affairs and Ors [2026] IEHC 386 (High Court, O’Donnell J, 17 June 2026) addresses costs following the applicants’ unsuccessful judicial review and constitutional challenge.

The proceedings were framed as an application to quash decisions of the Minister for Foreign Affairs concerning a certificate of nationality and a passport sought by the child’s parent for the benefit of the child. However, the “overarching emphasis” was a challenge to the constitutionality of s. 7(3) of the Irish Nationality and Citizenship Act 1956, said to breach Article 40.1 (equality) of the Constitution. The substantive claim failed (judgment delivered 22 May 2026). The issue in this ruling was whether the respondents, having successfully defended the proceedings, should receive their costs or whether the Court should make no order as to costs.

2) Summary of the Ruling

The Court held that, notwithstanding the respondents’ success and the default position under s. 169 of the Legal Services Regulation Act 2015, the case had sufficient public interest features—particularly an issue of general public importance and a potential deterrent effect—to justify departing from the ordinary rule on costs. The Court therefore ordered no order as to costs (both in the proceedings and in the costs application itself).

3) Analysis

A) The statutory starting point: s. 169 of the Legal Services Regulation Act 2015

The respondents correctly identified s. 169 as the analytical starting point: where a party is wholly successful, the “prima facie” consequence is that the unsuccessful party bears costs, absent a legitimate reason to depart. The question became whether the applicants could bring themselves within the modern approach to costs discretion in public interest proceedings.

B) Precedents cited and their role

1. Little v Chief Appeals Officer [2024] IESC 53

Little v Chief Appeals Officer [2024] IESC 53 supplied the controlling framework. O’Donnell J relied on the respondents’ emphasis on Murray J’s treatment of costs (notably the approach at paras 66–69) and applied the identifying features (para. 34) and relevant factors (para. 35) to the facts at hand.

Two points from Little were particularly influential:

  • A move away from informal “without much ado” costs outcomes: the applicants pointed to Murray J’s observation that public law costs decisions were sometimes made ex tempore and without extensive reasoning; O’Donnell J held that Little does not endorse continuation of that practice, but instead requires a reasoned and principle-based approach.
  • Structured discretion in public interest proceedings: even where an unsuccessful party is not awarded costs (a “very rare” outcome per Little), the court may still choose, after balancing, to withhold an adverse costs order against an unsuccessful applicant where the elements of public interest litigation are present.

2. Chain Wen Wei v. Minister for Justice [2025] IESC 9

The applicants also relied on Chain Wen Wei v. Minister for Justice [2025] IESC 9 (Supreme Court ruling of 7 March 2025). The High Court’s ruling notes that reliance but does not set out any detailed propositions from it; the determinative analytical structure in this ruling is the Little framework.

3. Donnelly v. Minister for Social Protection [2022] IESC 31

Donnelly v. Minister for Social Protection [2022] IESC 31 mattered because it established (as the High Court noted) that the principles governing constitutional equality challenges are “well established and stable.” That assessment reduced the “systemic” novelty of the applicants’ equality-based challenge and fed into the Court’s nuanced conclusion: the point was important (citizenship and the Constitution), but the governing equality methodology was not in flux.

C) The Court’s legal reasoning (applying Little)

Step 1: Are these “public interest proceedings” (para. 34 of Little)?

The Court identified features pointing in both directions:

  • Public law character and broader implications: the case challenged the constitutionality of s. 7(3) of the 1956 Act, which “had the potential to have significant effects outside” the applicants’ circumstances.
  • Personal benefit focus: despite the public law form, the proceedings were “clearly” framed around the family’s circumstances and “primarily” directed to an outcome benefitting them personally.
  • Novelty without a formal test-case posture: there was no direct authority on point, but it was not presented or treated as a formal test case, and no cohort of stayed or pending cases was identified.
  • Stability and clarity: the resolution depended on stable equality principles (per Donnelly) and the challenged provisions were not unclear; indeed the applicants did not press an argument that the Minister had meaningful decisional latitude on the impugned applications.
  • General public importance nonetheless: the Court concluded that the case concerned how citizenship may be acquired “from the perspective of the Constitution,” raising a matter of general importance.

On balance, “allowing some latitude,” O’Donnell J characterised the case as public interest proceedings within para. 34 of Little.

Step 2: Do para. 35 factors justify departure from the ordinary costs rule?

The Court held yes, emphasising:

  • Appreciable public effect: the case potentially affected “naturalised citizens whose children were born abroad.”
  • Deterrent effect: although the parent in this case appeared to be a person of means, others affected might not be; an adverse costs order could create an “unwelcome deterrent effect” on bringing other (possibly stronger) cases.
  • Clarificatory value: even if not a classic test case, the determination would “hopefully” clarify the position for others concerned about the legislation’s operation.

These considerations supplied the “legitimate reason” to depart from the s. 169 default, resulting in no order as to costs.

D) Impact

  • Practical guidance on costs post-Little: the ruling exemplifies how the High Court should carry out a structured, reasoned balancing exercise rather than relying on historic, informal public law costs practices.
  • Public importance can coexist with private motive: even where proceedings are substantially motivated by personal benefit, a constitutional challenge with broader consequences (here, citizenship acquisition) may still qualify as “public interest proceedings,” supporting a costs-neutral outcome.
  • Deterrence is decisive: the Court treated potential chilling effects on future litigants—especially those of limited means—as a strong justification for withholding an adverse costs order, even where the respondent State fully succeeded.
  • Not all novelty is equal: the Court distinguished between a lack of direct authority on a specific provision and a legal landscape where the controlling constitutional methodology (equality analysis) is “well established and stable,” affecting the strength of the case for a costs departure.

4) Complex Concepts Simplified

  • “No order as to costs”: each side bears its own legal costs. It is not an award of costs to the losing party; it is a refusal to apply the usual “loser pays” rule.
  • Public interest proceedings: a case (often against the State) seeking public law remedies and raising an issue of general public importance, typically aimed at vindicating public rights or interests rather than merely private advantage (as structured in Little).
  • Deterrent (or “chilling”) effect: if unsuccessful litigants face large costs liabilities, others with arguable claims may be discouraged from bringing important cases, weakening legal accountability and clarification.
  • Equality challenge under Article 40.1: a constitutional argument that a law impermissibly treats comparable persons differently; the Court noted that the applicable principles are settled following Donnelly v. Minister for Social Protection [2022] IESC 31.

5) Conclusion

[2026] IEHC 386 confirms that, after Little v Chief Appeals Officer [2024] IESC 53, costs in public law cases require a structured, fact-sensitive balancing exercise anchored in s. 169 of the 2015 Act. Even where a constitutional challenge fails and is driven largely by personal circumstances, the High Court may order no order as to costs where the litigation raises an issue of general public importance (here, constitutionally informed citizenship acquisition) and where an adverse costs order could deter future litigants from bringing potentially meritorious cases.