Costs in Moot Judicial Review: Ordinary-Course Statutory Action Is Not a “Unilateral Act” Attracting Costs
Case: SM and Anor v Dublin City Council (Approved) [2026] IEHC 73
Court: High Court (Ferriter J)
Date: 13 February 2026
Context: Costs application after proceedings became moot
1. Introduction
This judgment concerns costs only. The applicants—SM and her minor daughter KM—brought judicial review proceedings challenging
Dublin City Council’s refusal (decision of 2 August 2024) to grant them priority on the social housing list under
s.22(7) of the Housing (Miscellaneous Provisions) Act 2009 on “Exceptional Social Grounds”.
The applicants’ case was grounded in asserted risks arising from domestic violence and allegations of sexual abuse concerning the
applicant’s former partner.
After leave was granted (11 November 2024), the Council maintained it had lawfully refused priority. Separately, the applicants’ position on
the ordinary housing list meant they were approaching the “offer zone” for choice-based lettings, and ultimately a tenancy was offered
and accepted on 11 April 2025. Both sides accepted this rendered the judicial review moot. The live issue for the High Court was whether,
and in what manner, costs should follow in a mootness scenario.
Key issues
- Whether the applicants were “successful on the event” for the purposes of s.169 of the Legal Services Regulation Act 2015.
- Whether mootness was caused by a unilateral act of the Council undertaken in response to the proceedings, such that the Council should bear costs.
- Whether the “interests of justice” nonetheless warranted an award of costs to the applicants, notwithstanding mootness.
2. Summary of the Judgment
The High Court made no order as to costs (and indicated a provisional view that the same should apply to the costs hearing).
Ferriter J held:
- The applicants were not successful on the “event” because the proceedings sought priority status under s.22(7), which the Council never granted or conceded.
- Although the proceedings became moot following the Council’s offer of housing, the Council established on affidavit that the offer was made
in the ordinary course by reference to the applicants’ position on the ordinary list, and not in response to the litigation.
- No exceptional “interests of justice” factors justified departing from the general approach in mootness cases.
3. Analysis
3.1 Precedents Cited
The decision turns on the Court of Appeal’s costs-in-mootness framework in
Hughes v Revenue Commissioners [2023] 3 IR 393 ("Hughes").
Ferriter J treated Hughes as the authoritative modern statement of principle, noting Murray J’s account of the shift in emphasis:
from assessing the reasonableness of instituting/maintaining proceedings to focusing on the cause of mootness.
The judgment reproduces and applies Murray J’s three “general propositions” (paras. 31–33 in Hughes), and the practical four-question
checklist (para. 20 of this judgment, summarising Murray J’s approach). Critically, Hughes supplies two constraints that shaped the result here:
- Causation focus: costs often track the act/event that made the case moot, especially where one party’s actions precipitated mootness.
- No merits trial by the back door: in analysing costs after mootness, the court should not determine the underlying judicial review merits.
3.2 Legal Reasoning
(A) The “event” and s.169 Legal Services Regulation Act 2015
The applicants argued they were “wholly successful on the event” because the purpose of the litigation was to obtain housing and they did,
in fact, obtain housing shortly after proceedings issued.
Ferriter J rejected this by tying the “event” to the relief actually pursued in the judicial review: a challenge to refusal of
priority status under s.22(7) of the 2009 Act. Because the Council never changed its position on priority and continued to stand over its refusal,
the applicants could not be treated as having succeeded on the litigated event merely because they later received housing through
a different route (the ordinary list).
(B) Was mootness caused by a “unilateral act” of the Council?
The applicants’ fallback was that the Council’s later housing offer was a unilateral act that rendered the proceedings moot, attracting a costs order.
The central question became whether the Council discharged the evidential burden—framed through Hughes—to show the relevant act
was not undertaken in response to the proceedings.
Ferriter J accepted that mootness arose after the Council offered housing, but held that the Council’s affidavit evidence (from Ms Mary Hayes)
established the offer was made because the applicants, having been on the list since 2018, had reached the “offer zone” for choice-based lettings.
The Court emphasised it was not a case where:
- the Council conceded or reversed the challenged priority decision, or
- the applicants were “bumped up” the list to neutralise the litigation.
On that evidential footing, the Court declined to “look behind” the Council’s sworn explanation and concluded the Council had met the onus of showing
the offer was not a litigation-driven unilateral act. This conclusion set the default position: each party bears its own costs.
(C) Interests of justice
The applicants advanced fairness-based arguments: pre-action correspondence; alleged lack of timely clarity about imminent ordinary-list housing;
repeated adjournments; and the Council’s later letter (8 January 2025) which introduced additional reasons and was experienced as distressing in its
treatment of domestic violence evidence, prompting an amendment to the statement of grounds.
Ferriter J held these matters did not justify departing from the default rule, principally because:
- Assessing the reasonableness/unreasonableness of the Council’s stance in a way that would ground costs risked an impermissible excursion into the merits.
- The Council’s position that it could not lawfully represent that a property was imminent until entitlement crystallised had “substance”.
- Even if the applicants acted reasonably (a point the Court expressly acknowledged), that did not establish that the Council’s conduct warranted a costs penalty under the Hughes framework.
3.3 Impact
The practical significance of the judgment lies in how it applies Hughes to housing/allocation judicial review:
-
Separating “getting housing” from “winning the case” for costs:
where the pleaded relief is priority under a statutory scheme, later housing through ordinary allocation will not, without more, make the applicant “successful on the event”.
-
Affidavit-proofing ordinary-course decisions:
a local authority that can evidence (with clear list position and process detail) that accommodation was offered by normal list operation may avoid an adverse costs order,
even though its action moots the proceedings.
-
Reinforcing the no-merits principle:
litigants may find it difficult to convert perceived unfairness in correspondence, adjournments, or evolving reasons into costs consequences
where doing so would require the court to adjudicate disputed merits in a moot case.
Future applicants may therefore face a strategic fork: if the real-world aim is rehousing, but the legal claim is priority/quashing, mootness caused by
ordinary allocation may leave them bearing their own costs unless they can show (by evidence) that the offer was litigation-responsive or otherwise “unilateral”
in the Hughes sense.
4. Complex Concepts Simplified
Mootness
A case is “moot” when the dispute no longer needs a court decision because events have overtaken it (here, housing was provided).
Courts may still decide costs even when the underlying claim no longer requires adjudication.
“Costs follow the event” and s.169
“Costs follow the event” generally means the winner gets costs. Under s.169, the “event” is not the applicant’s broader objective
(e.g., being housed), but the outcome of the issues and relief actually litigated (here, priority under s.22(7)).
“Unilateral act” in mootness costs
A “unilateral act” is where one party does something that ends the case (e.g., a public body changes its decision), and it is fair to treat that
as effectively conceding the litigation—or as something that could have been done earlier to avoid costs. If the act is part of ordinary statutory functions
(and not a litigation response), costs may be left where they fall.
Choice-based lettings and priority status
The applicants sought priority under an exceptional grounds mechanism. The housing they ultimately received was found, on the evidence, to have
come through ordinary list progression and the choice-based letting process, not through a reassessment granting priority.
5. Conclusion
SM and Anor v Dublin City Council confirms a stringent application of Hughes v Revenue Commissioners [2023] 3 IR 393 ("Hughes") in the housing context:
where judicial review becomes moot because a statutory body later provides the practical benefit sought, costs will not automatically follow unless the court can
fairly characterise that outcome as a litigation-responsive unilateral act or as success on the pleaded “event”.
On the evidence, the Council’s offer was treated as ordinary-course allocation, so the High Court made no order as to costs.