Exceptional Partial Costs for Unsuccessful Public-Interest Constitutional Litigation: 50% Costs Award Where Proceedings Clarify Novel, Systemic Executive-Governance Questions

A. Precedents Cited and Their Influence

1) The controlling framework: Little v The Chief Appeals Officer & Ors (No.2) [2024] IESC 53

The Court treated Little (No.2) as the authoritative modern statement on costs in public-interest proceedings, particularly in the post-2015 landscape. The judgment adopts Little (No.2) in three distinct ways:

1. Classification: It uses the elements described by Murray J. (including those referenced at paras. 34 and 68) to classify both challenges as public-interest proceedings: claims against the State, seeking public-law relief, raising a point of general public importance, and not confined to cases with no personal interest (the Court explicitly accepted the Deputies were not advancing personal advantage).
2. Two-tier costs discretion: It applies Little (No.2)’s distinction between (i) exempting an unsuccessful party from an adverse costs order and (ii) the much rarer award of costs to an unsuccessful party.
3. Apportionment: It follows Little (No.2)’s observation that even in exceptional cases, courts tend to award only a conservative proportion of costs.

2) The default rule backdrop: Dunne v Minister for the Environment [2007] IESC 60, [2008] 2 IR 775 and the post-2015 reforms

The Court located its discretion within the “default position” created by ss. 168 and 169 of the Legal Services Regulation Act 2015 (the “2015 Act”) and the recast O. 99 Rules of the Superior Courts 1986 (as amended) (the “RSC”): the entirely successful party is presumptively entitled to costs. Little (No.2) is treated as explaining how the traditional public-interest costs principles (often traced through Dunne) operate after these reforms.

3) The “genuine rarity” of awarding costs to a losing party: Minister for Justice v McPhillips [2015] IESC 47

The Court relied on the Little (No.2) discussion of Charleton J.’s description in McPhillips that awarding costs to an unsuccessful public-interest litigant is “a genuine rarity”. This framed the Court’s task: it had to identify features elevating the case beyond mere exemption from paying the State’s costs.

4) Categorising the exceptional cases: Collins v Minister for Finance [2014] IEHC 79 and the five categories restated in Little (No.2)

The judgment treated the Collins taxonomy (as expanded in Little (No.2)) as the roadmap for when a losing party might receive costs. It explicitly analogised Daly/Murphy to constitutional litigation of:

• “conspicuous novelty” and separation-of-powers significance (cf. Horgan v. An Taoiseach [2003] IEHC 64, [2003] 2 IR 468 and “Curtin” as discussed in Collins);
• clarification of an “obscure or unexplored area” (cabinet processes and governance practices); and
• cases where the claimant wins a significant discrete issue (here, justiciability), aligning with category (v) in the fivefold list set out in Little (No.2).

The Court also used Collins to reject the State’s submission that TD status or political opposition should count against costs relief: it noted that the plaintiff in Collins was also a TD, and that public representative status supported rather than undermined the “exceptional case” analysis.

5) Illustrative “fundamental” and “foundational” constitutional litigation: Norris v. Attorney General [1984] IR 36, Roche v. Roche [2010] IESC 10, Fleming v. Ireland [2013] IESC 19, [2013] 2 IR 417

These cases were cited (via Little (No.2)) as exemplars of the first category where costs may be awarded to losing parties: fundamental constitutional issues touching sensitive aspects of human life. While Daly/Murphy was not of that human-condition type, the Court used the same conceptual bracket—“fundamental” and “foundational”—to characterise the executive-governance question as constitutionally core.

6) Separation of powers novelty: Horgan v. An Taoiseach [2003] IEHC 64, [2003] 2 IR 468 and Curtin v Dáil Éireann [2006] IESC 27

The Court leaned on the analogy to Horgan (Article 28 and participation in war) and Curtin v Dáil Éireann [2006] IESC 27 (constitutional governance and “unchartered constitutional terrain”) to support two propositions:

• executive-branch constitutional architecture can justify exceptional costs outcomes even where the State wins; and
• 50% costs is a familiar calibration in separation-of-powers novelty cases.

7) The “stateable point of law” and arguability threshold: O'Doherty v The Minister for Health [2022] IESC 32, [2023] IR 488

The Court used O'Doherty to reinforce that Deputy Daly, having obtained leave, necessarily met the arguability threshold, supporting a finding that the claims were “clearly stateable” and not obviously weak—an important consideration under Little (No.2).

8) Other authorities integrated through Little (No.2)

• Pervaiz v. The Minister for Justice and Equality and ors. [2020] IESC 73: point of general public importance is necessary (not sufficient).
• ELG v. HSE (No. 2) [2022] IESC 26: relevance of broader affected class; also later used (via Little (No.2)) as an example of a 40% costs award to an unsuccessful appellant.
• O'Keeffe v. Hickey and ors. [2009] IESC 39 and Cork County Council v. Shackleton [2007] IEHC 334, [2011] 1 IR 485: true “test case” situations.
• Lee v. Revenue Commissioners: unclear legislation as a reason to protect litigants from costs exposure (not central here, but part of the framework).
• Fox v Minister for Justice and Equality and PMcD v Governor of X Prison [2021] IESC 71: examples (via Little (No.2)) where 50% costs were awarded despite ultimate lack of success, supporting the 50% calibration adopted here.
• Mallon v. Minister for Justice and ors. [2024] IESC 27: emphasis that costs to unsuccessful claimants tend to arise where “foundational issues of constitutional or European law” are raised.
• TF v. Ireland (1995) and O'Shiel v. Minister for Education [1999] IEHC 146, [1999] 2 IR 321: exemplars of “far reaching importance” across generally applicable legal areas.
• “Corcoran” (as referenced in Little (No.2)): deterrent effect of costs on affected classes (the Court considered this not directly applicable on the facts).

B. Legal Reasoning

1) Step one: applying the post-2015 default rule, then identifying grounds to depart

The Court began from the statutory/rules default (s. 169 of the 2015 Act, read with s. 168 and recast O. 99 RSC): the State, as the entirely successful party on the merits, would ordinarily obtain its costs. The judgment then applies the retained judicial discretion to depart from that default, as explained in Little (No.2).

2) Step two: exemption from paying the State’s costs (public-interest “no order” protection)

The Court held both cases met the defining elements of public-interest proceedings (as described in Little (No.2)), and then evaluated the discretionary considerations (also as set out in Little (No.2)) in a fact-specific way:

• General public importance and novelty: the constitutional status of regular attendance and participation of Super Junior Ministers at Government meetings was both generally important and not previously determined by Irish courts.
• No personal advantage: the Deputies litigated as TDs seeking constitutional compliance, not private benefit; political opposition was not treated as disqualifying.
• Stateable and not obviously weak: leave in Daly confirmed arguability; neither case was characterised as weak.
• Systemic importance: the clarification affected core executive practice and separation-of-powers architecture.
• Context and materials: the Court noted constitutional and political formation-of-government context (Standing Orders, custom, practice, convention), emphasising that the legal issue sat at the intersection of law and political governance structures.
• Parallel proceedings justified: Murphy was not penalised for issuing after Daly; he raised different arguments and provided witness evidence that materially assisted the Court.

Result: no costs were awarded against either Deputy.

3) Step three: the rarer award of costs to unsuccessful parties (crossing the higher threshold)

The critical move is the Court’s conclusion that this case crossed the higher threshold described in Little (No.2): not merely a public-interest loss deserving protection from adverse costs, but an exceptional case where the losing parties should recover a portion of their costs.

The Court’s justification combined multiple “exceptionality” indicators:

• Real substance and significant public interest: the litigation clarified that the impugned practice was not unconstitutional, resolving an important governance question with acknowledged academic divergence.
• Fundamental/foundational constitutional governance: the Court categorised the issue as fundamental, conspicuously novel, and far-reaching for executive functioning and separation of powers.
• Clarification of unexplored governmental processes: the Court highlighted the evidence and scrutiny of “corporeal and incorporeal” Cabinet meetings, the Cabinet Handbook, eCabinet, cabinet committees, memoranda to Government, and even attendance records and seating—depicting a domain previously unexamined in litigation.
• “Unchartered constitutional terrain”: expressly borrowing the phrase from Curtin v Dáil Éireann [2006] IESC 27.
• Discrete issue success: the Deputies prevailed on justiciability (though not on their preferred test and not on the merits), supporting the “won a significant issue” rationale for partial costs.
• Divisional Court constitution: while not determinative, the convening of a Divisional Court reinforced the exceptional constitutional importance.

4) Step four: why 50%?

The Court treated apportionment as the appropriate “middle course”: these were rare exceptional cases, but the Deputies still lost overall. It then anchored 50% in comparative practice:

• Curtin: 50% costs before the Divisional Court (and later half costs on appeal as described).
• Horgan: cited (in Collins) as a 50% costs example.
• Fox v Minister for Justice and Equality: 50% (High Court and Court of Appeal) for novel ECHR Article 2 investigative duties issues.
• PMcD v Governor of X Prison [2021] IESC 71: 50% High Court costs in urgent constitutional rights context, benefiting prison authorities and clarifying duties.
• ELG v. HSE (No. 2) [2022] IESC 26: 40% appeal costs as another benchmark.

The Court distinguished Collins (75%) as involving even more far-reaching potential consequences (budgetary allocation), and concluded full or 75% recovery was not appropriate here. Hence: 50%.

C. Impact

1) A practical rule for High Court costs in constitutional public-interest litigation

The decision reinforces a structured approach for the High Court (including Divisional Courts) when faced with costs in public-interest litigation post-2015: (i) start from the statutory default; (ii) consider exemption from adverse costs using Little (No.2) criteria; and (iii) only then consider whether the rarer step of awarding costs to the unsuccessful party is justified.

2) Confirmation that “clarifying constitutionality” can justify partial costs—even when the State wins

A central implication is that where litigation produces authoritative constitutional clarification on systemic governance questions—especially in previously unlitigated territory— the State may be required to bear part of the cost of that clarification, even as the successful party.

3) Political actors are not barred from public-interest costs protection

The Court’s refusal to treat “opposition TD” status as disentitling is significant. It recognises that public representatives may be uniquely positioned to identify and litigate constitutional governance issues; the public-interest character is assessed by substance (personal advantage, systemic importance), not political identity.

4) Litigation design: parallel proceedings and evidential choices

The Court’s acceptance that Murphy need not await Daly—because Murphy raised additional arguments and provided helpful witness evidence—signals that duplicative or sequential challenges will not automatically be cost-penalised where they materially assist the court in resolving constitutional uncertainty.

5) Likely influence on future costs negotiations and settlements

By awarding a defined percentage (50%) in a high-profile constitutional governance case, the judgment supplies a bargaining “anchor” for future disputes: where parties can credibly show novelty, systemic importance, and clarificatory benefit, partial costs may be realistically sought and defended.