Farrell & Ors v PIAB & Ors: Costs for Parked Parallel Challenges Following Lead‑Case Success under s.169 LSRA 2015

Farrell & Ors v PIAB & Ors: Costs for Parked Parallel Challenges Following Lead‑Case Success under s.169 LSRA 2015

Court: High Court of Ireland | Neutral Citation: [2025] IEHC 504 | Date: 17 September 2025 | Judge: Bolger J.

Introduction

This High Court decision addresses a recurring and increasingly important question in public law litigation: when multiple, substantially similar constitutional challenges are “parked” to allow a de facto lead case to be determined, how should costs be dealt with for the parked proceedings—particularly where the lead case yields only partial success? In Farrell & Ors v Personal Injuries Assessment Board & Ors, Bolger J. exercises the court’s costs discretion to award the applicants their costs up to a defined point in time, as well as the costs of the costs application itself, notwithstanding that their own proceedings never reached a substantive determination and no “event” in the conventional sense occurred in their favour.

The applicants—Rosemary Farrell, Padraig Farrell and Anthony Douglas—had obtained leave in November 2021 to bring judicial review proceedings challenging the constitutional validity of the Personal Injuries Guidelines in part by attacking section 7(2)(g) and section 18 of the Judicial Council Act 2019, and alleging incompatibility with multiple provisions of the Constitution (including Articles 6, 15.2, 34, 35, 40.1, 40.3 and 43). Like a raft of similar cases then pending, their claims overlapped substantially with Delaney v PIAB & Ors, the case that ultimately became the de facto lead authority.

After the Supreme Court’s landmark judgment in Delaney ([2024] IESC 10), which declared section 7(2)(g) unconstitutional but confirmed the legal force of the Guidelines via section 30 of the Family Leave and Miscellaneous Provisions Act 2021—and which awarded costs to Ms Delaney despite her partial success—the Farrell applicants applied for their costs. The State respondents resisted, urging that because there had been “no event” in the Farrell proceedings and because, had their cases proceeded, the bulk of their claims would have failed (as in Delaney), no costs should be awarded. The respondents did not, however, seek their own costs.

Summary of the Judgment

  • The High Court granted the applicants their costs of the proceedings up to January 2022 (the point at which Delaney was expedited and the broadly similar cases were effectively parked).
  • The Court also awarded the applicants the costs of the present costs application.
  • Costs are to be adjudicated in default of agreement.
  • Bolger J. grounded her decision in the court’s overarching discretion under the Rules of the Superior Courts and section 169 of the Legal Services Regulation Act 2015 (LSRA), emphasising the reasonableness of the applicants’ conduct and the legislative policy of avoiding needless costs.
  • The Court noted that the applicants’ constitutional challenge (particularly to section 7(2)(g)) was reasonable to pursue prior to the Supreme Court’s ruling in Delaney and that their decision to await the outcome of the lead case was prudent and cost‑saving.

Analysis

Precedents Cited and Their Influence

1) Delaney v PIAB & Ors ([2022] IEHC 321; [2024] IESC 10)

Delaney is the pivotal backdrop. The Supreme Court held that section 7(2)(g) of the Judicial Council Act 2019 was unconstitutional, while simultaneously declaring that the Personal Injuries Guidelines had been given force of law by section 30 of the Family Leave and Miscellaneous Provisions Act 2021, and that PIAB had acted lawfully in applying them to the appellant’s assessment. In costs terms, the Supreme Court awarded Ms Delaney her costs against Ireland and the Attorney General even though she did not succeed on all aspects of the challenge. The Court’s headline summary expressly justified this award “given those orders of the Court.”

In Farrell, this Supreme Court approach informed the High Court’s understanding in two ways:

  • It underscored that a claimant may be awarded costs despite partial success where a significant constitutional declaration is obtained.
  • It corroborated the gravity and complexity of the issues—separation of powers, delegated legislation, the limits of judicial competence, retrospectivity, equality, and the interaction of several constitutional provisions—which made the applicants’ pre‑Delaney pursuit of the challenge objectively reasonable.

2) Chubb European Group SE v Health Insurance Authority [2020] IECA 183 (Murray J.)

Bolger J. relied on Chubb for the proposition that even under the LSRA, the court retains a broad discretion on costs and must have regard to the statutory factors in section 169 when determining whether, and how, to depart from the baseline rule. In particular, the judgment emphasises section 169(1)(a)–(c), which direct attention to:

  • the conduct of the parties before and during the proceedings,
  • whether it was reasonable to raise, pursue or contest the issues, and
  • the manner in which the parties conducted their cases.

Chubb thus anchors a conduct‑ and reasonableness‑oriented assessment, rather than a mechanical “costs follow the event” outcome, and supports nuanced costs orders in complex, multi‑party or multi‑issue litigation.

Legal Reasoning

The High Court framed the analysis under the Rules of the Superior Courts and section 169 LSRA 2015, preserving the court’s discretion on costs and explicitly linking the statutory factors to the overarching policy of avoiding needless costs. The judge accepted that:

  • The applicants were in the same position as Ms Delaney at the time they obtained leave in November 2021; indeed, they pleaded substantially similar reliefs (including a declaration that section 7(2)(g) was unconstitutional).
  • Once Delaney was expedited in early 2022 and the High Court declined to case‑manage the other similar cases, it was both prudent and cost‑effective for the applicants to “park” their cases rather than press ahead or launch interlocutory disputes about case management.
  • No statement of opposition was filed in the applicants’ cases, and the applicants did not compel the respondents to file one—another indicator of a litigation strategy designed to minimise costs pending the lead decision.
  • The Supreme Court’s characterisation of the Delaney issues as exceptionally complex, coupled with the fact that seven justices issued five judgments, bolstered the reasonableness of the applicants having raised the constitutional issues when they did.

Against this backdrop, the State’s central contention—that there had been no “event” in the Farrell proceedings and that the applicants’ success (if any) would be marginal—was not determinative. Bolger J. did not rest her decision on a strict “event” analysis. Instead, consistent with section 169’s text and policy, she focused on:

  • the objective reasonableness of commencing the proceedings (to avoid limitation issues) and of then not proliferating duplicative steps once Delaney was designated as the lead case;
  • the proportionality and prudence of the applicants’ conduct in minimising procedural activity and avoiding needless costs while the legal landscape was being decided elsewhere; and
  • the substantive overlap with Delaney—particularly the successful challenge to section 7(2)(g)—which the applicants could reasonably claim would have been replicated in their cases had they been allowed proceed.

The solution crafted by the Court was calibrated and time‑bounded: the applicants would recover their costs up to January 2022 (i.e., up to the effective “parking” of the proceedings) and the costs of the costs application itself, with all such costs to be adjudicated in default of agreement. This temporal scoping ensures fairness without conferring a windfall—recognising reasonable expenditure incurred to get to the point of case‑management triage, but not awarding costs for dormant periods thereafter.

Impact and Significance

The judgment is a practical and principled application of section 169 LSRA in the increasingly common setting of “waves” of similar public law claims being informally coordinated around a lead case. Key consequences include:

  • Incentivising cost‑efficient litigation conduct: Parties who cooperate with the court’s de facto lead‑case management and avoid duplicative steps will not be penalised on costs simply because their own proceedings did not reach a final merits determination.
  • Clarifying the role of reasonableness under s.169: Even in the absence of a formal “event” in a given set of proceedings, courts can award costs where the party’s conduct was objectively reasonable and consistent with the LSRA’s policy to avoid needless expense.
  • Temporal tailoring of costs orders: The Court’s time‑limited award provides a template for handling costs across parallel proceedings—recognising necessary preparatory steps up to the point of a lead‑case designation, while preventing over‑compensation for later inactivity.
  • Guidance for mass or systemically related litigation: The approach will be highly relevant for future constitutional or administrative law challenges that travel in cohorts. Litigants can safely pause in the shadow of a lead case without risking an automatic “no order” on costs at the end, provided their conduct remains measured and cooperative.
  • Alignment with Supreme Court’s approach in Delaney: Although Delaney concerned costs in a case with a substantive outcome, the High Court’s reasoning in Farrell harmonises with the broader principle that partial success on weighty constitutional questions may justify costs, particularly where the litigation responsibly advances issues of general importance.

Complex Concepts Simplified

  • “Costs follow the event” and the LSRA 2015: Traditionally, the party who wins (“the event”) gets their legal costs. Section 169 of the Legal Services Regulation Act 2015 modernises this principle: courts retain a broad discretion to consider the parties’ conduct and the reasonableness of raising or contesting issues. Full success is not an absolute prerequisite to obtaining costs.
  • “No event” but costs awarded: Even if a case is parked and never reaches a final order in favour of a party, a court may still award costs if it is fair to do so, particularly where the party behaved reasonably and helped avoid unnecessary costs (for example, by awaiting a lead decision that would likely determine the common issues).
  • Lead case / de facto lead case: Courts sometimes progress one case first, because it raises common issues across many similar cases. That case effectively becomes the “lead case,” and other cases are paused. The Farrell decision recognises that parties who sensibly pause do not forfeit fair treatment on costs.
  • Leapfrog appeal: A “leapfrog” allows an appeal to jump directly from the High Court to the Supreme Court, bypassing the Court of Appeal. In Delaney, the Supreme Court ultimately decided the core constitutional issue.
  • Declaration of unconstitutionality vs. validity via later statute: In Delaney, the Supreme Court declared section 7(2)(g) unconstitutional (removing that legislative foothold for the Guidelines), but also declared that the Guidelines were in force via section 30 of the Family Leave and Miscellaneous Provisions Act 2021. This preserved the Guidelines’ legal effect through a different statutory route.
  • “Adjudicated in default of agreement”: If the parties cannot agree the amount of costs payable, the Legal Costs Adjudicator will assess and fix the recoverable costs through a formal adjudication process.
  • Statute‑barred: Some claims must be initiated within strict time limits. The Farrell applicants issued their proceedings when they did to avoid limitation problems, which the Court saw as reasonable.

Note on the Procedural Rule Cited

The judgment refers to Order 29, rule 3(1) of the Rules of the Superior Courts as the procedural anchor for costs. Irish costs decisions are commonly framed with reference to Order 99. Whether the reference to Order 29 is deliberate or a slip does not affect the analysis here, as the judgment centrally relies on the court’s general discretion and section 169 LSRA 2015 in any event.

Conclusion

Farrell & Ors v PIAB & Ors is a quietly significant costs decision for public law practitioners. It confirms that where multiple constitutional challenges are parked behind a lead case, the High Court can and will exercise its section 169 discretion to award costs to parties who behaved reasonably—issuing in time to avoid limitation, refraining from duplicative steps, and prudently awaiting a lead judgment that would likely determine overlapping issues. The Court’s calibrated order—costs up to the point of case‑management divergence plus the costs of the costs application—balances fairness with fiscal restraint, aligns with the Supreme Court’s approach to costs in Delaney, and operationalises the LSRA’s twin aims of reasonableness and avoidance of needless litigation expense.

For future cohorts of similar constitutional or administrative law cases, the message is clear: responsible litigation conduct in the shadow of a lead case will not be penalised on costs merely because no formal “event” occurs in a parked proceeding. Instead, costs will turn on the practical reasonableness of the parties’ choices and the broader public interest in efficient, non‑duplicative resolution of systemic legal questions.

Counsel

  • For the applicants: Feichín McDonagh SC, Eileen Barrington SC, Brendan Hennessy BL.
  • For the respondents: Catherine Donnelly SC, Eoin McCullough SC, Francis Kieran BL.

Case Details

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