Little v Chief Appeals Officer, Social Welfare Appeals Office & Minister for Social Protection
Supreme Court Clarifies – and Effectively Displaces – Section 53 of the Supreme Court of Judicature (Ireland) Act 1877 as a Current Source of Jurisdiction on Costs

1. Introduction

Little v Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection (No. 2) [2024] IESC 53 began life as an individual challenge by Ms Deirdre Little to a social-welfare determination. By the time the case reached the Supreme Court, however, the central controversy had shifted to a fundamental but long-neglected question: what is the modern statutory foundation for the Rules of the Superior Courts (RSC) governing costs?

Five judges (Charleton, Woulfe, Hogan, Murray and Collins JJ.) sat. Murray J. delivers the principal judgment (not reproduced in full in the extract); Hogan J. files a detailed concurrence focusing solely on the “troublesome question” of costs jurisdiction. He surveys four potential statutory sources:

• Section 53, Supreme Court of Judicature (Ireland) Act 1877 (“the 1877 Act”)
• Section 22, Courts of Justice Act 1924 (“the 1924 Act”)
• Section 14(2), Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”)
• Sections 168–169, Legal Services Regulation Act 2015 (“the 2015 Act”)

The Court ultimately holds that the contemporary power to prescribe and award costs in the Superior Courts rests on the 1961 and 2015 Acts, not on the vestigial Section 53 of the 1877 Act. In doing so, the Supreme Court resolves conflicting strands of authority, some of which had—in recent years—quietly revived reliance on the 1877 provision.

2. Summary of the Judgment

• The Supreme Court (unanimously) allows Ms Little’s appeal on costs and remits the substantive social-welfare issues for rehearing (Murray J.’s reasons).
• In a concurring opinion, Hogan J. undertakes an historical audit of statutory costs provisions, concluding:
  • Section 53 of the 1877 Act was never intended—or, at the latest, ceased—to apply to the courts established under the 1922 and 1937 Constitutions.
  • The operative statutory warrant for Order 99 RSC is Section 14(2) of the 1961 Act, now supplemented by Sections 168–169 of the 2015 Act.
  • Recent case-law relying on the 1877 Act (e.g. Moorview and WL Constructions) did so without analysing jurisdiction and should not be read as authority for its continuing application.
• The Court signals that legislative consolidation would be desirable to eliminate residual uncertainty.

3. Analysis

3.1 Precedents Cited

Hogan J. canvasses a century of jurisprudence, of which the key cases are:

• Whitmore v O’Reilly (1906) – Palles C.B.’s exposition of the fusion rationale behind Section 53.
• Little v Dublin United Tramways (1929) – first post-Independence discussion; held Section 53 survived but could be displaced where inconsistent with the 1924 framework.
• Quinn & White v Stokes & Quirke (1931) – ruled Section 53 inapplicable to the new Circuit Court.
• The People (AG) v Bell [1969] – Walsh J. pronounced that Order 99 “owes nothing” to the 1877 Act.
• Moorview Developments v First Active [2018] & WL Constructions v Chawke [2019] – modern cases citing Section 53, but without jurisdictional scrutiny.
• Director of Public Prosecutions v Grey [1986]
• Mogul of Ireland v Tipperary County Council [1975] & DPP (O’Grady) v Hodgins [2024] – standards for overruling precedent (“clearly wrong”).

3.2 Legal Reasoning

1. Constitutional Re-creation of the Courts. Under both the 1922 and 1937 Constitutions, the Superior Courts are new entities. Legislative references to the pre-1924 “High Court of Justice” or “Court of Appeal” cannot automatically migrate.
2. Section-by-Section Analysis.
   • Section 22 of the 1924 Act expressly provided that costs jurisdiction would henceforth depend on rules “made pursuant to this Part”. It also contained a saving for earlier practice only in the absence of rules.
   • Section 94 of the same Act created a jury-action default (“costs follow the event”) inconsistent with (and therefore displacing) the parallel phrase in Section 53.
   • Section 14(2) of the 1961 Act re-enacted Section 22; post-1961 rules (notably the 1986 consolidated RSC and the 2019 Costs Amendments) all cite the 1961 Act, not the 1877 Act, as their enabling provision.
   • Sections 168–169 of the 2015 Act codify modern “costs-following-the-event unless justice otherwise requires” while also dealing with the new concept of “frivolous or vexatious” litigation costs.
3. Doctrine of Implied Repeal & Inconsistent Provisions. Where later legislation “covers the same ground,” the newer statute prevails (citing McLaughlin). Section 94 (1924) and Section 14(2) (1961) therefore impliedly repeal or supersede Section 53 for the Superior Courts.
4. Pre-Existing Practice as a Gap-Filler Only. Even where Section 22/14(2) preserves earlier practice, that preservation ends once comprehensive rules are made— which occurred in the Rules of 1926, 1962, 1986 and 2019.
5. Presumption Against Implied Repeal. The Court recognises DPP v Grey but finds the inconsistency so fundamental that coexistence of the 1877 and 1924/1961 regimes is impossible.

3.3 Impact of the Decision

• Doctrinal Clarity. Courts, litigants and costs adjudicators now have definitive guidance: cite Section 14(2) (1961) and Sections 168–169 (2015) as the statutory foothold for Order 99 RSC.
• Precedential Adjustment. To the extent that Moorview, WL Constructions or any other post-2010 cases relied on Section 53, they should no longer be followed on that point.
• Legislative Tidying. Hogan J. issues a clear invitation to the Oireachtas to remove the “zombie” provisions that clutter the statute book and sow confusion—a rare judicial nudge toward statute-law revision.
• Practical Litigation Strategy. Cost-management arguments henceforth must be located within the discretionary language of Section 169(1)–(5) 2015, not the more rigid 19th-century framework.
• Circuit & District Courts. Although the focus is Superior Courts, the reasoning fortifies earlier authority that the 1877 Act never governed lower courts, promoting coherence across court tiers.

4. Complex Concepts Simplified

• Implied Repeal. When two statutes cannot logically operate together, the later one “silently” cancels the earlier to the extent of conflict.
• Costs Follow the Event. A default rule that the losing party pays the winning party’s legal costs.
• Fusion of Law and Equity (1877). Before 1877, separate courts applied “common-law” or “equitable” rules. The 1877 Act merged them procedurally, necessitating a unified costs provision (Section 53).
• Rules of Court. Subordinate legislation (statutory instruments) setting out procedural details—made by Rules Committees under an enabling section of a primary Act.
• Statute-Law Revision. The parliamentary process of repealing obsolete Acts to keep the statute book intelligible.

5. Conclusion

Little v Chief Appeals Officer is ostensibly a social-welfare appeal, yet its lasting importance lies in the Supreme Court’s meticulous demolition of anachronistic reliance on Section 53 of the 1877 Act. The Court re-anchors the Irish costs regime in modern legislation—the Courts (Supplemental Provisions) Act 1961 and the Legal Services Regulation Act 2015—thereby aligning doctrine with everyday practice and the text of Order 99 RSC. By clarifying that centuries-old provisions no longer animate contemporary costs jurisdiction, the judgment enhances legal certainty, curtails forum-shopping arguments based on historical relics, and heralds a necessary spring-cleaning of Ireland’s procedural statute book.

Key takeaway: When arguing costs in the Superior Courts, practitioners should now look to Section 14(2) 1961 and Sections 168–169 2015—not to Section 53 of the 1877 Act.