No Order as to Costs After Delay Strike-Out in Child-Welfare/Constitutional Litigation: Discretion Under s.169 LSRA 2015

1) Introduction

D.O’H v Tusla/The Child and Family Agency [No. 2] (Approved) [2026] IEHC 114 is an ex tempore ruling by Barr J. on costs following the substantive judgment reported at [2026] IEHC 53, where the High Court struck out the applicant’s judicial review for inordinate and inexcusable delay.

The applicant (a parent) had instituted proceedings relating to access and information concerning his son, who had been in Tusla care. The litigation became procedurally complex (including joinder of the Attorney General and the appointment of a Guardian ad Litem), and was ultimately struck out on delay grounds without any determination on the merits.

The core issue in [2026] IEHC 114 was whether the usual rule—costs follow the event—should apply in favour of Tusla, or whether the court should depart from it given (i) the child-welfare context, (ii) claimed constitutional significance, and (iii) the unusual course of the proceedings.

2) Summary of the Judgment (Costs Ruling)

  • The court affirmed the general rule that costs ordinarily follow the event under O. 99 and s. 169 of the Legal Services Regulation Act 2015.
  • However, the court held that costs require a holistic assessment of the entire case and that s. 169 allows departure from the default rule; the listed factors are not exhaustive.
  • Despite Tusla’s success (strike-out for delay), the court found “truly extraordinary circumstances” and made no order as to costs.
  • The court rejected the applicant’s request for an order that Tusla pay the applicant’s costs, holding that:
    • the welfare-of-children and constitutional-importance costs doctrines typically arise where proceedings are litigated to finality and produce a merits decision;
    • here, the case was struck out for delay with no judgment on the merits, so there was no basis to award the applicant his costs against Tusla.
  • The court also ordered that any previous inter partes costs orders made earlier in the proceedings be vacated.

3) Analysis

A) Precedents Cited

i) Child-welfare/family-law costs exceptions

The applicant relied on a line of authority suggesting that disputes concerning children’s welfare may justify departure from the “costs follow the event” norm to avoid deterring parents from bringing bona fide proceedings.

  • BE v RE [2023] IEHC 413: cited for the proposition that child-welfare cases can constitute exceptions to the ordinary costs rule. In the present ruling, the case served as part of the asserted doctrinal foundation for a protective costs approach in child-related litigation.
  • D v D [2016] 2 IR 438: invoked to support a more flexible, welfare-sensitive approach to costs. Barr J. accepted that such case law exists, but emphasised that its typical application presupposes adjudication to a merits outcome rather than termination for procedural default.
  • Child and Family Agency v OA [2015] 2 IR 718: relied on both for the child-welfare exception and for the “chilling effect” rationale—namely, that costs awards against parents may deter access to justice where they seek to vindicate children’s welfare interests. Barr J. accepted the existence of this line of authority in principle, but distinguished the present case on the basis that it ended with a delay strike-out.
  • CFA v D [2026] IEHC 33: cited as a contemporary illustration of the welfare-oriented costs exception. Again, it assisted the applicant in establishing that such exceptions can exist, but did not overcome the critical procedural posture here (no merits determination).
  • B v CFA [2024] IEHC 461: relied on for the proposition that costs ought not to be awarded against parents bringing proceedings concerning children’s care and welfare. Barr J. accepted that in appropriate circumstances the court may refuse to award costs against a parent, particularly where the application is brought solely for the child’s welfare (rather than the parent’s personal interests). That acceptance informed the ultimate “no order as to costs” outcome, but did not justify flipping costs in the applicant’s favour.

ii) Public/constitutional importance costs principles

The applicant also invoked the principle that, in litigation resolving issues of exceptional public or constitutional importance, a losing party may, in some circumstances, recover costs against the State (or a State emanation). Barr J. acknowledged this line of authority in general terms (without naming additional cases beyond those listed), but held it inapplicable because the present proceedings were not litigated to finality and produced no merits decision resolving the asserted constitutional issues.

iii) Statutory and procedural framework guiding costs

  • O. 99 of the Rules of the Superior Courts: provided the default rule that costs follow the event, underpinning Tusla’s application.
  • s. 169 of the Legal Services Regulation Act 2015: central to the reasoning. The court highlighted (a) judicial discretion, (b) a multi-factor inquiry, and (c) that the statutory list is not exhaustive—supporting a contextual, justice-oriented approach even where one party “wins” procedurally.

B) Legal Reasoning

  1. Starting point: the default rule.
    The court reaffirmed that a wholly successful party will “ordinarily” receive costs because its position has been vindicated.
  2. Discretion and the s. 169 factors are not exhaustive.
    Barr J. stressed that the result is not the only determinative consideration. The court must examine the “entirety of the case in a holistic manner” and “strive to do justice between the parties”.
  3. Extraordinary procedural history as a decisive justice factor.
    Although the applicant ultimately failed due to delay, the court placed “great importance” on the fact that he had progressed the case promptly to a High Court hearing in October 2018. The subsequent derailment was materially driven by complexity introduced during the hearing (including the trial judge’s own-motion joinder of the Attorney General due to constitutional importance) and a sequence of events largely beyond the applicant’s control:
    • the joining of the Attorney General and related procedural steps;
    • removal of the child as co-applicant and appointment of a Guardian ad Litem;
    • an appeal to the Court of Appeal (later withdrawn on settlement with no order as to costs);
    • Covid-19 disruption and practical impediments affecting progress;
    • serious personal circumstances affecting the applicant’s solicitor (spousal illness and bereavement);
    • the applicant’s own health issues.
    These matters did not excuse delay for strike-out purposes (as held in [2026] IEHC 53), but they materially informed the fairness assessment on costs.
  4. Child vulnerability and constitutional importance as context (not a costs “trump”).
    The court noted that the original trial judge regarded the proceedings as raising issues of “very considerable constitutional importance” and that they concerned a “vulnerable child”. These considerations supported a neutral costs order, but did not justify awarding the applicant costs.
  5. Why the applicant could not recover costs.
    Barr J. drew a crucial distinction: welfare-based and public-importance-based costs awards for losing parties are generally linked to proceedings litigated to finality, producing a merits judgment safeguarding welfare interests or resolving important constitutional/public questions. Here, the case ended with a procedural strike-out, so the normative justification for compensating a losing party (despite loss) did not arise.

C) Impact

The practical precedent in [2026] IEHC 114 is a calibrated approach to costs in procedurally unsuccessful child-related/constitutionally-inflected litigation: while the default rule remains intact, the court may make no order as to costs where extraordinary circumstances show that a successful respondent should not automatically recover costs, even after a delay strike-out.

At the same time, the ruling limits the reach of welfare/constitutional “protective costs” ideas by underscoring a boundary condition: where proceedings are struck out for delay and no merits determination occurs, the court will not award the losing party its costs against the State/agency. This may influence litigation strategy by:

  • encouraging parties to treat costs as a distinct, justice-based inquiry rather than a mechanical follow-on from success;
  • reinforcing that applicants seeking the benefit of welfare/public importance costs principles must ordinarily prosecute proceedings to a merits outcome;
  • signalling that, in exceptional child-welfare contexts with complex court-driven procedural turns, the “winner” may not always recover costs.

4) Complex Concepts Simplified

  • “Costs follow the event”: usually, the winner gets their legal costs paid by the loser.
  • “No order as to costs”: each side pays its own costs; neither recovers costs from the other.
  • s. 169 of the Legal Services Regulation Act 2015: a statutory framework confirming the court’s discretion on costs and listing factors that can justify departing from the normal rule.
  • Strike-out for delay: the case is dismissed not because the claim is proven wrong on its merits, but because the applicant delayed too long in progressing it.
  • Guardian ad Litem (GAL): an independent person appointed to represent a child’s interests/voice in proceedings.
  • “Chilling effect”: the concern that fear of paying the other side’s costs will deter parents from bringing genuine welfare-related challenges.
  • Public/constitutional importance costs: in some cases determining issues of broad importance, courts may protect or even compensate an unsuccessful party on costs—but this ruling stresses that such logic is usually tied to a case being litigated to finality and producing a merits decision.

5) Conclusion

D.O’H v Tusla [No. 2] [2026] IEHC 114 affirms the default position that costs follow the event, but it also crystallises a pragmatic costs principle: even where a respondent succeeds in striking out proceedings for delay, the court may make no order as to costs where exceptional, justice-sensitive circumstances—particularly in child-welfare litigation with acknowledged constitutional dimensions and a procedurally complex history—make it unfair to impose costs.

Equally important is the limiting rule applied: the court will not award the losing applicant costs against the State/agency where the case ends in a delay strike-out and there is no merits adjudication capable of grounding welfare-based or constitutional-importance costs rationales.