No-Order Costs in Unsuccessful Public-Interest Judicial Review: Applying Little (No. 2) to Prison-Remission Litigation

1) Introduction

Kelleher v The Irish Prison Service and Ors (No. 3) (Costs) (Approved) [2026] IEHC 583 is a High Court costs ruling delivered by Bradley J. It follows the substantive judicial review decision in Kelleher v The Irish Prison Service (No. 2) [2026] IEHC 388 (“the principal judgment”), in which the applicant’s interpretation of s. 27(3) of the Misuse of Drugs Act 1977 (as amended), and related constitutional and European Convention on Human Rights Act 2003 challenges, were rejected.

The applicant had begun the proceedings while incarcerated but was released in February 2025 under enhanced remission provisions. The respondents previously sought to stay the case as moot; that application failed in Kelleher v The Irish Prison Service & Ors (No. 1) [2025] IEHC 253. This costs judgment addresses only the costs of the principal judgment (not the mootness application), because Kennedy J.’s perfected order had already awarded the applicant the costs of Kelleher (No. 1).

The core issue here was whether, despite losing the substantive case, the applicant should (i) obtain his own costs, or (ii) at least be protected from an adverse costs order in favour of the State.

2) Summary of the Judgment

  • The court confirmed that the costs of Kelleher (No. 1) had already been determined (respondents to pay the applicant’s costs of that application).
  • For the principal judgment (Kelleher (No. 2)), the applicant was unsuccessful, so the default rule (“costs follow the event”) was engaged.
  • Applying s. 169(1) Legal Services Regulation Act 2015, recast O. 99 of the Rules of the Superior Courts, and the Supreme Court guidance in Little v The Chief Appeals Officer & Ors (No. 2) [2024] IESC 53, Bradley J held:

Order: No order as to costs in respect of the principal judgment.

3) Analysis

3.1 Precedents Cited

(a) Little v The Chief Appeals Officer & Ors (No. 2) [2024] IESC 53

This decision provided the controlling framework. Bradley J relied on Little (No. 2) for two related but distinct propositions:

  • Definition of “public interest proceedings” (Murray J at para. 34): claims against the State (or its organs), seeking public law relief, raising a point of law of general public importance, and not confined to altruistic litigation divorced from the litigant’s personal interest.
  • Costs consequences in public interest litigation: while the default “costs follow the event” remains, Little (No. 2) recognises a discretion (in appropriate circumstances) to withhold an adverse costs order against an unsuccessful public-interest litigant, assessed by a non-exhaustive set of factors (referenced in this judgment as paras 35, 68, 69 of Little (No. 2)).

Bradley J accepted that the applicant’s challenge met the Little (No. 2) definition of “public interest proceedings” (para. 29), but treated that as a gateway to discretion—not an entitlement to costs.

(b) Chain Wen Wei v Minister for Justice & Anor (No. 2) [2025] IESC 9

This was cited to reinforce that the category of cases justifying especially favourable costs treatment (e.g., “foundational”, “far-reaching”, “constitutional conspicuous novelty”, or “fundamental importance”) is exceptional. Bradley J held the present case did not reach that level (para. 30).

(c) Amariei v The Chief Appeals Officer & Ors [2026] IESC 28

Bradley J used Amariei to underscore a key distinction drawn from Little (No. 2):

  • It is harder to obtain a positive costs order for an unsuccessful public-interest litigant than
  • it is to obtain an exemption from an adverse costs order.

This distinction framed the ultimate remedy: rather than awarding the applicant his costs, the court considered whether fairness required withholding costs from the successful State respondents—and concluded it did.

(d) Kelleher v The Irish Prison Service & Ors (No. 1) [2025] IEHC 253

Although not determinative of the costs of Kelleher (No. 2), Kelleher (No. 1) mattered in two ways:

  • It demonstrated that the proceedings had been allowed to continue despite mootness arguments, because the High Court had identified the importance and likely recurrence of the issue and the potential liberty impact.
  • It supported the applicant’s characterisation of himself as a legitimus contradictor (a proper contradictor) for a question said to have systemic importance.

(e) Doyle v The Minister for Justice [2015] IEHC 514 and Doyle v Minister for Justice [2015] IEHC 728

The respondents invoked these decisions to argue the substantive issues were not novel and had been analysed by Kearns P in an analogous sentencing/penalties and temporary release context (Firearms legislation). While Bradley J did not revisit the merits of Kelleher (No. 2) in this costs ruling, the reference reinforced that the applicant was not pursuing a “conspicuous novelty” case of the type warranting an affirmative costs award to an unsuccessful litigant.

3.2 Legal Reasoning

(a) The statutory and rules framework: default “costs follow the event”

Bradley J anchored the analysis in s. 169(1) of the Legal Services Regulation Act 2015 and the recast O. 99, rr. 2–3 of the Rules of the Superior Courts (S.I. 584 of 2019). The default position is that a wholly successful party receives costs, subject to the court’s discretion “having regard to the particular nature and circumstances of the case” and conduct factors, including (among others) reasonableness in raising or contesting issues and settlement conduct (para. 26).

(b) Public interest proceedings: gateway, not guarantee

The court held the applicant’s case satisfied the Little (No. 2) definition of public interest proceedings (para. 29). However, the judgment makes clear that:

  • That classification does not automatically displace the default rule; and
  • It does not by itself justify ordering the State to pay an unsuccessful applicant’s costs.

(c) Two distinct questions: (i) applicant’s costs; (ii) exemption from adverse costs

Bradley J separated:

  • Whether the applicant should receive a costs order in his favour (rejected, as the case was not exceptional/foundational under the Little (No. 2) / Chain Wen Wei (No. 2) standard); and
  • Whether the respondents should receive their costs (answered in the negative by making no order as to costs, effectively granting the applicant a protective outcome).

(d) Why “no order” was justified on the facts

The court’s balancing exercise (paras 34–40) emphasised:

  • Issue importance and recurrence: as previously recognised in Kelleher (No. 1), unresolved uncertainty could affect prisoners’ ability to assert statutory entitlements, obtain effective remedies, and potentially affect liberty (para. 37).
  • No personal advantage at substantive hearing: by the time the case was heard, the applicant had been released and could not be said to be pursuing a direct personal benefit (para. 38).
  • Systemic benefit to the State: the respondents benefited from clarification in an area of criminal law of “general systemic importance” (para. 38).
  • Complexity: the relationship between the various sub-paragraphs of s. 27(3) was complex (para. 39).
  • Affected cohort: the result mattered to prisoners falling within these offence categories (para. 40), even if not the entire prison population.

Although the court accepted the case was not a “test or pathfinder” case and did not clearly raise deterrence concerns (para. 36), the totality of circumstances made it inappropriate, in justice, to impose the State’s costs on the unsuccessful applicant. Hence, no order as to costs.

3.3 Impact

  • Reinforces the post-2015 structured discretion on costs: Even with “costs follow the event” as the starting point, the High Court will undertake a fact-sensitive, factor-based assessment under s. 169(1), informed by Supreme Court guidance.
  • Operationalises Little (No. 2) in High Court judicial review: The decision exemplifies that a losing applicant in public interest litigation may be protected from adverse costs without being awarded costs.
  • Encourages resolution of recurring liberty-adjacent issues: Where litigation clarifies recurring statutory questions affecting imprisonment/remission cohorts, the court may view the public/systemic value as relevant to costs, particularly where the applicant no longer has a personal stake.
  • Signals limits: The judgment also signals that “public interest” alone will not satisfy the “exceptional/foundational” threshold necessary to order the State to pay an unsuccessful litigant’s costs.

4) Complex Concepts Simplified

  • “Costs follow the event”: the winning party usually gets its legal costs paid by the losing party.
  • Public interest proceedings (per Little (No. 2)): litigation against the State seeking public law remedies and raising a point of law of general public importance; it need not be purely altruistic.
  • “No order as to costs”: each side bears its own legal costs. Practically, this can function as a protective costs outcome for an unsuccessful applicant.
  • Legitimus contradictor: a party who properly presents an opposing case so the court can decide an issue that matters beyond the individual dispute.
  • Mootness: where a case is said to no longer require a decision because circumstances have changed (here, the applicant’s release). Kelleher (No. 1) allowed the case to proceed despite that argument.

5) Conclusion

Kelleher (No. 3) (Costs) confirms that, even where a judicial review applicant loses on the merits, the High Court may make no order as to costs if the case qualifies as public interest proceedings and the overall balance of circumstances—importance, recurrence, complexity, lack of personal benefit at hearing, and systemic benefit of clarification—makes an adverse costs order unjust. At the same time, the decision preserves the stricter threshold for awarding costs to an unsuccessful litigant, reserving that outcome for genuinely exceptional, foundational litigation.