Protective Costs and Discovery in Judicial Review: No PCO for Private Ombudsman Disputes; No “Fishing” Discovery Where Entitlement to Correspondence Is the Merits Issue

1) Introduction

Clarke v The Office Of the Ombudsman (Approved) [2026] IEHC 446 is an interlocutory ruling of the High Court (Phelan J.) in judicial review proceedings brought by the applicant (a litigant in person) challenging the Ombudsman’s rejection of his complaint about the Sustainable Energy Authority of Ireland (“SEAI”).

The underlying dispute arose from an SEAI domestic solar PV grant (€2,400) and an SEAI inspection which issued a Re-Works Notification requiring an emergency isolation/shunt switch. The applicant contends that, for micro-inverter systems, the relevant electrical standard (I.S. 10101) does not require the additional emergency isolation arrangement that SEAI (and SEAI’s Code of Practice) asserts is mandatory in all cases.

The judicial review is directed at the Ombudsman’s investigation and decision-making approach—especially (i) whether the Ombudsman wrongly treated the technical/regulatory dispute as outside its remit, (ii) whether fair procedures required fuller disclosure of SEAI material and a chance to comment, and (iii) whether the Ombudsman failed to address material arguments.

Two interlocutory issues were determined:

  • a protective costs order (“PCO”) application; and
  • a discovery application seeking all Ombudsman–SEAI communications about the complaint.

Notably, the applications were not brought by formal Notice of Motion, but the Court was satisfied to determine them because the issues were clearly raised in case management, fully addressed in exchanged submissions, and no principled procedural objection was pursued.

2) Summary of the Judgment

The Court refused both applications.

  • PCO refused: the proceedings were characterised as, in substance, a private dispute about the applicant’s own grant and installation, not public-interest litigation warranting an exceptional departure from ordinary costs rules.
  • Discovery refused: the applicant’s request was overly broad, not shown to be necessary to determine the pleaded issues, and (to the extent it sought to identify new grounds) amounted to an impermissible “fishing expedition” in judicial review.

3) Analysis

A. Precedents Cited

(i) Protective costs orders

  • Child and Family Agency v. Guardian Ad Litem [2026] IEHC 88: The central Irish authority relied on for the existence and exceptional character of PCO jurisdiction. Phelan J. treated it as setting the guiding criteria and emphasised that a PCO is an exceptional departure from the usual “costs follow the event” approach.
  • Permanent TSB v. Skoczylas [2021] IESC 10 and Browne v. An Taoiseach [2023] IEHC 205: Cited for the policy function of costs rules in civil litigation—encouraging responsible litigation and deterring weak/unmeritorious claims. These authorities supported the Court’s refusal to transfer ordinary adverse-cost risk to the taxpayer in a non-exceptional case.
  • Wynne v Office of the Ombudsman [2026] IEHC 123: Relied on by the applicant to argue that the Ombudsman’s remit is not as narrow as suggested and may extend to considering whether a public body acted in accordance with “procedures, policies, legislation and regulations”. The Court accepted this may be relevant to substantive arguability, but held it did not justify costs protection in this case.
  • R (M) v Commissioner for Local Administration in England [2006] EWHC 2847 (Admin) and AB against The Scottish Public Services Ombudsman [2025] CSOH 48: Used to show (a) Ombudsman bodies typically enjoy broad discretion and (b) judicial review is not an appeal on the merits, while still permitting review where an Ombudsman mischaracterises a complaint, wrongly declines jurisdiction, ignores material considerations, or acts irrationally. The Court treated these as going to general arguability rather than entitlement to a PCO.

(ii) Discovery in judicial review; candour; fair procedures

  • McEvoy v. An Garda Síochána Ombudsman Commission [2015] IEHC 503: The primary domestic authority used to frame the restrictive approach to discovery in judicial review: discovery must be necessary to determine issues already raised; it cannot be a trawl for potentially helpful documents; and parties are generally not entitled to “go behind” affidavit evidence without some external basis for believing it is materially inaccurate.
  • Elsharkawy v Minister for Transport [2024] IECA 258: Cited on the duty of candour (“cards face upwards”) owed by public bodies in judicial review. The Court accepted the relevance of the principle but was not persuaded that it necessitated the broad discovery sought on the facts and pleadings.
  • McDonncha v Minister for Education & Skills [2018] IESC 50: Raised by the applicant in support of fair-procedures arguments. The Court treated it as potentially relevant to the substantive hearing but insufficient to justify discovery at the interlocutory stage.
  • Heather Moor & Edgecomb Ltd (No. 2) v United Kingdom App. No. 1550/09: Relied upon to argue that Article 6-type fairness considerations can apply to Ombudsman-type processes. Again, treated as potentially relevant to the merits, but not determinative of whether discovery was necessary.

B. Legal Reasoning

(i) The PCO refusal: “public interest” and exceptionality

The Court’s reasoning proceeds from the premise in Child and Family Agency v. Guardian Ad Litem that PCOs are exceptional. It then evaluates the applicant’s characterisation of the case as raising broad issues about:

  • the Ombudsman’s obligation to engage with technically complex disputes;
  • the adequacy of reasoning in Ombudsman determinations;
  • the extent of disclosure to complainants and the opportunity to comment;
  • and Article 6 / constitutional fair-procedures standards in Ombudsman investigations.

Despite recognising that such questions can, in the abstract, have broader relevance, the Court held that these proceedings were not brought “principally for the public good” but were, “at [their] heart”, a private dispute about the applicant’s own grant and installation.

The Court also questioned the utility and merits of the litigation for PCO purposes, noting:

  • the Ombudsman’s outcome was described as non-binding in nature; and
  • even if there were a debate about what I.S. 10101 strictly requires, the Scheme terms and the SEAI Code of Practice (expressly requiring automatic isolation “in ALL cases”) were clear conditions agreed by applicants—diminishing the practical force of the applicant’s complaint for PCO purposes.

Finally, the Court rejected financial inequality as a sufficient basis in itself: the fact that respondents in judicial review are commonly State bodies does not make costs protection normal, and the Court stressed the countervailing consideration that the Ombudsman’s costs are ultimately borne by the taxpayer.

(ii) The discovery refusal: necessity, pleaded issues, and the “entitlement-is-the-issue” problem

The applicant sought discovery of all Ombudsman–SEAI communications, mainly to verify compliance with s. 8(2) of the Ombudsman Act 1980 and to see whether additional grounds might exist.

The Court approached discovery through the orthodox judicial review lens (as in McEvoy): discovery is limited because judicial review ordinarily focuses on legality rather than merits, and discovery must be shown to be necessary to determine identified issues already arising on the pleadings.

Several strands of reasoning are important:

  • No fishing expedition: the Court treated the applicant’s stated objective—seeking documents to see whether new grounds might emerge—as a paradigmatic improper purpose for discovery in judicial review.
  • Legal questions do not require discovery of the withheld material: a central issue in the case is whether the Ombudsman was obliged to furnish the complainant with correspondence and/or give a reciprocal right to comment on the public body’s response. The Court held that this is fundamentally a question of law (statutory construction and procedural fairness) and does not depend on proving the existence/content of further communications.
  • Section 8(2) protects the agency’s opportunity to comment, not expressly the complainant’s right to see the response: The Court noted the statutory asymmetry: s. 8(2) requires the Ombudsman to afford the reviewable agency the opportunity to comment on the action and “any” allegations in the complaint, but does not confer an express reciprocal right on the complainant. Whether fairness nonetheless requires reciprocal disclosure/opportunity to comment is a matter for legal analysis at the substantive hearing—not something discovery can be used to pre-determine.
  • Duty of candour does not convert JR into full disclosure litigation: While acknowledging the “cards face upwards” principle (per Elsharkawy), the Court was not persuaded that the applicant had shown a concrete necessity for the wide category sought, particularly where key material relied on was already exhibited and available for the substantive hearing.

The Court also recorded that the Ombudsman relied on confidentiality features of the Ombudsman process (including investigations otherwise than in public under s. 8(1) and confidentiality obligations under s. 9(1)), and on statutory discretion (including ss. 4(8) and 8(3))—context relevant to the substantive fairness debate, but not displaced by the applicant’s broad discovery request at this stage.

C. Impact

  • PCOs remain exceptional in Irish judicial review: Even where a litigant frames a challenge as raising systemic questions (here, Ombudsman process and technical disputes), the Court will scrutinise whether the proceedings are truly public-interest litigation or primarily a private grievance with incidental wider relevance.
  • Discovery boundaries are reinforced in “process review” litigation: The ruling underscores that discovery will be refused where (a) it is cast too widely, (b) it is sought to explore whether further claims exist, or (c) the central controversy is a legal entitlement to disclosure/fair procedures rather than disputed facts needing document-proof.
  • Ombudsman complainants face a structural asymmetry argument head-on: The decision highlights the statutory architecture of s. 8(2): it is straightforward that the agency must be allowed to comment; it is not straightforward that complainants are entitled to the full back-and-forth. Future cases may focus more tightly on when fairness nevertheless requires reciprocal disclosure, but this judgment signals that broad discovery is not the route to resolving that question.
  • Practical significance for litigants in person: The Court’s willingness to determine applications raised through case management (without a formal motion) may be helpful in appropriate circumstances, but it does not relax substantive thresholds for PCOs or discovery.

4) Complex Concepts Simplified

  • Protective costs order (PCO): An exceptional order limiting a party’s exposure to paying the other side’s costs if they lose. It is typically reserved for truly exceptional, public-interest litigation and is not granted merely because the applicant has fewer resources than a State respondent.
  • Discovery (in judicial review): A process compelling a party to disclose documents. In judicial review, discovery is narrower than in ordinary civil claims because the court usually reviews lawfulness of decision-making, not who is “right” on the underlying merits. Discovery is not granted to rummage for new arguments.
  • Duty of candour (“cards face upwards”): A public-law expectation that public bodies assist the court by fairly explaining the decision-making process and relevant materials. It does not automatically entitle an applicant to every internal communication; the question remains what is necessary and relevant to determine pleaded issues.
  • Section 8(2) Ombudsman Act 1980: Requires the Ombudsman to give the public body complained about an opportunity to comment on the action and allegations. It does not expressly grant the complainant a mirror-image right to see and answer everything the public body says during the investigation.

5) Conclusion

[2026] IEHC 446 is a procedural decision with substantive significance. It reaffirms that PCOs are an exceptional measure not justified by ordinary private disputes reframed as matters of broad importance, and it restates strict limits on discovery in judicial review—particularly where discovery is sought to search for additional grounds or where the core dispute is a legal question about entitlement to disclosure within an Ombudsman investigation. The ruling leaves the applicant’s underlying judicial review to be determined on its merits, but without costs insulation and without a wide documentary trawl of Ombudsman–agency communications.