Rochford v. Kelly: Financial Hardship Alone Cannot Displace the Default Costs Rule in Private Tort Actions Against the State

Introduction

In the supplemental costs judgment of Rochford v. Kelly & Ors ([2025] IEHC 417), Mr Justice Garrett Simons addressed the allocation of legal costs after having already dismissed the plaintiff’s substantive tort claims (false imprisonment, malicious prosecution, and malicious procurement of a search warrant) in a principal judgment delivered on 8 May 2025. The plaintiff, Mr Patrick Rochford (a 78-year-old self-represented litigant), sought to avoid an adverse costs order by relying on his impecuniosity and asserted good faith.

The supplemental decision lays down a clear principle: in private law proceedings— even when State organs are among the defendants—financial hardship and subjective good faith do not, of themselves, justify a deviation from the default rule that “costs follow the event” under s.169 Legal Services Regulation Act 2015 (“LSRA 2015”). The judgment further clarifies the conditions required before a case can be classed as “public interest litigation”, the only context in which hardship may play a meaningful role.

Summary of the Judgment

The defendants, having defeated all of Mr Rochford’s tort claims after a nine-day trial, presumptively recover their measured costs pursuant to s.169 LSRA 2015.
The High Court rejected three attempts by the plaintiff to displace that presumption:
1. Financial Hardship: Relying on Little v. Chief Appeals Officer [2024] IESC 53, the Court held hardship alone is insufficient in private litigation.
2. Good Faith: “Good faith” must exceed mere sincerity; it must be objectively reasonable and legally tenable. On the facts it was not.
3. Settlement Offer: An offer, post-dismissal, to withdraw separate proceedings could not retroactively affect costs in the instant case.
The Court emphasised that enforcement of a costs order is a separate stage at which hardship may be considered (e.g., deductions from social welfare under the Civil Debt (Procedures) Act 2015).
An order was made for the defendants’ costs of all relevant hearing days and written submissions, with a stay on execution pending any appeal.

Analysis

1. Precedents Cited and Their Influence

Little v. Chief Appeals Officer [2024] IESC 53

Chief authority on the interplay between costs and public interest litigation. The Supreme Court recognised hardship as potentially relevant but indicated it is rarely decisive in purely private disputes. Justice Simons relied heavily on Little to frame hardship as only one factor—and an insubstantial one—in private cases.
Word Perfect Translation Services Ltd v. Minister for Public Expenditure & Reform [2023] IECA 189

Cited for a general restatement of the default “costs follow the event” principle under s.169 LSRA 2015 and the discretion of the court.
MV Lady Magda [2021] IECA 51

Referenced to clarify that “reasonableness” for s.169(1)(a)(ii) purposes goes beyond subjective sincerity; it imports an objective element.
Statute: Legal Services Regulation Act 2015, s.169

The statutory backbone governing allocation of costs. Justice Simons undertook a factor-by-factor analysis rooted in subsections (1)(a)–(e).

2. The Court’s Legal Reasoning

Justice Simons adopted a structured path:

Step 1 – Identify the default position: Section 169 LSRA 2015 mandates that the successful party is normally entitled to costs.
Step 2 – Ask whether statutory discretion should be exercised: The plaintiff must establish factors warranting departure.
Step 3 – Evaluate each asserted factor:
- Financial hardship — Allowed in public interest cases only; these proceedings could not qualify because they
  - sought private law damages rather than public law relief,
  - raised no novel point of general public importance, and
  - were not the sort of claims whose cost exposure would deter future litigants in a systemic sense.
- Good faith — Not sufficient unless objectively reasonable and materially contributory to legal clarification; the plaintiff’s case was held factually dishonest in parts.
- Settlement conduct — Only “without prejudice save as to costs” offers that might have avoided trial weigh in the balance. The plaintiff’s post-verdict offer had no utilitarian value.

The Court therefore exercised no discretion to alter the default rule.

3. Potential Impact on Future Litigation

Reinforces Cost Predictability: Litigants—particularly self-represented plaintiffs—must assume they will bear adverse costs if unsuccessful, regardless of age or means, unless their case fits the narrow “public interest” window.
Narrowing Public Interest Gate: The decision crystallises the three-pronged test from Little and signals cautious judicial application; private tort actions against State actors rarely qualify.
Strategic Settlement Incentives: Timely “without prejudice save as to costs” offers gain prominence. Post-trial gestures will not spare costs.
Operational Guidance for Enforcement Courts: The judgment clarifies that hardship arguments may re-emerge at the enforcement stage, guiding District Court and Circuit Court judges dealing with deduction orders under the Civil Debt (Procedures) Act 2015.

Complex Concepts Simplified

Costs Follow the Event: The losing party normally pays the winner’s legal costs.
Measured Costs: Costs assessed by agreement or, failing that, by the Legal Costs Adjudicator (“taxed” under the old system) to ensure they are reasonable and proportionate.
Public Interest Litigation: Cases that (i) involve the State, (ii) seek public law relief, and (iii) raise issues of general public importance such that cost exposure might deter similarly situated persons.
Without Prejudice Save as to Costs Offer: A settlement proposal that cannot be referred to at trial on liability but may be shown on the question of costs— incentivising early resolution.
Stay on Execution: A pause on enforcing the costs order (e.g., seizing assets) pending an appeal. The costs can still be formally adjudicated during the stay.

Conclusion

Rochford v. Kelly delivers a firm message: impecuniosity and subjective belief in one’s cause do not immunise a private claimant against adverse costs. By tightly interweaving the Supreme Court guidance in Little with the statutory matrix of s.169 LSRA 2015, Justice Simons has produced a clear template for future courts. Practitioners and self-represented litigants must:

Assess early whether their claims ascend to genuine public-interest status;
Be prepared to meet the ordinary financial consequences of unsuccessful litigation; and
Employ strategically timed, costs-protected settlement offers when risk becomes apparent.

Beyond its immediate outcome, the judgment contributes to a growing jurisprudence ensuring that the exceptional “public interest” exception does not swallow the default rule, thereby preserving certainty in costs and discouraging speculative tort claims against State defendants.