Introduction

This commentary examines the Supreme Court of Ireland’s costs ruling in Electricity Supply Board v Good & ors ([2025] IESC 40), delivered by a five-judge panel (O’Donnell C.J., Dunne J., Woulfe J., Murray J., Donnelly J.) on 8 October 2025. The case arose from judicial review proceedings in which the Electricity Supply Board (ESB) challenged compensation awards made by an arbitrator (the respondent, Mr Paul Good) on a reference under the Acquisition of Land (Assessment of Compensation) Act 1919, in the statutory context of section 53 of the Electricity (Supply) Act 1927 (as amended).

The High Court had granted certiorari quashing the awards, but rejected ESB’s separate claim for declaratory relief alleging fair procedures infringements. The notice parties, Peter and Rose O’Reilly (landowners affected by ESB’s works), appealed. ESB cross-appealed on issues including the availability of compensation for “injurious affection.”

In the earlier merits judgment ([2025] IESC 27, Murray J.), the Supreme Court held that the arbitrator had erred in one limited respect, thereby sustaining certiorari, but rejected ESB’s broader submissions, including its cross-appeal. Critically, the Court rejected ESB’s primary contention that there was no power to award compensation for “injurious affection,” although ESB succeeded on certain sub-issues (for example, the Court accepted that placing an electric line under s.53 did not constitute a “taking” of land, that ss.63 or 68 of the Land Clauses Consolidation Act 1845 were not incorporated into s.53, and that the Constitution did not itself mandate “injurious affection” compensation).

The present ruling concerns costs—both in the Supreme Court and the High Court. It addresses how courts should allocate costs under sections 168 and 169 of the Legal Services Regulation Act 2015 (LSRA) where both parties are only “partially successful,” and, importantly, clarifies that where a party obtains narrow relief yet loses on the “central” and most resource-intensive issue, that party may still bear most of the costs.

• Procedural posture: Costs following the Supreme Court’s mixed-outcome merits decision.
• Core legal question: How to allocate costs under LSRA ss.168–169 when formal relief is obtained on a narrow ground but the opposing party prevails on the principal issue.
• Parties: ESB (Applicant/Respondent on appeal), the arbitrator (Respondent, who took no part), and the landowners (Notice Parties/Appellants).

Summary of the Judgment (Costs)

The Supreme Court ordered that the notice parties (Peter and Rose O’Reilly) receive 90% of the costs in the High Court and in the Supreme Court as against ESB. No order was made against the Attorney General.

In reaching this result, the Court emphasized:

• Under LSRA ss.168–169, neither side was “entirely successful.” Both were only “partially successful,” triggering a discretionary costs assessment.
• ESB obtained certiorari, but on a narrow basis—principally that compensation for future access under s.53(9) of the 1927 Act was not appropriate.
• ESB lost on the central and most substantial issue: the availability of “injurious affection” compensation. That issue dominated the hearing and the parties’ submissions.
• The Court rejected a mechanistic, “balance sheet” tally of issue-by-issue successes. It applied a practical lens: who won the “big issue” that occupied most of the time and mattered most to the outcome.
• Additional factors included the considerable public importance of the injurious affection issue, the benefit of judicial clarity to the ESB itself, and the guidance provided to the legislature concerning constitutional requirements for compensation frameworks.

The Supreme Court also noted that the High Court had awarded the notice parties 90% of their costs even though the High Court had held against them on the central issue. The Supreme Court considered that allocation “just” and mirrored it at appellate level.

Analysis

Precedents Cited and Their Influence

• Chubb European Group SE v The Health Insurance Authority ([2020] IECA 183; [2022] 2 IR 734): The Court embraced the Chubb principle that even outside the exceptional “public interest” category, a party who “wins on the event” may still have costs awarded against it where the relief was granted on a ground that took little time and the bulk of the hearing was devoted to issues on which that party failed. The Supreme Court explicitly applied this logic in the LSRA era, confirming its ongoing relevance post-2015.
• Little v Chief Appeals Officer & Ors ([2024] IESC 53): The Court relied on Little for the LSRA taxonomy—“entirely successful” parties versus those “partially successful.” Where neither party is entirely successful, the Court has a broad discretion to reflect partial success in costs. This case supplied the statutory anchor for moving away from rigid presumptions.
• Iraqi Civilians v Ministry of Defence ([2018] EWHC 690 (QB); [2018] 2 Costs LR 213, per Leggatt J.): The Court cited with approval Leggatt J.’s warning against a mechanistic, issues “balance sheet.” The correct inquiry is whether there are “big issues” that absorbed substantial time and were important to the proceedings, on which the overall winner lost. Here, applying that test, the notice parties won the “big issue” (injurious affection), even though ESB obtained limited relief.
• Veolia Water UK plc v Fingal County Council (No. 2) ([2006] IEHC 240; [2007] 2 IR 81): The Supreme Court acknowledged that the general approach pre-LSRA in Ireland already recognized a flexible, non-mechanistic stance on splitting costs by issues. However, the Court cautioned that the Irish statutory framework is not identical to England’s post-LSRA, warranting care in transplantation; nevertheless, the core “big issue” insight remains apt.

Legal Reasoning

The Court’s reasoning proceeds from the structure of LSRA ss.168–169:

• Statutory lens: entirely vs. partially successful. Under s.169, an “entirely successful” party is generally entitled to costs unless the Court orders otherwise having regard to specified factors. Where, as here, neither party is entirely successful, the Court’s discretion is at large, guided by fairness and the statutory factors (including the conduct of the parties, the issues raised, and their importance).
• Rejecting a mechanistic “issue balance sheet.” The Court signalled that, while future cases may require more granular guidance on “issue splitting,” courts must avoid an arithmetical accounting of individual points won and lost. The practical question is which “big issue(s)” dominated the time, cost, and significance of the litigation.
• Applying the “big issue” approach. Although ESB achieved an order of certiorari and succeeded on the specific point that compensation could not be awarded for future access under s.53(9), it failed on the central, heavily contested question—whether compensation for “injurious affection” was available. That issue consumed “by far the greater part” of the submissions and was the most significant in the case. The Court noted that ESB’s victories on certain sub-questions arose only because it put in issue the landowners’ entitlement to any injurious affection compensation at all; having lost that overarching challenge, it would be unjust to use those sub-points to reduce the landowners’ costs.
• Public importance and systemic benefits. The injurious affection question was of “very considerable public importance,” and the resulting clarity benefits ESB and the wider compensation regime. The Court regarded these considerations as additional reasons to award the landowners the lion’s share of costs, consistent with Chubb’s recognition that success measured in formal relief is not always determinative.
• Continuity with the High Court’s costs order. Even though the High Court had decided the injurious affection issue against the landowners on the merits, it still awarded them 90% of their costs. The Supreme Court described that allocation as “just,” and extended a comparable order at appellate level, reflecting the principled weight it placed on the centrality and significance of the issue on which the landowners ultimately prevailed in the Supreme Court.

Impact and Significance

This ruling is an important costs decision under the LSRA and will influence litigation strategy across public law and compensation disputes. Key implications include:

• Costs do not simply “follow the event” when success is mixed. A party that secures narrow relief (even quashing orders) may still have to pay most of the other side’s costs if it loses the “big issue” that defined the litigation.
• Strategic focus on the central issue. Parties should identify, and allocate resources to, the truly central issues. Success on peripheral points may not translate into costs recovery if the principal point is lost.
• Reduced incentives for issue-proliferation. The Court’s rejection of a mechanistic “issue tally” discourages over-pleading and fractionalized arguments advanced chiefly to hedge costs risk.
• Public importance as a material factor. Where the principal issue is of significant public importance and the outcome supplies systemic guidance (including for the legislature), courts may more readily award the bulk of costs to the party prevailing on that issue.
• Practical guidance for mixed outcomes in judicial review. In judicial review of specialist decision-makers (including arbitrators under the 1919 Act), success in obtaining certiorari on narrow grounds may not control costs. Litigants should calibrate appeals and cross-appeals with an eye to the “big issue” that will likely drive the costs order.
• Signals for future costs jurisprudence. The Court foreshadowed that questions about “splitting” costs and defining “issues” under the LSRA may need fuller treatment in future cases. For now, the operative guidance is a non-mechanistic, big-issue, fairness-focused approach.
• Substantive context: compensation clarity. Although the present ruling is about costs, the Court’s reasoning notes that the merits decision clarifies the availability of injurious affection compensation in the s.53 1927 Act context, while ruling out compensation for future access under s.53(9). That clarification supports consistent practice in compensation assessments and informs legislative policy on property rights and compensation design.

Complex Concepts Simplified

• Certiorari: A judicial review remedy used to quash a decision for legal error. Here, certiorari quashed the arbitrator’s awards in part due to a narrow legal error.
• Injurious Affection: Compensation for diminution in value or loss caused to land by works or rights exercised in the vicinity, even where there is no formal “taking” of the land. The Supreme Court upheld the availability of such compensation in this statutory setting.
• Section 53(9) of the Electricity (Supply) Act 1927: A statutory provision governing aspects of ESB’s access and works. The Court held it was not appropriate to award compensation for “future access” under this subsection.
• “Costs follow the event” vs. LSRA regime: Traditionally, the winning party recovers costs. The LSRA refines this by distinguishing “entirely successful” parties (who generally get their costs) from “partially successful” parties (where the court has a broader discretion).
• “Partially successful” under LSRA: Where each side wins something and loses something. In such cases, the court looks holistically at the litigation—particularly which issues were central and time-consuming—rather than counting every issue.
• “No order as to costs”: An outcome where each party bears its own costs. ESB argued for this; the Supreme Court declined, awarding 90% costs to the notice parties.
• Case stated: A procedure by which a legal question is referred to a higher court by a lower tribunal or arbitrator. The notice parties suggested ESB could have used this route; the Court noted ESB required recourse to the courts to obtain relief but did not make this procedural choice determinative of costs.
• Notice parties in judicial review: Persons directly affected by the decision under challenge (here, the landowners). They often participate to defend the impugned decision or the outcome that benefits them.
• Cross-appeal: Where the respondent to an appeal seeks different or additional relief from the appellate court. ESB’s cross-appeal was dismissed.

Conclusion

Electricity Supply Board v Good & ors ([2025] IESC 40) establishes and consolidates a clear, principled approach to costs under the LSRA when neither party is “entirely successful.” The Supreme Court affirms that costs should not be allocated by tallying wins and losses on sub-issues. Instead, the court should ask: which “big issue(s)” occupied most of the time and mattered most to the case? Where one party secures only narrow relief while losing on the central, resource-intensive issue, the other party may be entitled to most of the costs—even as high as 90%.

The ruling harmonizes pre-LSRA flexibility (Veolia) with post-LSRA statutory structure (Little), and validates the Chubb insight that formal success is not dispositive where the real contest was lost. The Court’s reliance on Leggatt J.’s “big issue” analysis offers practical, non-mechanistic guidance that will aid courts and practitioners in mixed-outcome cases. The decision also recognizes the role of public importance and systemic benefit in costs determinations.

Practically, the ruling recalibrates expectations for litigants—especially public bodies—who may obtain limited relief but lose the central question. It encourages strategic discipline, discourages issue proliferation, and supports fair, transparent costs outcomes. In this case, those principles yielded a 90% costs order in favour of the landowners in both courts, with no order against the Attorney General. As such, ESB v Good stands as a leading authority on costs allocation under LSRA ss.168–169 in partially successful litigation, particularly where statutory compensation and property-rights questions are at stake.

Case Details and Citations

• Case: Electricity Supply Board v Good & ors
• Citation: [2025] IESC 40 (Costs Ruling); merits judgment referenced: [2025] IESC 27 (Murray J.)
• Court: Supreme Court of Ireland
• Coram: O’Donnell C.J.; Dunne J.; Woulfe J.; Murray J.; Donnelly J.
• Delivery: 8 October 2025 (costs ruling)
• Key statutory provisions: LSRA 2015, ss.168–169; Electricity (Supply) Act 1927, s.53 (esp. s.53(9)); Acquisition of Land (Assessment of Compensation) Act 1919
• Principal authorities cited: Chubb European Group SE v The Health Insurance Authority ([2020] IECA 183; [2022] 2 IR 734); Little v Chief Appeals Officer & Ors ([2024] IESC 53); Iraqi Civilians v Ministry of Defence ([2018] EWHC 690 (QB); [2018] 2 Costs LR 213); Veolia Water UK plc v Fingal County Council (No. 2) ([2006] IEHC 240; [2007] 2 IR 81)