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Godsil v Ireland & anor
Factual and Procedural Background
The Plaintiff/Appellant was adjudicated bankrupt on 17 February 2014. Because the electoral statutes disqualified undischarged bankrupts from contesting parliamentary elections, the Appellant could not run in the European Parliament elections scheduled for 23 May 2014. After notifying the relevant Minister on 14 March 2014 and receiving no commitment to change the law, the Appellant issued plenary proceedings on 20 March 2014, seeking declarations that the disqualification provisions were unconstitutional and contrary to European law.
Between 1 April and 16 April 2014 the Government fast-tracked and enacted the Electoral (Amendment) (No. 2) Act 2014, repealing the impugned provisions. On 30 April 2014 the High Court marked the action “moot” and struck it out, refusing the Appellant’s costs but allowing her outlay. The sole issue on appeal to the Supreme Court was whether the High Court erred in refusing to award the Appellant her costs.
Legal Issues Presented
- Whether, when proceedings become moot because the legislature removes the impugned statutory provision, the general rule that “costs follow the event” applies or whether some other costs principle (such as that in Cunningham) governs.
- Whether the Appellant’s litigation conduct (speed of commencement, alleged delay, or alleged prematurity) justified depriving her of costs.
- The scope of the Supreme Court’s appellate jurisdiction to revisit a discretionary costs order of the High Court.
Arguments of the Parties
Appellant's Arguments
- The proceedings were rendered moot solely by the Respondents’ unilateral legislative action; under Cunningham the Respondents should therefore bear the costs.
- The action raised matters of public importance concerning electoral rights.
- No undue delay occurred; standing only arose after adjudication and immediate steps were taken thereafter.
- Even if full costs were not awarded, she should at least recover costs up to the dates when the Bill was approved (1 April 2014) or enacted (16 April 2014).
- The High Court gave no clear reasons for refusing costs, amounting to an error of principle.
Respondents' Arguments
- The High Court carefully exercised its discretion; absent error it should not be disturbed.
- Although unilateral action can justify an adverse costs order, significant countervailing factors exist here: the Appellant delayed in writing to the Minister, imposed unrealistic response times, and acted prematurely in issuing proceedings.
- The amendment was introduced for independent policy reasons, not because the litigation was well-founded.
- The Respondents acted expeditiously and minimised their own costs; the Appellant continued to accrue costs after being notified of the Bill.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Cunningham v. President of the Circuit Court [2012] 3 I.R. 222 | Costs where proceedings become moot through unilateral act; “significant countervailing factors” proviso. | Discussed but ultimately not determinative because the Court identified an “event” to which costs could attach. |
| Mansouri v. Minister for Justice [2013] IEHC 527 | Reasonableness of applicant’s conduct and presence of countervailing factors in costs decisions. | Cited to show that litigation conduct is relevant but no adverse conduct existed here. |
| S.G. & N.G. v. Minister for Justice [2006] IEHC 371 | Factors in assessing proportionality and alternatives before litigation. | Used to evaluate whether the Appellant’s initiation of proceedings was proportionate (it was). |
| Lofinmakin v. Minister for Justice [2013] IESC 49 | Comprehensive statement of mootness principles. | Provided the general framework for identifying mootness and the significance of an “event.” |
| Farrell v. Bank of Ireland [2012] IESC 42 | Costs jurisdiction prevents abusive litigation. | Referenced as a justification for having a robust costs jurisdiction. |
| Grimes v. Punchestown Developments [2002] 4 I.R. 515 | Costs follow the event on appeal. | Relied on for the default rule that prevailed once an “event” was identified. |
| S.P.U.C. v. Coogan (No. 2) [1990] 1 I.R. 273 | Application of the default rule in appellate costs. | Cited alongside Grimes. |
| Dunne v. Minister for the Environment [2008] 2 I.R. 775 | Discretion to depart from the default rule must be reasoned. | Used to stress that the High Court’s reasoning must be transparent. |
| Fyffes plc v. DCC plc [2009] 2 I.R. 417 | Justice as the overarching test in costs. | Informed the Court’s overall justice-based evaluation. |
| Mahon v. Kenna [2009] IESC 78 | Costs consequences of litigant misconduct. | Distinguished; no comparable misconduct by the Appellant. |
| Shelley-Morris v. Bus Átha Cliath [2003] 1 I.R. 232 | Exaggerated claims may affect costs. | Cited as a contrast; no exaggeration here. |
| T.F. v. Ireland (Supreme Court, 1995) | “Test case” exception to default costs rule. | Mentioned but the Court found the present case was not a test case. |
| Curtin v. Dáil Éireann [2006] 2 I.R. 556 | Illustration of test-case/public-interest costs. | Referenced in discussing but not applying the test-case category. |
| Cork County Council v. Shackleton [2011] I.R. 443 | Further example of test-case exceptions. | Same context as Curtin. |
| Goold v. Collins [2004] IESC 38 | Leading authority on mootness. | Background authority for mootness analysis. |
| Borowski v. Canada [1989] 1 S.C.R. 342 | Canadian authority on mootness adopted in Irish law. | Provided comparative support for mootness principles. |
| O’Brien v. Personal Injuries Board (No. 2) [2007] 1 I.R. 328 | Residual discretion to hear moot issues. | Cited in the mootness discussion. |
| Irwin v. Deasy [2010] IESC 35 | Further authority on mootness discretion. | Referenced briefly. |
| Okunade v. Minister for Justice [2013] 1 I.L.R.M. 1 | Mootness principles. | Included in the mootness framework. |
| Veolia v. Fingal County Council (No. 2) [2007] 2 I.R. 81 | Issue-based apportionment of costs. | Referred to in explaining modern nuanced costs approaches. |
| Roache v. News Group Newspapers [1998] E.M.L.R. 161 | Meaning of “event” for Order 99. | Helped define “event” in the present analysis. |
| Mangan v. Independent Newspapers [2003] 1 I.R. 442 | Further illustration of “event.” | Cited with Roache. |
| Nearing v. Minister for Justice [2010] 4 I.R. 211 | Costs where relief becomes unnecessary; strict view of “event.” | Contrasted with the broader approach ultimately adopted. |
| Vella v. Morelli [1968] I.R. 11 | Supreme Court’s power to revisit discretionary orders. | Confirmed the Court’s jurisdiction to substitute its own costs order. |
| Desmond v. M.G.N. Ltd [2009] 1 I.R. 737 | Different weight given to various discretionary orders on appeal. | Supported re-exercising the discretion on costs. |
Court's Reasoning and Analysis
Judge McKechnie, delivering judgment for the Supreme Court, began with the default rule that “costs follow the event.” The Court asked whether an “event” existed despite the proceedings having become moot. It concluded that an event did exist: the repeal of the disqualifying provisions achieved precisely the result the Appellant sought, enabling her candidacy. The speed and direct connection between the litigation and the legislative change amounted to an acknowledgment of the claim’s validity.
The Court rejected the Respondents’ contention that the Appellant’s conduct was dilatory or premature. Standing only arose upon adjudication, and every procedural step was taken within six weeks—reasonable given the looming nomination deadline. The Respondents, having served a full defence and then swiftly legislated, could not credibly maintain that more time was needed.
Because an identifiable event existed, it was unnecessary to default to the Cunningham “unilateral act” analysis. Even if that framework applied, no “significant countervailing factors” were present: there was no misconduct, exaggeration, or alternative non-litigious remedy. The public-interest character of the case, while acknowledged, was not decisive given the straightforward application of the default rule.
Lastly, the Court emphasised its constitutional jurisdiction to revisit discretionary costs orders (Vella v. Morelli) and found that the High Court had placed insufficient weight on the factors favouring costs to the Appellant. Justice therefore required substituting a full costs order.
Holding and Implications
Appeal Allowed. The Appellant is entitled to her full costs in the High Court (in addition to the outlay already awarded) and the costs of the appeal.
Implications: The judgment clarifies that when legislative action removes the basis of a claim, the court may still identify an “event” for the purposes of Order 99, leading to the ordinary rule that costs follow that event. It reinforces that legislative repeal, undertaken in response to litigation, strongly suggests that the claimant achieved substantive success, absent misconduct. No new legal test was created, but the decision offers authoritative guidance on costs in mootness scenarios and on the Supreme Court’s willingness to re-exercise discretion where justice so requires.
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