Smyth & Anor v Railway Procuremant Agency

Factual and Procedural Background

The Plaintiffs brought a private law claim grounded in the tort of nuisance seeking injunctive relief to abate alleged noise nuisance caused by trams operated by the Defendants near their dwelling. The Defendants contended that the operation of the tram system complied with statutory orders and environmental parameters, thus negating any nuisance claim. The Plaintiffs raised constitutional challenges to the Defendants' claimed common law immunity, asserting it was inconsistent with their constitutional rights under Articles 40.3 and 43, particularly as no compensation had been paid for the alleged nuisance or diminution in property value.

Following the emergence of a constitutional question on the pleadings, the Plaintiffs’ solicitors notified the Attorney General pursuant to the Rules of the Superior Courts. The Attorney General applied to participate in the proceedings regarding the constitutional question. The hearing, initially estimated to last four days, extended to sixteen days. The Attorney General’s legal team participated throughout, although their direct involvement in evidence was limited to cross-examining one expert witness on a narrow technical issue. No evidence was led on behalf of the Attorney General.

Legal Issues Presented

1. Whether the Defendants’ reliance on statutory authority and common law immunity was consistent with the Plaintiffs’ constitutional rights under Articles 40.3 and 43 of the Constitution.
2. Whether the Attorney General was entitled to costs for his participation in the proceedings concerning the constitutional question.
3. The extent to which costs should be awarded to the Attorney General, considering the duration and nature of his participation.

Arguments of the Parties

Attorney General's Arguments

• The constitutional question was inseparable from the factual issues and required continuous participation throughout the trial.
• The Attorney General’s legal team needed to be present for the entire hearing to effectively address the constitutional issues as they arose.
• Participation throughout the evidence phase was justified, with potential locus standi to lead evidence if necessary.

Plaintiffs' Arguments

• No order for costs should be made against the Plaintiffs as a matter of fairness and justice.
• If costs were to be awarded, they should be limited to a small number of the sixteen days during which the Attorney General participated.
• The Attorney General’s participation should be confined to the constitutional question only, not the entire trial duration.

Defendants' Arguments

• There should be no order for costs between the Plaintiffs and Defendants, with consent given to that effect.
• All parties, including the Attorney General, should remain for the full duration of the case due to the interconnectedness of factual and constitutional issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dunne v. Minister for the Environment [2008] 2 IR 775	Discretion to depart from the normal rule that costs follow the event must be exercised on a reasoned basis considering the circumstances of the case.	The court applied the principle that costs normally follow the event and found no sufficient reason to depart from this rule in awarding costs to the Attorney General.
Curtin v. Dil ireann [2006] IESC 27	Definition of "special reason" to justify departure from normal costs rules.	The court considered that the decision clarifying the law on statutory authority did not constitute a "special reason" to depart from the normal costs rule.
Fitzpatrick v. K [2009] 2 IR 7	Attorney General’s participation may be limited to the constitutional question, with attendance and involvement reviewed as the case progresses.	The court concluded that the approach in Fitzpatrick should have been followed, limiting the Attorney General’s participation and costs to the constitutional question phase.

Court's Reasoning and Analysis

The Court recognized the constitutional question was raised by the Plaintiffs in response to the Defendants' statutory authority defence. Under the Rules, the Attorney General was entitled to be notified and to participate in the constitutional aspect of the case. The Court accepted that the constitutional question was intertwined with factual issues, justifying initial Attorney General involvement.

However, the Court noted that the Attorney General’s legal team’s participation throughout the entire sixteen-day trial was disproportionate, as their direct involvement in evidence was minimal and limited to a technical cross-examination of one expert witness. The legal submissions from the Attorney General were valuable but could have been made without full attendance throughout the evidence phase.

Relying on the Supreme Court’s guidance in Dunne v. Minister for the Environment, the Court emphasized that costs follow the event unless special reasons justify otherwise. The Court found no such special reason here, as the Plaintiffs themselves raised the constitutional question and the Attorney General’s participation was mandated by procedural rules.

Considering the Plaintiffs’ alternative argument for limiting costs, the Court concluded that the Attorney General’s entitlement to costs should be restricted to a reasonable portion of the hearing related to the constitutional question. Drawing on the precedent from Fitzpatrick v. K, the Court reasoned that limiting costs to five of the sixteen days was fair and just, acknowledging the absence of a precise scientific basis for this apportionment but guided by practical considerations.

Holding and Implications

The Court AWARDED COSTS to the Attorney General for five of the sixteen days of the hearing against the Plaintiffs.

This decision limits the Attorney General’s recoverable costs to a portion of the trial reflecting the constitutional question’s relevance, rather than the entire trial duration. The ruling clarifies that while the Attorney General is entitled to costs for participation on constitutional issues, costs should be proportionate to actual involvement. No broader precedent altering costs principles was established; the normal rule that costs follow the event remains intact absent special reasons.