O'Callaghan v Ireland and the Attorney General (Approved)

Factual and Procedural Background

The Supreme Court delivered a ruling on 8 October 2021 following its earlier judgment of 30 September 2021. In that earlier judgment the Court declared that the Appellant’s constitutional right under Article 38 to a trial and appeal with due expedition had been infringed and awarded €5,000 in damages to mark that violation. The underlying proceedings were initiated on 27 February 2015 and had already passed through the High Court and the Court of Appeal before reaching the Supreme Court. The present ruling addresses post-judgment matters concerning (i) whether damages should be remitted to another court for further assessment and (ii) the proper allocation of costs.

Legal Issues Presented

1. Whether the assessment of damages for breach of the constitutional right to a trial with due expedition should be remitted to the High Court for further determination.
2. Whether the Appellant was entitled to damages beyond the €5,000 already awarded, including compensation for alleged personal injuries and other consequential losses.
3. What allocation of costs was appropriate in circumstances where the Appellant succeeded only on the constitutional delay issue but failed on claims for miscarriage of justice and under the European Convention on Human Rights Act 2003.

Arguments of the Parties

Appellant's Arguments

• An agreement allegedly reached at the outset of the High Court proceedings required that, if liability were established, the damages issue would be remitted to a lower court for assessment.
• The Supreme Court should therefore remit the damages question, allowing the Appellant to pursue claims for distress, anxiety, loss of livelihood, health effects, and related losses said to arise from the period of detention.
• The Appellant was entitled to full costs in the High Court and Court of Appeal, as well as in the Supreme Court, because he succeeded on the “fundamental” systemic-delay issue.

Respondents' Arguments

The opinion does not contain a detailed account of the Respondents’ legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

Damages / Remittal
The Court emphasised that the only actionable wrong established was the constitutional tort of delay in the appeal process, not wrongful detention. Accordingly, damages were confined to the period of unreasonable delay and aligned, by analogy, with European Court of Human Rights awards for breach of Article 6. The Court found no basis for remitting damages because:

• The alleged agreement on modular hearing was never disclosed to the Supreme Court in the leave application or submissions.
• The damages now sought concerned conditions of detention and personal-injury-type losses that had already been excluded when the High Court dismissed claims for miscarriage of justice and relief under the ECHR Act 2003.
• Any remittal would likely be futile owing to limitation issues and would prolong already lengthy proceedings, contrary to the public interest in finality.

Costs
The Court reviewed the detailed time-based apportionment adopted by the Court of Appeal (45% for the constitutional delay issue, 45% for miscarriage of justice, 10% for the ECHR claim). Citing statutory provisions and the precedents listed above, the Court observed that a partially successful party is normally awarded costs only for successful issues. Finding no “unusual factors” justifying departure from this principle, the Court:

• Affirmed the 45% allocation for High Court and Court of Appeal costs.
• Awarded the Appellant full costs of the appeal to the Supreme Court, where he succeeded on the constitutional delay point.

Holding and Implications

Holding: The application to remit the assessment of damages to the High Court is REFUSED. The Appellant is awarded full costs of the appeal to the Supreme Court and 45% of the costs in the High Court and Court of Appeal.

Implications: The ruling finalises all outstanding issues in litigation commenced in 2015, limits recoverable damages strictly to the constitutional infringement already recognised, and confirms that partial success will generally result in proportionate costs awards. No new substantive legal precedent is created, but the decision underscores the importance of transparency in submissions and the Court’s commitment to avoiding unnecessary procedural delay.