G v Health Service Executive (Approved)

Factual and Procedural Background

The case originates from an application in the Circuit Court by a minor (“Appellant”) seeking a service statement under the Disability Act 2005. The Appellant’s assessed needs fell short of the statutory definition of “disability.” At the request of the Respondent (“Company A,” a State health agency), and with the Appellant’s consent, the Circuit Court judge stated a consultative case to the Court of Appeal on the correct interpretation of the Act. The Court of Appeal held against the Appellant, noting the issue’s potential systemic impact.

The judge who stated the case retired before the Court of Appeal delivered judgment. On further appeal, the Supreme Court first determined that it nevertheless had jurisdiction to hear the matter and then, in a substantive judgment ([2022] IESC 14), rejected the Appellant’s interpretation of the Act. The present opinion, delivered by Judge Baker for a unanimous court, concerns only the allocation of costs arising from: (i) the preliminary jurisdiction issue, (ii) the substantive appeal in the Supreme Court, and (iii) the earlier proceedings in the Court of Appeal.

Legal Issues Presented

1. Whether the Appellant, having lost on the merits, should nonetheless receive the costs of the Supreme Court appeal (including the preliminary jurisdiction hearing) in whole or in part.
2. Whether the Supreme Court’s grant of leave encompassed an appeal against the Court of Appeal’s costs order, and if so, whether that order should be disturbed.
3. What principles govern a departure from the general rule that “costs follow the event” when litigation raises issues of systemic or public importance.

Arguments of the Parties

Appellant's Arguments

• Invoked s. 161(1)(A) of the Legal Services Regulation Act 2015 and Order 99, rule 2(1) of the Rules of the Superior Courts, contending that the “nature and circumstances” made it reasonable to award them costs despite losing.
• Emphasised the Respondent’s own description of the issue as “systemic” and affecting “thousands of applicants,” thereby serving a public interest.
• Relied on Corcoran v. Commissioner of An Garda Síochána [2021] IEHC 11 for the proposition that costs should not deter public-interest litigation.
• Sought the costs of both the Supreme Court and the Court of Appeal.

Respondent's Arguments

• Asserted a presumptive entitlement to costs, but nevertheless proposed that no order be made as to Supreme Court costs and that the Court of Appeal’s costs order remain intact.
• Maintained that the Supreme Court’s Determination granting leave did not extend to appealing the Court of Appeal’s costs order; the Appellant never expressly raised that issue during case management.
• Argued that the exceptional jurisdiction to reverse costs against the successful party was not triggered on the facts.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Court of Appeal costs: The Supreme Court held that leave to appeal had not expressly encompassed the Court of Appeal’s costs order and, crucially, the Appellant did not flag the issue during repeated opportunities in case management. Applying the principles in MD v. ND and Nash v. DPP, the Court refused to revisit that discretionary order.

2. Supreme Court costs: The starting point that costs follow the event weighed heavily against the Appellant. However, several “special factors” justified a partial departure:

• The case stated was initiated by the Respondent, a State agency, acknowledging the issue’s systemic importance.
• The Respondent had earlier offered not to seek costs, thereby encouraging litigation intended to clarify the statute.
• An imbalance of resources existed; the Appellant was a minor pursuing a sensitive welfare entitlement.
• Although the legal question was resolved by orthodox statutory interpretation and was not complex, its resolution benefits many potential litigants.

Balancing these considerations with the need to avoid encouraging unmeritorious claims, the Court concluded that an award of 40 % of the Supreme Court costs, limited to one hearing day, appropriately reflected justice while recognising the Appellant’s overall lack of success.

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the Court of Appeal’s substantive decision and its costs order. Nonetheless, it awarded the Appellant 40 % of the costs incurred in the Supreme Court, calculated on the basis of a single day’s hearing.

Implications: The ruling underscores that public-interest or systemic importance alone does not automatically shift costs, but such factors can justify a calibrated departure from the usual rule. State actors initiating clarification of legislation may bear a share of resultant costs even when ultimately successful. No new authority was created, but the decision refines the application of existing costs principles in public-law litigation.