Seamus Mallon v The Minister for Justice, Ireland and the Attorney General (Unapproved)

Factual and Procedural Background

The Appellant challenged the statutory retirement age applicable to sheriffs and was unsuccessful in both the High Court and the Supreme Court. The present ruling concerns only the allocation of costs arising from the Supreme Court appeal. The High Court had previously made no order as to costs, and none of the parties sought to disturb that element of the High Court disposition.

Legal Issues Presented

1. Whether the Court should depart from the default rule in section 169 of the Legal Services Regulation Act 2015 that costs follow the event and instead order the successful Respondents to pay the Appellant’s costs.
2. Whether the Appellant’s partial success on the jurisdictional issue (his entitlement to bring declaratory proceedings rather than complain to the Workplace Relations Commission) rendered the Respondents “not entirely successful” for costs purposes.
3. Whether the public-interest dimension of the appeal constituted “very particular circumstances” justifying an award of costs to an unsuccessful party.

Arguments of the Parties

Appellant’s Arguments

• Relied on Lee v Revenue Commissioners to argue that, notwithstanding the dismissal of the appeal, complex issues of EU law and questions concerning the powers of the Workplace Relations Commission warranted an award of costs to the unsuccessful party.
• Contended that he prevailed on the jurisdictional point regarding access to the courts, meaning the Respondents were not “entirely successful.”
• Submitted that the clarification of the retirement-age regime benefits the State, and that fairness therefore supports an award of his costs.

Respondents’ Arguments

• Invoked Smith v Cunningham to emphasise the distinction between (i) making no order as to costs and (ii) ordering the successful party to pay the unsuccessful party’s costs; argued that only “very particular circumstances” justify the latter.
• Maintained that public-interest issues alone are insufficient, citing MD v Board of Management of a Secondary School (No 2) and Friends of the Irish Environment v Legal Aid Board.
• Highlighted the Appellant’s personal interest, including a claim for Francovich damages and the fact that his own firm acted as his solicitors.
• Accepted that each side should bear its own costs but resisted any award in the Appellant’s favour.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court reaffirmed the statutory default that “costs follow the event” under section 169(1) of the 2015 Act. It recognised that exceptions exist where:

• no order for costs is appropriate, or
• in very particular circumstances, an unsuccessful party may recover costs.

Drawing heavily on Smith v Cunningham, the Court distinguished between refusing the successful party its costs and positively ordering that party to pay the opponent’s costs. The State Respondents were already forgoing their entitlement to costs. The Court considered the following factors:

• Public-interest element: Although the appeal involved questions of general importance about mandatory retirement, they were not “foundational” and largely applied settled EU principles.
• Personal interest: The Appellant stood to gain reinstatement or damages, and his own firm represented him; therefore, the litigation was not a disinterested public-interest action.
• Partial success: Winning the jurisdictional point about proceeding in the courts did not materially affect the length or complexity of the appeal and at most could have justified a “no order” position.
• Benefit to the State: Any clarification achieved was outweighed by the fact that the Respondents were already bearing their own costs.

Weighing these considerations, the Court concluded that the circumstances did not justify the extraordinary step of ordering the successful Respondents to pay the Appellant’s costs.

Holding and Implications

ORDER: No order as to costs in the appeal.

Each party must bear its own costs. The decision reinforces the high threshold for shifting costs to a successful party and signals that public-interest arguments, without more, will rarely suffice. No new substantive precedent on costs was created beyond the application of existing principles.