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Little v Chief Appeals Officer, Social Welfare Appeals Office and Minister for Social Protection (Approved)
Factual and Procedural Background
The Appellant applied for Domiciliary Care Allowance (“DCA”) under s. 186C of the Social Welfare Act 2005. Her application failed and a subsequent request for revision under s. 317(1)(a) of the same Act was refused. In the High Court, Judge Owens held that s. 317(1)(a) could only be invoked where the new evidence showed an entitlement as of the date of the original decision. The Appellant’s appeal to the Supreme Court on that substantive point was dismissed ([2023] IESC 25). The present judgment, delivered by Judge Murray on 19 November 2024, is confined to the costs of the proceedings. The Respondents initially obtained their costs in the High Court; the Appellant sought to overturn that order and also sought at least partial costs in the Supreme Court. During the appeal the Respondents conceded that no order for costs should be made against the Appellant.
Legal Issues Presented
- Whether, following the Thirty-Third Amendment and the enactment of ss. 168–169 Legal Services Regulation Act 2015 (“LSRA”), the Supreme Court should modify its approach to costs where it has granted leave on the ground of “general public importance”.
- If modification is required, whether it applies to all civil proceedings or only to public-law challenges to State action, and whether statutory environmental cost rules are relevant by analogy.
- Whether the principles in Dunne v. Minister for the Environment [2008] 2 IR 775 remain good law.
- If changes are necessary, whether they apply only in the Supreme Court or also in the High Court and Court of Appeal.
Arguments of the Parties
Appellant's Arguments
- No order for costs should be made against her because the case was admitted as one of general public importance and involved issues likely to affect many claimants.
- Her personal financial hardship and caring responsibilities justified departure from the default “costs follow the event” rule.
- She sought, at minimum, a partial award of her own costs on the basis that the litigation clarified an important statutory provision.
Respondents' Arguments
- Financial hardship is not a factor expressly permitted by s. 169 LSRA and cannot, by itself, justify departure from the default rule.
- The Appellant’s case was weak; she could have submitted a fresh DCA application instead of pursuing litigation.
- Even if no costs were sought against her, she was not entitled to recover any part of her own costs because the Respondents were entirely successful.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
Dunne v. Minister for the Environment [2008] 2 IR 775 | Leading authority on discretion to depart from “costs follow the event”. | Considered; held still good law but clarified by current judgment. |
Friends of the Irish Environment CLG v. Legal Aid Board [2023] IECA 190 | Questioned conflation of exemption from costs with awarding costs to unsuccessful party. | Used to illustrate evolution of cost jurisprudence. |
Whitmore v. O’Reilly [1906] 2 IR 357 | Historical breadth of equitable cost discretion. | Background to statutory evolution. |
Garnett v. Bradley (1878) 3 App Cas 944 | Common-law costs were creatures of statute. | Historical context. |
Reid, Hewitt & Co v. Joseph [1918] AC 717 | Meaning of “event” and apportionment of issue-based costs. | Cited in historical review. |
Little v. Dublin United Tramways Co [1929] IR 642 | Continuing force of s. 53 Judicature Act 1877. | Used to question analysis in Bell. |
Quinn & White v. Stokes [1931] IR 558 | Courts have only statutory, not inherent, cost jurisdiction. | Cited in historical survey. |
The People (AG) v. Bell [1969] IR 24 | Source of cost jurisdiction in s. 14(2) 1961 Act. | Analysis questioned; compared with earlier case law. |
Moorview Developments v. First Active [2019] 1 IR 417 | Modern reliance on s. 53 Judicature Act 1877. | Supports view that 1877 Act may still operate. |
W.L. Construction v. Chawke [2019] IESC 74 | Further modern reliance on s. 53 Judicature Act 1877. | Same as above. |
Medical Council v. PAO [2004] 2 IR 12 | Rules are principal source of cost jurisdiction. | Cited to show judicial approach pre-LSRA. |
Veolia Water v. Fingal Co Co (No. 2) [2007] 2 IR 81 | Splitting costs where issues are distinct. | Illustrates flexibility before LSRA. |
Sherwin v. An Bord Pleanála [2024] IESC 32 | Limits of “complex case” exception for split costs. | Cited in discussion of issue-based costing. |
ADM Londis plc v. Ranzett Ltd [2014] IEHC 660 | Description of prevailing “winner takes all” practice. | Historical narrative. |
Roache v. News Group Newspapers [1998] EMLR 161 | “Who really won?” test. | Identified as modern pragmatic approach. |
Godsil v. Ireland [2015] 4 IR 535 | Articulation of modern cost principles. | Forms baseline pre-LSRA. |
Lee v. Revenue Commissioners [2021] IECA 114 | No order for costs where litigation caused by unclear legislation. | Used to derive factor concerning statutory uncertainty. |
ELG v. HSE (No.2) [2022] IESC 26 | Significance of systemic impact in cost decisions. | Cited for relevance of affected class size. |
Pervaiz v. Minister for Justice [2020] IESC 73 | Need for stateable point of law for exemption. | Formulated necessary condition test. |
Corcoran v. Commissioner of An Garda Síochána [2021] IEHC 11 | Deterrent effect of costs on access to justice. | Balanced in new framework. |
Fox v. Minister for Justice [2021] IESC 67 | Example of reduced costs award to unsuccessful party. | Illustrative precedent. |
Sobhy v. Chief Appeals Officer [2022] IESC 16 | Refusal to award costs where issue not sufficiently weighty. | Distinguished. |
An Taisce v. An Bord Pleanála [2022] IESC 18 | Environmental litigation and costs discretion. | Cited as comparative authority. |
Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 28 | Limits of public-importance exemption. | Supports new starting position. |
Mallon v. Minister for Justice [2024] IESC 27 | Costs awarded only in “foundational” cases. | Applied in crafting rare-award test. |
Smith v. Cunningham [2023] IESC 33 | Costs between private parties after Thirty-Third Amendment. | Distinguished from State litigation. |
University College Cork v. ESB [2021] IESC 47 | Private-law litigation involving State body. | Used to show default rule still applies. |
Minister for Communications v. Wymes [2021] IESC 63 | General public importance alone not enough to displace costs rule. | Relied on in final framework. |
PMcD v. Governor of X Prison [2021] IESC 71 | Partial costs where emergent constitutional issues. | Example of conservative award. |
Norris v. Attorney General [1984] IR 36 | Fundamental constitutional rights litigation. | One category where costs may be awarded to loser. |
Roche v. Roche [2010] IESC 10 | Same category as above. | Referential only. |
Fleming v. Ireland [2013] 2 IR 417 | Same category as above. | Referential only. |
Horgan v. An Taoiseach [2003] 2 IR 468 | Conspicuous novelty in separation-of-powers litigation. | Forms part of rare-award categories. |
O’Keefe v. Hickey [2009] IESC 39 | “Test-case” rationale for no-costs orders. | Integrated into factors list. |
Cork County Council v. Shackleton [2011] 1 IR 485 | Same as above. | Integrated into factors list. |
MD (A Minor) v. School Board (No. 2) [2024] IESC 18 | Cost differentiation between State and private defendants. | Used in analysis. |
Crofton Buildings CLG v. An Bord Pleanála [2024] IESC 21 | Same principle as above. | Cited for comparison. |
LL v. Chief Appeals Officer [2021] IEHC 191 | Earlier authority on s. 317 Social Welfare Act. | Cited to show issue not novel. |
MN v. SM [2005] 4 IR 461 | Hardship as factor in cost discretion. | Distinguished; hardship alone insufficient. |
Barlow v. Minister for Communications [2023] IECA 193 | Economic hardship considered with other factors. | Referenced by Appellant. |
Browne v. Minister for Agriculture [2022] IECA 41 | Same as above. | Referenced. |
AB v. HSE [2022] IEHC 589 | Hardship factor. | Referenced. |
Roche v. Teaching Council [2021] IEHC 753 | Hardship factor. | Referenced. |
EPA v. Deegan [2019] IEHC 778 | Hardship factor. | Referenced. |
Court's Reasoning and Analysis
Judge Murray undertook a historical survey of the Irish courts’ jurisdiction over costs, tracing the evolution from the Supreme Court of Judicature Act 1877 through the Rules of Court and culminating in ss. 168–169 LSRA. He concluded that the LSRA both confers and regulates the current cost-awarding power.
The Court synthesised modern case law into guiding principles for public-interest proceedings—defined as civil actions against the State raising a stateable point of law of general public importance. Key elements of the new framework are:
- Where the Supreme Court has granted leave because a case raises a matter of general public importance and subsequently affirms that characterisation, the starting point is that each side bears its own Supreme Court costs.
- The successful State party may still seek costs; the onus remains on the unsuccessful claimant (because of s. 169 LSRA) to justify departure from the default rule, but the Court will examine factors such as weakness of the claim, discrete personal advantage, conduct, and systemic importance.
- Financial hardship alone is not determinative, though it may reinforce other equities, particularly the deterrent effect on similarly situated litigants.
- Actual awards of costs in favour of an unsuccessful party remain “genuine rarities”, limited to foundational constitutional or European-law cases, conspicuous novelty, or situations where the litigant prevails on a significant discrete issue.
- The same analytical structure applies presumptively to High Court and Court of Appeal costs in the same litigation, subject to additional issues litigated in those courts.
Applying that framework, the Court noted that the Respondents had sensibly consented to set aside the High Court costs order and to make no application for costs in the Supreme Court. The Appellant’s request for affirmative costs failed because her legal argument was weak, the issue was not novel, and she pursued litigation rather than a fresh DCA application.
Holding and Implications
ORDER: The High Court order for costs against the Appellant is set aside. No order as to costs is made in the High Court or the Supreme Court. The Appellant is not awarded any costs.
Implications: The judgment formalises an operative “starting point” that, in public-interest appeals raising issues of general public importance, unsuccessful claimants will ordinarily not face adverse costs unless the State actively seeks such an order and can justify it under s. 169 LSRA. The decision leaves Dunne intact but refines its application and provides detailed guidance for both appellate and first-instance courts. No new precedent on substantive social-welfare law was set; the impact is procedural, reshaping cost-risk calculations in future public-interest litigation.
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