Factual and Procedural Background
This opinion concerns litigation brought by Plaintiffs challenging the constitutionality and/or consistency with European law of the Credit Institutions (Stabilisation) Act 2010 ("the 2010 Act"). Following a four-day hearing in June 2023, the High Court delivered judgment on 13 May 2024 dismissing the Plaintiffs' claims for 26 separate declaratory reliefs. Subsequent to that judgment, the first Plaintiff sought to substitute himself for the second Plaintiff company pursuant to a recent Supreme Court decision, and multiple costs applications were brought by the Plaintiffs against the State and by the State against the Plaintiffs, as well as by the Plaintiffs against a third party, ILPG. The Plaintiffs also sought to reopen the proceedings and amend or reverse the May 2024 judgment, relying on a recent decision of the Court of Justice of the European Union ("CJEU") in Commission v. Ireland (the "Apple" case), and sought correction of an alleged clerical error in the May 2024 judgment pursuant to the slip rule. The Court addresses these applications and costs issues in this judgment.
Legal Issues Presented
- Whether the substitution application by the first Plaintiff to replace the second Plaintiff company was appropriate after judgment had been delivered.
- Whether the Court should exercise its discretion to award costs to the losing Plaintiffs or to the successful State defendants, considering statutory provisions and relevant case law.
- Whether the Plaintiffs are entitled to costs against ILPG arising from an abandoned 2013 application to be joined as a notice party.
- Whether a correction pursuant to the slip rule (Order 28, rule 11) should be made to the May 2024 judgment.
- Whether the Court should reopen its May 2024 judgment in light of the CJEU "Apple" decision, applying the principles established in Re McInerney Homes Ltd and related authorities.
Arguments of the Parties
Appellant's Arguments
- The first Plaintiff argued for substitution as plaintiff based on his majority beneficial ownership of the second Plaintiff company and a recent Supreme Court decision.
- The Plaintiffs contended that the litigation was exceptional and of unique public importance, warranting deviation from the usual costs rule.
- They relied on prior settlement agreements by former co-plaintiffs and multiple settlement offers made by the first Plaintiff to argue against the usual costs order.
- The Plaintiffs asserted entitlement to costs against ILPG due to its abandoned application to be joined as a notice party.
- They sought correction of an alleged "falsehood" in the May 2024 judgment concerning the solvency of ILPGH.
- The Plaintiffs sought to reopen the judgment relying on the newly delivered CJEU "Apple" decision, arguing that it undermined the factual and legal basis of the judgment, particularly regarding the necessity and proportionality of the 2010 Act.
- The Plaintiffs argued that the Court should reconsider costs in light of a recent Court of Appeal decision concerning recoverable expenses related to lay expertise.
State Defendants' Arguments
- The State did not oppose the substitution application being brought but opposed the substantive relief sought.
- The State argued that the Plaintiffs did not satisfy the high threshold to deviate from the usual costs rule, relying on statutory provisions and binding case law.
- The State disputed that prior settlements by former co-plaintiffs or settlement offers by the Plaintiffs justified an exceptional costs order.
- The State contended that ILPG’s abandoned application did not give rise to costs liability as no active proceeding had been pursued.
- The State opposed the slip rule application, noting the alleged error was a misinterpretation of evidence rather than a clerical mistake.
- The State argued reopening the judgment was not warranted as the CJEU "Apple" decision did not undermine the factual assumptions or legal conclusions of the May 2024 judgment, and the Plaintiffs’ claims were speculative and lacked evidential basis.
- The State maintained that the costs hearing had concluded properly and the Court of Appeal decision on lay expertise expenses was unrelated to the costs applications in this case.
ILPG's Arguments
- ILPG disputed the Plaintiffs’ claim to costs on the basis that its 2013 application to be joined as a notice party was adjourned by consent and never reactivated.
- ILPG contended that no relevant "event" occurred to trigger costs liability under section 169 of the Legal Services Regulation Act 2015.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McInerney Homes Ltd [2011] IESC 31 |
Exceptional jurisdiction to reopen judgment before final orders; requires strong reasons or common mistake. |
Applied to refuse reopening of judgment absent exceptional circumstances or cogent evidential basis. |
| McCool Controls and Engineering v. Honeywell Control Systems [2024] IESC 5 |
Principles governing substitution of parties in litigation. |
Considered but refused substitution application as inappropriate after judgment and where the individual was already a named plaintiff. |
| Collins v. Minister for Finance [2014] IEHC 79 |
Exceptional circumstances for costs awards to losing parties. |
Referenced in costs submissions but distinguished as this case did not involve novel or exceptional public importance. |
| Dunne v. Minister for the Environment [2007] IESC 60 |
Costs principles including consideration of private interest and lack of novelty. |
Applied to reject exceptional costs order for Plaintiffs as no novel legal issues arose. |
| Curtin v. Dáil Éireann [2006] IESC 27 |
Costs discretion and public interest considerations. |
Referenced but not found to support Plaintiffs' costs arguments here. |
| Dowling v. Minister for Finance [2017] IEHC 832 |
Costs awarded in exceptional public interest cases. |
Distinguished; Plaintiffs’ case did not meet threshold for exceptional public importance. |
| Godsil v. Ireland [2015] 4 IR 535 |
Definition of "event" under s.169 of Legal Services Regulation Act 2015. |
Applied to reject Plaintiffs’ argument that 2011 amendments constituted an event affecting costs. |
| Moyne v. Todd & ors [2024] IECA 172 |
Law on reopening judgments by courts of first instance. |
Applied to confirm that reopening requires exceptional circumstances and strong reasons. |
| SZ (Pakistan) v Minister for Justice and Law Reform [2013] IEHC 95 |
Reopening final judgments requires grave reasons. |
Reinforced requirement for exceptional circumstances to reopen judgment. |
| G. v A Judge of the District Court [2023] IEHC 386 |
Limited circumstances for reviewing judgments. |
Referenced in support of high threshold for reopening judgment. |
| Gaultier v Reilly [2023] IEHC 558 |
Need for strong reasons and exceptional circumstances to revisit judgments. |
Referenced in support of refusal to reopen judgment. |
| Dowling v. Minister for Finance [2013] IESC 58 |
Contextual understanding of solvency and financial risk. |
Clarified that Plaintiffs’ interpretation of solvency was selective and did not undermine Court’s findings. |
Court's Reasoning and Analysis
The Court first addressed the substitution application by the first Plaintiff to replace the second Plaintiff company. It found the proposed substitution inappropriate at this stage, after judgment had been delivered, especially as the first Plaintiff was already a named and active party. The Court noted the matter of substitution would be more appropriately considered on appeal.
Regarding costs, the Court applied established principles under section 169 of the Legal Services Regulation Act 2015 and relevant case law. It rejected the Plaintiffs' submissions that the litigation was exceptional or of unique public importance sufficient to warrant an award of costs to unsuccessful Plaintiffs or to depart from the usual rule that costs follow the event. The Court distinguished this case from prior decisions where novel or exceptional public interest issues arose, noting the 2010 Act had been amended in 2011 and that the Plaintiffs’ claims related only to pre-amendment provisions. The Court also rejected reliance on prior settlements by former co-plaintiffs and the Plaintiffs’ settlement offers as justifying a deviation from the usual costs rule.
The Court found no basis to award costs against ILPG, as its application to be joined as a notice party was adjourned by consent in 2013 and never reactivated. The lapse of time militated against costs being awarded.
The slip rule application was refused because the alleged error in the May 2024 judgment was not a clerical mistake but a mischaracterisation of evidence, which did not warrant correction under the rule.
On the application to reopen the judgment in light of the CJEU "Apple" decision, the Court applied the high threshold established in McInerney Homes and related authorities. It found no exceptional circumstances or cogent evidential basis to justify reopening. The Court held that the factual and legal assumptions underlying the May 2024 judgment remained sound, and the Plaintiffs’ submissions about the State’s loss of €13 billion in illegal State aid to Apple were speculative and did not undermine the necessity or proportionality findings regarding the 2010 Act. The Court emphasized that the financial crisis was serious and unprecedented, and that the "Apple" decision did not retrospectively invalidate the State aid granted under the 2010 Act.
Finally, the Court considered additional submissions on costs related to a recent Court of Appeal decision on recoverable expenses for lay expertise and concluded that this did not affect the costs applications before it.
Indicative views were given that the State defendants were entitled to costs on all applications, including substitution and reopening applications, to be adjudicated in default of agreement with stays on execution pending appeal.
Holding and Implications
The Court REFUSED the substitution application by the first Plaintiff to replace the second Plaintiff company, finding it inappropriate after judgment and given the first Plaintiff's existing participation.
The Court AWARDED COSTS in favour of the State defendants against the Plaintiffs, ordering costs to be adjudicated in default of agreement, with a stay on execution pending appeal. The Plaintiffs did not satisfy the threshold for exceptional costs relief.
The Court MADE NO ORDER regarding costs against ILPG, as the application to be joined as a notice party was abandoned long ago and no active proceeding had occurred.
The Court REFUSED the application to correct the May 2024 judgment under the slip rule, as the alleged error was not clerical or accidental.
The Court REFUSED the application to reopen the May 2024 judgment in light of the CJEU "Apple" decision, holding that no exceptional circumstances or cogent evidential basis had been established to justify reopening.
The decision directly affects the parties by finalizing the status of the litigation and costs orders at the High Court level, subject to appeal. No new precedent was established beyond the application of settled principles to the facts of this case.