McShane v Data Protection Commissioner [No.2] (Approved)

Factual and Procedural Background

The Applicant initiated judicial review proceedings challenging a decision made by the Respondent concerning the treatment of the Applicant's personal data by the Notice Party. The Applicant did not succeed on any of the pleaded grounds, and the application was refused. The initial ex parte application for leave was opened in August 2022 and subsequently adjourned and converted to a notice application in January 2023. The High Court granted leave to the Applicant in October 2023, despite arguments from the Respondent and Notice Party that a statutory appeal remedy had not been pursued. Costs of the leave application were reserved to the main proceedings. The court was tasked with resolving the costs of both the main proceedings and the contested leave application, considering the positions of the Applicant, Respondent, and Notice Party.

Legal Issues Presented

1. Whether the Applicant should be liable for the costs of the contested leave application given that it was unsuccessfully contested by the Respondent and Notice Party.
2. The appropriate costs order for the substantive judicial review proceedings, considering the Applicant’s failure on all grounds.
3. The impact of the Applicant’s arguments relating to partial success, public interest considerations, and the involvement of the Notice Party on the costs order.
4. The application of statutory provisions and case law principles governing costs awards in judicial review proceedings, including the role of notice parties.

Arguments of the Parties

Applicant's Arguments

• The Respondent and Notice Party unnecessarily contested the leave application, causing additional costs for which the Applicant should not be liable.
• Neither the Respondent nor the Notice Party were entirely successful in the main proceedings because they failed on the alternate remedies defence.
• The proceedings had a public interest element, clarifying legal principles related to the Data Protection Commissioner’s approach to complaints under the Data Protection Act 2018.
• The Notice Party's active participation was unnecessary as the Respondent fully argued the issues, adding no clarity or assistance.

Respondent's Arguments

• The general principle is that an applicant who obtains leave but fails substantively should bear the costs of both stages.
• Reference to precedent indicating that increased costs from contesting leave may warrant immediate costs orders, but the court’s reservation of costs indicates no departure from the ordinary approach.
• The substantive result should be the focus; the Applicant’s points about clarity and partial success are secondary and do not materially affect costs.
• The proceedings should not be treated as public interest litigation as that term is properly understood.

Notice Party's Arguments

• Agreed with the Respondent on the principles governing costs.
• Relied on Supreme Court and Court of Appeal authority establishing that both Respondent and Notice Party are presumptively entitled to costs when the application fails.
• Applied factors from precedent indicating the Notice Party was necessary, acted in good faith, participated fully, was successful, and no compelling reason existed to depart from the usual costs order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Treasury Holdings v National Asset Management Agency [2012] IEHC 237	Costs orders relating to contested leave applications and when immediate costs orders may be appropriate.	Referenced to explain the ordinary approach to costs on contested leave applications and the significance of reserving costs.
Chubb European Group SE v The Health Insurance Authority [2020] IECA 183	Focus on substantive result in costs assessment rather than detailed itemization.	Supported the Respondent’s argument that the court should consider the overall outcome rather than minor issues.
Hickwell v Meath County Council (No. 2) [2022] IEHC 631	Principles guiding costs awards in judicial review proceedings.	Used to support the approach focusing on substantive success.
EPUK Investments Limited v EPA [2023] IEHC 138	Costs principles in public law litigation.	Referenced in the context of costs assessment.
Veolia Water UK Plc. v Fingal County Council (No. 2) [2007] 2 IR 81	Costs consequences of raising additional issues and effect on overall litigation costs.	Applied to reject the Applicant’s argument that additional issues raised materially increased costs.
Word Perfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2023] IECA 189	Costs assessment should focus on the “big picture” rather than minute details.	Supported the court’s rejection of detailed, itemized scrutiny of costs.
O'Connor v Nenagh UDC [2002] IESC 42	Factors to consider regarding costs entitlement of notice parties in judicial review proceedings.	Guided the court’s assessment of the Notice Party’s entitlement to costs.
Dowling v Minister for Finance [2023] IECA 197	Presumptive entitlement of respondents and notice parties to costs where the application fails.	Confirmed the default position that costs should follow the event against unsuccessful applicants.
Little v Chief Appeals Officer [2024] IESC 53	Discretionary refusal to award costs against unsuccessful parties in public interest litigation and relevant criteria.	Applied to assess whether the case warranted departure from the usual costs rules on public interest grounds.
Treasury Holdings v. NAMA [2012] 1 IR 782	Costs of interlocutory applications and discretion to award costs separately.	Referenced concerning the costs of the contested leave application and the court’s discretion.

Court's Reasoning and Analysis

The court began by acknowledging the statutory framework governing costs awards in judicial review proceedings, notably sections 168 and 169 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts. It recognized that leave to apply for judicial review is generally granted on a low threshold and that contested leave applications typically have their costs reserved to the substantive hearing.

The court observed that the Respondent and Notice Party chose to contest the leave application on the basis that the Applicant had an alternate statutory appeal remedy. The court found that this argument was not sufficiently clear to refuse leave and that the leave application contest ultimately failed. Therefore, the court concluded it would be inappropriate to fix the Applicant with costs for the contested leave application, as the additional costs were caused by the unsuccessful contest.

Regarding the substantive proceedings, the court noted that the Applicant did not succeed on any ground and that the Respondent and Notice Party were entitled to their costs. The court rejected the Applicant’s arguments about partial success and public interest, finding that the case was not one of exceptional public interest or novelty warranting a departure from the usual costs rule. The court also declined to engage in detailed scrutiny of the costs attributable to specific issues, following established authorities cautioning against “nit-picking.”

In relation to the Notice Party, the court applied established precedent and found that the Notice Party was a necessary party, acted in good faith, participated fully, and was successful. Accordingly, the Notice Party was entitled to costs as well.

Holding and Implications

The court made the following orders regarding costs:

• No order as to costs was made in respect of the contested application for leave to apply for judicial review.
• The Respondent and Notice Party were awarded their costs in the substantive proceedings against the Applicant, to be adjudicated in default of agreement.
• No order was made for costs in relation to this application for costs itself, given that none of the parties were fully successful.

The decision enforces the general principle that unsuccessful applicants in judicial review proceedings bear the costs of the substantive hearing, while recognizing the court’s discretion to mitigate costs arising from unsuccessful contests of leave. The ruling clarifies that public interest considerations will only rarely justify departing from the usual costs rule and confirms the presumptive entitlement of notice parties to costs when successful. No new precedent was established; the court applied and reaffirmed existing legal principles.