Summary of Judgment: [2025] IEHC 504 (Anonymized)

Factual and Procedural Background

This is a judgment of Judge Bolger dated 17 September 2025 addressing an application for costs arising from a group of judicial review proceedings brought by three individuals (the "Applicants"). The proceedings challenged the application of personal injury guidelines approved by the Judicial Council (anonymized below as "Company B") to the Applicants' claims for compensation for personal injuries.

The Applicants were granted leave in November 2021 to pursue a number of reliefs, including a declaration that the provisions of section 7(2)(g) and s.18 of the Company B Act, 2019 were invalid having regard to the Constitution (Bunreacht na hÉireann) and, in particular, specified Articles of the Constitution.

The pleaded statement of grounds included an allegation that the process by which the guidelines were voted on by Company B was inconsistent with the constitutional guarantee of judicial independence. After leave was granted the matters were listed on two further occasions for essentially procedural steps; no statement of opposition was filed in those listings and the Applicants did not seek to compel the Respondents to file statements of opposition.

In December 2021 a different case (the precedent case: Appellant v. Company A & Ors, cited in the opinion as [2022] IEHC 321; [2024] IESC 10) was assigned an expedited hearing date. In January 2022 the High Court declined to case-manage other similar cases in addition to that precedent case. Although there was no formal selection process, the effect was that other broadly similar cases (including the present matters) were parked so that the legal issues could be determined in the precedent case.

In the precedent case the High Court refused all relief sought and leave was given to the appellant to leapfrog to the Supreme Court. On 9 April 2024 the Supreme Court refused most of the reliefs sought but granted a declaration that s.7(2)(g) of the Company B Act 2019 was unconstitutional. The Supreme Court also granted two further declarations (described in the judgment) that had not been sought by the appellant in the precedent case:

• that the personal injury guidelines adopted by Company B on 6 March 2021 were given force of law by virtue of section 30 of the Family Leave and Miscellaneous Provisions Act 2021 and are consequently in force; and
• that Company A (the Personal Injuries Assessment Board, anonymized as "Company A") acted properly and in accordance with law in applying the personal injury guidelines to the appellant's application in May 2021.

The opinion records the Supreme Court's conclusions that the guidelines which had been given legislative effect by s.7(2)(g) were invalid as unconstitutional and also records that the Court concluded that the validity of the guidelines was confirmed by the 2021 Act whereby the Oireachtas affirmed the guidelines approved by Company B.

The Supreme Court's decision in the precedent case was described in the judgment as a landmark decision on the constitutional guarantees of judicial independence. The judgment records an observation by Senior Counsel for the applicant in the precedent case describing it as "one of the most important constitutional actions since 1937" and reproduces a summary from the Supreme Court emphasising the complexity and constitutional significance of the issues.

A particular factual and legal point emphasised in the present costs application is how the Supreme Court in the precedent case addressed costs: although the appellant in that precedent case had succeeded only on the declaration of unconstitutionality and had not obtained other reliefs, the Supreme Court awarded costs against The State and Company C (the Attorney General's office), describing that award as justified "given those orders of the Court".

In the present proceedings the Applicants contend that they should also be awarded costs against The State and Company C because they say they would have secured the same declaration of unconstitutionality in respect of s.7(2)(g) had they proceeded with their litigation. The Respondents dispute any entitlement to costs on the basis that there has been no "event" in the Applicants' favour as required by section 169 of the Legal Services Regulation Act 2015 and that, had the Applicants continued after the Supreme Court's decision in the precedent case, no additional declaration would have been made and the Applicants' attempts would have failed. The Respondents further submit that the declaration of unconstitutionality in the precedent case was not of benefit to the Applicants and characterise any success as, at best, partial success accompanied by predominant failure.

The Respondents do not seek their costs against the Applicants and propose that there should be no order as to costs.

Counsel (anonymized): Counsel for the Applicants: Attorney McDonagh SC; Attorney Barrington SC; Attorney Hennessy BL. Counsel for the Respondents: Attorney Donnelly SC; Attorney McCullough SC; Attorney Kieran BL.

Legal Issues Presented

1. Whether the Applicants are entitled to an award of costs against The State and Company C in light of the Supreme Court's decision in the precedent case (Appellant v. Company A & Ors [2022] IEHC 321; [2024] IESC 10).
2. How Order 29, rule 3(1) of the Rules of the Superior Courts and section 169 of the Legal Services Regulation Act 2015 should be applied in exercising the court's discretion on costs in these circumstances.
3. Whether the Applicants' conduct of the proceedings, considered under section 169(1)(a), (b) and (c), justifies an award of costs.
4. What period of the proceedings should be covered by any costs award (in particular whether costs should cover all steps up to January 2022 and include the costs of the present application for costs).

Arguments of the Parties

Applicants' Arguments

• The Applicants contend they should be awarded their costs against The State and Company C because they say they would have secured the same declaration of unconstitutionality in respect of s.7(2)(g) had they proceeded with their litigation.
• The Applicants rely on the substantial overlap between the reliefs sought in their proceedings and the reliefs decided in the precedent case and submit that the award of costs in that precedent case supports an award of costs here.

Respondents' Arguments

• The Respondents dispute any entitlement to costs, submitting that there has been no "event" in the Applicants' favour for the purposes of section 169 of the 2015 Act.
• They argue that, had the Applicants continued their proceedings after the Supreme Court's decision in the precedent case, no additional declaration would have been granted and the Applicants' challenge to the guidelines would have failed (as it did for the appellant in the precedent case).
• The Respondents maintain that the declaration of unconstitutionality in the precedent case did not confer a benefit on the Applicants and characterise any success as "partial success, accompanied by predominant failure" (as expressed in the Respondents' written submissions).
• The Respondents do not seek their costs against the Applicants and propose that there be no order as to costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by identifying the applicable legal framework: costs are to be determined in accordance with Order 29, rule 3(1) of the Rules of the Superior Courts and section 169 of the Legal Services Regulation Act 2015, both of which preserve the court's general discretion in relation to costs. The Court referred to the decision of Judge Murray in the anonymized Chubb authority for the proposition that the court should have regard to the matters listed in section 169 even where a party has not been entirely successful.

The judgment emphasised that section 169(1), and in particular subsections (a), (b) and (c), focus on the conduct of the parties, with the overall focus being on the reasonableness of that conduct and on encouraging parties to avoid incurring needless costs.

Applying those principles to the facts, the Court accepted the Applicants' contention that they had acted reasonably and sensibly in how they approached their litigation. The Applicants applied for leave in November 2021 (the timing being necessary, in their position, to avoid statute bar). At that stage the Applicants were in a position comparable to that of the appellant in the precedent case. It was only when the precedent case was progressed for case management in January 2022 that the Applicants could be taken to have become aware that their matters had been effectively demoted to the status of patient observers, rather than contenders for the lead role.

The Court noted that the Applicants could have attempted to press their cases despite the case management direction in respect of the precedent case and could have challenged the High Court's apparent refusal to allow any other case to proceed. Instead the Applicants adopted a prudent and cost-saving approach of waiting to see how the de facto lead case would be dealt with. The Court described that approach as prudent and sensible and aligned with the purposes behind section 169.

The Court also took into account the complexity of the legal issues (as reflected in the Supreme Court's summary and the fact that five different decisions with different reasonings were delivered by seven members of the Supreme Court in the precedent case). Given that complexity, the Court considered it reasonable that the Applicants had raised the constitutional issues they raised well before the Supreme Court's decision was handed down.

Having regard to the matters set out in section 169(1) (in particular subsections (a), (b) and (c)) and taking account of the manner in which the Applicants conducted their proceedings, the Court concluded that it was appropriate to grant the Applicants their costs for all steps taken up to January 2022 and to include the costs of the present application for costs. The Court directed that all costs be adjudicated upon in default of agreement.

Holding and Implications

COSTS GRANTED TO THE APPLICANTS

Holding: The Court granted the Applicants' application for costs. The award covers all steps taken in the judicial review proceedings up to January 2022 and includes the costs of the present application for costs. The Court ordered that all costs be adjudicated upon in default of agreement.

Direct consequences for the parties: The Applicants are entitled to recover costs for the specified period and for the costs application; the Respondents do not seek their costs against the Applicants and had proposed no order as to costs. The Court's order provides for assessment of costs where the parties do not agree.

Broader implications: The opinion’s orders address the specific costs dispute between these parties. The judgment applies established principles (Order 29, r.3(1) and section 169 of the 2015 Act, and the guidance from the cited authorities) to the facts of this case. The opinion does not purport to establish a new general principle of law beyond the exercise of the court's discretion on costs in the circumstances described.