Anonymized Summary of Judgment
Factual and Procedural Background
This judgment, delivered by Judge Mulcahy, concerns the question of costs in proceedings brought by the Plaintiff against the Defendants. In September 2012 the Plaintiff issued proceedings (the "2012 proceedings") challenging decisions made by the Second Defendant, at the latest in 2006, concerning the registration of the Plaintiff's fishing vessel. The 2012 proceedings were dismissed by the High Court and by the Court of Appeal on the basis that they involved a decision challengeable by judicial review and the time limit for such a challenge had not been observed.
In December 2017 the Plaintiff issued further proceedings (the "2017 proceedings") premised on the same alleged unlawfulness. The 2017 proceedings were held in abeyance while the 2012 proceedings proceeded. After the Supreme Court refused leave to appeal in the 2012 proceedings, the Plaintiff delivered a Statement of Claim in the 2017 proceedings. The Defendants then applied under Order 19, rule 28 of the Rules of the Superior Courts to dismiss the 2017 proceedings.
In a judgment dated 9 September 2025 the Court struck out the 2017 proceedings as an abuse of process pursuant to Order 19, rule 28(1), concluding that the Plaintiff impermissibly sought to advance the same complaint as in the earlier, finally determined proceedings and had not shown exceptional circumstances permitting a re‑run. The present judgment addresses the costs of the motion and the proceedings following that strike‑out.
Legal Issues Presented
- Whether the successful Defendants are entitled to an award of costs in respect of the motion to dismiss and the 2017 proceedings, having regard to Order 99, rule 2 and section 169(1) of the Legal Services Regulation Act 2015 (as amended).
- Whether there exist "exceptional and special circumstances" or other factors (including public interest considerations) that justify a departure from the ordinary rule that costs follow the event.
- If a departure is justified, what form should any alternative costs order take (for example, no order as to costs, an award to the Plaintiff, or a different apportionment)?
- Whether the Defendants should be awarded costs of the motion and of the proceedings, including any reserved costs.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff submitted that the ordinary rule that costs follow the event should not apply because there are "exceptional and special circumstances" warranting a departure from that general rule. The submission did not specify the exact alternative order sought (no order as to costs or an award of costs to the Plaintiff).
- The Plaintiff reiterated substantive complaints: that there is an ongoing breach of EU law requiring remediation and that the dismissal of the 2012 proceedings was procured by the Second Defendant's fraud. The Plaintiff also complained that the judgment did not address all issues raised.
Defendants' Arguments
- The Defendants contended there is no basis to depart from the general rule that costs follow the event. They asked the court to adopt its provisional view that the Defendants are entitled to the costs of the motion and of the proceedings.
- The Defendants' submissions addressed the relevant legal principles governing costs under the Rules and the 2015 Act and argued the Plaintiff's contentions did not engage those principles so as to justify an exception.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Company A v Company B [2020] IECA 183; [2022] 2 IR 734 (referenced as "Chubb") |
Sets out the post‑2015 Act principles on costs: the court's general discretion, entitlement of an entirely successful party to costs subject to s.169(1), and the matters the court must have regard to when deciding to "order otherwise". |
The Court applied these principles and concluded that, having regard to s.169(1) factors and the parties' conduct, there was no basis to depart from the presumption that the successful Defendants are entitled to costs. |
| Appellant v Defendant [2024] IESC 53 (referenced as "Little") |
Defines "public interest proceedings" and identifies principles relevant to exercising discretion not to award costs against unsuccessful claimants in such cases. |
The Court considered the criteria identified in Little and found that the 2017 proceedings did not meet those criteria (no novel point of law of general public importance, proceedings were an abuse of process), so the Little principles did not justify departing from the ordinary costs rule. |
| Appellant v Company B [2020] IESC 73 (referenced as "Pervaiz") |
Referenced in Little: addresses the necessity (but not sufficiency) of a point of law of general public importance to justify not ordering costs against an unsuccessful claimant in public interest litigation. |
The Court relied on the articulation in Little (which cites Pervaiz) to conclude the necessary conditions for a costs exception were not met in this case. |
| Company A v Company B [2022] IESC 26 (referenced as "ELG v HSE (No. 2)") |
Discusses relevance of whether a litigant obtains no personal advantage and whether the litigation will significantly affect a category of persons. |
The Court observed that these considerations were not present here in a way that would justify departing from the ordinary costs rule. |
| Appellant v Appellee [2009] IESC 39 (referenced as "O'Keefe") |
Permits the court, in true "test case" situations (pathfinder cases), to decide not to award costs against the claimant selected to run the issue. |
The Court noted that the present case was not a proper test case; therefore the O'Keefe principle did not apply to justify non‑award of costs. |
| Company A v Appellee [2007] IEHC 334; [2011] 1 IR 485 (referenced as "Cork County Council v Shackleton") |
Also referenced in the context of test‑case reasoning and costs discretion in public law litigation. |
Used as background authority for the proposition that true test cases may warrant different costs treatment; the court found this was not such a case. |
| Appellant v Company A [2020] IECA 317 (referenced as "Mongans and Ors v Clare County Council") |
Addresses impermissible attempts to re‑argue judgments and that dissatisfaction with a judgment is not a proper basis to resist costs. |
The Court relied on this authority to reject the Plaintiff's attempt to re‑argue decided issues in the context of a costs application. |
| Appellant v Company B [2002] EWCA Civ 605 (referenced as "English v Emery Reimbold and Strick Ltd") |
Considered appeals against costs decisions on the grounds that those decisions were inadequately reasoned. |
The Court noted the decision but observed it did not assist the Plaintiff's position; where a party is dissatisfied with a judgment the remedy is appeal, not re‑argument in a costs application. |
| Appellant v Company B (referenced as "Lee v Revenue Commissioners") |
Illustrates that where legislation is obviously unclear, a court may relieve litigants of costs to secure clarification of the law. |
The Court held that the present case did not involve avoidably unclear legislation that would justify an exemption from costs under the Lee rationale. |
| Corcoran (authority referenced in Little) |
Considers whether subject matter of litigation is such that costs would have a significant deterrent effect on a category of persons affected. |
The Court found no such systemic or deterrent considerations applicable here. |
Court's Reasoning and Analysis
The Court began by identifying the governing statutory and rule provisions: Order 99, rule 2 of the Rules (preserving the court's discretion on costs) and section 169(1) of the Legal Services Regulation Act 2015 (which creates the general entitlement of a party entirely successful in civil proceedings to costs, subject to the court ordering otherwise having regard to specified matters).
The Court summarised the principles articulated in the leading post‑2015 Act authority (Company A v Company B ("Chubb")), which set out how s.169(1) interacts with the court's general discretion and the matters to be considered when deciding whether to "order otherwise".
The Court then examined the Plaintiff's written submissions. The Plaintiff's materials focused on renewing substantive arguments previously rejected in the strike‑out judgment (including allegations of ongoing EU law breach and alleged fraud by the Second Defendant) and complaints about the judgment (that certain issues had not been addressed). The Court treated such attempts as impermissible re‑argument of already decided matters and held that dissatisfaction with a judgment is not a basis for departure from the ordinary costs rule; the proper remedy would be appeal.
Applying the s.169(1) criteria and the authorities on public interest litigation (including Little and its discussion of Pervaiz, ELG and related cases), the Court considered whether this litigation had features that would justify an exception to the ordinary rule:
- The Court concluded the proceedings were an abuse of process because they attempted to re‑run a complaint already determined to be out of time; such proceedings could not be said to be in the public interest or to raise a novel or unclear point of law of general public importance.
- The allegations relied on by the Plaintiff about the Defendants' conduct related to earlier proceedings and were not relevant to the costs issue in the 2017 proceedings. There was no misconduct in the conduct of the 2017 proceedings by the Defendants that would warrant a deviation from the ordinary rule.
- The Defendants had acted with reasonable expedition once the Plaintiff delivered his statement of claim; they did not cause unnecessary costs to accrue.
- The case did not meet the criteria for treatment as a "test case" or otherwise merit a costs exemption on public‑interest grounds as described in Little; none of the indicia of public‑interest litigation identified in Little were present.
On that basis the Court found no basis for ordering otherwise than that costs should follow the event. The provisional view expressed in the earlier judgment — that the Defendants were entitled to the costs of the motion and of the proceedings — was upheld after considering the parties' submissions.
Holding and Implications
HOLDING: The Court concluded that the Defendants are entitled to the costs of the motion to dismiss and the costs of the 2017 proceedings, to include any reserved costs. The Court found no exceptional circumstances or public‑interest justification to depart from the ordinary rule that costs follow the event.
Implications:
- The direct effect is that the unsuccessful Plaintiff must pay the Defendants' costs of the motion and the proceedings (including reserved costs) as ordered by the Court.
- The Court explicitly found that these proceedings did not resolve any new issue of general public importance and did not establish a new precedent; the dismissal was based on well‑established principles concerning abuse of process and time‑barred judicial review challenges.
- No broader public‑law exception to the ordinary costs rule was recognized in this case; the decision reinforces that re‑running finally determined complaints will ordinarily attract an adverse costs consequence.
This summary has been prepared strictly from the content of the provided opinion and has been anonymized in accordance with the instructions given. No additional facts or inferences beyond the text of the opinion have been added.