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Meta Platform Ireland Ltd v The Data Protection Commission (Approved)
Smart Summary
Factual and Procedural Background
This opinion, delivered by Judge Cahill on 12 January 2026, concerns the allocation of costs of a Motion brought by the Appellant seeking orders for the trial of preliminary issues and a direction that those issues be tried at the same time as, or immediately after, the hearing of the same preliminary issues in separate proceedings involving Company A and the Respondent. The Motion was heard on 29 October 2025 and refused by ex tempore judgment on 31 October 2025. A contested costs hearing followed on 6 November 2025. The Appellant argued that no costs order should be made at this stage or that costs should be costs in the cause; the Respondent sought an award of costs. Judgment reserved on costs and is now determined.
Legal Issues Presented
- Whether an order as to the costs of the interlocutory Motion should be made at this stage.
- Whether an order that "costs be costs in the cause" constitutes an award of costs within the meaning of Order 99, Rule 2(3) of the Rules of the Superior Courts.
- If an award is appropriate, how liability for the costs of the Motion should be allocated between the parties having regard to section 169 of the Legal Services Regulation Act 2015 and Order 99.
Arguments of the Parties
Appellant's Arguments
- The Motion remains substantively unresolved in the sense that the trial of preliminary issues in these proceedings may depend on the outcome of the Company A proceedings, so no costs order should be made now.
- In the alternative, the Motion was a case management application and, if costs are ordered, they should be costs in the cause.
- The Motion was reasonable, novel and served a useful purpose; the parties engaged constructively.
Respondent's Arguments
- The Motion was heard and conclusively determined against the Appellant and the costs of the Motion now fall to be determined.
- The Respondent was entirely successful and is presumptively entitled to costs under section 169 and Order 99; an order that costs be costs in the cause is not equivalent to reserving costs and, even if it were, the test in Order 99, Rule 2(3) is not satisfied.
- Reliance on authorities interpreting Order 99 and section 169 to support awarding costs to the successful party.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Plaintiff v. Company A [2020] IEHC 345 |
Summary of the interaction between Order 99 and s.169(1) and the expectation that courts should, unless it cannot justly do so, make a costs order on disposition of an interlocutory application. |
Used to summarise the approach to interlocutory costs: courts should generally make an award on disposition and have regard to s.169(1) matters. |
| Company B v. Defendant [2022] IECA 142 |
That s.169(1) embodies the general principle that costs follow the event and that there is a broad presumption that an entirely successful party in an interlocutory application should get costs. |
Cited to support the presumption in favour of awarding costs to the successful party on an interlocutory application. |
| Plaintiff v. Defendant [2012] IEHC 403 |
Distinction between reserving costs and making costs in the cause; rationale for requiring adjudication on interlocutory costs except where it is not possible justly to do so. |
Relied upon to explain that an order making costs "costs in the cause" is an exercise of discretion and distinct from a reservation of costs. |
| Company C v. Company D [2021] IEHC 157 |
Authority where the court treated costs in the cause as appropriate only if it is not possible justly to adjudicate upon liability for costs. |
Examined and distinguished: the court observed lack of clarity in that case and noted the facts and submissions there did not resolve the distinction between reserving costs and costs in the cause. |
| Company E v. Defendant [2014] 1 IR 1 |
Analysis of the background to the rule on interlocutory costs and the rationale of disincentivising unreasonable interlocutory motions; comment that costs in the cause may be appropriate unless trial judge's decision could bear on costs. |
Used to support the distinction between an adjudication (including costs in the cause) and reserving costs to the trial judge. |
| Company F v. Company G [2011] 1 IR 492 |
Practice on costs of case management applications: commonly costs in the cause where parties constructively engage; discretion to award costs where discrete issues required independent argument. |
Considered in assessing whether the Motion, as a case management application, should lead to costs in the cause or an award for the successful party. |
| Company H v. Company I [2021] IEHC 163 |
Example where a refused interlocutory application nevertheless was seen as having served a useful purpose and the provisional view was that costs should be costs in the cause. |
Relied upon by the Appellant by analogy; the court considered whether similar utility here justified costs in the cause. |
Court's Reasoning and Analysis
1. Finality and timing: The court first determined that the Motion had been finally determined on its merits insofar as the specific relief sought (trial of identified preliminary issues in the manner and timescale requested) was refused. The possibility that related issues might arise later does not mean the Motion remains live or that costs cannot be adjudicated now.
2. Interpretation of Order 99 and s.169(1): The court analysed Order 99, Rule 2(3) and s.169(1) and reviewed authorities. It adopted the view that the court should, unless it cannot justly do so, make an order on the disposition of an interlocutory application and have regard to the s.169(1) matters.
3. Characterisation of "costs in the cause": The court concluded that an order that costs be costs in the cause is an award of costs within the meaning of Order 99, Rule 2(3), and is distinguishable from reserving costs. Reserving costs is permissible only where it is not possible justly to adjudicate at that juncture; by contrast, making costs in the cause is an exercise of discretion that need not meet that test.
4. Application of s.169(1) factors: The court recognised a presumption in favour of awarding costs to the successful party but weighed the factors in s.169(1) adapted for interlocutory context: conduct before and during the motion; reasonableness of pursuing or opposing the motion; manner of conduct; and constructive engagement. The court found the Motion was reasonably brought, novel and served useful purposes (allowing important issues to be debated and confirming parties' positions), and that both parties engaged constructively.
5. Conclusion on allocation: Balancing the presumption with the s.169(1) factors and relevant authorities on case management costs, the court exercised its discretion to order that the recoverable costs of the Motion incurred by both the Appellant and the Respondent be costs in the cause. No order was made as to costs incurred by the State. The court made a provisional decision that no order should be made as to additional costs of the costs application but listed the matter for further hearing if either party sought a different order.
Holding and Implications
HOLDING: The court ordered that the recoverable costs incurred by the Appellant and by the Respondent in relation to the Motion shall be costs in the cause. No order was made as to costs incurred by the State. The court also held that an order that costs be costs in the cause constitutes an award of costs within the meaning of Order 99, Rule 2(3).
Implications: The direct effect is that whichever party ultimately succeeds in the substantive proceedings will be entitled to recover the costs of this interlocutory Motion. The judgment also clarifies the court's view that "costs in the cause" is an adjudicated costs outcome (distinct from reserving costs under Order 99, Rule 2(3)) and may be made without satisfying the specific test for reserving costs. The court left open a short further listing for the parties to seek a different costs order in relation to costs of the costs application.
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