Summarised and Anonymised Opinion

Factual and Procedural Background

The Applicant instituted proceedings concerning access to his son, who was in the care of the Respondent. The matter came on for hearing in the High Court in October 2018. On the second day of that hearing the trial judge of her own motion joined the Attorney General as a notice party and later directed that the child be removed as a co-applicant and that a Guardian ad Litem (GAL) be appointed. The Applicant appealed that order; the appeal was later withdrawn by agreement. The matter returned to the High Court; the GAL was directed to file affidavits, which were ultimately delivered in October–November 2021. The proceedings experienced prolonged delay thereafter for a combination of reasons, including COVID-19 restrictions, the Applicant’s and his solicitor’s significant health and family events (including the death of the applicant’s solicitor’s wife), the child coming of age and episodes of incarceration, and procedural steps that were not pursued consistently. The High Court held that the delay was not excusable and struck out the proceedings against the Respondent. This ruling on costs was delivered ex tempore by Judge Barr on 25 February 2026, arising from the judgment of 6 February 2026 ([2026] IEHC 53).

Legal Issues Presented

1. Whether the Respondent, successful in obtaining an order striking out the proceedings on grounds of delay, should be awarded the costs of the proceedings (including the costs of its motion) in accordance with the general rule that costs follow the event.
2. Whether recognised exceptions to the general costs rule (in particular those relating to proceedings concerning the welfare of children or issues of constitutional/public importance) justify departing from the usual order and either limiting the Respondent’s recovery or awarding costs to the Applicant.
3. Whether the Applicant can be awarded his costs against the Respondent on the basis that the proceedings concerned his child’s welfare and raised constitutional issues.

Arguments of the Parties

Respondent's Arguments

• The Respondent was entirely successful in its application to strike out the proceedings on grounds of delay; accordingly costs should follow the event under Order 99 and s.169 of the Legal Services Regulation Act 2015.
• The court retains discretion on costs but none of the matters in s.169 engaged to justify depriving the Respondent of costs; there was no respondent conduct warranting limitation or refusal of costs.
• Where a party has acted reasonably and has been entirely successful, it is fair and reasonable that costs be awarded to the successful party.

Applicant's Arguments

• Although unsuccessful on the strikeout, there are reasons to depart from the usual rule and not to award costs to the Respondent, and alternatively to award costs to the Applicant.
• Proceedings concerning the welfare of children can constitute an exception to the general rule that costs follow the event; reliance was placed on a line of authorities (see cited cases) which, it was submitted, protect parents from adverse costs orders to avoid chilling meritorious challenges to child welfare decisions.
• Specific facts of this case (the Applicant brought the action for hearing promptly in October 2018; the Applicant sought to remedy perceived infringement of access rights; the case raised constitutional issues; the vulnerable status of the child) were submitted as factors justifying a departure from the usual costs rule and as supporting an order in favour of the Applicant.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the established default position that costs ordinarily follow the event (as reflected in Order 99 and s.169 of the Legal Services Regulation Act 2015) but acknowledged that s.169 and the rules permit the court to consider various factors when deciding to deviate from that position. The court emphasised a holistic approach to costs, striving to do justice between the parties in light of case-specific circumstances.

The court found the present case involved "truly extraordinary circumstances": the Applicant had brought the action to hearing promptly (October 2018); the trial judge joined the Attorney General and recognised significant constitutional issues; the proceedings then followed a highly complex procedural path (removal of the child as co-applicant, appointment of a GAL, interlocutory motions and an appeal which was later withdrawn); COVID-19 and related restrictions affected progress; the GAL’s affidavit process was delayed; there was uncertainty about the respondent solicitor's follow-up to relist the matter; the Applicant’s solicitor suffered a terminal illness in the family and the solicitor’s wife died; the child came of age and experienced periods of incarceration; and the Applicant himself suffered significant physical and mental health issues.

Despite sympathy for the Applicant and recognition of authorities that sometimes protect parents from adverse costs orders in child welfare or constitutional cases, the court concluded that the delay in this case was not excusable and warranted striking out the proceedings. Crucially, the court distinguished situations where claims are litigated to finality and result in judgments on the merits (where the cited line of authorities may justify departing from the normal costs rule) from cases, such as the present, where the proceedings were terminated by strikeout for delay and there was no adjudication on the substantive merits. For that reason the exceptions relied upon by the Applicant did not justify awarding him costs or depriving the Respondent entirely of costs on principle; balancing all factors the court found the fairest disposition was to make no order as to costs.

Holding and Implications

Final Ruling: The court ordered that the proceedings against the Respondent be struck out, and made no order as to costs. The court also vacated any previous costs orders made earlier in the proceedings in favour of either party.

Implications: The direct effects are (i) the Respondent succeeded on its strikeout application but will not recover costs from the Applicant in this ruling; (ii) the Applicant cannot be awarded costs against the Respondent because the proceedings were not litigated to finality and no merits judgment was delivered; and (iii) the ruling does not purport to establish a new general precedent beyond applying established principles and distinguishing this case on its procedural posture.

Ruling delivered ex tempore by Judge Barr on 25 February 2026; underlying judgment delivered on 6 February 2026 ([2026] IEHC 53).