Daly v An Taoiseach and Ors, Murphy v An Taoiseach and Ors (Approved), High Court of Ireland, Judgment, Law, casemine.com

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Daly v An Taoiseach and Ors, Murphy v. An Taoiseach and Ors (Approved)

Smart Summary

Factual and Procedural Background

Two related challenges to the practice of allowing certain Ministers of State ("Super Junior Ministers") to attend and participate in Government meetings were heard together by a Divisional Court comprising Judge Barniville, Judge Phelan and Judge Bradley. The first was a judicial review brought by the Applicant, and the second a plenary action brought by the Plaintiff. Principal judgments on the merits were delivered on 19 December 2025, in which the Applicant's reliefs were refused and the Plaintiff's action was dismissed. The State (respondents/defendants) succeeded on the substantive outcomes. Following those judgments, the parties exchanged written submissions on costs and made focused oral submissions; this judgment (delivered 6 March 2026) resolves the competing costs applications arising from the two matters.

Legal Issues Presented

Whether the practice of permitting Super Junior Ministers to attend and participate in Government meetings breached specified provisions of the Constitution.
What costs orders should follow in public interest litigation of this kind, applying the principles governing costs in public law challenges between private litigants and the State.

Arguments of the Parties

Applicant's and Plaintiff's Arguments

Both litigants contended their challenges were public interest proceedings raising points of law of general and systemic importance, and that they obtained no personal advantage from the litigation.
They sought either no order as to costs or an award of costs in their favour given the constitutional importance, novelty and public significance of the issues raised.

The State's Arguments

The State sought its costs in both cases on the basis it was successful on the merits.
The State argued the cases were weak and contended the Plaintiff should have awaited the outcome of the Applicant's earlier proceedings; the State also suggested party political status of the litigants was relevant to costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Little v The Chief Appeals Officer & Ors (No.2) [2024] IESC 53	Comprehensive restatement of principles governing costs in public interest proceedings and factors for absolving unsuccessful claimants or awarding costs to unsuccessful parties.	The Court applied the factors and framework in Little to determine whether the unsuccessful litigants here should be absolved from paying the State's costs and whether they should be awarded a portion of their costs.
Dunne v Minister for the Environment [2007] IESC 60, [2008] 2 IR 775	Developments in the law on costs in public law litigation referenced as background to Little and subsequent changes.	Referenced as part of the historical costs landscape informing the Court's approach.
Pervaiz v. The Minister for Justice and Equality and ors. [2020] IESC 73	Requirement that proceedings involve a point of law of general public importance as necessary (though not sufficient) to justify not awarding costs against an unsuccessful claimant.	The Court used this principle in assessing whether the present challenges met the necessary threshold.
O'Doherty v The Minister for Health [2022] IESC 32, [2023] IR 488	Restatement of the threshold for leave to apply in judicial review (arguability/stateable threshold).	Used to confirm that the Applicant met the threshold of arguability for judicial review.
ELG v. HSE (No. 2) [2022] IESC 26	Consideration of whether subject matter will have significant effect on category of persons affected; relevance to public interest factor.	Referenced in assessing the public interest dimension and systemic importance of the issues raised.
Collins v Minister for Finance [2014] IEHC 79	Illustrative authority on occasions where unsuccessful plaintiffs were awarded costs (Divisional Court practice and percentages awarded).	The Court compared present cases to Collins when measuring an appropriate proportion of costs to award to unsuccessful parties.
Curtin v Dáil Éireann [2006] IESC 27	Example of costs awarded to an unsuccessful plaintiff in a novel constitutional area; described as clarifying core constitutional norms.	The Court found an analogy with Curtin and considered Curtin's 50% award when setting the percentage here.
Minister for Justice v McPhillips [2015] IESC 47	Observation that awards of costs to unsuccessful litigants in public interest litigation are rare.	Referenced to emphasise the exceptional nature of awarding costs to unsuccessful parties.
Mallon v. Minister for Justice and ors. [2024] IESC 27	Characterised as addressing foundational issues of constitutional or European law.	Used to illustrate the type of foundational issues that have supported awards to unsuccessful litigants.
Fox v Minister for Justice and Equality	Example where 50% of costs were awarded to an unsuccessful applicant in novel and important issues.	Used as a comparable instance where partial costs were awarded to a losing litigant.
PMcD v Governor of X Prison [2021] IESC 71	Example of a 50% costs award where the unsuccessful applicant raised issues of constitutional importance in emergency circumstances.	Referenced among authorities supporting partial costs awards to unsuccessful parties.
O'Keeffe v. Hickey and ors. [2009] IESC 39	Authority on test-case/pathfinder reasoning and selection of pathfinder cases.	Referenced for the proposition that pathfinder/test cases may merit exemption from costs.
Cork County Council v. Shackleton [2007] IEHC 334, [2011] 1 IR 485	Example of cases where costs were awarded to unsuccessful plaintiffs in constitutional contexts.	Used in analogy when assessing the present matters.
Horgan v An Taoiseach [2003] IEHC 64, [2003] 2 IR 468	Example involving Article 28 and participation in war; cited as precedent in divisional-court costs jurisprudence.	Referenced as analogous authority on separation-of-powers issues supporting partial awards.
Norris v. Attorney General [1984] IR 36	Example of a fundamental constitutional issue affecting sensitive aspects of human condition.	Included as an instance of cases deserving exceptional treatment on costs.
Roche v. Roche [2010] IESC 10	Example of litigation on fundamental constitutional issues.	Referenced among cases identifying foundational constitutional litigation.
Fleming v. Ireland [2013] IESC 19, [2013] 2 IR 417	Example of a foundational constitutional case.	Referenced in the Court's survey of foundational cases.
TF v. Ireland (1995)	Illustrative authority concerning constitutional issues of general application.	Referenced in the Court's summary of categories of cases that have warranted costs awards to unsuccessful parties.
O'Shiel v. Minister for Education [1999] IEHC 146, [1999] 2 IR 321	Example on constitutionality of legislative measures in an area of general application.	Referenced as part of the illustrative authorities.
Lee v. Revenue Commissioners	Authority cited for the proposition that avoidably unclear legislation may justify exemption from costs against unsuccessful litigants.	Referenced in assessing whether unclear legislation could support exemption from costs.
Corcoran	Cited for the concept that costs may have a significant deterrent effect on classes of affected persons.	Referenced among factors for consideration in exercising costs discretion.

Court's Reasoning and Analysis

The Court applied the Little (No.2) framework for public interest costs. It examined whether the two challenges (judicial review and plenary action) met the characteristics that permit an unsuccessful litigant to be absolved from paying the State's costs and, in exceptional circumstances, to be awarded some costs. The Court found that both matters:

were claims against the State raising public law reliefs;
directly involved points of law of general public importance and novelty concerning the constitutional permissibility of Super Junior Ministers' regular attendance and participation at Government meetings;
were brought by elected representatives who would obtain no personal advantage from success;
were stateable and of real substance (Applicant met leave threshold; Plaintiff proceeded by plenary action and adduced witness evidence); and
were of systemic importance for separation-of-powers considerations and involved issues not previously decided by Irish courts, with some divergent academic commentary.

The Court rejected the State's argument that the Plaintiff should have awaited the Applicant's determination and rejected characterisations that the cases were obviously weak or purely political. Balancing the Little factors and analogous authorities (including Curtin and Collins), the Court concluded that costs should not be ordered against the unsuccessful litigants and that the exceptional circumstances warranted awarding a proportion of their costs in their favour.

Holding and Implications

HOLDING: The Court ordered that each of the Applicant and the Plaintiff recover 50% of their respective costs of their proceedings against the State.

Implications: The direct effect is that the State must pay 50% of the costs incurred by the Applicant and 50% of the costs incurred by the Plaintiff in their respective matters (to include reserved costs and the costs of submissions), such costs to be adjudicated in default of agreement. The judgments clarified the constitutional position on the issues raised concerning Super Junior Ministers' attendance and participation at Government meetings; the Court treated the award as exceptional and consistent with established principles rather than as creating a general change to costs practice.