Kelleher v The Irish Prison Service and Ors (No. 3) (Costs) (Approved)

Factual and Procedural Background

This judgment concerns the costs application arising from the principal judicial review proceedings, in which the Applicant challenged aspects of section 27(3) of the Misuse of Drugs Act 1977 on constitutional and European Convention on Human Rights grounds. Those challenges were rejected. [1][2][3]

The Applicant was imprisoned when the judicial review began but was released on 4 February 2025 following enhanced remission. The Respondents then sought a stay on grounds of mootness, but Judge Kennedy refused that application and permitted the proceedings to continue. [4][5][6][7]

The costs of the earlier mootness proceedings had already been awarded to the Applicant. This judgment therefore addresses only the costs of the principal judgment, for which both sides sought an order. [8][9][10][11][12]

Legal Issues Presented

1. Whether the Respondents should receive their costs following the Applicant’s unsuccessful substantive judicial review. [12][13]
2. Whether the proceedings were public interest proceedings and, if so, whether the court should exercise its discretion not to award costs against the unsuccessful Applicant. [14][15][16][17]
3. Whether the circumstances justified awarding costs to the Applicant despite the failure of his substantive challenge. [18][19]

Arguments of the Parties

Applicant’s Arguments

• The Applicant relied on Judge Kennedy’s reasoning in the earlier proceedings, particularly the importance and likely recurrence of the legal issue and the risk that leaving it unresolved could prejudice statutory entitlements, effective remedies, and liberty. [20][21]
• The Applicant argued that he had no personal benefit from continuing the proceedings because he had already been released, while the State benefited from clarification of the law. [22]
• He argued that he had become the legitimus contradictor in proceedings of general public importance, and noted that the Respondents had not appealed the earlier judgment. [23][24]

Respondents’ Arguments

• The Respondents argued that the case was not of general public importance and affected only a defined cohort of prisoners within the relevant statutory provisions. [25]
• They submitted that the Applicant had originally had something to gain because he was imprisoned when the proceedings commenced. [26]
• They argued that the principal judgment applied established principles and was not novel. [27]
• They submitted that existing Court of Criminal Appeal decisions had established the correct interpretation of the legislation, and that the Applicant pursued an incorrect argument concerning the sentencing judge’s failure to state the minimum sentence. [28][29]
• They further argued that the constitutional equality challenge was governed by settled principles and that analogous arguments had previously been considered in Applicant v Minister for Justice. [30][31]

Table of Precedents Cited

Court’s Reasoning and Analysis

The court first confirmed that the earlier costs issue had already been determined by Judge Kennedy’s perfected order. The present decision was consequently confined to the costs of the principal judgment. [11][12]

The court identified the statutory and procedural framework: section 169(1) of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts. The ordinary rule is that costs follow the event where a party has been entirely successful, subject to the nature and circumstances of the case and the parties’ conduct. [35][36][37][38][39]

Applying Applicant v Chief Appeals Officer & Ors (No. 2), the court held that the Applicant’s challenge constituted public interest proceedings because it involved a claim against the State, sought public-law relief, and directly raised a legal issue of general public importance. [33][40][41][42][14]

However, the case was not an exceptional or constitutionally novel matter of the kind that would justify awarding costs to an unsuccessful public-interest litigant. The stricter test for such an award was not satisfied. [18][19]

The court then considered whether the Applicant should nevertheless be protected from an adverse costs order. Although some arguments had been addressed by earlier authority, the court concluded that it would not be unjust to award costs to the Respondents. Nevertheless, the broader balancing exercise supported making no order as to costs. [17][13][34]

Relevant considerations included the importance and possible recurrence of the issue; the fact that the substantive proceedings had been allowed to proceed as raising a stateable issue of general public importance; the Applicant’s lack of personal advantage after release; the systemic benefit of clarifying an area of criminal law; the complexity of the statutory provisions; and the relevance of the outcome to affected prisoner cohorts. [43][32][44][45][46]

Holding and Implications

NO ORDER AS TO COSTS was made in respect of the principal judgment. [47]

The Applicant did not recover his costs, and the Respondents were not awarded their costs. The earlier costs order remained unaffected. The decision applied existing costs principles and set no new precedent. [11][47]