Factual and Procedural Background
This is a separate opinion delivered on 7 October 2026, dissenting from the costs orders proposed by another member of the Supreme Court. It concerns two unsuccessful Appellants in tax-recovery proceedings. [1][2][3]
The proceedings sought substantial unpaid taxes, mainly concerning rental income and capital gains on a property portfolio, together with interest and penalties. The assessments dated back to 2015. Challenges before the tax appeals tribunal and an attempt to require a case to be stated to the High Court were unsuccessful, leaving the assessments final and conclusive. Final demands issued in October 2021, but no payment followed. [4][5]
The Appellants challenged the lawfulness of the Tax Authority’s arrangements with its solicitors, alleging champerty or other illegality. That defence failed in the High Court, Court of Appeal and Supreme Court. The author considered that neither Appellant had any substantive defence to the tax claims. The Appellants also persisted in fraud allegations rejected by the lower courts; the Supreme Court did not permit those allegations to be maintained before it. [3][5][6][7]
The High Court and Court of Appeal awarded costs against the Appellants. This opinion addresses whether those orders should remain and how the Supreme Court appeal costs should be allocated. [8][9]
Legal Issues Presented
- Whether the circumstances justified departing from the successful Tax Authority’s presumptive entitlement to costs under section 169(1) of the Legal Services Regulation Act 2015. [10][11][8]
- Whether these were public-interest proceedings and, even if so, whether they satisfied the exceptional threshold for awarding costs to unsuccessful parties. [12][13][14][15]
- What weight should be given to the Appellants’ litigation conduct, personal financial interests and the systemic importance of the issues determined. [16][17][18][19]
Arguments of the Parties
Appellants’ Arguments
- The Appellants maintained that the solicitor-fee arrangements were generally unlawful, rather than unlawful specifically because the Tax Authority was a public body. Their challenges concerned conditional uplift fees and “no foal no fee” arrangements. [20][21]
- They also advanced fraud allegations, continuing to pursue them after adverse findings in the lower courts. The Supreme Court did not allow those allegations to be maintained. [6][7]
Tax Authority’s Position
- The Tax Authority maintained that the fee arrangements were permissible for litigants generally, not merely for public bodies. [20]
- It indicated that it was willing to bear its own Supreme Court costs. [9]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| [2024] IEHC 15 |
Background proceedings, unsuccessful assessment challenges and rejection of the fraud allegations. |
The author relied on the earlier judgment to explain the finality of the assessments, the absence of a substantive defence and the Appellants’ conduct. [3][4][6] |
| [2025] IECA 77 |
Condemnation of groundless fraud allegations. |
The appellate judgment supported the author’s conclusion that persistence in those allegations weighed strongly against favourable costs treatment. [3][6][7][17] |
| [2024] IESC 53 |
The statutory costs presumption; discretion in public-interest proceedings; the exceptional threshold for awarding costs to an unsuccessful party. |
The author applied its framework but found neither a proper basis for departure from the default rule nor the exceptional circumstances required for an award to the Appellants. [11][12][15][18][22][8] |
| [2015] IESC 103, [2015] 4 IR 535 |
Considerations underpinning the legislative policy favouring costs for the successful party. |
Cited in support of respecting the policy reflected in section 169(1). The opinion does not elaborate those considerations. [11] |
| [2021] IECA 114 |
A comparison involving clarification of tax-appeal jurisdiction and refusal to award costs to an unsuccessful applicant. |
Distinguished because the present decision offered no comparable special benefit to the Tax Authority and did not address uncertainty attributable to legislative inadequacies for which it might bear responsibility. [21] |
| [2021 ] IESC 63 |
General public importance does not itself justify departure from ordinary costs rules. |
Cited as an example of Supreme Court practice supporting that proposition. [22][23][24] |
| [2024] IESC 18 |
General public importance does not itself justify departure from ordinary costs rules. |
Cited as a further example supporting the author’s rejection of systemic importance as a decisive costs consideration. [22][23][24] |
Court's Reasoning and Analysis
Statutory starting point. Because the Tax Authority was entirely successful, section 169(1) presumptively entitled it to costs. Although courts may “order otherwise,” the author stressed that this discretion must respect the legislature’s policy choice. Public-interest costs discretion requires an assessment of the particular proceedings and the parties’ conduct, not a mechanical checklist. [10][11][12]
Character of the proceedings. The author regarded these as ordinary debt-collection proceedings, not public-interest litigation. The fee challenges could equally have arisen in private litigation: the claimant’s public status was irrelevant to the legal objections advanced. [13][20]
Conduct and purpose. Even if the proceedings qualified as public-interest litigation, favourable costs treatment was unwarranted. The Appellants had not paid final tax liabilities, had required litigation through three courts despite lacking a substantive defence, and had persisted in groundless fraud allegations while legally represented. Section 169(1), together with Order 99, rule 3 of the Rules of the Superior Courts, required attention to that conduct. [14][15][5][7][16][17]
The defence was pursued solely for personal advantage rather than to vindicate a public right. Although self-interest did not necessarily exclude public-interest classification, it remained relevant to the costs discretion. [18]
Systemic importance. The author disagreed with the majority’s view that the issues’ systemic importance outweighed those factors. General public importance alone could not justify departure from ordinary costs rules: treating it as decisive would effectively undermine section 169(1), given the nature of most Supreme Court appeals. [19][22][23]
Limited benefit of clarification. Section 149(1) of the 2015 Act answered the conditional-uplift challenge. The decision on “no foal no fee” arrangements principally confirmed their long-established permissibility. The Tax Authority could have changed its arrangements had the challenge succeeded and had already done so. Any wider benefit to litigants and the legal system did not, in the author’s view, explain why the Tax Authority and ultimately taxpayers should fund the unsuccessful challenge. [21][25][26]
Holding and Implications
DISSENT ON COSTS: The author would leave the High Court and Court of Appeal costs orders against the Appellants undisturbed. Although ordinarily inclined to award the Supreme Court appeal costs against them as well, the author would make no order as to those appeal costs because the Tax Authority had offered to bear its own costs. [2][8][9]
This is the author’s proposed disposition, not the majority’s costs order. It would preserve the Appellants’ liability under the lower-court orders without requiring them to pay the Tax Authority’s Supreme Court costs. The opinion applies existing costs principles rather than announcing a new rule. [2][11][8][9]