THE HIGH COURT
JUDICIAL REVIEW
[2025] IEHC 354
RECORD NO. 2024/163H JR
BETWEEN
P.K.
APPLICANT
AND
V.O.S. AND COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS
RULING (Costs) of Ms. Justice Siobhán Phelan, delivered on the 20th day of June, 2025
INTRODUCTION
1. In these proceedings, the Applicant sought to quash the decision to refuse his application for a small public service vehicle licence. For the reasons set out in my judgment delivered on the 28th day of April, 2025 ([2025] IEHC 244), I decided that I would make an order of certiorari in the terms of paragraph 1 of the Notice of Motion quashing the decision of the 7th of November, 2023, to refuse a taxi licence to the Applicant. The matter now comes back before me on the question of costs, there being no agreement between the parties in this regard.
SUBMISSIONS
2. In adjudicating on the question of costs, I have had the benefit of helpful and brief written and oral submissions from both sides. Both sides refer me to the provisions of the Legal Service Regulation Act, 2015 [hereinafter "the 2015 Act"] and to well-known jurisprudence in which principles guiding the exercise of my general discretion in relation to costs are set down.
3. In short, the Applicant contends that he should be entitled to the costs of the proceedings on the basis that he was successful in obtaining an order of certiorari in these proceedings. It is accepted that while the Applicant did not succed on all grounds advanced but pointed out that these were not complex proceedings in the Veolia sense as there were not various strands of argument which materially increased court time. I am referred to case-law which confirms that in proceedings of this kind it not necessary to win on all grounds to establish an entitlement to the costs of proceedings.
4. For their part, the Respondents dispute the Applicant's entitlement to costs and maintain that the appropriate order is no order as to costs. Reliance is placed on the fact that the Applicant was not vindicated by the terms of my judgment on the fundamental premise of his proceedings, namely, that the Licencing Authority was not entitled to rely on the fact that an allegation had been made when the Applicant had been acquitted, that the making of the allegation was not a relevance consideration and that reliance on the allegation in the decision to refuse rendered the decision unreasonable. In view of this, it is submitted on behalf of the Respondents that the Respondents were partially successful in the proceedings and it cannot be said that the Applicant was "entirely successful" in these proceedings. I am referred to s. 168(2)(d) of the 2015 Act which envisages the making of an order for costs in favour of a partially successful party and which could allow for a set-off in respect of distinct elements of the case which the Respondents support their position that the appropriate order in this case is no order as to costs.
5. The Respondents further rely on the Applicant's conduct in relation to his engagement with the Licensing Authority, which conduct was subject to criticism by me in the terms of my judgment, conduct being a factor which I am entitled to consider in exercising a discretion to depart from the general rule that a successful party is entitled to his or her costs under s. 169(1) of the 2015 Act.
6. In response on the issue of conduct, I am referred on behalf of the Applicant to the decision of Murray J. in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183 and the decision of Murray C.J. in Mahon v. Keena [2009] IESC 78, [2010] 1 IR 336 for the contention that conduct of a kind which disentitles a successful applicant to costs is egregiously improper conduct of a kind which was calculated and deliberated and which demonstrates flagrant disregard for the rule of law and that the conduct identified for criticism in this case was not of a nature or type which would disentitle a successful applicant to the full costs of proceedings.
DECISION
7. Recalling the terms of my judgment and having considered the submissions made as to costs, I am satisfied that notwithstanding that the Applicant has secured relief in these proceedings, he cannot be treated as having been entirely successful in these proceedings, principally because he failed on the fundamental premise upon which proceedings were brought. Accordingly, I am satisfied that my general discretion in relation to costs in this case is untrammelled by the guiding principle that normally costs follow the event when a party is entirely successful. Even without regard to other considerations, I may properly, in exercise of my discretion in relation to costs, not award the Applicant the full costs of these proceedings even though the Applicant secured relief in these proceedings because the Applicant cannot claim to have been entirely successful.
8. Despite failing on the fundamental premise which underpinned the proceedings, it must be borne in mind that this was a one-day action in which the Applicant prevailed on several grounds, namely, the adequacy of pleadings, the inadequacy of the remedy of an appeal before the District Court in this case and an issue of procedural unfairness in the process arising from a failure to disclose the material relied upon. I am satisfied that were it not for the question of the Applicant's conduct coupled with the fact that the primary thrust of the Applicant's case was found by me to be misconceived, the extent to which the Applicant prevailed in the proceedings, albeit not on all issues, is heavily supportive of the exercise of a discretion to award up to full costs in favour of the Applicant.
9. Having regard to the nature and circumstances of this case and specifically the fact that the primary thrust of the Applicant's case was found by me to be misconceived coupled most importantly with the conduct of the proceedings by the parties, notably the Applicant's conduct before the proceedings in failing to properly engage with the decision making process as already adversely commented upon in my judgment, I am satisfied that the Applicant is not entitled to a full order for costs in these proceedings notwithstanding his success in securing relief and the fact that he prevailed on several arguments.
10. In reaching this conclusion I have considered the submission made in reliance on Chubb European Group SE v. Health Insurance Authority and Mahon v. Keena. Although reference is made to Mahon v. Keena in the later decision of the Court of Appeal in Chubb, it bears note that the decision in Mahon pre-dated the 2015 Act and moreover concerned an application for costs in reliance on the exceptional jurisdiction of the Court to award costs in favour of an unsuccessful party.
11. In my view, Mahon cannot be read as authority for the very far-reaching proposition that to be disentitled to costs on conduct grounds as a successful party in proceedings egregious behaviour such as the deliberate destruction of documents depriving the adjudicative body of any effective power to discharge its statutory function must be present. Insofar as Mahon was cited by the Court of Appeal in Chubb (at para. 41), it was to make the point that the reference to "conduct before ....proceedings" in s. 169(1)(a) does not encompass mere refusal to accept a regulator's interpretation of the law. As Murray J. pointed out, there is nothing in s. 169(1)(a) to suggest that its effect is to invest the court with a general power to grant or with-hold costs in order to enforce either a regulatory regime or the criminal law.
12. As should be clear from my judgment, my criticisms of the Applicant's conduct before proceedings in this case arose in large part from the lack of appropriate engagement with the regulator during the decision-making process. While this lack of appropriate engagement may have in part resulted from an erroneous view of the role of the regulator, it cannot be wholly attributed to this. There was no impediment to maintaining a particular view as to the role of the Licensing Authority and its competence to enquire into certain matters, whilst nonetheless engaging with the process.
13. It is no part of my reasoning in finding that the Applicant should be disentitled to costs on conduct grounds that the Applicant wrongly challenged the competence of the Licensing Authority to consider the fact that a previous complaint of sexual assault had been made even though the Applicant had been acquitted of that charge. The fact that the Applicant has been found to have been error in this regard is relevant only to the extent that it is a factor in the exercise of my discretion that the Applicant was unsuccessful in an important part of his case. It does not bear on my conclusions as to conduct. Indeed, the Licensing Authority has not sought to base its submissions as to a disentitlement to costs based on conduct on the fact that the Applicant failed on a fundamental aspect of his case. Nor has the Licensing Authority sought to contend that the Applicant should be disentitled to costs because it was not reasonable to raise, pursue or contest this issue in these proceedings. The extent of the Licensing Authority's argument in reliance on the Applicant's erroneous view of the Licensing Authority's role amounts to little more than reference to the fact that it succeeded on this issue and this could result in a part order in its favour (under s. 168(1)(b)) or be relied upon to justify no order as to costs.
14. The case made on behalf of the Licensing Authority with reference to conduct is squarely based on the criticisms I expressed in my judgment in this regard. Central to my conclusion based on conduct in my judgment are the findings summarised at paragraphs 62-64 of my judgment where I observed that this was a finely balanced case before proceeding to criticize:
(i) the tone of the correspondence issued on behalf of the Applicant by his legal representatives;
(ii) the failure of the Applicant's solicitor to request a copy of the material relied upon by the Licensing Authority in forming the intention to refuse as notified when asking for a record of the meeting in circumstances where complaint was then made in the proceedings that the Applicant did not know what material was before the Licensing Authority; and
(iii) the failure of the Applicant's solicitor to provide a copy of the judgment of the Court of Appeal or refer the Licensing Authority to the transcript of the trial(s), including the transcript of the Applicant's evidence or seek to establish whether the Licensing Authority had access to this material and had considered it.
15. The failure to engage in appropriate pre-litigation correspondence with a view to avoiding the necessity for litigation and reducing an exposure to adverse costs order has long been a relevant factor in the exercise of the court's jurisdiction as to costs. It seems to me that failures of this nature are relevant either as conduct considerations within the meaning of s. 169(1)(a) or captured by the general discretion as to costs preserved under s. 169 of the 2015 Act.
16. It was and remains my view that a proper degree of engagement on the part of the Applicant through appropriate enquiries in relation to what the Licensing Authority's concerns were based on and what material had been considered, could have allowed matters to be clarified without the necessity for these proceedings. To a significant extent, my view, as set out in my judgment, is that the approach adopted on behalf of the Applicant contributed to a legally unsound decision being made without any regard to the Applicant's substantive response to the complaint. In short, proceedings might not have been necessary at all in relation to those elements of the case upon which the Applicant succeeded had there been an appropriate degree of engagement. If proceedings became necessary notwithstanding appropriate attempts at engagement during the decision-making process, the Applicant would be an entirely different position when it comes to costs and there could be no question mark in relation to an entitlement to costs on conduct grounds.
17. While a lack of proper engagement did not cause me to exercise a discretion to refuse relief in terms of an order of certiorari and I noted some mitigating considerations which I found persuasive in deciding to grant that relief, this lack of engagement is a factor which requires to be considered again in the context of costs. Having reflected on the submissions made and the nature of my concerns as regards conduct in these proceedings, I am satisfied that my disapproval of a lack of proper engagement with the process on the Applicant's behalf is sufficiently serious to warrant more than token reflection in the costs order I now make.
18. Although I wish to signal my disapproval for what I consider to be a lack of proper engagement with the process by and on behalf of the Applicant, based on a fundamental misconception in relation to the legal test to be applied by the Licensing Authority, I am also mindful that I ultimately concluded that the responsibility for safeguarding the fairness of the process lay with the Licensing Authority itself. This being the case, I am satisfied that it would not be a proper exercise of my discretion to make an order which disentitled the Applicant to recovery of any of his costs.
19. Taking all matters into account, I am satisfied that a reduction in costs in the order of 50% reflects a proportionate measuring of my disapproval of a lack of engagement and an acknowledgement that this lack of engagement and, indeed, to a large extent the proceedings themselves, was the product of the Applicant's misguided approach to engagement with the licensing process.
20. While it was for the Licensing Authority to safeguard the fairness of the process by ensuring that the Applicant had proper notice of matters weighing against him on an assessment of his suitability to afford him a fair opportunity to respond, a failure to properly engage with the process and thereby avoid unnecessary litigation should be reflected in a costs penalty to ensure that litigation of this nature, which involves the exercise of public law functions and places a burden on limited court resources, is pursued only when required to ensure a fair and lawful process and otherwise appropriate.
CONCLUSION
21. For the reasons set out above, in addition to the order of certiorari already indicated in my judgment delivered on the 28th of April, 2025, I will now make an order that the Applicant recover 50% of his costs of these proceedings to include reserved costs, said costs to be adjudicated in default of agreement.
22. I note the parties further agreed at the end of the costs hearing before me that it is appropriate that in addition to the Order of Certiorari already indicated at para. 91 of my judgment, there should be an order remitting the application for fresh consideration before a different decision-maker and I am satisfied to also make this order.