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You are here: BAILII >> Databases >> Irish Court of Appeal >> L. A. v The Chief Appeals Officer & Ors (Approved) [2025] IECA 100 (14 May 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA100.html
Cite as: [2025] IECA 100

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AN CHÚIRT ACHOMHAIRC

THE COURT OF APPEAL

 

APPROVED - NO REDACTION NEEDED

 

 

Court of Appeal Record Number: 2024/236

High Court Record Number: 2023/216/JR

Neutral Citation Number: [2025] IECA 100              

 

Meenan J.

Hyland J.

Collins J.

 

 

BETWEEN/

 

 

L.A.

APPLICANT/RESPONDENT

 

- AND -

 

THE CHIEF APPEALS OFFICER, THE SOCIAL WELFARE APPEALS OFFICER AND THE MINISTER FOR SOCIAL PROTECTION

 

RESPONDENTS/APPELLANTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 14th day of May 2025

I.                  Scope of Judgment

1.            On 5 March 2025 I, with the assent of my colleagues assigned to the hearing of this appeal, delivered a judgment ([2025] IECA 54) to allow the appeal, to set aside the judgment (Owens J., [2024] IEHC 187) and order of the High Court of 15 April 2024, and to dismiss these proceedings.

 

2.            In the light of the Supreme Court decision in Little v. Chief Appeals Officer et al. [2024] IESC 53 (Murray J., nem. diss.), I proposed that the Court hear the parties as to the appropriate order to make in respect of the costs of the proceedings.  The appellants were to file and serve a written submission of not more than 2,000 words within 14 days of the delivery of judgment, after which the respondent was afforded a further 14 days in which to file and serve a reply of a similar length. The submissions having been filed on 19 March 2025 and 2 April 2025 respectively, this judgment rules upon those costs.

 

II.               Parties' Submissions

3.            The appellants submit that since the application for judicial review did not raise directly a point of law of general public importance, it did not constitute "public interest proceedings" as defined at para. 34 of the judgment in Little. The question of costs accordingly falls to be determined under s. 169 (1) of the Legal Services Regulation Act 2015. Since the appellants had been "entirely successful" in defending the proceedings and the respondent's circumstances did not come within one of the exceptions set out in that provision, it was submitted that the appellants were, in principle, entitled to an order for the costs of the proceedings against the respondent. Having regard to paras. 53 and 76 of the judgment in Little, the appellants observed that the appeal concerned the application of well-established caselaw as to the requirement to exhaust alternative remedies, here a review by the first named appellant under s. 318 of the Social Welfare Consolidation Act 2005, as amended (hereafter 'the Act of 2005'), before bringing proceedings by way of judicial review, by reason of which the application could not be described as having a "novel" character. The proceedings did not raise foundational issues of European Union or Constitutional law. They were pursued in the respondent's personal interest. The respondent was and remained free to submit a new application for Disability Allowance or to obtain a review of her application under s. 318 of the Act of 2005. The proceedings did not, in any event, pose a legal question of such significance that the taxpayer should fairly bear the respondent's costs.

 

4.            Notwithstanding the foregoing, and without accepting that an adverse costs order could or should not be made against the respondent, the appellants consented to an order that substituted no order as to costs for the costs order the High Court made on 15 April 2024 and no order for the costs of this appeal.

 

5.            The respondent accepted that a costs order ought not to be made against her. She further submitted that this Court should not interfere with the High Court costs order and should make a costs order, or at least a partial costs order, in her favour in respect of this appeal. It was submitted on her behalf that the application for judicial review "manifestly" fell within the category of "public interest proceedings" as defined in Little. The judgment was the first occasion on which this Court determined the question whether, by reason of her failure to avail of the procedure under s. 318 of the Act of 2005, the respondent was disbarred from seeking relief by way of judicial review. The resolution of that issue was a matter of significant public importance and benefitted both the appellants and all social welfare applicants. The respondent contended that her conduct could not be criticised since she had engaged with the internal appeals process established under the Act of 2005 save for the review procedure under s. 318. The judgment in T. v. Minister for Social Protection [2023] IEHC 763, which appeared to approve the approach contended for on her behalf, absolved her from criticism for not having withdrawn her application in the light of the preliminary issue the appellants had raised and upon which they ultimately succeeded. The judgment under appeal had found in the respondent's favour as regards the "substance" of the application for judicial review, which issue this Court did not address. Finally, the respondent's circumstances were that she was required to defend the appeal notwithstanding that she had not sought to advance the main finding challenged thereunder, namely that, when considering alternative remedies, the High Court was not required to concern itself with the review procedure under s. 318 of the Act of 2005.

 

III.           Ruling

6.            In Little, the State respondents accepted that the High Court costs order made against the appellant be vacated and that no order be made as to the costs of those proceedings. Paragraph 7 of the judgment records the Supreme Court's view that "[t]hat concession reflects a sensible, sensitive and pragmatic approach to the costs of this appeal which, it should be said, often characterises the stance of the State and State authorities before this Court on the question of costs of appeals in which they have been successful." The examples cited at para. 47 of that judgment are also relevant in this context. The appellants have, to their great credit, applied that "sensible, sensitive and pragmatic approach" to the outcome of this litigation. The respondent's application for what is, at the very least, an order for part of the costs of these proceedings thus falls to be considered in the light of the Supreme Court's guidance in Little.

 

7.            Paragraphs 34 and 68 of Little define "public interest proceedings" to include a claim against the State, or an organ or agency thereof, seeking relief in public law to challenge the validity, having regard to the general principles of administrative law, of a decision of that body by way of judicial review that raises directly a point of law of general public importance. The within proceedings meet the first two of these requirements. It is, to say the least, doubtful whether they could be said to meet the third, namely that they raise directly a point of law of general public importance. That a rule of law declared in a judgment is capable of being applied "...across the board in respect of all social protection applicants..." does not confer upon it the character of general public importance since otherwise each and every judicial interpretation of the provisions of the Social Welfare Code would have that character. For reasons that will become obvious presently there is no need to resolve that issue in this judgment. For the purpose of this exercise, it will be accepted that this application has the character of public interest proceedings.

 

8.            In re-stating the factors relevant to the exercise of the power to absolve an unsuccessful party from the costs consequences that usually follow the failure of a challenge, at paras. 70 and 71 of his judgment in Little, Murray J. observed that:

"70.   Third, because this is essentially a balancing exercise, there are case specific factors which may cause the Court to exercise its discretion to order costs, even in proceedings in which many of these criteria are met. These include that the case was an obviously weak one, that the point was ultimately found to be covered by well-established authority, that the nature of the private advantage at stake for the unsuccessful party in the action is such that it would be unjust not to award costs (for example if the proceedings were brought for a commercial purpose), that the conduct of the unsuccessful party is such that costs should be awarded against it, or that the point of law in issue is so discrete and particular to the case of the unsuccessful party that it is not appropriate to exempt the claimant from the order that usually follows complete defeat.

71.     Fourth, while the courts retain a power to order costs in public interest litigation in favour of an unsuccessful party, the cases in which that power should be exercised are very rare. It would be only in the most exceptional of circumstances that they would not comprise cases where the constitutional issues litigated were 'fundamental' and 'touched on sensitive aspects of the human condition', cases of 'conspicuous novelty', cases in which the issue was one of 'far reaching importance in an area of the law with general application', in which the courts have clarified an otherwise 'obscure or unexplored area', or cases in which the claimant, although ultimately unsuccessful, prevailed on a discrete issue in the case which was itself significant. Even where a case falls within one or more of these categories, the Court must have regard to the factors I have identified in the preceding paragraph in determining whether to award costs in such circumstances."

 

9.            The respondent's submissions on costs provide no basis for a finding that these proceedings come within that "very rare" category of cases in which the power to order costs in public interest litigation in favour of an unsuccessful party may be exercised. There is nothing to indicate that the proceedings involved litigating fundamental constitutional issues or touched on sensitive aspects of the human condition. Nor is it demonstrated how the proceedings were of "conspicuous novelty" or engaged issues of "far reaching importance in an area of the law with general application" that clarified an otherwise "obscure or unexplored area".  The submissions in reality do no more than assert that the ratio of the judgment is capable of application to the appellants and to all social protection applicants. As we have seen, whilst that may suffice to bring the application within the category of "public interest proceedings" it goes nowhere near meeting the requirements in para. 71 of Little, which must be engaged with before a court could even consider the matters set out in para. 70 thereof, upon which the respondent's submissions appear to focus their attention.

 

10.        The respondent's submissions also seek to justify a partial costs order being made in her favour by reference to three elements that relate to various determinations that the High Court made as described in para. 5, above. No clear rationale is provided to support those submissions. From their content, I surmise that it is contended that where a litigant, in the course of litigation against the State or its agencies, relies upon such a determination, which is subsequently found to be erroneous, to advance his/her interests, the State should be made liable to pay that person's costs since s/he was either entitled to rely upon the validity of, or was led into error by, the High Court.

 

11.        Since they disregard the principles upon which civil litigation is prosecuted in the State, such submissions are fundamentally misconceived. All lawyers, including those advising the respondent, are taken to be aware that among the inherent risks in embarking upon litigation is the fact that the litigant's fate is ultimately determined by many other persons whose actions they may influence, but cannot control. In this context it will suffice to refer to the operation of the principle of judicial independence and the exercise of the right of appeal. In delivering judgment the High Court is not bound by the extent of the submissions of the parties. Any decision the High Court takes is, moreover, vulnerable to reversal by the finding of an appellate court that that decision was incorrect. There is thus no basis upon which a litigant could seek to cling on to a part of a High Court judgment in which s/he had succeeded, particularly where, as here, an appellate court has found that the High Court ought never to have entertained the proceedings. Parties are also free to decide whether to appeal from a judgment or order. The respondent could have taken the view, on legal advice, that since the appellants might succeed in their appeal, she ought to explore alternatives to the resolution of her dispute: the confirmation of Counsel for the appellants reproduced at para. 23 of the judgment of 5 March 2025 refers. It is thus incorrect to represent that the respondent "...had no option but to defend the appeal...". As for parties' reasons for not appealing decisions, over which the Courts have no control, whilst they may be presumed to take such decisions on the basis of independent legal advice, in practice they frequently decide not to appeal decisions having taken account of a range of other considerations. It therefore does not follow that a decision not to appeal a judgment is equivalent to a party's acceptance of the validity of the legal analysis contained therein.  In the light of this non-exclusive exegesis, the proposition that the State could be made liable to pay a litigant's costs in circumstances where s/he relied upon the validity of, or was led into error by, a determination the High Court made in the bona fide exercise of its jurisdiction, is unstateable.

 

III.    Conclusion

12.        In light of the generous concession by the appellants, I propose to substitute for the High Court costs order made on 15 April 2024 no order for costs and to order that no order be made with respect to the costs of this appeal.

 

13.        As this judgment is delivered electronically, I am authorised by Meenan and Hyland JJ. to state that they agree with it and the orders proposed therein.

 

 

 

 

 

 

 

 

 

 

 

Appearances:

For the Respondents/Appellants: Douglas Clarke SC and Patrick Fitzgerald, instructed by the Chief State Solicitor

For the Applicant/Respondent: Conor Power SC and Joanne Williams, instructed by CSHR Solicitors

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