AN CHÚIRT ACHOMHAIRC
THE COURT OF APPEAL
APPROVED - NO REDACTION NEEDED
Record Numbers: 2024/177 & 2024/178
High Court Record Numbers: 2022 No. 339 MCA & 2023 No. 74 JR
Neutral Citation Number: [2025] IECA 97
Meenan J.
McDonald J.
Collins J.
BETWEEN/
META PLATFORMS IRELAND LTD
APPLICANT/ RESPONDENT
-AND-
THE DATA PROTECTION COMMISSION
RESPONDENT/APPELLANT
JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 12th day of May, 2025
I. Scope of Judgment
1. On 13 March 2025 I, with the assent of my colleagues assigned to them, delivered a judgment that allowed the Data Protection Commission (hereafter 'DPC')'s appeals from the judgment and orders of the High Court (Simons J., [2024] IEHC 264), set aside the orders that that Court made on 30 May 2024 and dismissed the applications for the relief sought in the Notices of Motion that Meta Platforms Ireland Ltd (hereafter 'Meta') had filed on 10 July 2023 seeking orders to adjourn and/or stay the within proceedings until the determination of Case T-709/21 WhatsApp Ireland Ltd v. European Data Protection Board (hereafter 'the WhatsApp proceedings').
2. In that judgment I took the provisional view that, having succeeded in its appeals, the DPC was entitled to the costs of the motions in the Court of Appeal and in the High Court by reference to the default position under s. 169 of the Legal Service Regulation Act 2015 (hereafter 'the Act of 2015') and R.S.C. O. 99, r. 2, according to which costs are to follow the event and that a Court should determine the costs of interlocutory applications at the time it rules upon them. In the event it disagreed with that proposed order, I invited Meta to file and serve a written submission of not more than 2,000 words within fourteen days of the delivery of the judgment, after which the DPC had a further fourteen days in which to respond.
3. The said submissions having been filed on 27 March 2025 and 10 April 2025 respectively, this judgment constitutes a final ruling on the costs of these motions.
II. Ruling on Costs
4. It is undisputed as between the parties that the allocation of costs is governed by s. 169(1) of the Act of 2015. This provides that "[a] party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties ..."
5. R.S.C. O. 99, r. 2(3) provides that upon determining any interlocutory application, the Court of Appeal shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. For that provision to operate "civil proceedings" must be taken to comprise interlocutory applications. Insofar as Meta requests, in the alternative, that this Court orders that the costs of the interlocutory motions be made costs in the cause, it has not advanced any argument as to why it is not possible "justly to adjudicate upon those costs", by reason of which the Court is bound to rule the costs of the within interlocutory applications.
6. The next stage of the analysis is whether it can be said that the DPC was "entirely successful" in defending the interlocutory applications. In making that determination, the Court's attention has been drawn to the judgment of Murray J. in this Court in Higgins v. Irish Aviation Authority [2020] IECA 277, where he held at paragraphs 10 to 14 that:
"10. ..., it is particularly important to bear in mind that whether a party is 'entirely successful' is primarily relevant to where the burden lies within the process of deciding how costs should be allocated. If a party is 'entirely successful' all of the costs follow unless the Court exercises its discretion to direct otherwise having regard to the factors enumerated in s.169(1). If 'partially successful' the costs of that part on which the party has succeeded may be awarded in its favour, bearing in mind those same factors. Indeed, having regard to the general discretion in s.168(1)(a) and O.99 r.2(1) a party who is 'partially successful' may still succeed in obtaining all of his costs, in an appropriate case.
11. Central to the first question is the meaning of the term 'entirely successful' in proceedings as it appears in s.169(1). Understandably, the parties here reference this to who 'won the event'. The phrase 'costs to follow event' appears in the marginal note to the section. However, it does not appear in the section itself, and has been purged entirely from the recast version of Order 99.
12. As Simons J. suggests in the course of his judgment in Náisiúnta Leictreach Contraitheoir Éireann Cuideachta Faoi Theorainn Rathaiochta v. Labour Court & Ors. [2020] IEHC 342 at paras. 42-46 the inquiry as to whether a party has been 'successful' in proceedings can be pointed in one of three possible directions. First, by examining the relief claimed and determining whether the party has obtained (or successfully resisted the application for) the orders sought in the action. Second, by breaking the issues in the action down and assessing which party has prevailed on which issue. Third, by interrogating the case further and examining the arguments advanced on each issue assessing which party won which argument.
13. The third of these can be immediately discounted. The allocation of costs has never been determined on the basis of adding up points, and the process of determining where costs should lie would become hopelessly cumbersome if it did. The argument for the first may at the level of principle - at least when the provision is put in context - at first appear strong. The starting point under the law prior to the 2015 Act was that a party who has had to come to Court to obtain relief should have their costs of securing it (Godsil v. Ireland [2015] IESC 103, [2015] 4 IR 535 at para. 52-64, Veolia at para. 2.8).
14. However, while such a party can certainly be accurately described as having been 'successful' it seems to me that in those cases where a party obtains the relief it claimed but has failed to prevail on a distinct issue in the action on which it has chosen to base its claim, it is very difficult to see how it could be said that they have been 'entirely successful'. ..."
7. Whilst acknowledging that the DPC succeeded in defending the interlocutory motions, Part IV of the submissions filed on behalf of Meta contends that the DPC was unsuccessful in its primary (and allegedly only) position in the High Court that the within proceedings should be modularised, such that the latter did not prevail on a distinct issue in the proceedings, seeking in effect to bring itself within the ambit of para. 14 of the judgment of Murray J. in Higgins v. Irish Aviation Authority. Taking Meta's argument at its height, and notwithstanding that the hearing of these motions occupied a total of three days of Court time, I find it difficult to see how the "primary position ... that the proceedings should be modularised" could be said to constitute a distinct issue in the context of the interlocutory motions, which sought to stay the entire proceedings in circumstances where the DPC was apparently prepared to agree to stay the determination of certain issues only. Given the approach that the DPC appears to have adopted, the appropriateness or otherwise of modularising the proceedings appears to fall squarely within the boundaries of the debate on the sole issue to be determined: namely, whether a stay of the proceedings was to be ordered. The equivocation and confusion in the DPC's correspondence that I identified at para. 28 of my judgment in the substantive proceedings is, moreover, incapable of establishing any basis upon which that, or indeed any other "distinct issue" could be found to exist in these applications.
8. In those circumstances, I am of the view that in order to determine if the DPC was "entirely successful" in defending the interlocutory applications, it is appropriate to adopt the first approach that Simons J. suggested in Náisiúnta Leictreach Contraitheoir Éireann Cuideachta Faoi Theorainn Rathaiochta, as Murray J. adopted in Higgins v. Irish Aviation Authority, of examining the relief claimed and determining whether the party has obtained (or successfully resisted the application for) the orders sought in the proceedings.
9. On that analysis, it is clear that the DPC was "entirely successful" in defending the interlocutory motion such that it is entitled to all of the costs unless this Court exercises its discretion to direct otherwise having regard to the factors enumerated in s.169(1) of the Act of 2015.
10. In that context, Meta seeks to rely upon sub-paragraphs - (a) conduct before and during the proceedings, (b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings and (c) the manner in which the parties conducted all or any part of their cases - of s. 169(1) of the Act of 2015 to resist a costs order being made against it.
11. These interlocutory motions were filed after lengthy correspondence between the parties in the context of litigation that Meta commenced to challenge the validity of a decision the DPC had adopted in the exercise of powers conferred upon it by law. In the absence of any evidence pointing to some form of mala fides or unreasonable behaviour, for which there is no evidence in this context, it is not the role of the Courts to second guess parties' litigation strategies by inquiring as to whether it was "reasonable" to raise, pursue or contest one or more issues in proceedings. The correspondence between the parties discloses that whilst at a point in time the DPC seems to have been prepared to agree that certain issues be adjourned until the determination of the WhatsApp proceedings, it never consented to the adjournment of the entire proceedings as Meta had sought. Meta thereafter brought the two motions that this Court has ultimately dismissed. Considering s. 169(1)(b) of the Act of 2015 at para. 6 of his judgment in Re M/V 'Lady Magda' [2021] IECA 51, Collins J. observed that:
"...it does not in my view permit the Court to set aside the fundamental principles governing the award of costs - as to which, in addition to the provisions of the 2015 Act, see Godsil v. Ireland [2015] IESC 103, [2015] 4 IR 535 at paras 19 and 20 - and to substitute for those rules an amorphous test of reasonableness such as is contended for here. No doubt the great majority of appellants to this Court - if not, indeed, all of them - consider their appeals to be reasonably brought and reasonably based. The Court's function, however, is to determine whether such appeals are well-founded. The Agents' appeal here was not well-founded. No issue was decided in their favour. Considerations of the bona fides of the appeal and/or the reasonableness of the Agents' belief as to the merit of the appeal are, in these circumstances, nihil ad rem. The Owners are not to be deprived of their costs even if (as I have no reason to doubt) the Agents' appeal here was brought in good faith and with a fervent (if misplaced) conviction that it should succeed."
12. Collins J.'s observations are equally pertinent to Meta's reliance upon s. 169(1)(b) of the Act of 2015 in these applications for costs. Since Meta has not put forward any substantive basis upon which this Court could exercise its discretion not to award costs in favour of the DPC by reference to that provision, I dismiss its objection to the making of a costs order on that basis.
13. It appears convenient to address Meta's complaints under s. 169(1)(a) and (c) of the Act of 2015 about the DPC's conduct together. Para. 24 of Meta's submissions contend that the DPC proposed the modularisation of the proceedings, then sought to resile from that position before bringing forward at the hearing of the appeal an alternative proposal as to how the litigation should proceed, which contradicted its earlier stance. The DPC disputes that version of events. Any concessions that it intimated were made with a view to resolving the differences regarding the management of the proceedings without the need for the High Court's intervention. It also points to various representations in the course of the correspondence that communicated its opposition to any stay on the entire proceedings.
14. In the first place, the DPC cannot be criticised for communicating to Meta any concessions that it might have been prepared to make in order to reach an agreement as to the management of the proceedings without the involvement of the High Court: to the contrary, parties that adopt an approach that assists in the efficient management of proceedings display a welcome appreciation of their role in the administration of justice. In the second place, insofar as the judgment in the substantive proceedings criticises elements of the representations that the parties were jointly responsible for making to the High Court, that cannot deprive the DPC, which was "entirely successful" in defending the interlocutory motions, of its entitlement to recover costs against Meta, all the more so where to so find would confer a tangible benefit upon Meta notwithstanding its involvement in the making of those representations.
III. Conclusion
15. The DPC is entitled to recover the costs (including any reserved costs) in both the High Court and in this Court of the Notices of Motion that Meta filed on 10 July 2023 seeking orders to adjourn and/or stay the within proceedings until the determination of the WhatsApp proceedings.
16. As this judgment is delivered electronically, I am authorised by Meenan and McDonald JJ. to state that they agree with it and the orders proposed therein.
Appearances:
For Meta Platforms Ireland Ltd: Andrew Fitzpatrick SC, Caren Geoghegan SC & Colm Ó Néill, instructed by A&L Goodbody LLP
For the Data Protection Commission: Catherine Donnelly SC & Mark William Murphy, instructed by Philip Lee LLP