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Cite as: [2000] IESC 48

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Howard v. Commissioners of Public Works in Ireland [2000] IESC 48 (28th February, 2000)

THE SUPREME COURT

227/94

KEANE CJ.

MURPHY J.

McGuinness J.

BETWEEN:

HOWARD & ORS.

.v.

COMMISSIONERS OF PUBLIC WORKS IN IRELAND & ORS.

Ex tempore Ruling delivered on the 28th day of February 2000 by Keane C.J.

1. This is an appeal from a judgment and order of Mr. Justice Lynch in the High Court of the 8th June 1994 in which, at the conclusion of the proceedings, having heard submissions from counsel on the issue of costs, he awarded the costs of the proceedings to the defendants against the plaintiffs. In the proceedings, he had in an earlier reserved judgment dismissed each of the claims brought by the plaintiffs in the proceedings and had held having set them out seriatim that they were not entitled to any of the reliefs which they had claimed in the proceedings. The appeal that is now before the court is confined to that order as to costs. It has not been sought to disturb any of the other findings of the learned High Court judge.

2. This court has repeatedly said in relation to costs in High Court proceedings that they are primarily a matter for the discretion of the High Court judge. However, that is

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a discretion which like every other discretion must be exercised judicially. In the present case, the High Court judge applied another principle which is, of course, contained in the Rules of the Superior Courts and which again has been frequently adverted to in this court when matters of this nature arise, that costs follow the event. That is the normal rule and it can be departed from where the circumstances so require and where it would be unjust for the general rule not to be departed from, but that is the rule which is normally applied by the High Court and which was of course applied by the High Court judge in this case.

3. The Court has considered carefully the submissions advanced by Mr. MacMenamin on behalf of the Plaintiffs and is satisfied that no circumstances exist in the present case which would justify this court in interfering with the undoubted discretion of the High Court judge to treat the costs in this case as following the event and awarding them against the plaintiff. Mr. MacMenamin has referred to a number of authorities well known to the court in which the general principle has been departed from where plaintiffs have failed to establish particular matters generally relating to the unconstitutionality of either specific legislation or the unconstitutionality of actions of the executive and the court has nonetheless awarded the costs. An examination of those cases will demonstrate that in each of those cases a point of general public importance which might never have come before the courts and which might never have been decided was at issue. Now in the present case, or if one looks to the circumstances of the present case, the Court would have no doubt, as indeed is expressly conceded by Mr. Connolly on behalf of the defendants, that an issue of public importance and an issue of the greatest public importance arose in the earlier proceedings, the case now referred to

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as Howard .v. The Commissioners of Public Works in Ireland No. 1 . In that case the plaintiffs claimed that the Commissioners of Public Works were acting ultra vires in relation to these and other developments throughout the country and further that, apart from the ultra vires question, they required permission under the Planning Acts for carrying out these developments. The plaintiffs succeeded on those issues and were of course awarded their costs both in the High Court and in this Court. The plaintiffs then elected to bring these proceedings in which they sought to restrain the Commissioners of Public Works from proceeding with the particular development concerned in which they claimed that the provisions of the rectifying legislation which had been introduced (I call it rectifying legislation because that was its object) were intended not only to rectify the general situation in which the Commissioners of Public Works found themselves but also to ensure that planning permission was obtained by them and other State Bodies for the carrying out of developments.

4. In the defence which they filed in the proceedings and which indeed reflected the earlier correspondence between the parties, the defendants made it abundantly clear that they did not regard themselves as entitled to proceed with this development. They said that it was denied that the Commissioners of Public Works in Ireland intended building on or further developing the works and development already carried out to date on the site in Mullaghamore. The defendants pleaded that no decision had yet been taken by the Government as to whether or not any further development of the said works would be carried out at the said site by the first named defendants. The first named defendants admitted that in the event that a decision is taken by the Government to develop or continue to develop work already carried out at Mullaghamore the first

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named defendant would in connection with the same apply to the Planning Authority for the appropriate permissions for any future visitor centre development at the said site.

5. The first named defendants admit that no application has been made to the Planning Authority for retention of the works carried out for the said site. Now there was a plain and unambiguous statement, as I say, reflecting earlier correspondence that the defendants had no intention of carrying out any work save in accordance with the law. In the light of that, the plaintiffs proceeded with the present proceedings and the High Court judge in a comprehensive judgment found that they were not entitled to any of the reliefs that they had claimed. They took the risk of issuing those proceedings. They were entitled so to do, of course, but they took the risks involved in issuing those proceedings and this Court cannot discern any ground for interfering with the decision of the learned High Court Judge to apply the usual rule in relation to costs. The court will dismiss the appeal.

6. The Court is satisfied the costs of this appeal must also follow the event and that the respondents are entitled to the costs of this appeal.