Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 673
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Background

In the principal judgment delivered in October 2020, Mr Justice Garrett Simons held against Ryanair. In this judgment, the court considered the appropriate costs order to be made. Each party maintained that its costs should be paid by the other side.

Costs are dealt with in the Legal Services Regulation Act 2015, which draws a distinction between a party who is “entirely successful” in proceedings, and a party who has only been “partially successful”. The default position is that a party who is entirely successful in civil proceedings is entitled to an award of costs unless the court, in the exercise of its discretion, orders otherwise. The reasons for such an order must be stated.

That default position does not apply where a party has only been “partially successful”, but a court should still have regard to considerations set out in s.169(1) (Higgins v Irish Aviation Authority [2020] IECA 277 and Chubb European Group SE v Health Insurance Authority [2020] IECA 183). Mr Justice Simons noted that a court should consider the particular nature and circumstances of the case, and the conduct of the proceedings by the parties.

The parties agreed on the principles governing an application for costs in circumstances where the moving party asserts that their proceedings had advanced a public interest, contained in Dunne v Minister for the Environment (No. 2) [2008] 2 I.R.

Issue of costs

The judge said that in exercising its discretion on costs, a court must seek to ensure that individuals are not deterred by the risk of exposure to legal costs from pursuing litigation of a type which, although ultimately unsuccessful, nevertheless serves a public interest. A court must also guard against the possibility of unmeritorious litigation being inadvertently encouraged by “an overly indulgent costs regime”.

In carrying out this balancing exercise, a court should consider the general importance of the legal issues raised in the proceedings, and whether the legal principles are novel, or, alternatively, are well established. The strength of the applicant’s case should be considered, as proceedings might touch upon issues of general importance but the grounds of challenge pursued might be weak.

The court found that a departure from the general rule was not warranted. The proceedings were taken by “a well resourced company in pursuit of its own commercial interests”. While the fact that an applicant has a pecuniary interest in the outcome of judicial review proceedings does not in any way preclude them from availing of a modified costs order, the rationale for the making of such orders is to ensure that the risk of having to pay the other side’s costs does not deter parties from pursuing proceedings which are in the general public interest. This rationale is not engaged where an applicant has the financial resources and commercial incentive to pursue litigation undeterred by costs concerns.

The judge also found that the proceedings were also not of such general public interest as to justify a departure from the default rule on costs. He said that the outcome of the case could be said to have been obvious and entirely predictable: “Not every case which raises issues of constitutional law can be said to be of general public importance.”

Ryanair, represented by Martin Hayden SC and Eoin O’Shea BL, instructed by Arthur Cox, argued that while its application for judicial review was ultimately dismissed, it had successfully resisted the State’s preliminary objections that the impugned travel advice was non-justiciable. However, the judge found these preliminary issues did not add materially to the length of the proceedings nor to the volume of documents, because they were “so enmeshed with the substantive merits of the case that it would be artificial to attempt to separate them out”.

Ryanair cited Cunningham v President of the Circuit Court [2012] 3 I.R. 222 in support of the proposition that costs should be awarded to an applicant where proceedings have become moot as a result of a unilateral act on the part of the respondent public authority. However, the judge noted that Ryanair had successfully argued, at hearing, that the proceedings were not moot, relying on Lofinmakin v Minister for Justice [2013] 4 I.R. 274, N.V.H v Minister for Justice and Equality [2018] 1 I.R. 246., and Borrowdale v Director-General for Health [2020] NZHC 2090. The judgment “expressly rejected a plea that the subsequent introduction of a legislative basis for the measures rendered the proceedings moot”. The court found that it was not permissible for Ryanair, having adopted that position, to commit a volte face in inviting the court to allocate costs on the basis that proceedings were moot.

Conclusion

Ryanair was ordered to pay the State’s costs. Aer Lingus, the notice party, is to bear its own costs.