The High Court has awarded Patrick Costello 50% of his costs, including reserved costs, after he lost his central challenge to the proposed ratification of the EU-Canada trade agreement CETA.
In a costs ruling delivered on 26 October 2021, Ms Justice Butler said her earlier judgment had rejected Costello’s argument that placing CETA before Dáil Éireann for approval would transfer legislative or judicial power. The judge had accepted the Government’s central argument that CETA operated only at the level of international law and did not effect such a transfer.
The costs ruling followed the judgment delivered on 16 September 2021. Both sides sought costs. The Government defendants argued that, having succeeded in defending the proceedings, they should receive their costs. They accepted that any order in their favour could be stayed if there was an appeal.
Costello argued that the usual rule that costs follow the event should not apply. He relied on the novelty and public importance of the constitutional questions, and on his position as an elected public representative with no personal financial, property or beneficial interest at stake. He also argued that the defendants had not succeeded on every issue.
Justice Butler rejected the argument that Costello’s standing to bring the case, or the reasonableness of raising issues, by itself entitled him to costs. She also found that the case was not a “test case” in the legal sense: the existence of another CETA challenge and the possibility of future investor-protection treaties were not enough to show that the outcome could affect a multiplicity of people in similar circumstances.
The judge accepted, however, that the proceedings raised novel constitutional questions about the State’s adherence to international treaties with binding tribunal mechanisms and were of clear public interest. She said the issues carried significant constitutional weight and should be determined before the proposal to ratify CETA returned before Dáil Éireann. Those circumstances justified departing from the usual costs rule.
The court did not award Costello his full costs. Justice Butler said the defendants had succeeded in defending the proceedings and their conduct had not added to the costs or warranted a penalty. She ordered that Costello receive 50% of his costs, including reserved costs.