The Supreme Court has awarded Catalin Petecel one-third of his costs before that Court in an appeal concerning the legal classification of Disability Allowance. It left the High Court’s costs order in place and vacated the Court of Appeal’s order that he pay the costs of that appeal.
The ruling, delivered on 27 January 2021, dealt only with costs following two earlier judgments. The Court had allowed Mr Petecel’s appeal on whether he had to exhaust the statutory appeals process before bringing his judicial review case. It later dismissed his appeal on the substantive question of the legal nature of Disability Allowance.
Mr Petecel had originally argued that he was habitually resident in Ireland for the purpose of qualifying for the allowance, and alternatively that its classification under domestic and EU law was incorrect. He withdrew the habitual residence argument during the oral hearing on his application for leave to appeal. The High Court and Court of Appeal had dismissed his claim without considering the substantive issues, on the ground that he had not pursued the departmental appeals process to its conclusion.
In written submissions on costs, Mr Petecel argued that he had succeeded on the remedies issue while the respondents had succeeded on the classification issue. He said the two outcomes should not cancel each other out, and that the case had clarified the law and raised matters of public interest. He sought to have the Court of Appeal costs order set aside and to receive some of his litigation costs.
The Minister for Social Protection Ireland and the Attorney General said they did not seek costs for themselves, despite considering that they had succeeded in the appeal. They argued that Mr Petecel should receive none because he had obtained no substantive relief. They proposed leaving the High Court costs order in place, vacating the Court of Appeal order and making no order on the Supreme Court appeal costs.
The Supreme Court said the remedies issue was significant because it had led both lower courts to decline to rule on Mr Petecel’s substantive case. It also noted that the respondents continued to rely on exhaustion of remedies after he withdrew the habitual residence argument, although the statutory process could not have resulted in a finding that the allowance was invalidly classified.
The Court therefore left the High Court order unchanged, vacated the Court of Appeal costs order and awarded Mr Petecel one-third of his costs before the Supreme Court. The ruling did not revisit the earlier dismissal of his substantive challenge to the classification of Disability Allowance.