The Supreme Court dismissed an appeal against the Court of Appeal’s refusal to award costs, but ordered the Health Service Executive to pay the appellants 40% of the costs of their Supreme Court appeal, calculated on the basis of a one-day hearing.
In a costs ruling delivered on 2 June 2022, the Court said the appellants had lost the substantive appeal. The ruling followed its earlier decision that a child assessed as having needs falling short of a disability was not entitled to a service statement under the Disability Act 2005. The practical result was that the child’s Circuit Court application for relief could not succeed.
The case reached the Court of Appeal through a consultative case stated initiated by the HSE, with the appellants’ agreement. The HSE had said clarification of the legal question could benefit other cases and had offered not to seek its costs from the appellants, regardless of the outcome. The Supreme Court noted that the issue was of general public importance, though it did not involve great legal complexity or require a departure from ordinary statutory interpretation.
The Court declined to revisit the Court of Appeal’s costs order. It said the appellants had not clearly identified that order as a separate issue in their Supreme Court appeal, despite opportunities during case management and preparation of an agreed issue paper. The Court also considered that the Court of Appeal’s discretionary decision was within the range of orders open to it.
For the costs of the Supreme Court appeal, the Court said the usual rule that costs follow the event and the fact that the appellants had lost weighed against them. It also considered that the HSE, as a State agency, had a systemic interest in obtaining a definitive ruling; that it had promoted the case stated; and that the appellants had agreed to facilitate it. The Court referred as well to the imbalance in resources, limits on civil legal aid in cases such as this, and the sensitive interests involved.
The Court ordered 40% of the appeal costs, rather than the full amount. It said the case had occupied two separate days and parts, but calculated the award on one day’s hearing. The order concerned costs of the appeal to the Supreme Court; the Court dismissed the separate challenge to the Court of Appeal’s costs order.