The Supreme Court has decided that each side should bear its own legal costs after BM and her minor child JM unsuccessfully challenged a social welfare decision through the High Court and Supreme Court.
The substantive appeal had already been dismissed unanimously on 12 November 2024. The Supreme Court affirmed the High Court’s rejection of the judicial review application.
The remaining issue was who should pay the legal costs of both courts.
Ordinarily, the successful party is entitled to its costs. The Chief Appeals Officer, Social Welfare Appeals Officer, Minister for Social Protection, Ireland and the Attorney General had been entirely successful and would therefore have started from a position of entitlement to costs.
However, the Supreme Court had granted leave to appeal because the case raised a matter of general public importance. That meant the costs question had to be considered against principles previously set out by the court for public-interest litigation.
The State respondents did not seek their costs and instead proposed that each side bear its own. BM and JM argued for a more favourable order requiring the respondents to pay half of their High Court costs and half of their Supreme Court appeal costs.
They relied on the constitutional issue raised under Article 41.2, describing it as novel, important and concerning sensitive aspects of the human condition. They also pointed to observations by two Supreme Court judges that the State’s position on that constitutional issue was somewhat unsatisfactory.
The court nevertheless refused to award the appellants any proportion of their costs. It held that, despite the importance of the issues and the circumstances attracting sympathy, their claim had failed as a matter of law at every stage.
The final order was therefore that there be no order as to costs in either the High Court or Supreme Court.