Mr Justice Gerard Hogan has highlighted uncertainty over the statutory basis for court rules on costs, while leaving unresolved whether section 53 of the Supreme Court of Judicature (Ireland) Act 1877 applies to today’s courts.
In a concurring judgment delivered on 19 November 2024, Hogan J. said he agreed with the judgment of Murray J. and was addressing one aspect of it: the legal foundation for rules dealing with costs. He noted that three provisions may be relevant: section 53 of the 1877 Act, section 14(2) of the Courts (Supplemental Provisions) Act 1961, and sections 168 and 169 of the Legal Services Regulation Act 2015. He also referred to section 94 of the Courts of Justice Act 1924, which concerns costs in civil actions tried by a jury.
Hogan J. traced differing views on whether the 1877 provision carried over to courts established under the 1922 Irish Free State Constitution and later under the Constitution of Ireland. In Little v Dublin United Tramways Ltd, the Supreme Court in 1929 said section 53’s other provisions remained in operation so far as they were consistent with the 1924 Act and court rules. Hogan J. observed that the later section 94 of the 1924 Act covered the same ground on jury-action costs, and may have superseded section 53 on that issue.
In Quinn and White v Stokes and Quirke, the Supreme Court held in 1930 that section 53 did not apply to costs in the Circuit Court. The judgment said that court’s authority came from the 1924 Act and applicable rules; where no rules existed, costs could be awarded by reference to pre-existing County Court practice.
Hogan J. also cited the 1969 decision in The People (Attorney General) v Bell, which said the 1961 Act provided a statutory basis for High Court costs rules. The 1986 Superior Court Rules and the 2019 amendments to Order 99 invoked the 1961 Act and, later, the 2015 Act. Hogan J. noted that the Rules Committee had not expressly relied on section 53 of the 1877 Act as a basis for costs rules.
He said there was a strong argument that section 53 never applied to the courts established under the 1922 or 1937 constitutional arrangements, pointing to Quinn and White and Bell. Although later Supreme Court cases relied on section 53, Hogan J. said they had not considered that jurisdictional question. He did not reach a concluded view on section 53’s current status, saying the overlapping provisions risked confusion and that the Oireachtas might consider clarifying the law.