The Supreme Court has made no order as to costs in appeals concerning whether the President of Ireland is subject to environmental information requests. The ruling, delivered on 28 June 2022, leaves in place a High Court costs order in favour of Right to Know CLG in one of the related proceedings.
The costs ruling followed the Court’s substantive judgment, which allowed appeals by the State parties against the High Court order and dismissed Right to Know’s cross-appeal. The substantive case concerned whether the President could be required to provide information under the European Communities (Access to Information on the Environment) Regulations or the relevant EU directive, and whether the President was a “public authority” under those rules.
The Court had concluded that the President was not amenable to such a request because of the constitutional immunity under Article 13.8.1° of the Constitution, and was not a “public authority” for the purposes of the legislation or European law.
Right to Know sought all or part of its appeal costs from the State parties. It argued that the case raised novel questions of exceptional public importance and did not seek a private personal advantage. The State parties argued that there should be no costs order, relying on the statutory presumption that each side bear its own costs. No costs were sought against the Commissioner for Environmental Information.
The Supreme Court said Right to Know had been unsuccessful on every point in the appeal and cross-appeal. It found that the case involved a matter of exceptional public importance, but said that alone did not justify awarding costs to the unsuccessful party. The Court said the interests of justice would not be served by requiring parties who succeeded on all grounds to bear the losing party’s costs.
The Court also rejected the arguments that the issues were novel, that the case was a lead case, or that the proceedings engaged sensitive constitutional rights. It said the existing case law was inconsistent with Right to Know’s position and noted that the constitutional immunity issue had been considered before the appeal.
The Commissioner had not appealed a High Court costs order against him in the Council of State proceedings, so that order stands. The Supreme Court said Right to Know could enforce it. Its final costs ruling was subject to that existing order; it made no order as to costs in the Supreme Court.