The Supreme Court has set aside a High Court order requiring Deirdre Little to pay the respondents’ costs after she lost an appeal concerning domiciliary care allowance (DCA). It made no order as to costs in either the High Court or Supreme Court proceedings, following the State’s concession that it would not seek costs against her.
Little had challenged the interpretation of section 317(1)(a) of the Social Welfare Act 2005. The provision allows an appeals officer to revise a decision where new evidence or facts have come to light. Her case concerned whether an assessment of her child made by the HSE three years after her DCA application could support a revision of the earlier decision. The Supreme Court had already dismissed her substantive appeal, agreeing with the High Court’s interpretation that the new evidence must disclose entitlement at the time of the decision under review.
The costs judgment, delivered by Mr Justice Brian Murray on 19 November 2024, addressed the general approach to costs in public interest litigation. The Court said that, in public interest proceedings against the State or a State body, where it grants leave to appeal because a case raises a matter of general public importance and does not later depart from that view, the starting position should be that costs are not awarded against an unsuccessful claimant. The State or body may ask the Court to rule otherwise, and the claimant must then satisfy the Court that costs should not be awarded against them. The Court said the same starting position should presumptively apply to costs incurred in the High Court and Court of Appeal, subject to issues or conduct specific to those proceedings.
The Court stressed that this is a starting position, not an automatic exemption. It said relevant considerations include the strength and wider significance of the legal issue, the claimant’s personal interest, potential deterrent effects and the conduct of the case. It also said awarding costs to an unsuccessful claimant remains rare and is generally reserved for cases raising fundamental or unusually important issues, or where the claimant succeeded on a significant separate issue.
Applying those principles, Mr Justice Murray said he would not have awarded costs against Little, but described her underlying case as weak and said the Court had not received a clear explanation for why she pursued revision rather than making a fresh DCA application. The Court did not award her any costs: it said the appeal applied established principles of statutory interpretation and did not raise a foundational constitutional or European law issue of sufficient significance to justify making taxpayers bear her costs.