The High Court has made no order as to costs after refusing two unsuccessful applicants’ request for their costs in proceedings concerning disability and education rights.
In a judgment delivered on 24 April 2023, Ms Justice Bolger considered the applicants’ request for full or partial costs after an earlier refusal of their applications for protective costs orders. The applicants were identified by initials as J.S. and S.M., both minors suing through a parent and next friend. The respondent was the Minister for Education.
The earlier decision, dated 16 February 2023, refused the protective costs order applications. The judge said she had not been satisfied, following short argument, that the applications met the essential requirements of public interest and merits. She described the attempt to apply costs jurisprudence previously associated only with environmental cases to a disability and education rights claim as novel.
For the later costs application, the applicants relied on decisions in which unsuccessful litigants had received costs after raising novel public interest issues. They also referred to earlier cases in which the State had agreed to indemnify an appellant’s costs. Justice Bolger said those prior indemnity decisions had no binding or persuasive authority for the court.
The judge acknowledged that the underlying substantive issue involved sensitive personal rights, a factor considered relevant in another costs case. But she said the application before her was solely for a protective costs order, and that the established jurisprudence on that issue had been applied. In the earlier decision, she had rejected the applicants’ assertion that the case was a public interest case.
Justice Bolger concluded that the application did not meet the very high threshold for awarding costs to an unsuccessful applicant. However, she found that the novel nature of the application and the applicants’ concern for others who might face a similar situation met the threshold for making no costs order. The court therefore ordered that no party pay costs to the other.