Four minors who unsuccessfully sought access to additional Garda prosecution file material were ordered to pay the respondents’ costs, after the High Court rejected their request to depart from the usual rule that costs follow the event.
In a ruling delivered on 8 June 2022, Mr Justice Mark Heslin considered the costs of four judicial review cases. The substantive judgment, delivered on 1 February 2022, had held that section 23 of the Children Act 2001 did not give the applicants the right to the material they sought. It also found that the claimed right did not arise under a European directive or constitutional provision. The applicants had not obtained any of the reliefs they sought, and the respondents had been entirely successful.
The applicants argued that they should receive their costs because the cases raised a novel and important legal question about access to legal advice under the Act. They submitted that clarifying the law could benefit children beyond the four applicants, who had brought the cases through their parents and next friends. The respondents sought dismissal of the applications and an award of their costs, to be assessed if the parties could not agree.
The judge said section 169(1) of the Legal Services Regulation Act 2015 gave an entirely successful party a presumptive entitlement to costs, subject to the court’s discretion and the circumstances of the case. He considered the authorities cited by both sides, including cases where unsuccessful litigants had received some or all of their costs because their cases raised issues of exceptional public or constitutional importance.
He concluded those features did not apply here. The applicants had sought additional material for their own cases, and the claimed wider implications were a by-product of that personal objective. The proceedings did not challenge the constitutionality of legislation, concern the breadth of fundamental rights, or raise an issue the judge considered exceptionally novel, complex or in need of clarification. He also noted that the Juvenile Diversion Programme had operated for years and that taking legal advice was not a requirement for entry.
The judge therefore found no sound basis to refuse costs to the successful respondents. The ruling resolved the costs question by applying the ordinary rule; the source does not state the amount of costs, and says they were to be adjudicated in default of agreement.