A Dublin man is facing an estimated €500,000 legal bill after the Supreme Court overturned a High Court order directing the State to pay the costs of his unsuccessful challenge to controversial new laws. They had been enacted to speedily complete the south eastern section of the M50 motorway which was delayed by court actions aimed at protecting the Carrickmines Castle site.
When awarding Dominic Dunne his costs in the High Court, Ms Justice Mary Laffoy said that although he had lost his case, she considered the issues raised were "truly ones of general public importance".
The Supreme Court yesterday unanimously overturned that costs decision and also awarded costs against Mr Dunne of his unsuccessful Supreme Court appeal. Mr Dunne, of Collins Square, Benburb Street, is facing a legal bill of some €500,000.
The Chief Justice, Mr Justice John Murray, said he believed "undue weight" was given by the High Court to two principles as determining factors on costs - that (1) Mr Dunne was acting in the public interest in a matter which involved no private personal advantage and (2) the issues raised were of sufficient general public importance to warrant an order for costs in his favour.
The High Court went "too far" in saying the court's discretion on costs in this type of public law litigation was not in any way dependent on one or more of the issues of fact or law in the case being decided in favour of Mr Dunne.
That approach seemed to discount excessively, if not altogether exclude from consideration, the normal costs rule that when the issues in a case were decided in favour of one side, that the successful side was entitled to its costs.
He also believed Ms Justice Laffoy incorrectly took into account that there had been other successful proceedings against the State relating to the Carrickmines site. Against that background, she considered the issues in Mr Dunne's proceedings "truly ones of general public importance".
The Chief Justice was giving the court's reserved judgment on an appeal by the State and Dún Laoghaire-Rathdown County Council against the High Court costs decision.
The proceedings arose from Mr Dunne's challenge to the constitutionality of section 8 of the National Monuments (Amendment) Act 2004. In rejecting that challenge last year, the Supreme Court noted the disputed legislation "removes a bundle of protections" from national monuments, but found the Oireachtas was not prohibited under the Constitution from enacting such laws.
In the costs ruling, Mr Justice Murray, with whom Ms Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Hugh Geoghegan and Mr Justice Nicholas Kearns agreed, said the law governing costs of civil actions was that costs went to the winning party unless the court ordered otherwise.
There was no fixed rule or principle governing the court's discretion on costs and no overriding principle which determined it should be exercised in favour of an unsuccessful plaintiff in specified circumstances, or in a particular class of case.
The fact a plaintiff was not seeking a personal private advantage and that the issues raised were of special and general public importance were factors which may be taken into account.
However, the legal authorities did not support the view of the High Court judge that the principles to which she referred were in themselves the determining factors on costs in a category of public interest litigation cases. They might be "relevant" factors but were not "determinative".
The Chief Justice also noted there was "no predetermined category" of cases which fell outside the ambit of the courts' discretionary jurisdiction on costs. Such a category would have to be done by legislation, he said.
The Irish Times