Court of Appeal dismisses appeal on costs, awarding DPP costs against Mr. G. for private prosecution abuse of process.

APPROVED/NO REDACTIONS NEEDED

THE COURT OF APPEAL

CIVIL

Record Number: 2024/275

High Court Record Number: 2021/493JR

Neutral Citation Number [2025] IECA 146

Allen J. Hyland J. McDonald J.

BETWEEN/

AG

APPLICANT/RESPONDENT

-AND-

A JUDGE OF THE DISTRICT COURT

RESPONDENT

-AND-

(BY ORDER) THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY/APPELLANT

-AND-

PAUL DOLAN, CRAIG GEOGHEGAN, EOIN DALY AND JOHN PAUL

COCHIN

NOTICE PARTIES

Judgment (on costs) of Mr. Justice Denis McDonald delivered on 18th July 2025

1. On 6th June 2025, I delivered a written judgment ([2025] IECA 129) addressing the appeal of the Director of Public Prosecutions (“the DPP”) against a decision of the High Court quashing a decision of a judge of the District Court in which he had refused the application of the respondent (who I shall refer to as “Mr. G.”) under s. 10 of the Petty Sessions (Ireland) Act 1851 (“the 1851 Act”) to issue a number of summonses initiating a private prosecution against certain officers of An Garda Síochána. The High Court judge had concluded that Mr. G. was entitled to an order of certiorari quashing the

decision of the District Court judge on the grounds that it did not contain adequate reasons.

2. For the reasons given in the judgment of 6th June 2025, I came to the conclusion that, in circumstances where this was not pleaded in Mr. G.’s statement of grounds, it was not open to the High Court judge to hold that the decision of the District Court judge was vitiated by an absence of sufficient reasons to explain his decision. I also concluded that, in the particular circumstances of this case, there was, in any event, ample material before the District Court judge to entitle him, in accordance with the principles established in the decision of the Supreme Court in Kelly v. Ryan [2015] 1 I.R. 360, to reach the view that the proposed prosecutions at the suit of Mr. G. constituted an abuse of process. Allen and Hyland JJ. agreed with my judgment.

3. In accordance with the usual practice of the Court, I expressed a preliminary view that, in light of my conclusions on the appeal, the DPP, having been wholly successful in this appeal, should be entitled to an order for costs against Mr. G. in respect both of this appeal and the proceedings in the High Court. However, I indicated that, in the event that Mr. G. wished to contend for a different form of order, he would need to deliver written submissions of not more than 1,500 words to the solicitor for the DPP (copied to the Court) within 14 days from the date of electronic delivery of the judgment, in which case, the DPP would have a similar period of 14 days from the date of delivery of those submissions in which to deliver replying submissions following which the Court would give a ruling on costs electronically. In circumstances where Allen and Hyland JJ. agreed with my judgment, those directions in relation to the delivery of submissions on costs constitute directions of the Court.

4. In compliance with the directions of the Court, Mr. G. provided his written submissions on costs on 20th June 2025. That meant that, under the directions outlined in my judgment of 6th June 2025, the DPP had until Friday, 4th July 2025 in which to provide her submissions. The DPP did not deliver her submissions within that timeframe. However, on Tuesday, 8th July 2025, the DPP, without first seeking an extension of time, purported to deliver submissions in response to Mr. G.’s submissions. Mr. G. sent an email to the Office of the Court of Appeal (“the Office”) on the same day drawing attention to the terms of the direction given in the judgment of 6th June 2025 and seeking confirmation that the DPP’s submissions should be disregarded. In his email, Mr. G. did not identify any prejudice to him as a consequence of the DPP’s failure to comply with the 14-day time limit fixed by the Court. Mr. G’s email was considered by the Court and on 9th July 2025 the Court issued the following decision electronically in response to Mr. G’s objection: “Having considered Mr G’s objection, the Court is of the view that if, by the letter of the law, the DPP ought to have apologised, explained and formally applied for an extension of time, in circumstances in which the delay of one working day cannot conceivably have prejudiced Mr. G the Court will of its own motion extend the time and rule on the application.”

5. The short extension granted by the Court to the DPP should be seen against the backdrop that, in the course of the proceedings before the High Court, there were repeated failures by Mr. G. to comply with time limits fixed by the High Court. As outlined in para. 29 of my judgment of 6th June 2025, Mr. G. informed the High Court on 17th April, 2023 that he proposed to bring an application to re-open the judgment of the High Court of 27th March 2023 giving him leave to bring judicial review proceedings. Directions were given by the High Court judge on that occasion for the exchange of written submissions in relation to that application. Mr. G. did not comply with the time limit fixed for the delivery of his submissions but, by a further order of the High Court made on 22nd May 2023, the time for delivering his submissions was extended to 12th June, 2023. He did not comply with that time limit and he was given a further extension to 21st June 2023. Subsequently, as outlined in para. 30 of my judgment of 6th June 2025, Mr. G. was directed by the High Court on 24th July 2023 to issue and serve an originating notice of motion within seven days returnable on 14th November 2023. However, that direction was not complied with. By further order made by the High Court on 23rd January 2024, the time for taking that step was extended to 13th February 2024. Again, Mr. G. did not comply with that direction. A subsequent order was made on 5th March 2024 further extending the time for issuing and serving the notice of motion to 19th March 2024 when the motion was ultimately filed.

6. Following the communication of the Court’s decision to extend the time for delivery of the DPP’s submission, Mr. G. sent a further email to the Court on 9th July 2025 in the following terms: "Once more, it is an example of Irish Judges changing the law as they go along. Indeed, Rule 7 of Order 122 RSC does not entitle the Court to extend time of its own motion, but only by application to the Court. It is to be noted that the time given in the Judgment were not mere direction but were part of judgment. I have had the highest level of difficulty to have judgments reviewed / revisited before the order is perfected, the above to be done only by application of one party. Here again, the Court can not review / revisit its judgment on its own motion. Now, if the Respondent wish to apply for an extension of time, I will have the opportunity to oppose it and to argue which prejudice I have suffered."

7. In light of the fact that Mr. G. has not identified any prejudice and in light of the many failures of Mr. G. during the course of the High Court proceedings to comply with directions of the High Court, there is no merit in Mr. G.’s objection to the very modest revision made by the Court to its own direction. It should also be noted that Order 122, rule 7 has no application to such a direction. It is solely concerned with time limits fixed by the Rules or by orders enlarging the time fixed by the Rules.

8. That is not to say that parties can ignore directions given by the Court in this way. As stressed in para. 31 of the judgment of 6th June 2025, all litigants need to be aware that it is essential to comply with directions made by the Court and that non-compliance with such directions can have very serious consequences. The Court does not condone the failure of the DPP to deliver her submissions on time. Just as it is unacceptable that Mr.

G. failed to comply with time limits fixed by the High Court, it is also unacceptable that the DPP should fail to comply with the direction given by this Court in relation to submissions. In advance of the expiry of the 14-day time limit, the DPP should, of course, have applied to the Court for an extension of time. However, in circumstances where the delay was relatively minor and where this short delay could not have prejudiced Mr. G., the Court was prepared, on this occasion, to extend the time.

9. Before considering the submissions of the parties on costs, it is important to identify that, under s. 169(1) of the Legal Services Regulation Act 2015 (“the 2015 Act”), the starting position is that the party who has been entirely successful in legal proceedings should be entitled to an order for costs against the unsuccessful party. The Court is, however, entitled to make a different order if that is appropriate having regard to the particular nature and circumstances of an individual case and the conduct of the parties. The sub-section provides a non-exhaustive list of circumstances that can be taken into account in that context. Section 169(1) provides as follows: “(1)A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,

(c) the manner in which the parties conducted all or any part of their cases,

(d) whether a successful party exaggerated his or her claim,

(e) whether a party made a payment into court and the date of that payment,

(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and

(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.”

10. Turning first to Mr. G.’s submissions, Mr. G. does not address the position under s. 169(1) of the 2015 Act in his submissions and he does not expressly invoke any of the circumstances identified in paras. (a) to (g) of the sub-section. The contentions made by him in paras. 2-3 comprise an attack on the judgment of 6th June 2025 and are plainly not relevant to costs. In para. 4, he makes the point that, in Veolia Water UK plc v. Fingal County Council [2007] 2 I.R. 81, Clarke J. (as he then was) held that the general rule that costs follow the event may be departed from by virtue of special or unusual circumstances. While that decision predated the enactment of the 2015 Act, the underlying principle on which Mr. G. relies is consistent with the tenor of s. 169(1).

11. In his submissions, Mr. G. then sets out a number of circumstances which he appears to suggest fall within the Veolia Water principle. In para. 5, he repeats a contention which he raised in the course of the hearing of the appeal to the effect that the notice party (who he characterises as an “amicus curiae”) had no right of appeal. That contention has already been rejected by the Court in para. 41 of the judgment of 6th June 2025. Mr. G. is also incorrect in characterising the role played by the DPP in the proceedings as that of amicus curiae. She was not joined to the proceedings on that basis. She was joined as notice party.

12. In para. 6, Mr. G. makes a related contention that the DPP, in her appeal to this Court, was acting outside her function by “representing the interest of the other parties”. I can see no basis on which this contention could be said to be relevant to the issue of costs. Moreover, the DPP plainly has an interest in an issue relating to an aspect of criminal law. This is particularly so in so far as the draft summonses which Mr. G. wished to prosecute related to indictable offences. Having regard to the approach taken by the Supreme Court in Kelly v. Ryan, the DPP continues to play a key role in relation to the prosecution of such offences even where the prosecution is commenced by a person acting in a private capacity.

13. In para. 7, Mr. G. refers to alleged delaying conduct on the part of a party which he describes as “The Respondent” in the High Court. In that para. he says: “In the High Court, The Respondent initiated a motion to set aside an order which was not made. It is noticeable that the 12 months delay resulting of such error by a full professional legal team was not high-lighted in the purported

decision of this Court, when highlighting the small delay of an unrepresented litigant.”

14. This appears to relate to the bringing of a motion by the Chief State Solicitor on 7th February 2022 on behalf of what was then the second named respondent to the proceedings (namely Blanchardstown District Court Office) for an order “setting aside the order of the 21st of June 2021 granting the applicant herein leave to bring the within Judicial Review proceedings”. In fact, the order of 21st June 2022 did not grant leave to bring judicial review proceedings. In so far as relevant, it merely directed that Mr. G.’s application for leave should be served on the then respondents and notice parties. The DPP was not then a party to the proceedings and, in any event, she cannot be blamed for any delay caused by the application brought by the Chief State Solicitor on behalf of a different party.

15. In paras. 8 and 9 of his submissions, Mr. G. seeks to make the case that these proceedings constitute a test case in relation to “the possibility of counter-prosecution in the case of criminal case, which were to develop on the case of Kelly v. Breen” and he argues that, as a test case, it “presents a Challenge of Public Interest.” If Mr. G. were factually and legally correct in characterising his case as a test case of public interest, this might have constituted a relevant consideration in the context of a decision on costs. However, there is no basis to suggest that this case has any of those characteristics. In Little v. Chief Appeals Officer (no. 2) [2024] IESC 53, the Supreme Court has recently provided very clear guidance on issues of this kind. In para. 35(vi) of his judgment in that case, Murray J. described a test case as being “one or more pathfinder cases selected from a larger cohort of pending claims for the purposes of determining issues of law that will govern all actions”. There is no cohort of cases awaiting the outcome of this case. Thus, it cannot be said to be a test case.

16. Murray J. addressed the approach to be taken in public interest litigation in this way in para. 35(i) to (vii) as follows:

“(i) It is a necessary, but not sufficient, condition to the exercise of the power not to award costs against an unsuccessful claimant in such proceedings that the proceedings involve a point of law of general public importance ( Pervaiz v. The Minister for Justice and Equality and ors. [2020] IESC 73 at para. 7). Built into that requirement is that the issue, if not novel, is sufficiently unclear or, if clear, there is a substantial question of whether it is appropriate to decide if it should be changed.

(ii) It is a relevant, but not necessary, consideration that the proceedings are brought by the party in question in circumstances in which they obtain no personal advantage from the outcome of the proceedings, but in that regard it is relevant whether ‘ the subject matter of the litigation is likely to have a significant effect on the category of persons affected by the legal issues’ ( ELG v. HSE (No. 2) [2022] IESC 26 at para. 11).

(iii) Before the Court can consider exercising this discretion, the point of law must be stateable, and it is only in unusual circumstances that costs would not be ordered against an unsuccessful applicant where the case is other than one of real substance on the merits. The strength of the case for an exemption from costs is in proportion to the strength of the underlying claim.

(iv) A point of law may be of general importance, yet at the same time discrete in its application. The strength of the case for an exemption from costs is also in proportion to the systemic importance of the point. This reflects the fact that the State may often be the net beneficiary of a clarification of the law in an area of systemic importance, while the party who instituted the proceedings may not secure any equivalent advantage for themselves had they won. It may in an individual case be just that, in those circumstances, the respondent should bear its own costs as the price of obtaining clarification of the law.

(v) Even a case that is weak, although stateable, and although brought by the plaintiff or applicant in the advancement or protection of their own interests, may merit an exemption from an order for costs where the point arises from avoidably unclear legislation. This is a particular situation, which should be viewed as an expression of the court's disapproval that persons affected by obviously unclear laws should have to bear the risk of litigation costs in order to secure a clarification that ought never to have been necessary ( Lee v. Revenue Commissioners).

(vi) Similarly, where a case is a ‘ test case’ in the true sense of the term (that is one or more pathfinder cases selected from a larger cohort of pending claims for the purposes of determining issues of law that will govern all actions) the Court may decide not to award costs against the claimant whose case is selected to go forward on this basis ( O'Keefe v. Hickey and ors. [2009] IESC 39; Cork County Council v. Shackleton [2007] IEHC 334, [2011] 1 IR 485).

(vii) Necessarily, in exercising this discretion, the Court should have regard to whether a given case falls into a category where the subject matter of the litigation is such that costs are likely to have a significant deterrent effect on the category of persons affected by the legal issue ( Corcoran at para. 20).”

17. None of those criteria applies in this case. The proceedings do not involve a point of law of general public importance. The approach to be taken in relation to applications under s. 10 of the 1851 Act has already been very clearly identified by the Supreme Court in Kelly v. Breen. This case simply relates to the application of the principles laid down in that case. Second, it cannot be said that Mr. G. has brought these proceedings in circumstances without seeking any personal advantage. He plainly wishes to obtain an advantage in respect of his response to the prosecution brought against him by a member of An Garda Síochána. Third, the case made by him was never of “real substance on the merits”. I refer in this context to what I said in paras. paras. 64, 66 and

67 of my judgment of 6th June 2025. Fourth, it cannot be said that the case is of systemic importance. There is no evidence that the issue raised by Mr. G. is arising on a systemic basis. Fifth, in light of the clarification of the law by the Supreme Court in Kelly v. Ryan, it cannot be said that the point arises from avoidably unclear legislation. Sixth, I have already drawn attention to the fact that this is not a test case. Seventh, no category of persons has been identified who could be said to be affected by the contention which Mr. G. has sought to agitate in these proceedings. Moreover, the reasons why Mr. G. has failed in relation to the single ground which he was given leave to pursue in these proceedings are entirely peculiar to him. Again, I refer in this context to what I said in paras. 64, 66 and 67 of the judgment of 6th June 2025.

18. For all of the reasons outlined above, I can see nothing in Mr. G.’s submissions which could be said to provide any basis to depart from the starting position that applies under s. 169(1) of the 2015 Act. It is unnecessary, in these circumstances, to consider the replying submissions of the DPP. It follows that the DPP is entitled to her costs both of the appeal to this Court and her costs in the High Court.

19. Finally, in paras. 11 to 13 of his submissions, Mr. G. seeks damages and he also seeks a stay on any adverse costs order for 21 day or until the determination of an application to the Supreme Court for leave to appeal. It is not open to a litigant to advance a claim to damages in submissions on costs. In so far as a stay is concerned, no case has been made addressing the basis on which Mr. G. claims to be entitled to a stay. Nonetheless, in circumstances where the process of adjudicating costs is likely to take some time, I believe that no significant prejudice will be suffered by the DPP if a stay is placed on execution of the order for costs to be made against Mr. G.. In those circumstances, I believe that execution on foot of the order for costs should be stayed for a period of 21 days from the date of perfection of the Order made by the Court on foot of this judgment, and, in the event that Mr. G. lodges an application for leave to appeal to the Supreme Court within that 21 day period, such stay to continue until the date of determination by the Supreme Court of the application for leave to appeal.

20. Allen and Hyland JJ. have confirmed that they agree with this judgment on costs and with the order that I propose.

21. It follows that the Order of the Court with regard to costs will be an order that Mr. G. do pay to the DPP the costs of her appeal to this Court and her costs of the High Court proceedings, such costs to be adjudicated in default of agreement, execution on foot of this order for costs to be stayed in accordance with the terms set out in para. 19 above.