Court of Appeal dismisses appeal for costs in non-public interest legal aid custody scheme proceedings. Appellant fails to meet public interest threshold. Statutory presumption for successful party upheld.

THE COURT OF APPEAL

APPROVED/NO REDACTION NEED

Court of Appeal Record No.: 2025/57

High Court Record No.: 2023/ 1188JR

Neutral Citation Number [2025] IECA 234

Faherty J. Meenan J. Hyland J.

BETWEEN/

DARREN WINTERS

APPLICANT/ APPELLANT

- AND -

THE LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/ RESPONDENTS

JUDGMENT of Ms Justice Hyland delivered on the 25 November day of 2025 BACKGROUND

1. The principal judgment in these proceedings was delivered on 20 October 2025, Winters v. The Legal Aid Board & ors [2025] IECA 205, where I refused an appeal against a judgment upholding a decision of the Legal Aid Board rejecting an application made by Mr. Winters (the “Appellant”) for payment of his legal costs pursuant to the Legal Aid – Custody Issues Scheme (the “Scheme”). This supplemental judgment addresses the issue of the costs of the proceedings.

2. At High Court level, the trial judge (Bolger J.) ordered that Appellant pay half of the Respondents’ costs. There is no appeal against that Order.

3. The Appellant asks that no order for costs be made against him, on the basis that these proceedings fall within the scope of the criteria of Little v. Chief Appeals Officer [2024] IESC 53 where it was held by Murray J. that the courts have discretion not to award costs against an unsuccessful plaintiff or applicant in public interest proceedings. The court defined “public interest proceedings” as civil litigation which: involves an action against the State or one of its agencies, or a defence against a claim brought by the State; seeks relief in public law through plenary proceedings, judicial review, or statutory appeal; and directly raises a point of law of “general public importance” (paragraphs 68-71).

4. The Appellant contends that as this court considered obiter the substantive issue and that it “raises a somewhat novel point of law in respect of the Scheme that may arise in future cases” (paragraph 21), the proceedings are of public interest insofar as there is a judicial interpretation of the Scheme provided for in the judgment, and it has a systematic importance in respect of future applications for recommendations for payment from the Scheme.

5. The Respondents submits that the terms of s. 169(1) of the Legal Services Regulation Act 2015 are clear in that the default position is that the party who is entirely successful in civil proceedings is entitled to an award of costs against the party who is unsuccessful, and that none of the factors identified in s. 169(1)(a)-(g) are relied upon by the Appellant. They contend that the Appellant’s reliance on Little is misplaced because that judgment applies only to public interest proceedings. The Legal Aid Board submits that it was entirely successful, and that the Appellant has not provided any valid reason to depart from the statutory presumption in their favour.

ANALYSIS

6. It is true that, despite concluding that these proceedings were out of time, I went on to consider in the principal judgment, albeit on an obiter basis, the substantive point raised by the Appellant as to the correct interpretation of the Scheme, observing at paragraph

21 of the principal judgment that the argument raised a somewhat novel point of law in respect of the Scheme that may arise in future cases.

7. However, contrary to the argument of the Appellant, that statement cannot be treated as amounting to an implicit finding that the case directly raised a point of general public importance. The Appellant’s argument on the appeal was a relatively weak point on the proper interpretation of the Scheme. He argued for an unlikely interpretation of the Scheme that would have radically extended its ambit; and that interpretation was rejected. The point had the potential to arise in future cases if not decided in these proceedings, and therefore it was thought useful to clarify it: but it certainly was not one that is likely to affect a large number of applicants under the Scheme. Nor did it come near the high bar of a point of “general public importance”.

8. In the circumstances, I am quite satisfied this case does not come within the category of cases discussed by Murray J. in Little at paragraphs 66-71 i.e. public interest litigation before the High Court and Court of Appeal where an unsuccessful litigant may avoid a costs order against them, or even more unusually, may obtain costs. As the Respondents were entirely successful in their defence of the proceedings, they are entitled to an order for the costs of the appeal.

CONCLUSION

9. For the reasons set out above, the Respondents are entitled to an Order for their costs of this appeal to be adjudicated in default of agreement.

10. Since this judgment is delivered electronically, I am authorised by Faherty and Meenan JJ. to state that they agree with it and the orders proposed above.