High Court grants costs to applicants for judicial review regarding Judicial Council personal injury guidelines.

THE HIGH COURT

[2025] IEHC 504

Record Numbers: 949 2021 JR

950 2021 JR

982 2021 JR

BETWEEN

ROSEMARY FARRELL, PADRAIG FARRELL AND ANTHONY DOUGLAS

APPLICANTS

AND

PERSONAL INJURIES ASSESSMENT BOARD, THE JUDICIAL COUNCIL, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Marguerite Bolger dated the 17th of September 2025.

1. This is an application for costs in relation to judicial review proceedings in which leave was granted to the applicants, the matters were listed on two occasions thereafter without opposition papers being filed and were then parked in order to allow what became the de facto lead case to proceed to judgment.

2. For the reasons set out below, I am granting this costs application.

Background

3. These cases were all applications for leave for judicial review to challenge the application of the Judicial Council personal injury guidelines to the applicants’ claims for compensation for personal injuries. The applicants were given leave in November 2021 to pursue a number of reliefs including: “A Declaration that the provisions of section 7(2)(g) and s.18 of the Judicial Council Act, 2019 are invalid having regard to the provisions of Bunreacht na hÉireann and in particular Articles 6, 15.2, 34, 35, 40.1, 40.3.1, 40.3.2 and 43”.

The statement of grounds pleaded, inter alia, that the process whereby the guidelines were voted on by the Judicial Council was inconsistent with the constitutional guarantee of judicial independence. The cases were before the High Court on two further occasions after leave was given for what were essentially procedural steps. No statement of opposition was ever filed and the applicants did not seek to compel the respondents to file a statement of opposition. In December 2021, a different case (Delaney v. PIAB & Ors [2022] IEHC 321; [2024] IESC 10) was assigned an expedited hearing date and in January 2022 the High Court declined to case manage other similar cases in addition to Delaney. Thus, whilst there was no formal process of selecting a lead case, it would appear that once Delaney was progressed to a hearing, the other broadly similar cases in which similar if not identical reliefs were sought (including the declaration for unconstitutionality set out above) were parked to allow the legal issues to be determined in Delaney.

4. The High Court refused all relief sought in Delaney and leave was given to the applicant for a leapfrog appeal to the Supreme Court. In its decision of 9 April 2024, the Supreme Court refused most of the relief sought but granted a declaration that s. 7(2)(g) of the Judicial Council Act 2019 was unconstitutional. That declaration of unconstitutionality granted in Delaney had been largely replicated in the declarations of unconstitutionality sought in the within proceedings. The Supreme Court also granted two further declarations that had not been sought by Ms Delaney, and, according to the applicants in the within proceedings, on foot of arguments not pleaded. They were: “1. A declaration that the personal injury guidelines adopted by the Judicial Council on 6 March 2021 were given force of law by virtue of section 30 of the Family Leave and Miscellaneous Provisions Act 2021 and are consequently in force;

2. A declaration that the Personal Injuries Assessment Board, accordingly, acted properly and in accordance with law in applying the personal injury guidelines to the appellant's application to be assessed as to her pain and suffering in May 2021.” The outcome of the Supreme Court’s decision in Delaney was that the guidelines that had been given legislative effect by s. 7(2)(g) of the Judicial Council Act 2019 were invalid as they were unconstitutional. The Court also concluded that the validity of the guidelines was confirmed by the 2021 Act whereby the Oireachtas affirmed the guidelines that had been approved by the Judicial Council.

5. The decision was a landmark decision on the constitutional guarantees of judicial independence. Senior Counsel for the applicant described it as “one of the most important constitutional actions since 1937” in relation to the separation of powers. The Supreme Court itself recognised the significance of the decision in stating, in its headline summary: “[T]he complexity of the issues raising questions regarding the separation of powers, democratic accountability, delegated legislation, the independence of the judiciary, statutory construction, constitutional construction, the limits of judicial competence, retrospectivity, vested rights, equality, affirmation of secondary legislation by subsequent legislative enactment and the nature of what a guideline is, together with the construction and effect of Article 5, Article 15.2.1⁰, Article 34.1, Article 35.2, Article 40.1 and Article 40.3 of the Constitution…”

6. A significant point for the within application is how the Supreme Court addressed costs in Delaney. Whilst Ms Delaney had only succeeded on the declaration of unconstitutionality and had not secured the other reliefs she had sought, including challenges to the application of the guidelines to her personal injuries claim, she was nevertheless awarded costs against Ireland and the Attorney General. The Supreme Court’s headline summary justified this “given those orders of the Court”.

7. The within applicants contend that they too should be awarded their costs against Ireland and the Attorney General as they say they would have secured the same declarations of unconstitutionality vis-à-vis s. 7(2)(g) had they proceeded with their litigation. The respondents dispute the applicants have any entitlement to costs as there has been no event, as per s. 169 of the Legal Services Regulation Act 2015, in their favour. The respondents maintain that had the applicants continued their proceedings after the declaration of unconstitutionality was made by the Supreme Court in Delaney, no additional declaration would have been made and the applicants’ attempt to challenge the guidelines would have failed, as it did in relation to Ms Delaney. They dispute that the declaration of unconstitutionality was of any benefit to the applicants and that the applicants’ focus on that declaration of unconstitutionality “could at best only ever be characterised as partial success, accompanied by predominant failure” (as per their written submissions at para. 18).

8. The respondents do not seek their costs against the applicant and propose there should be no order as to costs.

Decision

9. Costs are to be dealt with by the court in accordance with Order 29, rule 3(1) of the Rules of the Superior Courts and s. 169 of the 2015 Act, both of which preserve the general discretion of the court in relation to costs, as per Murray J. in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183, who also pointed out that the court should still have regard to the matters referred to in the section even where a party has not been entirely successful. Section 169(1) and, in particular, subss. (a), (b) and (c) refer to the conduct of the parties. The overall focus of the section is, in my view, firmly based on the reasonableness of that conduct. Part of the purpose of this section is to encourage the parties to avoid incurring needless costs.

10. In the within case, the applicants sought to act reasonably and sensibly in how they approached their litigation. At the outset when they applied for leave in November 2021 (the timing of which seems to have been necessary in order to ensure the proceedings were not statute barred), they were in a position no different to that of Ms Delaney as they were mounting a challenge largely similar, if not identical, to hers. It was not until January 2022 when Delaney was progressed by the High Court for case management that the applicants could have become aware of their then somewhat demoted status to that of patient observers of the lead case, rather than claiming that lead role for themselves. The applicants could have sought to push their cases on despite the then case management of Delaney and tried to challenge the apparent refusal of the High Court to allow any other case to proceed. They did not and instead they adopted a prudent and ultimately cost saving approach of waiting to see how the de facto lead case would be dealt with by the courts. They conducted their litigation in a prudent and sensible manner, reminiscent of the purposes behind section 169.

11. The Supreme Court referred in their summary of the Delaney case to the complexity of the issues (as set out at para. 5 above), which is also reflected in the fact that five different decisions with different reasonings were delivered by seven members of the Supreme Court. It was clearly reasonable for the applicants to raise the issues that they had raised in relation to the unconstitutionality of s. 7(2)(g) well before the Supreme Court’s decision was handed down.

12. Having regard to the matters set out in s. 169(1) and in particular subs. (a), (b) and

(c) thereof and taking account of the manner in which the applicants conducted their proceedings, I am satisfied that it is appropriate to grant them the costs of the proceedings to cover all steps taken up to January 2022 and to include the costs of the within application for costs. All costs to be adjudicated upon in default of agreement.

Counsel for the applicants: Feichín McDonagh SC, Eileen Barrington SC, Brendan Hennessy BL. Counsel for the respondents: Catherine Donnelly SC, Eoin McCullough SC, Francis Kieran BL.