High Court dismisses fishing vessel registration claim as abuse of process and awards costs to defendants.

APPROVED [2025] IEHC 553

THE HIGH COURT

Record No.: 2017/11289 P

BETWEEN:

COLUM BROWNE Plaintiff -and-

THE REGISTRAR GENERAL OF FISHING BOATS, THE MINISTER FOR AGRICULTURE, IRELAND and THE ATTORNEY GENERAL Defendants

JUDGMENT of Mr Justice Rory Mulcahy delivered on 22 October 2025

Introduction

1. This judgment concerns the costs of these proceedings.

2. In September 2012, the plaintiff issued proceedings (the “2012 proceedings”)

challenging decisions of the second defendant made, at the latest, in 2006, regarding the registration of the plaintiff’s fishing vessel, the Aine Íde, as being in breach of EU law. Those proceedings were dismissed by the High Court and by the Court of Appeal, on the basis that they involved a decision capable of being challenged by way of judicial review and that the proceedings had not been instituted within the time mandated for such a challenge.

3. In December 2017, before the 2012 proceedings had been determined, the plaintiff issued the within proceedings (the “2017 proceedings”) which were likewise premised on the unlawfulness of the decisions made by the second defendant in 2006. The 2017 proceedings fell into abeyance while the plaintiff pursued the 2012 proceedings. However,

NO REDACTION REQUIRED following the Supreme Court’s refusal of his application for leave to appeal in the 2012 proceedings, the plaintiff delivered a Statement of Claim in the 2017 proceedings. The defendants then brought an application to dismiss the 2017 proceedings pursuant to Order 19, rule 28 of the Rules of the Superior Courts (the “Rules”).

4. In a judgment dated 9 September 2025 (the “judgment”) ([2025] IEHC 486), I acceded to that application and made an order pursuant to Order 19, rule 28(1) of the Rules striking out these proceedings as an abuse of process. As explained at paragraph 55 of that judgment, it is impermissible for the plaintiff to advance proceedings based on the same complaint as earlier proceedings which have been finally determined, save in exceptional circumstances.

The plaintiff had not identified any such exceptional circumstances.

5. I indicated in the judgment my preliminary view that the defendants, having succeeded in their application to have the claim dismissed, were entitled to the costs both of the motion and of the proceedings. However, I afforded the plaintiff an opportunity to make submissions if he contended that some other form of costs order was appropriate. He duly delivered detailed written submissions on 24 September 2025. The defendants delivered short replying submissions on 6 October 2025.

6. The plaintiff argues that costs should not follow the event, because there are “exceptional and special circumstances warranting departure from the general rule”. He does not specify whether he thinks that the court should make no order as to costs, or award the plaintiff his costs. The defendants contend that there is no basis for departing from the general rule that costs should follow the event and ask the court to make an order in accordance with the provisional view expressed in the judgment.

Applicable principles

7. The plaintiff’s submissions do not engage with the principles which apply when deciding the issue of costs. They are addressed in the defendants’ submissions.

8. Order 99, rule 2 of the Rules provides as follows:

2. Subject to the provisions of statute (including sections 168 and 169 of the 2015 Act)

and except as otherwise provided by these Rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.

9. Section 169(1) of the Legal Services Regulation Act 2015, as amended (the 2015 Act) 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. In Chubb European Group SE v The Health Insurance Authority [2020] IECA 183, [2022] 2 IR 734, the Court of Appeal (Murray J) identified the following principles applicable to the question of costs following the introduction of the 2015 Act (at p. 746):

“Reading these in conjunction with each other, it seems to me that the general principles now applicable to the costs of proceedings as a whole (as opposed to the costs of interlocutory applications) can be summarised as follows:

(a) The general discretion of the Court in connection with the ordering of costs is preserved (s.168(1)(a) and O.99, r.2(1)).

(b) In considering the awarding of costs of any action, the Court should ‘have regard to’ the provisions of s.169(1) (O.9, r.3(1)).

(c) In a case where the party seeking costs has been ‘entirely successful in those proceedings’, the party so succeeding ‘is entitled’ to an award of costs against the unsuccessful party unless the court orders otherwise (s.169(1)).

(d) In determining whether to ‘order otherwise’ the court should have regard to the ‘nature and circumstances of the case’ and ‘the conduct of the proceedings by the parties’ (s.169(1)).

(e) Further, the matters to which the court shall have regard in deciding whether to so order otherwise include the conduct of the parties before and during the proceedings, and whether it was reasonable for a party to raise, pursue or contest one or more issues (s. 169(1)(a) and (b)).

(f) The Court, in the exercise of its discretion may also make an order that where a party is ‘partially successful’ in the proceedings, it should recover costs relating to the successful element or elements of the proceedings (s.168(2)(d)).

(g) Even where a party has not been ‘entirely successful’ the court should still have regard to the matters referred to in s.169(1)(a)-(g) when deciding whether to award costs (O.99, r.3(1)).

(h) In the exercise of its discretion, the Court may order the payment of a portion of a party’s costs, or costs from or until a specified date (s.168(2)(a)).”

11. Additional considerations arise where a case has a public interest element. In Little v The Chief Appeals Officer [2024] IESC 53, the Supreme Court (Murray J) characterised public interest proceedings in the following way (at [34]):

“… I mean civil litigation that has the following elements:

(a) It involves a claim against the State, or an organ or agency of the State (including a statutory body). Normally, the proceedings themselves will be initiated against the State or such organ agency or body but, if unusually, such a claim may arise by way of defence or counterclaim in proceedings brought by the State.

(b) It seeks relief in public law, whether in the form of a challenge to the validity, legality or compatibility having regard to the Constitution, European Law, the European Convention on Human Rights or the general principles of administrative law, of an enactment, measure, act, omission or decision of a body of the kind specified in (a), whether by way of plenary action, proceedings by way of judicial review, or statutory appeal.

(c) It raises directly a point of law of general public importance.

(d) Although – as I have noted – there are decisions using this term to refer exclusively to proceedings brought solely for the purpose of vindicating a right or interest of the public generally, and not the advancement of the personal interests of the litigant, when I use these and cognate phrases in the course of this judgment, I am not so limiting them.”

12. The judgment went on to identify some general principles which might apply to the question of costs in such litigation (at [35]):

“Second, in respect of proceedings thus defined, I think that some general principles can be deduced from the experience afforded by the case law: (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)”.

Application

13. The plaintiff’s submissions focus almost entirely on the purported merits of his original complaint and renews many of the arguments he advanced in the application before me regarding why these proceedings should be permitted to proceed notwithstanding the dismissal of the 2012 proceedings. In particular, he once again claims that there exists an ongoing breach of EU law which the defendants are required to remedy and that the dismissal of the 2012 proceedings was procured by the second defendant’s fraud, arguments which I rejected in the context of the defendant’s application to strike out the proceedings.

He also complains about the judgment and, in particular, argues that there were issues not addressed in that judgment.

14. It is very clear that a complaint about a judgment, or an attempt to re-argue issues already determined, could never be a basis for a court departing from the default position in relation to costs. As noted by the Court of Appeal (Noonan J) in Mongans and Ors v Clare County Council [2020] IECA 317, in response to a similar contention (at [4]):

“This proposition, amounting as it does to an impermissible challenge to the judgment of this court, is advanced in support of the contention that there should be no order as to the costs of the appeal and cross-appeal or an adjusted costs order granting some percentage benefit to the respondents. It seems to me that such a submission is to be deprecated for the reasons I have identified.”

15. If arguments relied on in the substantive application were rejected, the same arguments could not give rise to special circumstances warranting a departure from the normal rule that costs follow the event.

16. Nor can the plaintiff’s contention that there are errors in the judgment or that it failed to deal with all issues raised by the plaintiff be a basis for departure from the ordinary rule. The plaintiff references a decision of the Court of Appeal of England and Wales, English v Emery Reimbold and Strick Limited [2002] EWCA Civ 605, in which the Court of Appeal considered a number of appeals against costs decisions on the grounds that the decisions were inadequately reasoned. In all three cases, the court rejected the appeal, so the precise relevance of the decision is unclear, but the more pertinent point is that where a losing party is dissatisfied with a judgment, the appropriate remedy is an appeal, not to attempt to reargue the case in the context of a costs application.

17. Having regard to the criteria identified in Chubb, I cannot see any basis for departing from the general rule that the successful party is entitled to the costs of these proceedings. Although the plaintiff complains about the defendants’ conduct, the complaint relates to alleged conduct – the failure to bring the court’s attention to various statutory instruments during the course of the 2012 proceedings – which I concluded was not relevant to the courts’ dismissal of those earlier proceedings as being out of time. The allegation does not, therefore, justify a departure from the ordinary rule.

18. The allegation relates, in any event, to the conduct of earlier proceedings. There is nothing in the defendants’ conduct of these proceedings which is relevant to the issue of costs. I do not think that the defendants could have brought their application to strike out these proceedings before the 2012 proceedings were finally determined. Once the earlier proceedings were dismissed, they might well have anticipated that these proceedings would be abandoned. They moved with reasonable expedition once the plaintiff delivered his statement of claim and did not cause any unnecessary costs to accrue.

19. Insofar as the plaintiff might contend that his proceedings were public law proceedings justifying a departure from the default position that costs follow the event, that argument must be rejected too. Proceedings which are an abuse of the court process could never be in the public interest. In circumstances where these proceedings were an impermissible attempt to revisit a complaint which had been determined to be out of time in the 2012 proceedings, it was inevitable that no issue of general public importance would be resolved in these proceedings. No new issue was addressed in the judgment, the case being dismissed on the basis of well-established principles. None of the criteria identified by Murray J at paragraph

35 of his judgment in Little are present here.

20. In all the circumstances, and having considered the plaintiff’s submissions in detail, I remain of my provisional view that the defendants are entitled to the costs of the motion and of the proceedings, to include any reserved costs and I will, accordingly, make an order in those terms.