High Court allows judicial review on mootness grounds and awards applicant's legal expenses.

THE HIGH COURT

[2025] IEHC 759

[Record No. 2025/12 JR]

BETWEEN

CATHERINE ANNE LYNCH

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

AND

DISTRICT COURT JUDGE

AND

ATTORNEY GENERAL

RESPONDENTS

EX TEMPORE JUDGMENT delivered by Mr. Justice Micheál P. O’Higgins on 11th December 2025

1. This is my ex tempore judgment on the question of whether the applicant’s judicial review proceedings are moot, such that the court should not embark upon an enquiry into the substantive merits of the proceedings. The respondents, principally the Director of Public Prosecutions and the Commissioner of An Garda Síochána, contend that the proceedings are moot and should not, therefore, be entertained. The applicant contends, firstly, that the proceedings are not moot and, secondly, if they are moot, the proceedings are such that they meet the public interest exception identified in the case law and raise issues of systemic importance that warrant the court proceeding to hear the case, notwithstanding its possible mootness.

2. By way of an alternative argument, the applicant contends that if, which she does not accept, the proceedings are moot and do not fall within the public interest exception, the court should award the expenses incurred by her in preparing and presenting her judicial review proceedings in accordance with the decision of the Supreme Court in Cunningham v. The President of the Circuit Court (I’ll mention the citation of that later) on the basis that the applicant’s judicial review proceedings prompted the withdrawal of the criminal prosecution the subject of the proceedings.

3. The applicant appears in person. The Director of Public Prosecutions is represented by Mr. Kelly BL, instructed by the Chief Prosecution Solicitor and the Commissioner and Attorney General are represented by Mr. Cole SC with Mr. O’Leary BL instructed by the Chief State Solicitor.

Background facts

4. I will now deal with the background facts. These judicial review proceedings arise out of the prosecution of the applicant for an alleged offence of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act of 1997. The prosecution was brought by way of a summons and arose out of a disputed incident that took place on the 27th of November 2022 in County Dublin. I have read the précis of evidence furnished to the parties summonsed arising out of the incident. These include statements from the complainant - and I’m going to use initials here - Ms. EG, who accused the applicant of assaulting her, and from Ms. PG, the friend of the applicant, who accused Ms. EG of being the aggressor and, if you like, the culpable party on the occasion in question. I have also reviewed the statement of Garda Cian Cullen of the particular Garda Station concerned - I am using that language to minimise the possibility of the protagonists to the incident being identified, which is not necessary for my purposes - who received the report that led the gardaí to call out to the dwelling where the incident occurred. According to the statements of the applicant and Ms. PG, the reason the applicant called to the premises on the Sunday morning in question was to answer a distress call from Ms. PG, who texted the applicant for help and asked her to call to the house because it was alleged Ms. EG was in a rage and was banging on a downstairs window and threatening Ms. PG.

5. Obviously, it is not the court’s role to make any findings in relation to this much disputed incident, which was the subject of the District Court prosecution and I, therefore, do not propose to do so. Nonetheless, I do have regard, in a contextual way, to the context in which the statements indicate the applicant came to be present in the house at the time and the applicant’s contention that she was actually called to the scene by way of answering a distress call from another person.

Procedural background

6. Next, the procedural background: The applicant’s proceedings are grounded on a statement of grounds dated the 6th of January 2025. That statement is at page 67 of the booklet before the court and it sets out the relevant reliefs. I won’t read them all out, but they run in para. D from 1 to 17. Some of the reliefs are very broadly phrased: some relate to the prosecution the subject of the proceedings; some relate to a challenge to the adult cautioning scheme (ACS), which I will come back to; and some relate to the legal entitlement or otherwise of the DPP/An Garda Síochána to bring summary prosecutions.

7. On the 19th of March 2025, my colleague, Mr. Justice Bradley, delivered an ex tempore judgment considering issues raised by the applicant and directing, ultimately, that leave be heard on notice to the respondents. On the 29th of April 2025, Bolger J. listed the applicant’s matter for a telescoped hearing on the 9th of October of this year. The matter was listed in the call over on the 30th of July 2025. On that date, I understand that the applicant was not present. However, Gearty J., who took the list, was informed of the intention of the first named respondent, the DPP, to withdraw the pending District Court prosecution. Accordingly, the matter was removed from the hearing list and listed for mention on the 9th of October. It then came before me and on behalf of the respondents it was submitted that the proceedings were moot in circumstances where the applicant was no longer facing the impugned prosecution which she sought to restrain, and from which it is said the other grounds arose. I directed that a mootness hearing should take place and that hearing took place before me yesterday, when I heard helpful submissions from all sides. From that short summary of the procedural backdrop, it will be apparent that the primary reason the respondents contend the proceedings are moot is because the DPP wrote to the applicant in August of 2025 to inform her that the Director had decided that the prosecution should be discontinued and that letter has been exhibited.

8. In her supplemental submission, sworn on the 2nd of October of this year, the applicant disputes that the withdrawal of the District Court prosecution renders the application moot. She contends that the constitutional issues raised in her statement of grounds and in her legal submissions, including the lack of authority under Article 30.3 of the Constitution for the DPP and An Garda Síochána to prosecute summarily in the name of the people, remain live and an issue of exceptional public importance. She submits that these issues affect not only her case, but thousands of other cases as evidenced by the DPP’s annual reports, which indicate that over 4,700 summary prosecutions were brought between 2020 and 2022 alone.

9. The applicant states at para. 9 of that affidavit that the case meets the criteria for the public interest exception to mootness. The issues are novel, systemic, likely to reoccur and likely to evade review if withdrawn cases are repeatedly deemed moot. The applicant submits that hearing the matter would be desirable to clarify the law, prevent further harm, future harm and uphold constitutional justice.

10. Now, the court, as I have mentioned, has been provided with helpful written submissions from the applicant, from the DPP and from the Garda Commissioner/Attorney General. These were developed in oral submissions in the mootness hearing before me yesterday. The applicant has also provided the court with a helpful supplemental replying submission, which effectively replies to the key points made by the respondents and this document formed a useful template for the oral submissions of the respective sides. For convenience, I also will refer to Ms. Lynch’s supplemental replying submission as we go along from time to time, as an aide-mémoire for myself and also to sequence the discussion of the issues.

11. Before I do that, I want to say something about the legal principles and the test that the court should apply in this hearing. There is a large measure of agreement between the parties as to the principles to apply, save that there is disagreement as to how those principles should be applied and certainly disagreement as to the outcome which should follow their application. A case referenced by all sides is the leading case of Lofinmakin, that is the judgment of Mr. Justice McKechnie in the Supreme Court in Lofinmakin v. Minister for Justice [2013] 4 IR 274, and that is included in the booklet of authorities before the court. Mr. Justice McKechnie distilled the relevant principles in para. 82 and onwards of his judgment, which is at page 298 of the Irish Report and I’m going to borrow heavily from these.

12. In para. 82 he lists from (i) down to (vii) a number of principles and he continues to outline the relevant principles in paras. 83 and 84 of the judgment. I am going to mention a few of these now: “(i) a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing;

(ii) therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined.”

13. I will skip down to (iv): “…as a direct consequence of this rationale [embodied within the rule]… the court will not - save pursuant to some special jurisdiction - offer purely advisory opinions or opinions based on hypothetical or abstract questions;

(v) that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness;

(vi) in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly…”

14. As part of her submission, the applicant indicates that her core claim is that Article 30.3 of the Constitution is explicit. Summary prosecutions cannot be conducted “in the name of the people”. This is not an academic or abstract issue, she submits, as it is a systemic ongoing constitutional violation affecting thousands of citizens annually. She submits that the withdrawal of the prosecution was strategic, not evidential. The withdrawal of statements arose from a separate High Court mediation between PG and EG and was unrelated to the prosecution. Indeed, Garda Cullen informed the applicant that the prosecution may continue, notwithstanding the withdrawal of statements. Garda Cullen was also aware of other witnesses and video evidence. The prosecution could have continued but, says the applicant, it was dropped to evade judicial review.

15. The applicant submits that the issues in the proceedings are concrete and systemic. It is a mischaracterisation of the case to say that it involves issuing an advisory opinion or an invitation to the court to do so. The applicant’s challenge, she contends, is not hypothetical. It concerns the direct and ongoing breach of a clear constitutional provision. The applicant engages with the jurisprudence, G v. Collins [2005] 1 I.L.R.M. 1, which prohibits advisory opinions and abstract questions, but contends that that is not what is occurring here. In point of fact, she urges that it is the respondents who have failed to engage with the text of the Constitution, not her argument.

16. She contends that the four criteria identified in Lofinmakin are fully satisfied. The challenge to the summary prosecution procedure involves an issue of exceptional public importance. It is desirable in the public interest to proceed with the matter to a merits hearing, and a ruling on the merits would end an unlawful practice and uphold constitutional supremacy. She relies on Buckley v. The Attorney General [1950] IR 67 in that regard.

17. With respect to the stand-alone matter of her challenge to the operation of the Adult Cautioning Scheme, she urges that the scheme operates as a quasi-court, outside of Article 34.1, which is constitutionally impermissible. She contends it is coercive, involving secretive

decision making and breaches Article 38.1. She contends she was harassed into attending and participating in the scheme on threat of prosecution, despite no prima facie prosecution case existing.

18. Thirdly, she contends that the system issues which she urges are involved here are likely to reoccur and evade a review. She characterised the withdrawal of the underlying prosecution as strategic. It was timed shortly before the scheduled hearing and was clearly designed, she says, to prevent the court from adjudicating on the constitutional issues. She reminded the court that Garda Cullen informed the applicant the case could still proceed despite the withdrawal of statements, yet the DPP made the decision to discontinue. It would be giving in to this tactic to strike the matter out as moot because this tactic could be repeated, submits the applicant. This would leave thousands of citizens annually exposed to a system that violates Article 30.3 without a remedy.

19. Fourthly, the applicant urges that the withdrawal of the prosecution does not remedy two years of harm to her, harassment, assault during the summons service and abuse of the applicant’s mother, who is elderly. A mere withdrawal would not erase the trauma, fear or loss of trust in the judicial system, would not produce compensation for the applicant and would bring about record expungement. She also makes an argument concerning expenses, which it is not necessary for me, at this point, to deal with.

20. In oral submissions, the applicant stated that the main reason she brought the case was not to avoid prosecution, but because of what she described as the appalling treatment of her mother, her friend and herself by An Garda Síochána in the manner in which the incident of November 2022 was investigated, the manner in which the gardaí implemented the Adult Cautioning Scheme in her case and the manner in which they prosecuted the criminal complaint against her. The applicant submits that the respondents are incorrect to characterise her legal challenge as academic. Rather, the issues are concrete and systematic.

21. Also, in her oral submission, the applicant emphasised that only a small number of reliefs claimed in the statement of grounds relate to stopping the criminal prosecution. She submits that the bulk of the reliefs, namely reliefs 1, 3, 5, 6, 15 and 16, remain, are justiciable and involve a live controversy. She submits that while two of her reliefs might be moot, the rest are not and, in that connection, she presses relief number 1, which seeks a declaration that her constitutional rights have been infringed upon and that she has been denied fair and lawful procedures. Separately, she submits that the DPP has failed to evidentially explain why the prosecution was withdrawn and that, in accordance with the decision of the Supreme Court in the Cunningham case that I have already referenced, and I will now give the citation, [2012] IESC 39, it is incumbent upon the prosecution to explain properly and evidentially why the

decision was made to withdraw it.

22. In consequence, the applicant submits that consequences should flow from this evidential failure, including the awarding of expenses to her, in lieu of legal costs, in circumstances where she is representing herself. She also submits that the DPP’s claim that the prosecution was withdrawn in light of the withdrawal of statements of the three parties to the incident, including the applicant, is unsustainable and difficult to reconcile with the fact that Garda Cullen informed the applicant the case could still proceed despite the withdrawal of statements and, further, that he was aware of other witnesses and video evidence. In that connection, the applicant brought the court to specific extracts from the three statements, including notebook entries that appear in the papers.

Discussion of the issues

23. I propose to follow the two-step analysis proposed by Mr. Justice McKechnie in Lofinmakin, namely to assess, firstly, whether the proceedings are or are not moot and, secondly, to assess whether the court should exercise its discretion to proceed to hear the case on public interest grounds, even if the court’s first finding is one of mootness.

24. Taking question one, it seems to me I should assess, in accordance with Lofinmakin, whether there is any longer any tangible legal dispute between the parties, now that the prosecution has been finalised in the District Court, without the charges proceeding to a hearing on the merits. The Supreme Court said in Lofinmakin that a case or an issue within a case can be described as moot “when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties”.

25. McKechnie J. goes on to say that “where a legal dispute has ceased to exist, or where the issue has materially lost its character as a [legal dispute], or where the essential foundation of the action has disappeared, there will no longer be in existence any … conflict capable of being judicially determined”. The mootness rule provides that the court will not offer purely advisory opinions based on hypothetical or abstract questions, save where special exceptions exist. It is important to bear in mind that there are, broadly speaking, three pillars or areas under challenge in the applicant’s proceedings: firstly, the summary prosecution procedure and the legal entitlement of the DPP/AGS to prosecute summarily; secondly, the individual decision to prosecute the applicant in this case made by the DPP, which drew in questions as to the sufficiency of the evidence and sufficiency of the complaint; and thirdly, the ACS challenge, the Adult Cautioning Scheme challenge.

26. It seems to me the first two are directly connected to the relief of prohibition sought by the applicant. These, in my view, are clearly moot because the criminal prosecution, the subject of the prohibition order, has now fallen away. If you like, the purpose of that primary relief has already been achieved. In my view, that leaves the challenge to the Adult Cautioning Scheme. The difficulty with that part of the applicant’s case is that her challenge to the scheme is theoretical and academic in nature. The applicant did not, by choice, participate in the scheme. As was her entitlement, she did not wish or consent to be the subject of an adult caution. According to the applicant’s statement of grounds, at para. 52, on page 83 of the book before the court, “the scheme was set up when an accused admits to an offence”. She says in the statement of grounds that this was very far from her stated position.

27. She elaborates on this at para. 60 where she says that “at no [stage] did [she] ever admit to such alleged and spurious offence and indeed [she] strongly refuted said allegations…”. It is clear, therefore, that the applicant was not eligible for the scheme which requires, as one of the eligibility criteria, an admission of the offence and as another criterion, the giving of informed consent to being cautioned. The affidavit evidence makes clear that the applicant, as was her prerogative, neither admitted the offence nor gave informed consent to being cautioned. This, in my view, had a legal consequence: it meant that she did not have legal standing to pursue the two reliefs sought with respect to the ACS scheme, namely reliefs (d) 3 and (d) 4. Relief (d) 3 sought a declaration that the Adult Cautioning Scheme was unconstitutional and (d) 4 sought an order that all ACS victims be compensated and their records be expunged.

28. The recital of those reliefs, to my mind, emphasises that they were of a generalised and collective nature, if you like, which further underscores the advisory or academic features of the application. By analogy with the decision of McKechnie J. in McDermott v. Governor of Cloverhill [2010] IEHC 50 and of Laffoy J. in Grace v. Ireland [2007] IEHC 90, I hold that the applicant, not having by choice participated in the scheme or having been the subject of a cautioning process provided for under the scheme, lacked locus standi to challenge the scheme in the way sought in her statement of grounds and, therefore, it cannot be said that there is a live, concrete dispute between the parties relating to the scheme. This finding also has implications for the second step of the Lofinmakin enquiry, which I will presently address.

29. Accordingly, my finding is that the combination of the withdrawal of the criminal charges in Dun Laoghaire District Court on the 2nd of September 2025, the non-participation of the applicant in the Adult Cautioning Scheme, and the legal conclusion that the applicant lacked locus standi to challenge the scheme and/or was pursuing a jus tertii in challenging the scheme in the circumstances, together mean that to proceed with this judicial review would involve the applicant seeking an advisory opinion from the High Court on issues which do not have a live or continuous bearing on her individual interests. The applicant’s complaints are, therefore, abstract, hypothetical and academic in nature. In short, the applicant’s judicial review proceedings, in my view, are moot. The heart of the application has fallen away because of the

decision of the Director to withdraw the charges. However, the basis upon which that decision was reached is also relevant and I will return to that issue later.

30. That is my conclusion on the first step of the two-step process mentioned in Lofinmakin.

I now must consider the second stage: Does the case fall into one of the permitted exceptions that warrant the court proceeding to hear the case, notwithstanding its apparent mootness? Para. 8 of the applicant’s replying submission focused particularly on this question and put forward arguments that the Lofinmakin criteria are met and that public interest elements of the proceedings and the systemic importance of the issues raised warrant the case proceeding to a determination of the merits.

31. In considering this leg of the case, it is appropriate to remind ourselves of the guidance given by the Supreme Court in Lofinmakin itself. At para. 82 (iii), McKechnie J. observed that the rationale of the mootness rule stems from our prevailing system of law, which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons for the rule as well, including the issue of resources and the position of the court in the constitutional model. At para. 82 (vi) he states that in conducting the necessary exercise, the court will be mindful that, in the first instance, the second stage process involves the court in potentially disapplying the general practice of supporting the mootness rule. Therefore, according to McKechnie J., the court should only do so reluctantly, even where there is an important point of law involved.

32. Significantly, and obviously I am bound by this, at para. 84 Mr. Justice McKechnie concludes his distillation of the principles with this statement: “In summary it can be said that, in light of the considerations stated above, the courts do not in principle try issues which are moot, notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so.”

33. The applicant contends that such exceptional circumstances do exist, and she points to the importance of Article 30.3 of the Constitution which she urges excludes summary prosecutions being brought in the name of the people and the likelihood that this issue may affect thousands of citizens. Secondly, she emphasises the desirability that an unlawful practice should be stopped and the constitutional order protected. A key point pressed by the applicant was that the challenge sought to be advanced is likely to reoccur and evade review. In my view, this is where the applicant’s case under leg two of the exercise begins to break down.

34. As noted by counsel for the Garda Commissioner, this exception to the mootness rule involves actually a twofold requirement being met; firstly, a point of law that is systemically important and likely to reoccur and, secondly, a point that is likely to evade review if the present challenge is not allowed to proceed. In my view, whatever about the first point, I am not satisfied that the applicant meets the second criteria. Tomorrow, or the next day or next week, there will be some person made subject to the process of summary prosecution. An alleged adult offender may well be considered for inclusion on the Adult Cautioning Scheme. If such a person wishes to challenge the legal entitlement of the DPP or An Garda Síochána to bring such a prosecution or operate the cautioning scheme, such person will be eligible for the scheme potentially and may participate on it. Such a person would be free to challenge the scheme or the summons or the summary prosecution process because they would be able to point to the concrete effect upon them of the scheme if they were aggrieved with it.

35. In these circumstances, it seems to me that such a person would be free to bring on their own legal challenge, if that’s what they decide to do. Since that is perfectly possible, it cannot, in my view, be said that there is any serious risk that the legal challenge or legal point will evade review. The legal point will not evade review because such a person will be free to bring on their own judicial review challenge and will have locus standi in which to do so. In these circumstances, I find that the respondent’s arguments are correct and that the applicant’s case does not come within the narrow band of exceptional circumstances where it would be appropriate to hear a case, notwithstanding its apparent mootness.

Applicant’s application for costs and expenses

36. Moving then to the next part of the case, it deals with costs/expenses. The applicant’s key point here is a factual point and it is set out at para. 10 of the applicant’s replying submission, where she contends that the withdrawal of the prosecution was strategic and she bases that on three principal pillar points: (1) the statements were withdrawn as a condition of a separate High Court mediation between the sisters mentioned; (2) Garda Cullen informed the applicant the case could still proceed despite the withdrawal of the statements and was aware of other witnesses and video evidence; and (3) the prosecution could have continued, but it was dropped to evade judicial review, which it seems to me is the key contention.

37. Here it is necessary to consider the actual evidence before the court as to the provenance of the decision to withdraw the charges. In that connection, the court must consider the evidence of Ms. Duggan of the DPP, which was referenced in the course of the hearing yesterday. That affidavit appears at page 244 of the booklet, to which I will now turn. Ms. Duggan is a senior prosecutor in the judicial review section of the office of the DPP and at paras. 5, 6 and 8, the following are stated. Well, I will start at para. 4, in fact. She avers that: “4. The Director … was further satisfied to stand over the foregoing direction and prosecution. On 17th June 2025 she filed opposition papers to the within applicant’s judicial review application and thereafter agreed with the applicant in conjunction with the other State Respondents to seek a telescoped hearing to deal with the question of leave … and also the substantive relief … The matter was listed on 9th October 2025.

5. On 30th June 2025 the Applicant withdrew her complaint against one of the other defendants and on 7th July 2025 the person who had made the complaint against the applicant withdrew her complaint. The third defendant also withdrew her complaint. In this light the Director reconsidered the direction to prosecute and concluded in the circumstances that a prosecution against any of the three defendants was no longer appropriate and directed that the three prosecutions should be withdrawn. The solicitor on record for the applicant in the District Court was so notified on 30th July 2025.”

38. In para. 8, Ms. Duggan concludes her affidavit by saying she believes that the three prosecutions that have been heard against the applicant and the other two defendants were formally withdrawn at Dun Laoghaire District Court on the morning of the 2nd of September of this year and are no longer pending. The withdrawal of the prosecution against the applicant is not connected to her within judicial review.

39. Now, I appreciate that the applicant views the matter very differently and does not accept that the decision to withdraw the prosecution was not connected with the existence of her judicial review. However, it seems to me there are a number of points to be made with respect to those two different perspectives: Firstly, it seems to me, as I mentioned in the course of the hearing by way of a question from the bench, the Director had to react to an important development in the case, the fact that all three parties to the incident withdrew their statements; secondly, the important fact that the applicant was one of the three parties who withdrew her statement; thirdly, the applicant herself has provided important factual context as to the circumstances in which all three statements were withdrawn. This appears in her supplemental affidavit sworn on the 2nd of October 2025 at page 243 of the book, where she refers to the mediation in the High Court between the applicant, Ms. PG and Ms. EG, to resolve a decades old family dispute, where all statements from the three persons mentioned were withdrawn and accepted by the guard. It seems to me that an important takeaway from this evidence is that the agreement reached between the three parties was mutually agreed and resulted in the withdrawal of the statements of complaint. The applicant, having participated in that agreement, apparently on a voluntary basis, it is difficult to see how criticism can be made of the Director of Public Prosecutions for acting on the realities presented by the three complainants taking that course and mutually reaching agreement in that way.

40. Fourthly, it seems to me the factual position here is not remotely similar or analogous to the situation that pertained in the Cecily Cunningham case before the Supreme Court. In that particular case, which is also mentioned in the booklet before me at page 180 of the book, there was a key fact which does not have a mirror in the facts of the case before me, and that is that at a point in time between the judicial review having been heard in the High Court and the appeal pending before the Supreme Court, the DPP entered a nolle prosequi to the criminal proceedings in the Cunningham case, rendering moot the question of whether it would be appropriate to prohibit the criminal trial.

41. The second key feature which was present in Cunningham and which was not present here is that the Director was adjudged to have not placed before the court sufficient evidence to allow the court to assess whether and, if so, to what extent it could fairly be said there was an underlying change in circumstances sufficient to justify the characterisation of the proceedings as having become moot. In other words, in Cunningham, the DPP, for better or for worse, relied on her entitlement under law not to give reasons for prosecutorial decisions and put it up to the applicant to evidentially link the development as to the nolle with the case becoming moot. That is not the case here in my estimation because the evidence, in fact, explains the context in which a decision was made by the DPP to withdraw the charges and it was by way of reacting to the important development whereby by agreement, in which the applicant herself participated, the core statements underpinning the prosecution, were all withdrawn.

42. For all these reasons, I must conclude that it has not been demonstrated to my satisfaction that it would be in the public interest for these judicial review proceedings to proceed further. The proceedings are now classically moot and, in my view, it has not been demonstrated that the court should depart from the default position identified by Mr. Justice McKechnie in Lofinmakin of acting on that primary finding of mootness.

43. I am bolstered in this view by the fact that the proceedings lack the necessary public interest element, and by the helpful clarification of issues set out within the judgment of Bradley J. in the preliminary judgment. I am also bolstered in this view by my finding that the underlying prosecution, which has now fallen away, in fact represented a key focus and aspect of challenge in the entire proceedings. For all these reasons, I am satisfied that the proceedings are moot and should not be dealt with further. That concludes my judgment.

Costs

44. It seems to me this is an application which is governed by statute, namely sections 168 and 169 of the Legal Services Regulation Act 2015. It provides, in material part, that where a party has been entirely successful in the proceedings that party is entitled to the costs of the proceedings against the party that has not been successful. It seems to me that that has occurred here and the respondents have each been entirely successful in the proceedings and the proceedings have now been dismissed for being moot and, if you like, the event that I have delivered judgment in is the finding that the proceedings are, indeed, moot which indeed was the core issue between the parties yesterday in the oral hearing.

45. So, the first stage of matters is established: there is an event and both the DPP and the State respondents have been successful in that event. However, a little bit like the two stage process mentioned by Mr. Justice McKechnie in Lofinmakin, there is a two stage process here. Section 169 provides that: “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 ...” and then the Oireachtas list out from (a) to (g) different express matters that may be taken into account in considering whether to depart from the default position.

46. Now, in a Supreme Court case called Little v. The Chief Appeals Officer [2024] IESC 53, Mr. Justice Murray examined sections 168 and 169 in great detail and indicated that the list of factors mentioned (a) to (g) in section 169 is not exhaustive. Nonetheless, it is clearly the case that the court, in considering whether to depart from the normal default rule of granting costs to the successful party, should have regard to the nature and circumstances of the case and the conduct of the proceedings by the parties. It seems to me, in that connection, there are a number of factors that are relevant in this case.

47. By definition, firstly, the court has not proceeded to a determination of the substantive issues. There has not been a hearing on the merits. Secondly, the applicant was subject to the coercive powers of the State by virtue of the commencement of a criminal process, which has now been abandoned. Thirdly, it is clear from the evidence before the court that that process had particular effects upon the applicant, which are not at all surprising, but that does not take from the impact of those effects. I am speaking of the stresses and difficulties for any party who is the subject of criminal proceedings. Fourthly, one of the applicant’s key points in the judicial review proceedings, it could be said, has not been resolved. This does not undo the court’s mootness finding, but it is relevant to costs and that is the question of whether there was sufficient substance in the complaint made by Ms. EG in the first place to render it in the public interest for the prosecution authorities to prosecute the applicant in the circumstances described. I am not, for a moment, holding that there was not, but that issue has not been determined.

48. Section 169 focuses on the question of the conduct of the proceedings. I am satisfied that these judicial review proceedings were brought bona fide. Quite properly, it has not been suggested by the respondents or either of them that there was any malign motivation involved or male fides in bringing these proceedings. Secondly, the proceedings were prosecuted by the applicant in appropriate fashion, it seems to me, as would be expected of any litigant. However, somewhat less routine, and more worthy of praise, is that the proceedings were presented with brevity and concision, with the applicant indicating that her presentation would take up to an hour and keeping well within that time scale. It was clear to the court that the proceedings were prepared with diligence and with no little skill and in a manner that minimised the draw on court resources. Indeed, the template of issues prepared by the applicant was effectively adopted by opposing counsel as a useful table for sequencing the issues.

49. Fifthly, on no characterisation of the matter could it be said that the proceedings were frivolous or vexatious. That is obviously not determinative of things, but it is a relevant factor. I also take into account that it is clear from the evidence that the applicant was pursuing a heartfelt grievance as to the manner in which the State parties conducted themselves with respect to an issue that impacted her personal rights, including her right to a good name and potentially her right to liberty.

50. It is clear from the Supreme Court’s decision in the Little case that I have mentioned that notwithstanding the enactment of sections 168 and 169, the court retains a discretion. That discretion must be exercised judicially, in accordance with the two sections. In my view, having regard to the manner in which the proceedings were conducted and having regard to the nature, particularly of the proceedings, I am satisfied that this is a case, one of those unusual and rare situations, in which the court should depart from the normal rule that the successful party should be awarded the costs. In the particular circumstances of the case, I am satisfied that the justice of the case requires that there should be no order as to costs and that is the order that I propose to make.

Signed: Micheál O’Higgins

Appearances: Applicant appeared as a litigant in person. The Director of Public Prosecutions was represented by Mr. Kieran Kelly BL, instructed by the Chief Prosecution Solicitor. The Commissioner and Attorney General were represented by Mr. Eoghan Cole SC with Mr. Diarmuid O’Leary BL instructed by the Chief State Solicitor’s Office.