Supreme Court allows GAL one day's costs for plenary proceedings where joinder was legally incorrect.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O’Donnell C.J. Hogan J. Murray J. Collins J. Donnelly J.

S:AP:IE:2024:000116

[2025] IESC 33

BETWEEN/

B (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND, Y

PLAINTIFF/APPELLANT

AND

CHILD AND FAMILY AGENCY

DEFENDANT/RESPONDENT

AND

T, Q, MINISTER FOR PUBLIC EXPENDITURE AND REFORM, THE MINISTER

FOR HEALTH AND CHILDREN, EQUALITY AND DISABILITY, INTEGRATION

AND YOUTH, IRELAND AND THE ATTORNEY GENERAL (No.2)

NOTICE PARTIES

JUDGMENT of Mr. Justice Gerard Hogan delivered the 15th day of July 2025

Introduction

1. In our first judgment in respect of this appeal, B. v. Child and Family Agency [2025] IESC 2, this Court held that the High Court has jurisdiction to make a finding of contempt of court against a State agency in proceedings which have been commenced by means of plenary summons and in respect of which no penalty – whether imprisonment or a monetary fine – has been sought. We are now required to consider the separate question of whether the guardian ad litem (“GAL”) is also entitled to the costs of these plenary proceedings as against the Child and Family Agency (“CFA”).

2. The GAL had previously been appointed to represent the interests of the applicant, B, in respect of the special care proceedings arising under Part IV of the Child Care Act 1991 (“the 1991 Act”). As I have outlined in more detail in the first judgment, the applicant, B, is a troubled young man with particular special needs. B spent two earlier periods in special care in 2021 and 2022. On 14th December 2023 a further special care order was made by the High Court. As it appeared that this order was not going to be complied with by the CFA – due to an absence of available special care beds – B then commenced the present plenary proceedings (suing through his mother and next friend) in January 2024 seeking a declaration that the Agency was in contempt of court. On the 18th January 2024 Jordan J. made an order ex parte joining the GAL as a notice party, albeit that this order was made in the presence of counsel for the CFA.

3. By notice of motion dated 21st February 2024, the CFA sought to have this joinder of the GAL set aside. The Agency contended not only that this order should not have been made ex parte, but that it should not have been made at all. It was said that the GAL had no clear role or legal interest in the proceedings and that the onus of proof regarding the necessity for such a joinder had not been established.

4. By a judgment delivered on 13th March 2024, B v. Child and Family Agency (No. 1) [2024] IEHC 174, Jordan J. refused to set aside the ex parte order joining the GAL, holding that (at para. 33): “…the guardian ad litem appointed by the Court in the childcare proceedings is a necessary notice party in the proceedings. Her interest is not the same as the father's interest but it is a vital interest in the outcome. The guardian ad litem is vitally interested in the outcome of the proceedings as she represents the child in the childcare proceedings. She is also a conduit insofar as the voice of the child is concerned – if not the actual voice of the child. Again, there does not appear to be a logic to the position of the Child and Family Agency in seeking her removal as a notice party. The guardian ad litem was appointed as such in the childcare proceedings in which the special care order was granted – and at the request of the Child and Family Agency.”

5. As it happens, the CFA did not seek to appeal or to cross-appeal this order joining the GAL. The only appeal relevant to this issue was the appeal taken against the subsequent order for costs in favour of the GAL which Jordan J. made in his judgment delivered on 4th July 2024 in B v. Child and Family Agency (No.4)[2024] IEHC 461. As I have already observed, this Court subsequently granted leave to the CFA to appeal directly to this Court pursuant to Article 34.5.4⁰ in respect of this discrete order for costs: see [2024] IESCDET 101. Whether the guardian ad litem should have been joined to these proceedings

6. While I acknowledge that the order of the High Court joining the GAL has not been the subject of an appeal, this nonetheless cannot, I think, preclude this Court having regard to all of the circumstances of the case when it comes to any adjudication in respect of costs. The status of a GAL is described in s. 26(1) of the 1991 Act. This provides: “If in any proceedings under Part IV, IVA or VI the child to whom the proceedings relate is not a party, the court may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint a guardian ad litem for the child.”

7. Section 26(2) of the 1991 Act further provides that “any costs incurred by a person in acting as a guardian ad litem under this section shall be paid by the Child and Family Agency.”

8. The present plenary proceedings are admittedly not “proceedings under Part IV, IVA or VI” of the 1991 Act so that the special costs rule provided for in s. 26(2) of the 1991 Act does not apply to the present proceedings. It is true, of course, that, as Jordan J. himself recognised, these proceedings are in a sense part of a continuum because these plenary proceedings certainly follow on from the original special care orders made under Part IV of the 1991 Act. Jordan J. explained his rationale for making an award of costs in the plenary proceedings in favour of the GAL at paragraphs 28-29 of B (No.4):

“…the guardian's joinder in these plenary proceedings arose from her appointment (on the application of the Child and Family Agency) pursuant to s.26 of the Child Care Act 1991 in the special care proceedings. Moreover, this Court did consider that the guardian was a necessary notice party in the proceedings. The guardian ad litem and her legal team did not waste the time of the Court but did assist and were part of the discussions which assisted in streamlining the proceedings. The GAL should not have to bear her own costs. The mother should not have to bear the costs of the GAL – and leaving aside the worth of any such order to the GAL. The GAL was a necessary party because of her important role and in circumstances where the child was entitled to have her as his advocate and his voice in the proceedings – even if he was suing by his mother and next friend. Having regard to the reasons outlined above and the interests of justice in all of the circumstances of the case the Court will award to the guardian ad litem her legal costs against the CFA…”

9. The first thing to observe so far as the present plenary proceedings are concerned is that the child in question, B, was already a party to the proceedings. He was suing through his mother and there is no suggestion that his interests were not otherwise adequately represented. One must not here overlook the fact that s. 26(4) of the 1991 Act provides that where a child “in respect of whom an order has been made under [s. 26(1)] becomes a party to the proceedings in question… then that order [appointing a GAL under s. 26(1)] shall cease to have effect.” Section 26(4) accordingly does not seem to contemplate the GAL playing any further role in the relevant proceedings under Part IV, IVA or V of the 1991 Act once the child is a party to the proceedings. While it is true of course that these were plenary proceedings – and not, as such, proceedings under the 1991 Act – the same principle would seem to apply by analogy.

10. In any event, I cannot, with respect, agree with Jordan J.’s conclusion that the GAL had an interest (in the legal sense of that term) in these plenary proceedings even though she was neither a plaintiff or a defendant. These were, after all, plenary proceedings which were not governed by the requirements of Ord. 84 applicable to judicial review proceedings. The rules governing the joinder of parties in plenary actions are governed by Ord. 15, r. 13 which vests the High Court with a general jurisdiction to direct that the names of any parties, whether plaintiffs or defendant: “…. who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.”

11. It is true that the rule contemplates the joinder of parties qua plaintiff or defendant, i.e., as a litigant with a clear legal interest in the outcome of the proceedings. Unlike the provisions of Ord. 84, the precise wording of Ord. 15, r. 13 does not appear to contemplate the joinder of parties simply qua notice parties, even if in practice such parties are sometimes joined to plenary actions. To that extent the provisions of Ord. 84 appear on their face to be more accommodating to the presence of notice parties. As Fennelly J. observed (at para. 34) in Dowling v. Minister for Finance [2013] IESC 58: “In the case of judicial review, Order 84 of the Rules of the Superior Courts contains very different provisions. It makes express provision for ensuring that persons directly affected are put on notice of proceedings. The fundamental requirements in in Ord. 84, r. 22(2) which imposes an express obligation on the applicant to see to it that the ‘notice of motion or summons must be served on all persons directly affected.”

12. In Dowling this Court held that an application to set aside a direction order made under s.

9 of the Credit Institutions (Stabilisation) Act 2010 “has all or almost all of the indicia of an application for judicial review” and it has “few, if any of the characteristics of a civil action.” In his judgment Fennelly J. accordingly held that the provisions of Ord. 84 applied by analogy to an application to set aside a direction order so that the necessity for the presence of a notice party was to be governed by the terms of Ord. 84 itself.

13. It is unnecessary here to determine whether there is in fact a jurisdiction to join notice parties in plenary proceedings. A I have just observed, Ord. 84 does, however, provide for the joinder of notice parties. Order 84, r. 22(2) provides that: “The notice of motion or summons must be served on all persons directly affected…”

14. Order 84, r. 22(8) further provides that: “If on the hearing of the motion or summons the court is of opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person.”

15. Order 84, r. 27(1) provides that: “On the hearing of any motion or summons under rule 22, any person who desires to be heard in opposition to the motion or summons and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the motion or the summons.”

16. The present proceedings are not, of course, judicial review proceedings. If, nevertheless, the notice party joinder provisions of Ord. 84 are applied by analogy to the present plenary proceedings it is clear that even by these relatively generous standards the joinder of the GAL was neither necessary nor appropriate. Her position could not, for example, be compared with cases such as BUPA v. Health Insurance Authority [2005] IESC 80, [2006]

1 IR 201 where this Court held that the notice party in question had a direct financial interest in outcome of the proceedings. As it was, in the words of Keane J., “uniquely adversely affected” by the contested ministerial decisions, it was accordingly a party “directly affected” for the purposes of Ord. 84, r. 22(2) .

17. Given that B. was already the plaintiff and suing through his mother, the Court could have effectually ruled on all of these legal questions (in particular, whether there the CFA had been guilty of contempt) without the present of GAL. This, in any event, is, as we have seen, what s. 26(1) of the 1991 Act contemplates so far cases arising under that Act is concerned, i.e., that the GAL’s function is confined to those cases where the child’s interests are not otherwise represented. If one applies this principle by analogy to the present case one can see that there was no need for the presence of the GAL given that, as I have just observed, B was already a party and his interests were fully represented by his legal team. To this one might add the fact that Ord. 44 – which is the ordinary route for contempt applications – does not make express provision for the presence of notice parties.

18. It also bears remarking that the GAL’s actual role in the plenary proceedings was, in any event, a fairly limited one. While it is true that she gave formal evidence before the High Court as to the sequence of events which had led up to the contempt application, she nevertheless made no independent submissions of her own whether in the High Court or subsequently in this Court. This is not in any sense a criticism of the GAL or her legal representatives. I have no doubt but that, as Jordan J. observed, she and her legal team provided a good deal of practical assistance. Yet even if one takes the most expansive and generous view of the notice party joinder rules in Ord. 84 and applies them by analogy to the present plenary action, the fact remains that the GAL should not have been joined as a notice party. If the GAL should not have been joined as a notice party, what are the implications for the High Court costs order?

19. Despite the fact that the GAL should not have been joined as a notice party, the starting point for any consideration of the High Court costs is that the GAL was in fact joined as a party and that there was no appeal by the CFA against that order. In those circumstances the GAL (and her legal team) was entitled to proceed on the basis that she had been properly joined to the present proceedings. The High Court order awarding the GAL her costs reflects that underlying reality.

20. Public funds are nonetheless not infinite, and it is the duty of the court to ensure where possible that they are not unnecessarily spent in an improvident fashion. Here it must be borne in mind that if there is an order for costs in favour of the GAL, it will mean in effect that the taxpayer will be required to pay duplicative sets of costs for B’s legal representation. While it is necessary to be fair to the GAL and to recognise that this may sometimes occur, this is nevertheless an outcome which this Court should, where at all possible, seek to avoid.

21. It is also true that, as Baker J. observed (at para. 10) in AOD v. O’Leary [2016] IEHC 757 that the application “by a notice party [GAL] against another notice party [CFA]” arising out of judicial review proceedings in respect of a District Court order “does not readily fit within the general characterisation of a costs application, and it is difficult therefore to determine the matter by the application of Ord. 99 of the Rules of the Superior Courts or s. 14(2) of the Courts (Supplemental Provisions) Act 1961. No issue arose in any pleadings between the two relevant notice parties…”

22. Much the same may be said of the present case. One might likewise observe that the cost rules provided in ss. 168 and 169 of the Legal Services Regulation Act 2015 are principally designed with the standard inter partes litigation in mind so that these principles are not necessarily applicable to a special case of this kind.

23. If we endeavour to draw these threads together, we may say that while the award of costs in a case of this kind is not governed by the special costs rule in s. 26(2) of the 1991 Act, neither are the standard costs principles contained in ss. 168 and 169 of the 2015 Act necessarily applicable to a case of this kind. So far as the GAL and the CFA are concerned, there is no standard “event” – the conventional starting point in most ordinary costs adjudications – as between them which could readily be measured. To some extent, therefore, the Court is at large in this assessment, guided where necessary by general principles and drawing on the relevant provisions of s. 26 of the 1991 Act by analogy.

24. To my mind, there are in these circumstances three governing considerations. The first is that the Court must guard against the award of costs in an extravagant or improvident manner. To that extent, the Court should avoid ensuring that the taxpayer does not end up discharging the costs of two separate teams of legal representatives for the young person in question if this can fairly be done. The second consideration is that the role of the GAL in childcare cases is an important one and these considerations are reflected in s. 26(1) of the 1991 Act. It is necessary, therefore, that GALs are not discouraged from participating in important litigation arising under the 1991 Act concerning the welfare of their charges by the prospect that their legal representatives will not have their costs discharged. The third consideration is that in the present case the GAL was in fact joined as a notice party and this order was not itself appealed, even if (as I have just held) this joinder was wrong in law.

25. In the present case the GAL was accordingly joined by order of the High Court to important and novel plenary proceedings and no appeal has in fact been taken against this decision. To that extent the GAL was certainly entitled to retain her legal representatives for the first day of the scheduled hearing of the substantive issue in the High Court before Jordan J. This, however, was the precise point at which the extent to which the GAL could play a useful role in the resolution of the legal issues before the Court could be determined. In my view, however, once it become clear at that point that B’s interests were fully protected by his own legal team and that the GAL’s role thereafter was really to be a modest – even peripheral – one, her further participation in the litigation should have been discontinued. Once B was already a party to the litigation this, in any event, is what is envisaged by s. 26(4) of the 1991 Act so far as proceedings under the 1991 Act are concerned. As I have already stated, one can, I suggest, apply the thinking underlying s. 26(4) of the 1991 Act by analogy to the present plenary proceedings.

26. Given, therefore, that the Court should proceed on the basis that it should avoid duplicative sets of costs where this is at all possible, I consider that in these circumstances it would be just and appropriate to award the GAL one day’s costs in that Court in respect of the plenary action to reflect the fact that she had in fact been joined, even if this joinder decision was incorrect in law. I would make no award so far as the costs of the appeal to this Court so far as the substantive appeal was concerned.

Overall conclusions

27. In summary, therefore, I would allow the appeal to the extent that Jordan J. awarded the GAL a full set of costs in the High Court.

28. I would vary that order just slightly for the reasons just stated by providing that the GAL was entitled to one day’s set of costs in respect of the plenary hearing before Jordan J. As I consider that the GAL should have discontinued (subject to any issue as to costs) participating in the proceedings beyond that point – not least given that B. was already a party to the proceedings and his interests were fully represented by his own legal team – I would make no further order for costs, whether in respect of the High Court or in respect of the subsequent substantive appeal to this Court.