Supreme Court allows Commissioner's appeal on costs in public interest proceedings, leaving parties to bear their own costs.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Appeal Number: S:AP:IE:2024:000002

[2025] IESC 41

O’Donnell C.J. Dunne J. O’Malley J. Woulfe J. Murray J.

BETWEEN/

RAYMOND HEGARTY

APPLICANT/RESPONDENT

- AND –

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT/APPELLANT

RULING of the Court delivered this 14th day of October (costs)

1. The Applicant was, following certain alleged misconduct, subject to a disciplinary process in accordance with the Garda Síochána (Discipline) Regulations 2007 (“the 2007 Regulations”). At the conclusion of that process, the Commissioner of An Garda Síochána (“the Commissioner”) sought to invoke s. 14(2) of the Garda Síochána Act 2005 (“the 2005 Act”) to dismiss the Applicant by reason of that same conduct. The Applicant instituted proceedings to prevent the Commissioner from doing so. The High Court ([2022] IEHC 183) quashed the decision of the Commissioner to invoke s. 14(2) of the 2005 Act. The Court of Appeal ([2023] IECA 266) dismissed the Commissioner’s appeal against that decision. The Commissioner appealed to this Court. For the reasons set out in the judgment of Murray J., [2025] IESC 36, this Court allowed the Commissioner’s appeal.

2. The question of costs now arises. The High Court ordered that the Applicant recover the costs of the action from the Commissioner. In the Court of Appeal, it was ordered that the costs of the Applicant’s unsuccessful application to cross-examine Chief Superintendent Nugent be ‘costs in the cause’. After dismissing the Commissioner’s appeal, the Court of Appeal ordered that the Commissioner pay the Applicant the costs of the appeal.

3. The Commissioner says he is entitled to his costs in respect of each of stage of the proceedings: in the High Court, in the Court of Appeal and in this Court. He also says that he is entitled to the costs of the Applicant’s unsuccessful application to crossexamine certain witnesses. The Commissioner argues that he has been entirely successful in the appeal to this Court, insofar as the Court overturned the finding of the High Court and the Court of Appeal. In terms of whether the Applicant is entitled to his costs, the Commissioner argues that the Applicant brought these proceedings purely for his own personal advantage. He submits that the Applicant’s conduct is such that it justifies the Court awarding the successful State defendant the costs of these proceedings and any order that there be no order as to costs should be limited to the Supreme Court appeal only.

4. The Applicant asks the Court to grant costs in his favour and to leave undisturbed the costs awarded in the courts below. The Applicant submits that the judgment of this Court did not dispose of the other grounds upon which the Applicant sought relief in the High Court. He further argues that the Court of Appeal’s considerations were limited to matters relating to the invocation of s. 14 of the 2005 Act. The Applicant further argues that had the relief sought by him not been rendered moot by the enactment of the Policing, Security and Community Safety Act 2024 (“the 2024 Act”) (as he contends is the case) the Court’s judgment ‘may well have given rise a rehearing before the High Court concerning the approach taken by the Respondent in seeking to invoke section 14 and the evidence in respect of same being adduced by the Respondent’. The Applicant argues that matters of public interest arose in this case regarding the maintenance of public confidence in An Garda Síochána. The Applicant contends that the judgment in this case has been to the benefit of the Commissioner in providing certainty as to the scope and exercise of his powers. The Applicant further argues he is now better placed to challenge any decision either to invoke the new provisions of the 2024 Act or to dismiss him pursuant to that Act.

5. The Commissioner was successful in his appeal to this Court. Accordingly, the issue of costs must be approached on that basis. The Commissioner is prima facie entitled to his costs in accordance with s. 169 of the Legal Services Regulation Act 2015. However, the Court has a discretion in the ordering of costs. That discretion falls to be exercised by reference to the principles set out by this Court in Little v. Chief Appeals Officer and Ors. [2024] IESC 53 (“Little”).

6. In the course of the judgment in Little the category of ‘public interest proceedings’ was described (at para. 34 of that judgment) as civil litigation that has the following elements: (a) it involves a claim against the State, or an organ or agency of the State;

(b) it seeks relief in public law; and (c) it raises directly a point of law of general public importance. In this case, the Applicant sought judicial review of the Commissioner’s

decision to invoke a particular statutory provision against him having regard, in particular, to the fact that the disciplinary process had been invoked against him and completed in respect of the same conduct as gave rise to the invocation of s. 14. His proceedings therefore involved a claim against an agency of the State, seeking relief in public law. This Court granted the Commissioner leave to appeal on the basis that this case involved a matter of general public importance, requiring to the Court to consider the interaction between the 2005 Act and the 2007 Regulations. These proceedings therefore constitute ‘public interest proceedings’ and fall to be addressed in line with the principles set out in Little.

7. This Court granted the Commissioner leave to appeal on four discrete issues relating to the interaction between s. 14 of the 2005 Act and the 2007 Regulations. In Little, Murray J. stated the following of a discrete question of law (at para. 35): ‘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.’ While this appeal related to a relatively narrow issue of statutory interpretation, it also concerned an issue that was both important and (as demonstrated by the fact that the High Court, Court of Appeal and one member of this Court were of the view that that issue should be resolved in favour of the Applicant), substantial. The fact that this appeal related to discrete issues of law does not prevent these proceedings from being ‘public interest proceedings’ as defined in Little.

8. In terms of whether this Court should make an adverse order of costs against the unsuccessful Applicant, Murray J. stated in Little (at paras. 51-52) that:

‘ …where the case falls within the description ‘public interest proceedings’ as I have defined it, it will fall into a category in which the Court has, in the majority of cases, concluded that it is appropriate to exempt the plaintiff or applicant from an adverse order for costs.

52. Thus, the appeal will be – by definition – one in which the successful party is operating with the benefit of the resources of the State. Many such appeals – not of course all – will arise in a context in which the issue of law is of systemic importance or in which the State party has derived a benefit from the clarification the decision has brought to the law (and for this reason the equities will point strongly to no order for costs being made in cases in which it was the State that sought and was granted leave to appeal to this Court on the basis that proceedings involved a matter of general public importance). In these circumstances, it is appropriate that the starting point be that each party will bear their own costs.’ Accordingly, having regard to the fact that these were public interest proceedings, the Court should incline to the conclusion the Commissioner and the Applicant will each bear their own costs. In this case, the Commissioner has obtained the advantage of a clarification of difficult questions arising from the interaction between the 2005 Act and the 2007 Regulations, and while the 2005 Act has since been repealed, the Commissioner has obtained the benefit of greater certainty in the scope and exercise of his powers to maintain public confidence in the police force.

9. In addressing the Applicant’s application to grant costs in his favour, the Court is satisfied that none of the matters raised by the Applicant are sufficient to bring this case into the category of cases, described as a ‘genuine rarity’ by Murray J. in Little (citing Charleton J. in Minister for Justice v. McPhilips [2015] IESC 47, [2015] 3 IR 274), where an unsuccessful litigant in public interest proceedings is awarded their costs. This case does not fall into any of the five types of case set out by Murray J. in Little (at para. 62).

10. Finally, the Applicant’s contention that he is entitled to costs because the proceedings were rendered moot by the provisions of the 2024 Act is misconceived. Without expressing any view as to whether the substantive point made by the Applicant in this regard is well placed, the proceedings were not moot when heard and it was not suggested by any party that they became moot before the Court delivered judgment. Having delivered judgment, costs fall to be determined in accordance with the usual principles as outlined above.

11. In these circumstances, the Court will refuse both applications for costs and make no order as to costs. In accordance with the principles explained in Little, this will apply to the proceedings in the High Court and Court of Appeal, and all orders for costs made in those Courts shall accordingly be vacated.