High Court awards 50% costs to unsuccessful applicants for clarifying novel constitutional separation of powers issues.

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[NO REDACTIONS NEEDED]

AN ARD-CHÚIRT

THE HIGH COURT

Barniville P. [2026] IEHC 133

Phelan J. Bradley J.

Record No. 2025/110 JR

BETWEEN/

PATRICK DALY

APPLICANT

-AND-

AN TAOISEACH, THE GOVERNMENT OF IRELAND, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

____________

AN ARD-CHÚIRT

THE HIGH COURT

Barniville P. Phelan J. Bradley J.

Record No. 2025/512 P

BETWEEN/

PAUL MURPHY

PLAINTIFF

-AND-

AN TAOISEACH, THE GOVERNMENT OF IRELAND, IRELAND AND THE

ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of the Court on Costs delivered the 6th day of March 2026

1. INTRODUCTION

A. Preliminary

1. This judgment deals with the costs applications arising out of our judgments on the merits delivered in these two cases on 19th December 2025 (the “principal judgments”). Whilst two separate judgments were delivered on that occasion, the Court can deal with the costs applications in this composite judgment.

2. The judicial review challenge brought by Deputy Daly and the plenary action brought by Deputy Murphy both contended that the practice of allowing certain Ministers of State known colloquially as “Super Junior Ministers” to attend regularly and participate in meetings of the Government breached a number of the fundamental provisions of the Constitution. Separate judgments were necessitated due to the different format in which each challenge was brought, the somewhat different legal issues raised in the two cases, and the manner in which the evidence was adduced in Deputy Murphy’s plenary action compared to that heard on affidavit in Deputy Daly’s judicial review application.

3. We restate the position noted in the principal judgments that both judgments should be read together.

4. In the principal judgments, the reliefs sought by Deputy Daly were refused and in Deputy Murphy’s case, his action was dismissed. However, each of the parties – the applicant and the respondents in the Daly proceedings and the plaintiff and the defendants in the Murphy proceedings – now seek their costs. For convenience in this judgment, we refer to the respondents in Daly and the defendants in Murphy as the State.

5. Following the delivery of the principal judgments, the Court gave directions for the exchange of written submissions on the issue of costs. The parties provided very helpful and succinct written submissions on costs. We heard very focused oral submissions from the parties to supplement their written submissions on 18th February 2026.

6. The State sought its costs of the two cases against Deputy Daly and Deputy Murphy respectively. Notwithstanding that the State was successful in both of the cases, Deputy Daly and Deputy Murphy sought their costs against the State.

B. Summary of Decision on Costs

7. For the reasons which we outline in this judgment, we are of the view that Deputy Daly and Deputy Murphy are entitled to recover 50% of the costs of their respective challenges from the State.

2. THE APPLICABLE LEGAL PRINCIPLES GOVERNING THE COSTS

APPLICATIONS

A. Overview

8. The principles to be applied in public interest proceedings where both the successful and losing parties seek their costs were comprehensively and authoritatively reviewed and restated by the Supreme Court in Little v The Chief Appeals Officer & Ors (No.2) [2024] IESC

53 (“Little (No.2)”) where each member of the Court agreed with the judgment delivered by Murray J. (and Hogan J. delivered a separate concurring judgment).

9. The decision in Little (No.2) addressed the developments in the law after Dunne v Minister for the Environment [2007] IESC 60, [2008] 2 IR 775 (“Dunne”) and the changes to the costs landscape brought about by ss. 168 and 169 of the Legal Services Regulation Act 2015 (the “2015 Act”) and the recast O. 99 of the Rules of the Superior Courts 1986 (as amended) (the “RSC”).

10. Whilst the judgment in Little (No.2) focused on the approach to be adopted by the Supreme Court as the apex court in the curial hierarchy where, arising from the 33 rd Amendment of the Constitution, the Supreme Court determines whether an appeal to it involves a point of law of exceptional public importance, Murray J. stated (at paras. 66 and 67) that, presumptively, a similar approach applies to costs issues before the High Court and the Court of Appeal.

11. In Little (No.2), Murray J. reviewed the previous case law which had addressed the position of unsuccessful claimants in public interest proceedings not having costs ordered against them and, more exceptionally, where costs have been awarded in their favour, and restated the legal principles which now apply to each of those scenarios.

12. In summary, the default position set out in s. 169 of the 2015 Act, read together with s.

168 and the recast O. 99 RSC, is that a party who is entirely successful in proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless, in the exercise of its discretion, the court considers otherwise, having regard to the particular nature and circumstances of the case and the conduct of the proceedings by the parties. The court, therefore, retains a discretion to depart from that default position.

B. Absolving an unsuccessful party of the requirement to pay costs

13. In Little (No.2), the Supreme Court, set out the factors which are relevant to the exercise of the Superior Courts’ power to absolve an unsuccessful plaintiff or applicant from the costs consequences that usually follow the failure of a challenge.

14. These factors were set out at paras. 68 to 71 of Murray J’s judgment as follows:– “68. First, those Courts enjoy a discretion not to award costs against an unsuccessful plaintiff or applicant in a public interest proceeding. These are civil proceedings against the State, or an organ or agency of the State (including a statutory body) in which the plaintiff or applicant 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, in respect of an enactment, measure, act, omission or decision of a body of the defendant or respondent whether by way of plenary action, proceedings by way of judicial review, or statutory appeal, and which present the various other features I have outlined at paragraph [34] of this judgment.

69. Second, in determining whether to exercise that discretion in favour of such a litigant, the Court must have regard to all the facts and circumstances. I have identified some relevant considerations at paragraph [35] of this judgment: these are as pertinent to the exercise by the High Court and Court of Appeal of its jurisdiction, as they are in the exercise by this Court of its jurisdiction to award costs.

70. Third, because this is essentially a balancing exercise, there are case specific factors which may cause the Court to exercise its discretion to order costs, even in proceedings in which many of these criteria are met. These include that the case was an obviously weak one, that the point was ultimately found to be covered by wellestablished authority, that the nature of the private advantage at stake for the unsuccessful party in the action is such that it would be unjust not to award costs (for example if the proceedings were brought for a commercial purpose), that the conduct of the unsuccessful party is such that costs should be awarded against it, or that the point of law in issue is so discrete and particular to the case of the unsuccessful party that it is not appropriate to exempt the claimant from the order that usually follows complete defeat.

71. Fourth, while the courts retain a power to order costs in public interest litigation in favour of an unsuccessful party, the cases in which that power should be exercised are very rare. It would be only in the most exceptional of circumstances that they would not comprise cases where the constitutional issues litigated were ‘ fundamental’ and ‘touched on sensitive aspects of the human condition,’ cases of ‘ conspicuous novelty’, cases in which the issue was one of ‘far reaching importance in an area of the law with general application’, in which the courts have clarified an otherwise ‘obscure or unexplored area’, or cases in which the claimant, although ultimately unsuccessful, prevailed on a discrete issue in the case which was itself significant. Even where a case falls within one or more of these categories, the Court must have regard to the factors I have identified in the preceding paragraph in determining whether to award costs in such circumstances.”

15. The following elements are required to be present when considering whether a legal challenge comes within the category of cases where an unsuccessful party should be exempted from paying costs in civil litigation and where, “quite exceptionally”, the Court could award costs in favour of that party (per Murray J. in Little (No.2): paras. 34 and 68): “(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.”

16. In considering whether to depart from the default position in s. 169 of the 2015 Act and to exercise the discretion not to award costs against an unsuccessful party, the court must have regard to all of the facts and circumstances of the case. Some of the general principles applicable to the exercise of that discretion are identified by Murray J. in Little (No. 2) at paras

35 (i) to (vii) (and referred to again at para. 69). Murray J. summarised those general principles as follows: - “(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'Keeffe 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).” (emphasis added)

17. We consider how these factors apply to the respective applications for costs in these two cases below.

C. Awarding costs, or a proportion of costs, in favour of the unsuccessful party

18. In Little (No.2) (at paras. 62, 63, 64 and 71), Murray J. set out the exceptional circumstances in which the Superior Courts can award costs to an unsuccessful party.

19. He pointed out that the case law since the judgment of the Supreme Court in Dunne has consistently applied a far stricter test in awarding costs to an unsuccessful litigant in public interest litigation than that applicable to the decision as to whether to exempt such a litigant from an adverse costs order (as can be seen from the decision of the Supreme Court (Charleton J.) in Minister for Justice v McPhillips [2015] IESC 47 where Charleton J. described orders of the former kind as being “a genuine rarity” at para. 50).

20. At paras. 62 and 63 of his judgment in Little (No.2), Murray J. added a fifth type of case to the four identified by the Divisional Court in Collins v Minister for Finance [2014] IEHC 79.

21. Accordingly, where a Superior Court is considering an argument that an unsuccessful party should be awarded its costs, it should do so only in cases of “real substance”, in which there is a “clear and significant public interest on a matter of fundamental importance served by the clarification brought to the law by the suit” (per Murray J. at para. 62).

22. Murray J. referred to the four types of cases in which orders of that kind were made and added a fifth “obvious” type (also at para. 62). The five types of cases are as follows: - “(i) Proceedings where the constitutional issues litigated were ‘fundamental’ and ‘touched on sensitive aspects of the human condition’. Examples include Norris v. Attorney General [1984] IR 36, Roche v. Roche [2010] IESC 10 and Fleming v. Ireland [2013] IESC 19, [2013] 2 IR 417.

(ii) Constitutional cases of ‘conspicuous novelty’, often where the issue concerned aspects of the separation of powers between branches of government, including for example, Horgan v. An Taoiseach [2003] IEHC 64, [2003] 2 IR 468, and Curtin.

(iii) Cases in which the issue was one of ‘far reaching importance in an area of the law with general application.’ Examples given by the Court included the constitutionality of the Judicial Separation and Family Law Reform Act 1989 in TF v. Ireland (1995), and aspects of the State's duty to provide for free primary education under Article 42.4 in O'Shiel v. Minister for Education [1999] IEHC 146, [1999] 2 IR 321.

(iv) Cases in which the courts have emphasised that the decision clarified an otherwise ‘obscure or unexplored area’, such as Curtin.

(v) Cases in which although a claimant may have lost their action and failed to prevail on the ultimate argument, the claimant won a significant issue in the appeal.” (emphasis added)

23. At paragraph 63 of his judgment, Murray J. added the following further analysis of the cases where costs were awarded in favour of an unsuccessful claimant. He noted: - “63. The more recent decisions of this Court have agreed with the suggestion that the cases in which costs will be awarded in favour of a successful claimant have tended to be those in which ‘foundational issues of constitutional or European law’ have been raised (see in particular Mallon v. Minister for Justice and ors. [2024] IESC 27 at para. 6). Collins was itself such a case (involving a challenge to the legality of certain ministerial orders made pursuant to the Credit Institutions (Financial Support) Act 2008). I think that a case would have to be quite extraordinary to merit an award of costs against the successful State party, and not come within one of these categories. Even then, cases in which the Court has ordered full costs of all levels of the court system have been very few and far between, the Court instead tending to award at most a conservative proportion of the costs of one Court…”

24. Murray J. summarised the position in which costs could potentially be awarded in favour of an unsuccessful party at para. 71 of his judgment. He said: - “… while the courts retain a power to order costs in public interest litigation in favour of an unsuccessful party, the cases in which that power should be exercised are very rare. It would be only in the most exceptional of circumstances that they would not comprise cases where the constitutional issues litigated were ‘ fundamental’ and ‘ touched on sensitive aspects of the human condition,’ cases of ‘ conspicuous novelty’, cases in which the issue was one of ‘ far reaching importance in an area of the law with general application’, in which the courts have clarified an otherwise ‘ obscure or unexplored area’, or cases in which the claimant, although ultimately unsuccessful, prevailed on a discrete issue in the case which was itself significant. Even where a case falls within one or more of these categories, the Court must have regard to the factors I have identified in the preceding paragraph in determining whether to award costs in such circumstances.” (emphasis added)

25. The factors which Murray J. identified in the preceding paragraph of his judgment (para. 70) to which the Court must have regard when considering whether to award costs in favour of an unsuccessful party in public interest litigation were described by him as follows: “70. … because this is essentially a balancing exercise, there are case specific factors which may cause the Court to exercise its discretion to order costs, even in proceedings in which many of these criteria are met. These include that the case was an obviously weak one, that the point was ultimately found to be covered by well-established authority, that the nature of the private advantage at stake for the unsuccessful party in the action is such that it would be unjust not to award costs (for example if the proceedings were brought for a commercial purpose), that the conduct of the unsuccessful party is such that costs should be awarded against it, or that the point of law in issue is so discrete and particular to the case of the unsuccessful party that it is not appropriate to exempt the claimant from the order that usually follows complete defeat.”

3. APPLICATION OF THE PRINCIPLES TO THE DALY AND MURPHY CASES

A. Whether Deputies Daly and Murphy should pay the State’s costs?

26. The first issue to consider is whether Deputies Daly and Murphy, respectively, as the unsuccessful parties, should be absolved of the requirement to pay the costs of the State in their cases or whether the default rule that, as the unsuccessful parties, they should pay those costs and bear their own costs applies.

27. Having considered the submissions of the parties in the context of the relevant principles outlined above, it is our view that their respective legal challenges contained all of the elements or features referred to at paras. 64 and 68 of the judgment of Murray J. in Little (No.2). Both involved challenges to the practice of allowing Super Junior Ministers regularly to attend and participate in meetings of the Government, at the invitation of the Taoiseach, where it was contended that to do so breached Articles 5, 6, 13.2, 28.1, 28.4.1º, 28.4.2º, and 28.4.3º of the Constitution.

28. We are satisfied that the proceedings brought by Deputy Daly and by Deputy Murphy both constitute “public interest proceedings” and possess each of the elements outlined at paras. 34(a) – (d) of the judgment of Murray J. in Little (No. 2) (see para 15 above).

29. In summary, both cases involve a claim against the State, both seek reliefs in public law by way of a challenge to the validity, legality or compatibility having regard to the Constitution of the practice of permitting Super Junior Ministers to attend and participate at meetings of the Government. They do so by judicial review proceedings (in Deputy Daly’s case) and by plenary action (in Deputy Murphy’s case). Both cases directly raise a point of law of general public importance. Both cases were brought to vindicate a right or interest of the public generally and not for the advancement of the personal interests of the litigants.

30. We consider that, having regard to the following features, in particular, the facts and circumstances of the two cases are, in the first instance, such as to warrant the exercise of our discretion not to award costs against Deputies Daly and Murphy (adopting the analysis and general principles set out by Murray J. in Little (No.2) at paras 35 (i) to (vii)) (see para. 16 above).

(1) The inquiry as to whether Super Junior Ministers who regularly attend and participate in meetings of the Government, at the invitation of the Taoiseach, breached a number of the provisions of the Constitution involved a point of law of general public importance (Pervaiz v. The Minister for Justice and Equality and ors. [2020] IESC 73 at para. 7) which is also novel in the sense that it has never been raised for determination in previous proceedings.

(2) Whilst no particular or identified Government decision was challenged in either case (although Deputy Murphy did seek a declaration impugning all Government decisions taken at meetings attended by Super Junior Ministers), we consider that it is relevant that both Deputy Daly and Deputy Murphy brought these proceedings as Teachtaí Dála (TDs) in circumstances in which they would obtain no personal advantage from the outcome of the proceedings. Contrary to the submission advanced on behalf of the State, we do not consider that the fact that either Deputy is a member of a political party or group in opposition to the parties who form the current Government should be seen as a factor which should disentitle either of them from being absolved from an obligation to pay the State’s costs (or from the potential of obtaining an order for costs from the State in exceptional circumstances). It is noted that the plaintiff in Collins was also a TD and public representative and that was one of the factors on which the Divisional Court relied in deciding that the case was an exceptional one which warranted the making of a partial order for costs in her favour (see para. 19 of the judgment of the Divisional Court in Collins).

(3) The points of law raised in the Daly and Murphy litigation were clearly stateable. Deputy Daly was granted leave to apply for judicial review and had thereby met the threshold of arguability as restated by the Supreme Court in O’Doherty v The Minister for Health [2022] IESC 32, [2023] IR 488. Deputy Murphy did not require leave to commence his plenary action. Although the Court refused the reliefs sought by Deputy Daly and dismissed Deputy Murphy’s action, we do not believe it is fair to describe either case as being weak or as lacking real substance, as contended on behalf of the State.

(4) The constitutional clarification in relation to the regular attendance and participation, at the invitation of the Taoiseach, of Super Junior Ministers at Government meetings is of systemic importance from the perspective of the separation of powers under the Constitution.

(5) The principal judgments stated that the position of members/Ministers of the Government was rooted in the Constitution and referred to the statutory framework which prescribed the administration of Government departments and the appointment of Ministers of State who are not members/Ministers of the Government and set out the chronological sequence in the formation of the 35th Government (and the formation of the 30th and 31st Governments in the Murphy proceedings) in contextualising the inherently political issues involved in the calling of a general election, the pronouncement of the results and the formation of Government, within the framework provided by the Constitution and was inter alia informed by Standing Orders of Dáil Éireann, custom, practice and conventions in the formation of Government.

(6) Whilst the principal judgments are not test or pathfinder cases, and the deterrent effect of an award of costs is not in our view a directly applicable factor here, the arguments advanced on behalf of Deputy Daly and Deputy Murphy which centred on the proposition that the regular attendance and participation in meetings of the Government at the invitation of the Taoiseach by the relevant Ministers of State was a breach of various constitutional provisions, had received some, albeit brief, divergent academic analysis (including in Kelly: The Irish Constitution (Bloomsbury Professional, 2018) at para. 5.1.40, at p. 516, in Doyle, The Constitution of Ireland: A Contextual Analysis (Hart, Oxford, 2018), at pp. 53-54, and in Hogan, Morgan and Daly, Administrative Law in Ireland, (5th ed, para. 3.49, footnote 78). These differing academic views meant that, at least in academic circles, the points of law raised by Deputy Daly and Deputy Murphy were not settled.

31. While it was argued on behalf of the State that Deputy Murphy should be treated as being in a different position to Deputy Daly in circumstances where he issued proceedings after Deputy Daly and ought to have awaited the determination of Deputy Daly’s case, we do not agree. We accept that Deputy Murphy was entitled to maintain his plenary proceedings and, as is clear from our principal judgment in his case, he raised a number of different constitutional arguments in his case which were not raised in Deputy Daly’s case. Further, the Court benefitted from the evidence adduced in Deputy Murphy’s case where we heard witness evidence from a Minister and from a Super Junior Minister which was not available to the Court in the judicial review proceedings brought by Deputy Daly. That evidence presented the Court with a much clearer and more detailed picture of the appointment of and the role played by Super Junior Ministers at meetings of the Government and was of considerable assistance to the Court in reaching our decision in the two cases.

32. For these reasons, we have concluded that costs should not be awarded against Deputies Daly and Murphy.

B. Whether Deputies Daly and Murphy should be awarded costs?

33. The question then arises as to whether circumstances exist in these cases which warrant orders for costs being made which would go further than making no orders as to costs in both of the cases.

34. We consider that, for the following reasons, this is one of the very rare and exceptional circumstances where the unsuccessful parties, Deputy Daly and Deputy Murphy, should be awarded a proportion of their costs against the State. Again, for the reasons mentioned earlier, we do not believe that there is any basis for distinguishing between Deputy Daly and Deputy Murphy in that regard.

(1) These were both cases of real substance. There was, in our view, a clear and significant public interest in clarifying that the practice of allowing Super Junior Ministers regularly to attend and participate in meetings of the Government, at the invitation of the Taoiseach, is not in breach of Articles 5, 6, 13.2, 28.1, 28.4.1º, 28.4.2º, and 28.4.3º of the Constitution. The principal judgments brought clarification to what, in our view, was an issue of fundamental importance and on which there were diverging academic views. We consider that the order for costs which we intend to make is consistent with the principles outlined by Murray J. in Little (No.2), including those set out at para. 62.

(2) The legal challenges brought by Deputies Daly and Murphy involved the litigation of a constitutional issue which was “fundamental”, of “conspicuous novelty” and of “far reaching importance” from the perspective of the separation of powers and the executive branch of government, focusing as it did on the role of the Taoiseach in the formation of a Government and on the persons entitled to attend meetings of the Government (Little (No.2): paras. 62 (i),(ii) and (iii)) and raised “foundational” issues of constitutional law (Little (No.2): para. 63).

(3) The proceedings involved evidence as to the manner of decision-making at both corporeal and incorporeal meetings of the Government and also addressed issues which never before had been fully addressed in proceedings before the Irish courts, including the application of the Cabinet Handbook, the eCabinet process, cabinet committees, the use and status of Memoranda to Government and, more prosaically, the attendance record and seating arrangements at meetings of the Government. The principal judgments involved a detailed examination of an otherwise unexplored area of law and government (Little (No.2): para. 62 (iv)).

(4) No previous Irish court has considered the constitutional issues addressed in the principal judgments in these cases. The cases involved, to borrow the terminology used by the Supreme Court in its costs ruling in Curtin v Dáil Éireann [2006] IESC 27, “unchartered constitutional terrain” (per Murray CJ at p. 3 of the ruling).

(5) The question of justiciability, while occupying a relatively short period of court time, was not an insignificant legal issue between the parties. It was an issue raised by the State with the intention of defeating the two cases on jurisdictional grounds. Deputies Daly and Murphy prevailed on that issue. However, the Court did not agree with the test for which they argued and they were unsuccessful in their substantive challenges (Little (No.2): para 62(5)).

(6) While by no means a determining factor, it is relevant that the President of the High Court considered the two cases to raise issues of such constitutional importance and public interest as to merit the convening of a Divisional Court. It is a feature of many cases before Divisional Courts where the plaintiff/applicant failed, that the court nonetheless considered that the issues were of such general importance that at least some percentage of the unsuccessful plaintiff/applicant’s costs should be awarded against the State (see, for example, Curtin and Collins).

C. The measurement of costs at 50%

35. We are satisfied that, for the reasons set out above, Deputies Daly and Murphy have a strong case to be awarded at least some of their costs of these cases. While these cases are exceptional cases and should be seen as a “rarity”, Deputies Daly and Murphy did still lose in the cases, and, in the circumstances of the cases, we do not consider it appropriate to award them their full costs. We consider that an apportionment of costs is more appropriate than awarding full costs.

36. We consider that the position in these two cases is generally analogous to that which applied in Curtin (where the unsuccessful applicant was awarded 50% of his costs before the Divisional Court), in Collins (where the unsuccessful plaintiff was awarded 75% of her costs by the Divisional Court ) and in the cases referred to by Murray J. at para. 65 of Little (No.2) where costs measured between 40% and 50% were awarded to unsuccessful plaintiffs/applicants. At para. 65, Murray J. said:

“65. …decisions in which costs have been awarded have tended to come within the categorisation suggested in Collins. In Fox v Minister for Justice and Equality, the applicant was awarded 50% of the costs of proceedings before the High Court and the Court of Appeal, in circumstances in which he had raised novel and important issues around the scope of the obligations on the State to investigate certain deaths under Article 2 of the European Convention on Human Rights. In PMcD v Governor of X Prison [2021] IESC 71 the unsuccessful applicant was awarded 50% of his costs before the High Court in a case in which he sought to assert constitutional rights in the context of a hunger strike undertaken by him while he was in prison, because the arguments that had succeeded on appeal had not been made in the High Court, and because the case had begun in emergency circumstances: the Court stressed that the outcome of the case had been of considerable benefit to the prison authorities and had raised issues of importance as to the legal relationship between prison authorities and prisoners, as well as issues more generally relevant to the existence of a duty of care. In ELG v. HSE (No. 2), 40% of the costs of the appeal were awarded in favour of an unsuccessful appellant in a case in which the matter of general public importance related to whether a child assessed as needing services but who was without a disability, was entitled to a service statement under the Disability Act 2005.”

37. In Collins, the Divisional Court, in observing that costs had been awarded to losing plaintiffs in constitutional cases of conspicuous novelty where the issue touched on aspects of the separation of powers between the various branches of government, referred to Horgan v An Taoiseach [2003] 2 I.R. 468 (“Horgan”) (which also involved Article 28 of the Constitution and the question of what constituted participation in war) and Curtin (which concerned aspects of the judicial impeachment power). The Court later noted (at para. 18) that the departure from the general rule in awarding costs to the unsuccessful party did not necessarily mean that the plaintiff was held to be entitled to full costs and cited both Horgan and Curtin where the respective plaintiffs were awarded 50% of their costs. In Collins, the Divisional Court awarded the plaintiff 75% of her costs.

38. We do not believe that Deputies Daly and Murphy, having lost their cases, should recover all or 75% of their costs and would note the emphasis by the Divisional Court in Collins on the particular fundamental objection raised by the plaintiff in that case which, the Court noted, if correct, would have affected budgetary allocation in a far-reaching manner. The impacts of the issue raised in Collins were even greater and more far-reaching than those raised in the cases brought by Deputies Daly and Murphy.

39. While Curtin involved the decision of the Supreme Court as the constitutional court of final instance, the ruling of the Supreme Court on costs inter alia noted that its decision had clarified for the future the constitutional norms in a core area of constitutional governance as between the three organs of State. In our view, a similar or equivalent observation can properly be made of the decisions in these two cases also. We note that the Supreme Court ruled in Curtin that the appellant should be refused his application for full costs and should be awarded half the costs of the proceedings in the High Court and half the costs of the appeal against the Attorney General.

40. Through their actions, Deputy Daly and Deputy Murphy have clarified for the future an important legal and constitutional issue in relation to the attendance at and participation in meetings of the Government by Super Junior Ministers. Somewhat analogous to the position of the unsuccessful parties in Curtin and Collins, we are satisfied that Deputies Daly and Murphy, although unsuccessful in their proceedings, have established not only that costs should not be awarded against them but also that their respective challenges meet the higher threshold of establishing an entitlement to an award of some costs in their favour. In view of the systemic importance and the novelty and complexity of the fundamental and foundational constitutional issues raised in these two cases, we consider that we should exercise our discretion to award Deputies Daly and Murphy 50% of their costs against the State.

41. In the particular circumstances of these cases, therefore, we award Deputies Daly and Murphy 50% of their costs in their respective cases as against the State (to include reserved costs and the costs of submissions), such costs to be adjudicated upon in default of agreement.