“Costs follow the event”. Every practitioner is accustomed to this rule and it is stated in fuller terms in Order 99, rule 1(4) as:
“The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.”
However, while a losing party in a case is usually the subject of an order for costs under Order 99 the court does retain a discretion to depart from it. This discretion was used recently by the High Court sitting as a divisional court in Angela Kerins v McGuinness & Ors IEHC 217.
In much publicised proceedings, Angela Kerins had taken a case against the members of the Public Accounts Committee (PAC) and others for damages because of her treatment when she attended before them voluntarily in 2014. She had argued that she was subjected to comment that was extremely damaging to her reputation both personally and professionally. In the substantive proceedings the Divisional High Court found against Ms. Kerins on the basis that Article 15(3) of the Constitution, which provides for parliamentary privilege, extends to utterances in committee as well as utterances in the parliamentary chambers.
Ms. Kerins then argued that the Court should depart from the normal rule regarding costs on a number of grounds, including that the proceedings raised issues of both special and general public importance, and that the court acknowledged that Ms. Kerins had been damaged but could not provide any redress to her because of the position of the PAC members. The respondents argued that the issues raised were not of exceptional public importance and that as Ms. Kerins had a personal interest in the case (she sought damages and not just declarations) this should militate against an award of costs in her favour.
The Court examined the previous case law on awarding costs to unsuccessful litigants in constitutional cases which were summarised in the case of Collins v Minister for Finance & Ors IEHC 79. Previous such costs awards have been made in cases where the constitutional issues were fundamental and touched on sensitive aspects of the human condition – such as in Norris v Attorney General IR 36. Costs have also been awarded to losing plaintiffs in cases touching on aspects of the separation of powers – such as Curtin v Dail Eireann IESC 27. Further the Court noted that the fact that the litigation has not been brought for personal advantage and that the issues raised are of special and general public importance are factors that can be taken into account in making such awards of costs.
The Court was satisfied in this instance that the case raised issues of special and general public importance, was of some novelty, and further, that it was of importance for the respondents. It was of the view that it might have implications for PAC in the future given that the committee operates to a large extent on voluntary participation of witnesses. PAC functions as a public spending watchdog and plays a role in trying to ensure accountability in the way Government agencies spend and manage their finances. The Court accepted there was a personal interest on part of Ms. Kerins in bringing the proceedings but that this was not fatal to an application for costs.
The Court acknowledged it was rare for a losing plaintiff to be awarded full costs in these types of applications and awarded Ms. Kerins two-thirds of her costs against the PAC respondents. The Court seemed to be giving a warning to the committee that although they benefit from parliamentary privilege there can still be consequences for comments made at hearings, even if it is merely an order for the costs of court proceedings.
Contributed by Catherine Thuillier
