Background
Gerard Kelleher brought judicial review proceedings concerning section 27(3) of the Misuse of Drugs Act 1977, including constitutional and European Convention on Human Rights Act 2003 challenges. Although he was released from prison before the substantive hearing, the High Court had previously refused to stay the case as moot because the issue was considered sufficiently important and likely to recur.
In Kelleher (No. 2), the High Court rejected Kelleher’s statutory interpretation and dismissed his constitutional and ECHR Act challenges. Both sides then sought their costs. The present judgment concerned only the costs of Kelleher (No. 2), because an earlier perfected order had already awarded Kelleher the costs of the separate mootness application decided in Kelleher (No. 1).
The Court’s Holding
Mr. Justice Conleth Bradley held that Kelleher’s challenge qualified as public-interest litigation under the principles stated in Little v The Chief Appeals Officer (No. 2). It was not, however, an exceptional, foundational, far-reaching, constitutionally novel or fundamentally important case that could justify awarding costs to Kelleher despite his substantive defeat.
The court separately considered whether the successful respondents should receive their costs. It stated that the proceedings were not within the category of cases in which it would be unjust not to award costs to the respondents. Nevertheless, after balancing all relevant circumstances under the public-interest costs principles, the court exercised its discretion to make no order as to costs. Relevant factors included the issue’s importance and likely recurrence, its implications for prisoners’ liberty and statutory entitlements, the absence of any personal benefit to Kelleher after his release, the systemic benefit of resolving the questions, the complexity of section 27(3), and the decision’s relevance to affected prisoner cohorts.
Key Takeaways
- An unsuccessful public-interest litigant faces a stricter test for obtaining costs than for avoiding an adverse costs order.
- Classification as public-interest litigation did not entitle Kelleher to recover his costs after losing the substantive case.
- The court denied both parties their costs of Kelleher (No. 2), while leaving undisturbed the earlier order awarding Kelleher the costs of Kelleher (No. 1).
Why It Matters
The judgment illustrates the distinct questions an Irish court asks in public-interest litigation: whether an unsuccessful applicant should receive costs and whether that applicant should instead be protected from paying the successful respondent’s costs. Failure to satisfy the exceptional standard for a positive costs award does not prevent the court from making no order as to costs after considering the litigation’s wider importance and all surrounding circumstances.