Background
R.N. applied to the Minister for Foreign Affairs for a certificate of Irish nationality and a passport on behalf of his infant son S.N., who was born abroad. The Minister refused both applications. The applicants challenged those refusals by judicial review, but the overarching thrust of the proceedings was a constitutional attack on s. 7(3) of the Irish Nationality and Citizenship Act 1956, which the applicants argued breached the equality guarantee in Article 40.1 of the Constitution. The High Court refused that challenge in its substantive judgment of 22 May 2026, having found that the well-established principles governing equality challenges — settled by the Supreme Court in Donnelly v Minister for Social Protection [2022] IESC 31 — were fatal to the applicants’ case, and that the impugned provision was constitutionally sound.
When the matter returned for final orders, the applicants sought no order as to costs; the respondents sought their full costs. The question for Mr. Justice Barry O’Donnell was whether this was a case that warranted departure from the default rule under s. 169 of the Legal Services Regulation Act 2015, which creates a presumption that a wholly successful party is entitled to its costs.
The Court’s Holding
O’Donnell J. applied the framework set out by Murray J. in Little v Chief Appeals Officer [2024] IESC 53, which requires a court to assess whether proceedings qualify as public interest proceedings and, if so, to carry out a structured balancing exercise before departing from the ordinary costs rule. He identified six relevant features of the case: the challenge was to a statutory provision with potential effects well beyond the applicants’ personal circumstances; the proceedings were nonetheless framed around the applicants’ own family situation and were primarily directed to their personal benefit; the issues were somewhat novel given the absence of direct authority, though the case was never formally presented as a test case; the applicable equality principles were settled and stable; the legislation itself was not unclear; but the proceedings raised a question of genuine general public importance — namely, how citizenship may be acquired as a matter of constitutional law — with appreciable potential effects on naturalised citizens whose children are born abroad.
Weighing those factors, the court held that the proceedings should properly be characterised as public interest proceedings. It further found that awarding costs against the applicants could have a broader deterrent effect on other litigants — potentially including persons without the means of the second applicant — who might otherwise bring similar, perhaps stronger, challenges. Additionally, the determination of the case was expected to clarify the legal position for others in comparable circumstances. On that basis, the court made no order as to costs in either the substantive proceedings or the costs application itself.
Key Takeaways
- The default rule under s. 169 of the Legal Services Regulation Act 2015 — costs follow the event — can be displaced in public interest proceedings, even where the applicant loses on the merits, provided the court applies the structured balancing exercise required by Little v Chief Appeals Officer [2024] IESC 53.
- A case need not be a formal test case, nor need the underlying legislation be ambiguous, for proceedings to qualify as public interest proceedings; it is sufficient that the claim raises a question of general constitutional importance with systemic implications beyond the parties.
- The prospect of an adverse costs order having a deterrent effect on future litigants — particularly those of lesser means who might have been affected by the impugned provision — is a legitimate and weighty factor in the costs discretion.
- Where proceedings are primarily driven by a personal interest but also carry genuine public law significance, a court may allow sufficient latitude to classify them as public interest proceedings and depart from the ordinary costs disposition.
Why It Matters
This ruling is a practical illustration of how Irish courts are applying the structured public-interest costs framework mandated by the Supreme Court in Little, moving away from the old practice of declining costs orders against unsuccessful public-law applicants informally and without detailed reasoning. It signals that constitutional challenges touching on citizenship and the rights of naturalised citizens’ foreign-born children will be treated as carrying sufficient public importance to shield unsuccessful litigants from adverse costs — even where the legal principles are well-settled and the outcome was clear.
For practitioners advising clients on constitutional litigation strategy, the decision confirms that the Little framework is not merely academic: a carefully argued public-interest characterisation, supported by evidence of potential systemic impact and deterrence concerns, can secure a no-costs outcome even after a substantive defeat. The judgment also underlines that courts will look critically at whether proceedings were genuinely brought to vindicate public rights or primarily to achieve a private benefit — a distinction that will remain central to costs arguments in judicial review.