The State has urged the High Court to award substantial legal costs against United Left TD Joan Collins because she has decided to appeal against the rejection of her challenge to the Minister for Finance's decision to issue €31 billion promissory notes in favour of Anglo Irish Bank and the Educational Building Society.
Seeking the State's High Court costs against the TD today, Michael McDowell SC said he accepted the issues raised by Ms Collins were important and, had she won, there would have been "huge consequences" for the State.
That did not mean it was in the public interest to have the issues determined and her decision to appeal would impose additional costs on the State, he argued.
John Rogers SC, for Ms Collins, said the case involved public law issues of "exceptional importance" concerning whether it was lawful for the Minister and Government, without Dáil approval, to make "massive dispersals" of public monies.
The issues went to the core of the Constitution, there could be nothing more deserving of consideration and it was non sequitur for the State to argue they were of public importance but not in the public interest, he added.
In other cases involving issues more akin to private than public law rights, including the dispute between an estranged couple over frozen embryos and a case concerning whether the State must fund a Steiner school, the High Court had awarded costs to the plaintiffs against the State - even though it had successfully resisted the plaintiffs’ arguments, counsel noted.
Mr Rogers also said he was “troubled” by the State urging the court to consider that Ms Collins’s decision to appeal was a factor to be taken into account against her. Ms Collins had a constitutional right to appeal, and the fact she had chosen to exercise that right should not be a factor against her when deciding the issue of liability for the High Court costs.
A three-judge High Court, comprising Mr Justice Peter Kelly, Ms Justice Mary Finlay Geoghegan and Mr Justice Gerard Hogan, said it was reserving its decision on the costs issue.
In exchanges with counsel earlier, Ms Justice Finlay Geoghegan queried whether the court was entitled to take into account Ms Collins’s decision to appeal when deciding the costs issues.
Mr McDowell said the State had written to Ms Collins indicating, if she did not appeal, it would not pursue costs against her. She had decided to appeal and the State was now seeking costs against her. He did not consider that was unfair as the normal rule in litigation was that costs go to the winning party and an appeal would impose further costs on the State.
When Mr McDowell submitted the court should also take into account its rejection of Ms Collins’s argument that the Dáil must, in advance of draw-downs of public monies from the Central Fund, set a maximum limit on such draw-downs, Mr Justice Hogan asked was that issue, in itself, not of “far-reaching public importance”. Mr McDowell himself had previously said that issue had never been considered by the courts, the judge noted.
Mr McDowell said he accepted the issues were serious but he did not accept they were “weighty”. There was no public interest in bringing this case and the court had found Ms Collins’s arguments were misconceived, he added.
Mr Justice Hogan said other cases had been taken and lost but it had been found in the public interest to bring them, such as the "tragic case" of Marie Fleming who had secured all her High Court costs, and half of her Supreme Court costs, against the State.
In dismissing Ms Collins’s action last November, the High Court ruled the promissory notes were validly issued under a law which was constitutional.
