The rule of the higher courts is that costs follow the event – which is say that they go to the winner – unless otherwise ordered.
When it gave the Independent TD Joan Collins 75 per cent of her costs in her failed case over the issuing of promissory notes, the High Court summarised the principles governing costs awards to unsuccessful litigants in constitutional cases.
Full or partial awards have been made where cases raise fundamental constitutional issues touching on "sensitive aspects of the human condition", such as by the late Marie Fleming over the law criminalising assisted suicide. Costs have also been awarded in constitutional cases of "conspicuous novelty", often relating to the separation of powers between the legislature and judiciary.
Other reasons include where a case raises issues of far-reaching importance in an area of the law with general application; where a case leads to clarification of an obscure or unclarified area of the law; and where a case is not brought for personal advantage and raises issues of “special and general importance”.
There are no guarantees for failed litigants, a fact illustrated in the case taken by the late Dominic Dunne to preserve Carrickmines Castle as a national monument. The High Court awarded Mr Dunne his costs, but the Supreme Court then overturned that decision.
In deciding costs in Angela Kerins's case the High Court said that the legal action raised issues "of special and general public importance and of some novelty", including what, if any, safeguards apply to voluntary witnesses before the Dáil Public Accounts Committee. The committee has an important public function, and questions about the discharge of that function were "of public importance".
This case was also important for the committee and the State as the court decided that the immunity from legal action that the Constitution confers on “utterances” in the Houses of the Oireachtas also extends to committees.
The court said that because of its view that the Public Accounts Committee hearings damaged Ms Kerins, and although she had a personal interest in bringing the case, the committee should pay two-thirds of her costs, as assessed by a High Court taxing master, with the State paying its own costs.
