2026 IEHC 386

(3)of the Irish Nationality and Citizenship Act 1956 (the 1956 Act) was unconstitutional. The constitutional infirmity relied on by the applicants was that s. 7

(3)breached the provisions of Article 40.1 of the Constitution. For the reasons explained in the substantive judgment, the court refused that application. When the matter came on for hearing in relation to final orders the applicants argued that there should be no order as to costs. That was contested by the respondents, who applied for their costs.

1. As noted by the respondents, the starting point for the court’s analysis should be s. 169 of the Legal Services Regulation Act
2. On that basis, where the respondents were wholly successful in defending the proceedings, prima facie it followed that absent a legitimate reason the applicants should be fixed with liability for the costs. The respondents highlighted the treatment by Murray J. of the proper approach to costs in the High Court which is set out at paras 66 to 69 of his judgment in Little v Chief Appeals Officer [2024] IESC
3. THE APPROACH IN LITTLE
4. The Supreme Court began by noting that in public interest proceedings the courts retain a discretion not to award costs against an unsuccessful applicant. Second, where it can be said that the elements of a public interest proceedings are present the court should have regard to all the facts and circumstances. Third, the court is required to carry out a balancing exercise taking account of any specific features of the case. Fourth, costs should only be awarded in favour of an unsuccessful applicant in public interest proceedings in very rare cases.
5. The identifying features of a public interest proceeding are set out at para. 34 of Murray J.’s judgment in Little. These are, in summary: a. There is a claim against the State; b. The relief sought is a public law relief; c. The claim raises an issue of general public importance; and d. Generally the relief is sought not for a personal benefit but instead to vindicate rights or interests of the public generally.
6. The factors that a court should consider are set out in para. 35 of Little, and these include that the case involves a point of general public importance. In turn that requires that the issue “if not novel, is sufficiently unclear or, if clear, there is a substantial question of whether it is appropriate to decide if it should be changed.” The second factor is whether the case was brought with a view to obtaining a personal advantage. Third, the point of law must be statable. Fourth, it was noted that a point may be of general importance, even if it is discrete in its application. The strength of the case for exemption from costs should be in proportion to the systemic importance of the point. Fifth, if the issue arises from unclear legislation this may form a basis for considering that the applicant should not be subject of an adverse costs order. Sixth, the fact that a case is a true test case may be relevant. Seventh, the court should consider whether the outcome on costs may have an unwelcome deterrent effect on potential litigants. DISCUSSION
7. The applicants’ arguments were made by reference to elements in the decisions of the Supreme Court in Little, and Chain Wen Wei v. Minister for Justice, a ruling of the Supreme Court from the 7 March 2025 bearing neutral citation [2025] IESC
9. The applicants emphasised that, in Little, Murray J. had observed that the previous practice in public law litigation often had involved courts declining to make costs orders against unsuccessful plaintiffs on an ex-tempore basis “and without much ado”. I agree with the respondents that a fair reading of the judgment did not suggest that there was a basis for that practice continuing, but instead a more reasoned and principle based approach was required.
10. In terms of the matters identified by the Supreme Court at paras 33 and 34 of Little, the applicants argued that in the particular circumstances of their case, there were elements present that justified a departure from the normal costs disposition, particularly the public law features and the potential for a deterrent effect.
11. Having regard to the guidance in Little, the features of the case and judgment that I have decided are relevant to this application are as follows: a. The case concerned a challenge to the constitutionality of section 7

(3)of the 1956 Act. As such it was a public law challenge and had the potential to have significant effects outside of the particular circumstances of the applicants. b. Nevertheless, the proceedings clearly were framed by reference to the particular family circumstances of the applicants and primarily were directed to achieving an outcome for their personal benefit. c. The issues that were canvassed were somewhat novel, in the sense that this was not a case on which there was any direct authority. However, this was not presented or treated as a formal test case, and there were no other cases that had been commenced but not progressed pending the outcome of this case. d. The resolution of the case depended on the application of principles regarding equality challenges that the Supreme Court has made clear are well established and stable, following the judgment of the Court in Donnelly v. Minister for Social Protection [2022] IESC 31. e. Likewise the legal provisions that were challenged did not suffer from any lack of clarity, and this was reflected in the fact that in reality the applicants did not press with any vigour the argument that the Minister could have made any decision other than the decisions that were made. f. Despite points (

1. d)and (
2. e)above, I am satisfied that the case was concerned with the question of how citizenship can be acquired from the perspective of the Constitution, and as such, raised an issue of general public importance. 10. In the premises, I am satisfied that, allowing some latitude, the proceedings should be characterised as public interest proceedings, as defined at para. 34 of Little. 11. In terms of the analysis set out at para. 35 of Little, I am satisfied that the proceedings have sufficient features of the type described to justify a departure from the ordinary rules on costs. 12. This was a case that had the potential to have an appreciable effect on the public, specifically naturalised citizens whose children were born abroad. There was a point of general public importance. I am also cognisant that while the second applicant appeared to be a person of means, this may not be so in the case of other persons who may have been affected by the impugned provisions. Accordingly, awarding costs against the applicants in this case could readily give rise to a concern that it would have a broader unwelcome deterrent effect on the bringing of other, perhaps stronger, cases. Finally, while it was not a classic test case for the reasons explained, the determination of the proceedings hopefully will clarify the position for any other litigants in similar positions to the applicants who may have been concerned about the operation of the legislative provisions in question. 13. As such, the court considers that the just resolution of the application is that there should be no order as to costs in the proceedings, and no orders as to costs in respect of this application.