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2026 IEHC 292

APPROVED [2026] IEHC 292 THE HIGH COURT JUDICIAL REVIEW 2025 982 JR BETWEEN ADRIAN SLABU APPLICANT AND CHIEF APPEALS OFFICER SOCIAL WELFARE APPEALS OFFICE MINISTER FOR SOCIAL PROTECTION IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Garrett Simons delivered on 12 May 2026 INTRODUCTION 1. This judgment addresses the incidence of the legal costs of a constitutional challenge which is being withdrawn. The principal relief sought in these proceedings is a declaration that certain legislative provisions are invalid having regard to the equality guarantee under the Constitution of Ireland. Prior to a trial date being fixed, the Supreme Court delivered a judgment in other, unrelated proceedings which forecloses the argument which the Applicant makes in these 2 proceedings. The judgment is entitled Amariei v. Chief Appeals Officer [2026] IESC 22. The Applicant intends to discontinue these proceedings in circumstances where he cannot now succeed in obtaining the principal relief sought. 2. The Applicant has applied for an order of costs in his favour. This application is advanced on the premise that these proceedings have been rendered “moot” in consequence of the Supreme Court judgment. This characterisation is contested by the Respondents. THE IMPUGNED LEGISLATIVE PROVISIONS 3. To assist the reader in a better understanding of the legal issues arising on the costs application, it is necessary first to outline the legislative provisions impugned in the constitutional challenge. 4. Section 318 of the Social Welfare Consolidation Act 2005 provides that the Chief Appeals Officer may, at any time, “revise” any decision of an appeals officer, where the decision was erroneous by reason of some mistake having been made in relation to the law or the facts. Section 327 provides that any person who is dissatisfied with the “revised decision” of the Chief Appeals Officer may appeal that revised decision to the High Court on any question of law. 5. As of the date the Applicant commenced these proceedings, there was no authoritative judgment on the proper interpretation of the legislative provisions governing the right of appeal to the High Court. It was an open question as to whether the right of appeal is confined to circumstances where the Chief Appeals Officer has made a decision which modifies or reverses the decision of the appeals officer, or whether, alternatively, the right of appeal extends to 3 circumstances where the Chief Appeals Officer has merely affirmed the decision of the appeals officer. The prevailing wisdom had been that the phrase “revised decision” should be understood as confined to cases where the outcome of the decision following the review is different from the initial decision of the appeals officer. 6. The prevailing wisdom had been informed by obiter dicta in the judgment of the Supreme Court in Castleisland Cattle Breeding Society Ltd v. Minister for Social Welfare [2004] IESC 40, [2004] 4 IR 150. There, the appellant had purported to pursue appeals to the High Court against both (

  1. i)the decision of the appeals officer and (
  2. ii)the decision of the Chief Appeals Officer. It is explained in the judgment that it was only at a very late stage in the subsequent appeal to the Supreme Court that that court itself adverted to the absence of a right of appeal from the Chief Appeals Officer where he or she does not revise the decision of the appeals officer. The Supreme Court held as follows (at paragraph 14 of the reported judgment): “However, there is a more fundamental objection to the approach adopted by the High Court Judge and it is this. Although under s. 271 [of the Social Welfare (Consolidation) Act 1993] an appeal lies to the High Court from a decision of an appeals officer, an appeal lies only from ‘the revised decision of the chief appeals officer’. If, as in this case, the chief appeals officer decides not to revise the decision of the appeals officer, then it would seem to me that there is no ‘revised decision of the chief appeals officer’ and, therefore, no right of appeal. The Act does not appear to give any right of appeal to the High Court from the refusal of a chief appeals officer to revise a decision, though no doubt in an appropriate case there might be grounds for judicial review. In fairness to the learned High Court Judge I do not think that this point was adverted to by any party in the High Court.” 4 7. These obiter dicta relate to the statutory precursor of what is now section 327 of the Social Welfare Consolidation Act 2005. The reasoning underlying the obiter dicta might seem to apply equally to that latter provision. 8. A related question of statutory interpretation came before the Supreme Court in McDonagh v. Chief Appeals Officer [2021] IESC 33, [2021] 1 ILRM 385. The precise point at issue in that case was whether a decision by a deciding officer not to revise the outcome of an earlier decision was amenable to appeal under section 311 of the Social Welfare Consolidation Act 2005. The Supreme Court (per Dunne J.) held that the legislature did not confine the right of appeal to circumstances where the original decision of the deciding officer was altered as to the outcome. It was further held that to confine the right of appeal thus would not reflect the “generous and flexible” regime for challenging a decision under the Act. It would also result in anomalies: a claimant who achieved a partial victory on an application for revision would be entitled to pursue an appeal in an attempt to secure an even better result, while a claimant who was wholly unsuccessful would have no right of appeal (paragraph 76 of the judgment). 9. The judgment in Castleisland Cattle Breeding Society Ltd had been relied upon in argument before the Supreme Court in McDonagh v. Chief Appeals Officer. Having cited the passage quoted above, Dunne J. stated as follows (at paragraph 72): “S. 271 is, broadly speaking, in the same terms as s. 327 of the 2005 Act. The only difference between the provisions has no bearing on the issues that arise in these proceedings. There is no doubt that a distinction is drawn in s. 327 between ‘a decision’ of an appeals officer and ‘a revised decision’ of the Chief Appeals Officer in that only a ‘revised decision’ of the Chief Appeals Officer can be appealed to the High Court on a question of law. Presumably, the distinction drawn between ‘a decision’ and ‘a revised decision’ must have some meaning. Some assistance could, perhaps, be 5 derived from the provisions of s. 327A of the 2005 Act. As was observed by the Court of Appeal at para. 59 of its judgment, ‘s. 327A

(1)(b) confers a unique right to the Minister to appeal a decision of the Chief Appeals Officer ‘not to revise’ the first mentioned decision to the High Court on a question of law. Thus, an express right is conferred by that section on the Minister to appeal against such a decision. Such a right is not conferred on any other party, thereby excluding any other party from such an appeal.’ This led the Court of Appeal to conclude that having regard to a consideration of Part 10 of the Act as a whole, there is a distinction between a ‘revised decision’ and a ‘decision not to revise a decision’. I do not disagree with the proposition that there is a distinction between a revised decision and a decision but it is also interesting to note the express reference in s. 327A to a decision not to revise a decision.” 10. It may be of assistance to the reader to pause here and to set out the provision cited by the Supreme Court in the above passage, namely, section 327A
(1)of the Social Welfare Consolidation Act 2005 (as inserted by the Social Welfare (Miscellaneous Provisions) Act 2010) as follows: “Where pursuant to section 318 the Chief Appeals Officer— 11. (
  1. a)revises a decision of an appeals officer, the Minister may appeal that revised decision to the High Court on any question of law, or (
  2. b)does not revise a decision of an appeals officer, the Minister may appeal the decision of the Chief Appeals Officer not to revise the first-mentioned decision to the High Court on any question of law.” This section confers a right of appeal upon the Minister for Social Protection against decisions of the Chief Appeals Officer. As appears, the section expressly distinguishes between circumstances where the Chief Appeals Officer “revises a decision” and those where he or she “does not revise a decision”. The practical effect of this wording is to ensure that there can be no doubt but that the Minister has a right of appeal irrespective of the outcome of the revision process. However, the existence of this express distinction under the legislation might 6 inform the interpretation of the right of appeal under section 327. An inference might be drawn to the effect that the use of a different form of wording in the respective sections is intended to indicate that a decision not to revise is amenable to appeal only at the instance of the Minister. 12. It was not necessary for the resolution of the appeal in McDonagh v. Chief Appeals Officer for the Supreme Court to reach a definitive view on whether the obiter dicta in Castleisland Cattle Breeding Society Ltd represent a correct statement of the law. 13. The authoritative interpretation of the legislative provisions governing the right of appeal to the High Court is now to be found in the judgment in Amariei v. Chief Appeals Officer [2026] IESC 22. The Supreme Court judgment was delivered on 25 March 2026, a short number of weeks after opposition papers had been filed in the present proceedings. 14. The question before the Supreme Court in Amariei v. Chief Appeals Officer had been whether the phrase “revised decision” is confined to a decision in which the Chief Appeals Officer has actually changed the outcome of the appeals officer’s decision, or whether the phrase extends to capture any decision taken by the Chief Appeals Officer pursuant to section 318, including one which leaves the original outcome undisturbed. 15. For the reasons explained at paragraphs 129 to 133 of the judgment, the Supreme Court held that the broader interpretation is the correct one. The right of appeal on a question of law under section 327 of the Social Welfare Consolidation Act 2005 is available irrespective of whether the Chief Appeals Officer revises the outcome of the decision or declines to do so. 7 PROCEDURAL HISTORY 16. These proceedings have as their genesis a dispute in relation to the Applicant’s entitlement to a social welfare payment known as “disability allowance”. The Department of Social Protection had discontinued payment for a period of months on the grounds that the Applicant had ceased to be habitually resident in the Irish State. The Applicant maintains that his absence had been temporary and undertaken solely for the purpose of receiving medical treatment not readily available within the Irish State. 17. The Applicant has sought to overturn the decision to discontinue payment by pursuing the various appeal and revision mechanisms under the Social Welfare Consolidation Act 2005. Matters had progressed as far as a decision of the Chief Appeals Officer. Relevantly, the decision was to affirm the earlier decision of the appeals officer. The Applicant and his legal advisors took the view that the statutory right of appeal to the High Court was only available where the Chief Appeals Officer had changed the outcome of the appeals officer’s decision. On this view, the decision of the Chief Appeals Officer was not amenable to appeal. It is apparent from their opposition papers that the Respondents were of the same view. 18. This shared view had been premised on what was then the general understanding of the interaction between the section creating the right to revise an appeals officer’s decision and the section creating the right of appeal to the High Court. This general understanding had been predicated, in large part, on the obiter dicta in Castleisland Cattle Breeding Society Ltd v. Minister for Social Welfare (discussed under the previous heading). It was also informed by the fact that express provision has been made under section 327A to allow the Minister to 8 pursue an appeal irrespective of whether the Chief Appeals Officer does or does not revise the decision of the appeals officer. As of the date the Applicant commenced his constitutional challenge, the question of statutory interpretation had not been definitively resolved at the level of the Supreme Court. 19. The Applicant commenced proceedings, by way of special summons, seeking to invoke the statutory appeal to the High Court: Slabu v. Minister for Social Protection (High Court 2025 86 SP). I will refer to those proceedings as “the special summons proceedings” to distinguish them from the constitutional challenge. The special summons proceedings were commenced at a time when the prevailing wisdom was that no appeal lay against a decision affirming an appeals officer’s decision. The constitutional challenge was intended to remove this jurisdictional bar. 20. This judgment is delivered in the context of the constitutional challenge. The constitutional challenge has been taken by way of judicial review proceedings pursuant to Order 84 of the Rules of the Superior Courts. These proceedings take the form of a constitutional challenge combined with a claim for judicial review of the Chief Appeals Officer’s decision. This second aspect of these proceedings has been included as a fallback, to safeguard the Applicant’s position by ensuring that—in the event the constitutional challenge were to fail and the special summons proceedings were to be struck out by reference to the jurisdictional bar—there would still be a forum available whereby the validity of the Chief Appeals Officer’s decision could be questioned. 21. The constitutional challenge takes as its starting point an assumption that the decision of the Chief Appeals Officer is not amenable to appeal to the High Court, by reason of the fact that the decision had affirmed the initial decision of 9 the appeals officer. The proceedings seek to challenge the constitutional validity of the relevant legislative provisions by reference to the equality guarantee. The principal relief sought is a declaration that section 327 and/or section 327A of the Social Welfare Consolidation Act 2005, as amended, are invalid. It is contended that in depriving the Applicant of the same entitlement to access the remedy of a statutory appeal on a question of law as the Minister for Social Protection, the legislative provisions unlawfully discriminate against the Applicant contrary to Article 40.1 of the Constitution of Ireland. It is said that the (supposed) difference in the right of appeal is arbitrary, capricious and irrational, and lacks any justification. 22. Having regard to an argument advanced in support of the application for costs, it should be flagged that a prayer for the following relief is included at paragraph (d)
(6)of the statement of grounds: “Such other Declaration(s) of the legal rights and/or legal position of the Applicant as this Honourable Court shall consider appropriate”
  1. I will return to consider the significance, if any, of this catch-all plea at paragraphs 40 to 43 below.
  2. It is apparent from the statement of grounds and the statement of opposition that both the Applicant and the Respondents had been labouring under the same misunderstanding as to the interpretation of the relevant legislative provisions. Both parties had taken the view that the legislative provisions excluded an appeal where the Chief Appeals Officer merely affirmed an appeals officer’s decision. The parties were only disabused of this misunderstanding upon delivery of the judgment in Amariei v. Chief Appeals Officer. As of the date of delivery, the constitutional challenge had progressed as far as the delivery of opposition 10 papers. A trial date had not yet been fixed. The Applicant immediately indicated an intention to discontinue his proceedings. The costs incurred by the parties are likely to be modest, consisting principally of the costs associated with the ex parte application for leave to apply for judicial review and the filing of opposition papers.
  3. It is now accepted by both sides that the constitutional challenge cannot succeed having regard to the judgment in Amariei v. Chief Appeals Officer. It is also accepted that the validity of the Chief Appeals Officer’s decision will be determined in the statutory appeal which has been brought in the parallel special summons proceedings. There is, therefore, no necessity for substantive orders to be made on either aspect of the present judicial review proceedings and the proceedings can be struck out. APPLICANT’S ARGUMENT FOR COSTS
  4. The Applicant’s argument for costs, as outlined in his written legal submissions, runs as follows. It is said that these proceedings have been rendered “moot” by the Supreme Court judgment in Amariei v. Chief Appeals Officer and that the mootness is due to a (supposed) change of position on the part of the Respondents.
  5. It is further said that the interpretation of the relevant legislative provisions adopted by the Applicant has been “approved” by the Supreme Court and that the Applicant “has been successful in the principal relief sought in the within proceedings” and “has certainly been ‘entirely successful’ in terms of the relief obtained”. 11
  6. The Respondents’ primary position is that these proceedings have not been rendered moot. The Respondents submit that a case will only be properly classified as moot where there is no longer any legal dispute between the parties, or where a judgment will not have the effect of resolving some controversy affecting, or potentially affecting, their rights. The following judgments are cited in support of that proposition: Goold v. Collins [2004] IESC 38; O’Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62, [2007] 1 IR 328; Lofinmakin v. Minister for Justice, Equality and Law Reform [2013] IESC 49, [2013] 4 IR 274; and O’Brien v. Moriarty [2016] IESC 36, [2016] 3 IR
  7. DISCUSSION AND DECISION Argument that the proceedings are “moot”
  8. The Applicant’s claim for costs is predicated on the characterisation of these proceedings as having been rendered “moot” by the Supreme Court judgment in Amariei v. Chief Appeals Officer.
  9. With respect, this characterisation is inaccurate. “Mootness” has a very particular meaning in the context of the allocation of legal costs. It refers to cases in which there will be no adjudication upon the underlying merits of the proceedings by reason of the fact that the resolution of the legal controversy is no longer of any practical interest to the parties. The absence of such an adjudication means that the identity of the party which has been successful in the proceedings will be unknown. Sections 168 and 169 of the Legal Services Regulation Act 2015 require the court to consider whether any party has been “partially successful” or “entirely successful” in the proceedings. This does not 12 assist where there is to be no adjudication upon the underlying merits and where there is no “event” for costs purposes.
  10. To address this contingency, the case law in relation to mootness has established a series of principles which allow the court to determine the incidence of costs, without having to embark upon an adjudication of the underlying merits solely for the purpose of allocating costs. The rationale underpinning this approach has been described as follows in Hughes v. Revenue Commissioners [2021] IECA 5, [2023] 3 IR 393 (at paragraph 28): “[…] A determination or concession of mootness may render the investment the parties have made in the commencement, preparation of or (depending on the point in time at which the action becomes moot) participation in the trial and prosecution of the appeal of legal proceedings, futile. At first glance, it might be thought that the most reliable way of deciding where that cost should lie would be to determine who would have prevailed in the proceedings had they run to conclusion. However, this would represent both an inefficient use of court resources and of the resources of the parties themselves. It would also undermine one of the purposes underlying the mootness doctrine – which is not merely directed to ensuring the most productive use of court time, but also reflects a broader constitutional principle that the Courts should not generally involve themselves in determining proceedings which do not present a live lis inter partes (see Lofinmakin v. Minister for Justice Equality and Law Reform [2013] IESC 49 at para. 82, [2013] 4 IR 274, at p. 298).”
  11. The judgment in Hughes then posits a series of propositions to be considered in allocating costs in proceedings which become moot. These include, relevantly, consideration of whether the mootness arises as a result of an event that is entirely independent of the actions of the parties.
  12. The concept of mootness describes circumstances in which the dispute between the parties has been resolved by something other than a judicial determination on the merits. An obvious example is where a public authority makes an 13 administrative decision—subsequent to the commencement of the proceedings—which results in the litigant obtaining the benefit that the proceedings had been intended to secure. Proceedings may also become moot because there has been a change in the personal circumstances of a litigant or a change in the legislative context.
  13. Nothing of the sort has occurred in the present proceedings. This is not a situation where the proceedings are being discontinued because the answer to the legal controversy is no longer of any practical interest to the parties. Rather, the reason that these proceedings are being discontinued is that the answer is known. The constitutional challenge cannot now succeed in circumstances where, on their proper interpretation, the legislative provisions do not actually create any difference in treatment. The Applicant enjoys a statutory right of appeal which is equivalent in scope to that enjoyed by the nominated comparator, i.e. the Minister for Social Protection. It is a condition precedent to a viable equality claim that there must be a material difference in treatment.
  14. It follows, therefore, that this court knows whether the Applicant would have been successful in the proceedings, without having to embark upon its own adjudication upon the underlying merits. The answer flows from the judgment of the Supreme Court in Amariei v. Chief Appeals Officer. The constitutional challenge is bound to fail by reason of the broad interpretation given to the legislative provisions governing the right of appeal.
  15. Accordingly, the specific principles guiding the allocation of the costs of moot proceedings do not pertain to the present proceedings. The incidence of costs must, instead, be determined by reference to the general principles set out in sections 168 and 169 of the Legal Services Regulation Act
  16. The principal 14 consideration is whether a party has been “successful” in the proceedings, whether “entirely successful” or “partially successful”. Whether the Applicant has been successful in the proceedings
  17. The Applicant submits that—had these proceedings been pursued to a full hearing—he would have been entitled to a declaration as to the scope of the statutory right of appeal which would allow him to pursue his own appeal in the special summons proceedings. More specifically, the declaration would be to the effect that the statutory right of appeal is not confined to a decision by the Chief Appeals Officer which changes the outcome of the earlier decision of the appeals officer. It is submitted that the securing of such a declaration would represent a “success” for costs purposes.
  18. The difficulty with this submission is that it does not reflect the claim actually advanced in these proceedings. The predicate of the constitutional challenge is that the legislative provisions have precisely the opposite effect. Counsel for the Applicant, very properly, accepts that no declaration of constitutional invalidity could now be obtained.
  19. It is sought to overcome this difficulty by saying that the court of trial would be required to reach its own view on the proper interpretation of the legislative provisions, independently of that contended for by the parties, as part of its overall assessment of the constitutional challenge. It is further said that the court of trial would have to apply the “double construction” rule of statutory interpretation. As an aside, it should be noted that the Supreme Court reached its interpretation by reference to the general principles of statutory interpretation, without recourse to the “double construction” rule. 15
  20. The Applicant submits that he would be entitled to rely on his catch-all prayer for declaratory relief to obtain a declaration as to the proper interpretation of the legislative provisions governing the right of appeal. This, it is suggested, would represent “success” in the proceedings.
  21. On the Applicant’s analysis, the concept of “success” in proceedings is to be understood as capturing any outcome which is favourable to a party, irrespective of whether it was the outcome contended for by that party. With respect, the concept cannot bear this extended meaning. The concept of “success” is intended to give effect to the principle that where a party has had to institute legal proceedings in order to obtain relief, the starting point should be that the party recovers all of the legal costs incurred in securing that benefit (Godsil v. Ireland [2015] IESC 103, [2015] 4 IR 535 (at paragraph 20)). It is also intended to promote discipline and focus in litigation. It is essential to the achievement of these objectives that “success” be measured by reference to the case as pleaded and argued. An otherwise successful party who materially increased the overall costs of the proceedings by pursuing issues unsuccessfully may incur a costs penalty.
  22. Here, the case as pleaded entailed a full-frontal attack on the constitutional validity of the legislative provisions governing the right of appeal to the High Court. The Applicant did not, as he might have, lead with a plea that the legislative provisions should be interpreted in a manner which would permit an appeal. Having regard to the then prevailing understanding of the proper interpretation of the relevant legislative provisions, it is understandable why the more ambitious approach was adopted. For costs purposes, however, it cannot be said that the Applicant has succeeded in any aspect of his pleaded case. A 16 litigant who chose to abandon a constitutional challenge once it became apparent that the cause was bound to fail cannot sensibly claim to have emerged from the proceedings as the successful party.
  23. The Applicant cannot rely on his catch-all prayer for declaratory relief. Such a catch-all prayer does not define the cause of action. The simple fact of the matter is that the Applicant never contended for the interpretation of section 327 of the Social Welfare Consolidation Act 2005 ultimately favoured by the Supreme Court.
  24. The judgment in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183, [2022] 2 IR 734 explains that in allocating costs it is necessary to identify the substance of the proceedings, i.e. the issues in contest between the parties, and to estimate the time, effort and costs incurred in relation to each.
  25. The substance of the present proceedings entailed a constitutional challenge to the appeals mechanism provided for under sections 327 and 327A of the Social Welfare Consolidation Act
  26. The pleaded case was that, on the proper interpretation of those legislative provisions, the Applicant was denied a right of appeal which the Minister enjoyed, and that this disparity offended Article 40.1 of the Constitution of Ireland. This represents the centre of gravity of these proceedings. The legal issues arising on the constitutional challenge are very different from, and far more extensive than, those arising on an application seeking a sympathetic interpretation of the legislative provisions. The legal issues include consideration of whether the (supposed) difference in treatment pursues a legitimate legislative purpose, and whether the statutory classification created is capable of supporting that legislative purpose. The legal costs incurred 17 in respect of the constitutional challenge would likely be much higher than those incurred in respect of an application for a discrete ruling on the proper interpretation of the legislative provisions governing an appeal.
  27. For all of these reasons, the Applicant cannot be characterised as having been either entirely or partially successful in the proceedings within the meaning of the Legal Services Regulation Act
  28. The correct characterisation is that the constitutional challenge is being withdrawn in circumstances where it is bound to fail. Discretionary factors
  29. It remains to consider whether there is anything which would justify a departure from the default position, i.e. that the losing party must discharge the successful party’s costs. The court is required, under the Legal Services Regulation Act 2015, to have regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties. Relevantly, the court must consider whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings: subsection 169
(1)(b).
  1. The term “reasonable” in this context is a term of art. It denotes something more than that a party pursued a legal issue in good faith and in the belief that they would succeed on the issue. See, generally, In the matter of M.V. Lady Magda [2021] IECA 51 (at paragraphs 5 and 6). The term does not, however, imply that the party must have been correct on the legal issue. Were it otherwise, the subsection would merely replicate the criterion of success in the proceedings.
  2. The “reasonableness” threshold recognises that, in certain cases, a party who has not succeeded on a particular legal issue should be relieved of the normal costs consequences of failure. For this to occur, there must be something in the 18 circumstances of the case or in the conduct of the proceedings by the other party which made it reasonable for the unsuccessful party to have pursued the legal issue. In the present proceedings, the combined effect of the following two factors is such that it was reasonable for the Applicant to pursue the constitutional challenge. First, there is a lack of clarity in the legislative provisions which is the consequence of a poor standard of parliamentary drafting. Second, the stance adopted by the State Respondents made it inevitable that the jurisdictional issue would have to be agitated in one form or another. These factors are elaborated upon below.
  3. The legislative provisions governing the right of appeal to the High Court under the Social Welfare Consolidation Act 2005 lack clarity. More specifically, the use of the term “revised decision” is imprecise and left open the question of whether the right of appeal extended to circumstances where the Chief Appeals Officer’s decision did not change the outcome. This question has only recently been resolved by the Supreme Court in Amariei v. Chief Appeals Officer. There were obiter dicta in a much earlier case which suggested that the opposite meaning might be the correct one. This confusion could have been avoided had the parliamentary draftsperson employed more precise language.
  4. The position adopted by the Chief Appeals Officer—consistent with the prevailing wisdom—had been that there was no right of appeal in the circumstances of this case. It was inevitable, therefore, that the Applicant would have to confront this jurisdictional issue. In principle, this might have been done by one of several procedural mechanisms. The Applicant could have sought the trial of a preliminary issue, in the context of his special summons proceedings, seeking a ruling that the legislative provisions, on their proper interpretation, did 19 allow for an appeal in his case. Alternatively, the Applicant could have responded to a motion brought by the Chief Appeals Officer seeking to have the special summons proceedings dismissed on the grounds that there is no right of appeal. Under each mechanism, the contest would be confined to an exercise in statutory interpretation. A constitutional challenge to the legislative provisions could only be brought by way of separate proceedings. It could not be brought in the context of the special summons proceedings.
  5. Had the Applicant adopted either of the above courses of action, he would have succeeded. This is because the correct interpretation of the legislative provisions is that there is a right of appeal against all decisions of the Chief Appeals Officer.
  6. In the event, the Applicant chose to pursue the jurisdictional issue by way of a constitutional challenge. As it happens, this more ambitious approach has been undone by the judgment in Amariei v. Chief Appeals Officer. The constitutional challenge is now bound to fail.
  7. Of course, the fact that a party has been unsuccessful on a legal issue is merely the starting point for the inquiry as to whether it had been reasonable to pursue the legal issue. It was reasonable for the Applicant to pursue the constitutional challenge in the very particular circumstances of this case. The Applicant was doing his best to grapple with a confusing legal landscape not of his making. It was not the Applicant who first advanced the incorrect interpretation of the legislative provisions governing the right of appeal to the High Court. Rather, this is an interpretation which had been consistently advanced by the State actors, including the Chief Appeals Officer, in previous litigation. 20
  8. The root cause of the confusion is poor parliamentary drafting. The term “revised decision” was apt to confuse, and a different formula should have been employed in the legislation.
  9. The Applicant, with the assistance of his legal team, sought to navigate a legal minefield. The legal team has served the Applicant well, putting in place a series of procedural measures intended to safeguard his position by addressing almost all contingencies. In particular, the precaution of invoking the statutory appeal (by instituting the special summons proceedings) has ensured that the Applicant is able to benefit, indirectly, from the judgment in Amariei v. Chief Appeals Officer. The statutory appeal has been filed in good time and can now be pursued to a hearing and determination.
  10. The legal team had also taken the precaution of including, as part of the present proceedings, a claim for judicial review of the Chief Appeals Officer’s decision. This addressed the contingency that the constitutional challenge might fail and the special summons proceedings might be struck out by reference to the jurisdictional bar.
  11. The only contingency not expressly addressed is that which ultimately came to pass, namely, a broad interpretation of the right of appeal. This is not intended, in any sense, as a criticism of the legal team. Rather, the outcome which has eventuated is the one that—having regard to the prevailing wisdom at the time these proceedings commenced—would have seemed the least likely.
  12. Had the statement of grounds included a precautionary plea seeking a broad interpretation of the legislative provisions, the Applicant would likely have been entitled to at least part of his costs. The absence of the plea is understandable, having regard to the then prevailing view of the interpretation of the appeals 21 mechanism. The absence of such a plea does, however, have the consequence that the Applicant cannot be said to have been successful in the proceedings. The Applicant is not entitled to an order for costs in his favour. Nevertheless, the interests of justice dictate that no order for costs be made against the Applicant. It would be unfair to visit costs upon the Applicant in circumstances where the root cause of the confusion is the poor drafting of the legislative provisions.
  13. In this regard, an analogy can be drawn with the approach in Little v. Chief Appeals Officer (No. 2) [2024] IESC 53 (at paragraphs 26 and 35). There, Murray J. suggested that an exemption from an order for costs may be merited, in proceedings against a State actor, where the point of law arises from avoidably unclear legislation. The rationale is that it may be unfair for persons affected by obviously unclear laws to bear the risk of litigation costs in order to secure a clarification that ought never to have been necessary. The State is in a position both to avoid uncertainty in the drafting of its legislation and to derive the benefit of any clarification of it.
  14. The analogy is imperfect in that the judgment in Little was delivered in the context of a discussion of public interest litigation. Nevertheless, there is some resonance with the present case where the Applicant was confronted not only with imprecise legislation but with State actors—as the respondents to his proceedings—who had insisted on standing over an incorrect interpretation of the relevant legislative provisions. CONCLUSION AND FORM OF ORDER
  15. The specific principles guiding the allocation of the costs of moot proceedings do not pertain to the present proceedings. The incidence of costs must, instead, 22 be determined by reference to the general principles set out in sections 168 and 169 of the Legal Services Regulation Act
  16. The principal consideration is whether a party has been “successful” in the proceedings. The Applicant cannot be characterised as having been either entirely or partially successful in the proceedings. The fact is that the Applicant never contended for the interpretation of section 327 of the Social Welfare Consolidation Act 2005 which was ultimately favoured by the Supreme Court in Amariei v. Chief Appeals Officer. The correct characterisation is that the constitutional challenge is being withdrawn in circumstances where it is bound to fail.
  17. The “reasonableness” threshold under section 169
(1)(b) recognises that, in certain cases, a party who has not succeeded on a particular legal issue should be relieved of the normal costs consequences of failure. In the present proceedings, the combined effect of the following two factors is such that it was reasonable for the Applicant to pursue the constitutional challenge. First, there is a lack of clarity in the legislative provisions which is the consequence of a poor standard of parliamentary drafting. Second, the stance adopted by the State Respondents made it inevitable that the jurisdictional issue would have to be agitated in one form or another.
  1. Accordingly, this court, in the exercise of its discretion under sections 168 and 169 of the Legal Services Regulation Act 2015, directs that each party bear its own costs of the proceedings. This extends to the costs incurred in relation to the costs hearing on 5 May
  2. It was reasonable for the Applicant to pursue an application for costs having regard to the unusual circumstances of the case. 23
  3. In addition, an order will be made striking out the proceedings: the constitutional challenge is bound to fail and the legal validity of the Chief Appeals Officer’s decision will now be determined in the statutory appeal to the High Court.
  4. The parties have liberty to apply. Appearances Derek Shortall SC and Olivia Crehan for the applicant instructed by CSHR Solicitors Aoife Carroll SC and Claire Cummins for the respondents instructed by the Chief State Solicitor

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