TDs awarded 50% of costs in unsuccessful challenge over ‘super junior’ ministers
High Court Reporters
Two TDs raised issues of public and constitutional importance in their unsuccessful legal challenge to the attendance of “super junior” ministers at Government meetings, and should be awarded half of their legal costs incurred in the actions, the High Court has ruled.
In a judgment on Friday, a three-judge court said proceedings brought by Sinn Féin’s Patrick ‘Pa’ Daly and Paul Murphy of People Before Profit–Solidarity gave rise to “one of the rare and exceptional circumstances” where unsuccessful litigants should be awarded a proportion of their legal costs.
Accordingly, High Court president Judge David Barniville, ruling with Judge Siobhán Phelan and Judge Conleth Bradley, said the State should pay 50 per cent of the TDs’ legal costs incurred in their cases.
The deputies brought separate but similar challenges, arguing article 28 of Bunreacht na hÉireann limits the number of Government members to 15 and that the attendance of super junior ministers at Cabinet meetings goes against this.
In December, the court held that no provision of the Constitution is breached by the attendance and participation of the junior ministers at Cabinet meetings.
It remains open to Daly and Murphy to seek permission to appeal the High Court’s judgment.
Ministers of State attending Cabinet – or super junior ministers – are appointed by the Government on the nomination of the Taoiseach. They participate in Government meetings, but do not vote.
At Friday’s hearing, the judges said the TDs’ cases met criteria set out by the Supreme Court, outlining circumstances when the court can depart from the default costs rule – namely, that a successful litigant should be awarded their costs, or “costs follow the event”.
The judges said there was “real substance” to the deputies’ cases, noting a public interest in clarifying the issues raised in the cases.
“The principal judgments brought clarification to what, in our view, was an issue of fundamental importance and on which there were diverging academic views,” the judges said.
The cases involved evidence relating to Government decision-making processes not fully addressed before the courts, the judges said.
The cases involved “unchartered constitutional terrain”, the court noted.
While noting that it was not a determining factor, the judges said it was relevant that Judge Barniville considered the cases of such importance that they required the convening of a three-judge divisional court.
By comparing the cases to other instances when a losing litigant was awarded costs, the judges decided the TDs should be awarded 50 per cent of their costs against the State.
“Through their actions, Deputy Daly and Deputy Murphy have clarified for the future an important legal and constitutional issue in relation to the attendance at and participation in meetings of the Government by super junior ministers,” the judges said.
“In view of the systemic importance and the novelty and complexity of the fundamental and foundational constitutional issues raised in these two cases, we consider that we should exercise our discretion to award Deputies Daly and Murphy 50 per cent of their costs against the State.”
