Ryanair DAC v An Taoiseach & Anor (Approved)

The principal judgment in these proceedings had been delivered on 2 October 2020, Ryanair DAC v. An Taoiseach [2020] IEHC 461 . This second judgment addresses the appropriate costs order to be made in the proceedings. In accordance with the protocol of 24 March 2020 on the delivery of judgments electronically, the parties have exchanged written legal submissions on the question of costs. Each party maintains that its costs should be paid by the other side.

The three core issues to be addressed in this costs judgment are as follows. First, whether the proceedings presented issues of general public importance such as to justify a departure from the normal rule that the successful party is entitled to its costs. Secondly, whether Ryanair can be said to have been �partially successful� in the proceedings notwithstanding that the application for judicial review was dismissed. Thirdly, whether it can be inferred that a change in the wording of the government�s travel advice had been introduced in response to these proceedings.

These issues are addressed under separate headings below. Before turning to that task, however, it may assist the reader in a better understanding of the issues to pause here and identify the relevant aspects of the statutory costs regime.

The within proceedings were instituted subsequent to the commencement, in October 2019, of Part 11 of the Legal Services Regulation Act 2015 (� the LSRA 2015 �). The allocation of costs thus falls to be determined by reference to that Act, and the amended version of Order 99 of the Rules of the Superior Courts.

Part 11 of the LSRA 2015 draws a distinction between a party who is �entirely successful� in proceedings, and a party who has only been �partially successful�. The default position is that a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings unless the court, in the exercise of its discretion, orders otherwise. The reasons for such an order must be stated. A non-exhaustive list of the factors to be taken into account by a court in exercising its discretion are enumerated under section 169(1).