McShane v Data Protection Commissioner [No.2] (Approved) [2025] IEHC 314 (03 June 2025)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] High Court of Ireland Decisions You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McShane v Data Protection Commissioner [No.2] (Approved) [2025] IEHC 314 (03 June 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC314.html Cite as: [2025] IEHC 314 [ New search ] [ Printable PDF version ] [ Help ] [2025] IEHC 314 THE HIGH COURT JUDICIAL REVIEW [2022/699JR] BETWEEN: EAMON MCSHANE APPLICANT AND DATA PROTECTION COMMISSIONER RESPONDENT AND HEALTH SERVICE EXECUTIVE NOTICE PARTY JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 3 rd day of June, 2025 INTRODUCTION 1. This short judgment follows on from the substantive judgment of the court delivered on the 3 April 2025, [2025] IEHC 191 ( the main judgment ), and addresses the question of the costs of the proceedings. As set out in the main judgment, the applicant sought to challenge by way of judicial review a decision made by the respondent. The impugned decision decided a complaint made by the applicant concerning the treatment of his personal data by the notice party. For the reasons explained in the main judgment, the applicant did not succeed on any of the pleaded grounds and his application was refused. 2. In relation to costs, (i) the applicant has argued that he should be entitled to " a small order for costs in his favour, although not full costs "; (ii) the respondent argues that it should be entitled to a full order for costs as against the applicant; and (iii) the notice party similarly argues that it should be entitled to a full order for costs as against the applicant. 3. The initial ex parte application was opened on the 15 August 2022 and adjourned to the 23 January 2023. On the 23 January 2023, the High Court directed that the application for leave should be made on notice to the other parties. The consequent decision of the High Court is set out in a judgment of Bolger J. dated the 19 October 2023, [2023] IEHC 567 . It is clear from that judgment that one of the bases on which the DPC and HSE resisted the grant of leave was that the applicant had not pursued a statutory appeal remedy. However, the court determined that leave should be granted, and that the applicant had " satisfied the not very high standard ... to assert an entitlement to leave ". Hence, on the 19 October 2023 the High Court granted leave to the applicant to bring these judicial review proceedings. Bolger J. made an order reserving the costs of the contested leave application to the main proceedings. 4. Accordingly, over and above the usual costs issues, in this application the court is concerned with the question of how to resolve the costs of both the main proceedings and the contested leave application where, in addition to the positions of the applicant and respondent, account needs to be taken of the notice party's position. 5. The approach to be adopted to an application for costs is governed by sections 168 and 169 of the Legal Services Regulation Act, 2015 and Order 99 RSC. The relevant parts of the statutory provisions are as follows: " 168. (1) Subject to the provisions of this Part, a court may, on application by a party to civil proceedings, at any stage in, and from time to time during, those proceedings - (a) order that a party to the proceedings pay the costs of or incidental to the proceedings of one or more other parties to the proceedings, or ... (2) Without prejudice to subsection (1), the order may include an order that a party shall pay - (a) a portion of another party's costs, (b) costs from or until a specified date, including a date before the proceedings were commenced, (c) costs relating to one or more particular steps in the proceedings, (d) where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings, and (e) interest on costs from or until a specified date, including a date before the judgment. ... 169. (1) 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 orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including - (a) conduct before and during the proceedings, (b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings, (c) the manner in which the parties conducted all or any part of their cases, ... (2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order." THE ARGUMENTS 6. The applicant's position can be summarised as follows: a. First, the applicant argued that the respondent and notice party chose to contest the leave application which led to additional costs being incurred, and that he should not be fixed with those costs even if he lost in the substantive application. b. Second, he argued that neither the respondent nor notice party could be considered as entirely successful in the main proceedings because they failed to succeed in the alternate remedies defence at the full hearing. On a related point, the applicant highlighted portions of the main judgment where the court identified that elements in the impugned decision lacked clarity. c. Third the applicant considered that there was an element of public interest in the proceedings and that the main judgment to some extent clarified the law in relation to the approach to be adopted by the Data Protection Commissioner to complaints by data subjects pursuant to s. 108 of the Data Protection Act 2018. d. Fourth, the applicant noted that the notice party choose to take an active part in the proceedings despite the fact that its actions were not the subject of the immediate challenge. Here, the argument was that the respondent fully argued all of the issues in the proceedings and the involvement of the notice party did not bring any additional clarity or assistance to the case. 7. In relation to the applicant's first point, the respondent noted the general principle was that where an applicant obtained leave but was ultimately unsuccessful at the substantive hearing the costs of both stages of the proceedings would generally be awarded against them. The respondent drew the court's attention to the observations of Finlay Geoghegan J. in Treasury Holdings v National Asset Management Agency [2012] IEHC 237 , where she observed at para. 31: " Where a respondent decides to contest a leave application and is unsuccessful in that contest, then, insofar as there have been increased costs due to the respondent's contest, it may be that the court should make an immediate order for costs (irrespective of the ultimate outcome of the proceedings) in favour of the applicant against the respondent for those additional costs." 8. The respondent highlighted the use of the word " immediate " by Finlay Geoghegan J. and identified that Bolger J. did not chose to make an " immediate " order but instead reserved the costs. It followed, so the respondent argued, that there was no basis to depart from the ordinary approach. 9. In relation to the second point, the respondent argued that the application of the provisions of the 2015 Act supported its position. It submitted that the court should not consider the matters identified by the applicant in relation to the main judgment outside of the broader context of the proceedings, and that the substantive result should be the main focus of the courts analysis, relying on observations to that effect in Chubb European Group SE v The Health Insurance Authority [2020] IECA 183 Hickwell v Meath County Council (No. 2) [2022] IEHC 631 , and EPUK Investments Limited v EPA [2023] IEHC 138 . The respondent pointed to the observation of Clarke J. in Veolia Water UK Plc. v Fingal County Council (No. 2) [2007] 2 IR 81 where the court observed at para. 2.14 that raising additional issues "should only affect costs where the raising of the issue could, reasonably, be said to have effected the overall costs of the litigation to a material extent" . Finally, in this regard, the respondent relied on the observation of Donnelly J. in Word Perfect Translation Services Ltd. v Minister for Public Expenditure and Reform [2023] IECA 189 , at para. 50, that the focus of the court should be "on the big picture rather than a nit-picking of every single item or minute spent by each party in the course of litigation." 10. The respondent noted that the main judgment had made clear that while the court included negative commentary in relation to the processes adopted by the respondent in determining the applicant's complaint, the court noted that these were not matters raised by the applicant in the statement of grounds and leave had not been sought or granted in respect of those issues. 11. The respondent did not accept that these proceedings should be treated as public interest proceedings, as that term is properly understood. 12. For its part, the notice party essentially agreed with the respondent on the identification and application of the relevant general principles. In relation to the position of a notice party in this type of case, the notice party relied on the decision of the Supreme Court in O'Connor v Nenagh UDC [2002] IESC 42 , which has recently been relied upon by the Court of Appeal in Dowling v Minister for Finance [2023] IECA 197. In Dowling , the Court of Appeal found that the presumptive or default position is that both a respondent and notice party should be entitled to their costs where an application has failed, and the onus is on the losing side to persuade the court to exercise its discretion in any different manner. 13. In O'Connor v Nenagh UDC, Denham J. (as she then was) addressed the position of the notice party in that appeal, and in so doing provided guidance that has been followed subsequently as to the factors that could be considered generally: "(a) whereas there was an element of public interest, the application as originally drafted sought specific remedies potentially detrimental to the notice party; (b) the notice party was a necessary party; (c) the notice party participated fully in the trial; (d) the notice party was an entirely innocent party and acted in good faith at all times; (e) the notice party was successful in the proceedings; (f) no compelling reasons have been established as to why costs should not follow the event;" ... 14. The notice party argued that all of the above factors were applicable to its position and the application of those factors led to a strong basis for an award of costs in its favour. DISCUSSION 15. In relation to the contested leave application, I accept that the starting point is that the RSC requires an applicant to seek leave to commence judicial review. Ordinarily, such an application is made ex parte ; the usual approach is that the costs of the leave application are reserved to the substantive hearing, and their disposition normally will follow the outcome of that substantive application, see Treasury Holdings v. NAMA [2012] 1 IR 782. However, it is clear that in common with many pre-trial applications, the court retains a discretion to make a decision on the costs of the application for leave. 16. In this case, when the ex parte application was made the court directed that it should be on notice to the other parties. Hence the respondent and notice party had no choice but to take some stance on that application. Absent a specific statutory direction to the contrary, the threshold for obtaining leave to apply for judicial review is the same whether the application is resolved ex parte or on notice, and as noted by Bolger J. in her judgment in these proceedings, the threshold is low. At that point, the respondent and the notice party had the option of contesting the leave application or acceding to that application while fully reserving their positions in relation to the substantive proceedings. Where a respondent chooses to contest an application for leave on notice this carries the potential to prevent the proceedings going any further thus effecting a real saving in costs and court time. On the other hand, if the respondent is not able to persuade the court that the application for leave should be granted this has the effect of adding to the overall costs, taking up court time, and delaying the ultimate resolution of the proceedings. 17. In this case it can be noted that the main basis on which the respondent and notice party contested the application for leave was that the applicant had available an alternate remedy in the form of an appeal under the 2018 Act. Bolger J. was not satisfied that this argument was so clear as to warrant refusing the application for leave. As set out in the main judgment I found that the alternate statutory appeal remedy argument should not succeed as a basis for refusing relief. 18. Where the court dealing with the contested leave application chose not to make a substantive order addressing the costs of that application, I consider that it is possible to infer certain matters from that disposition. Here, the pre-2019 authorities need to be treated with a measure of caution. Order 99 was recast in 2019, and it provides at rule 2(3) that: " The High Court ... upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application." 19. In turn, that provision appears to complement and guide the operation of Order 84, rule 20(7) which provides the court dealing with an application for leave to " impose such terms as to costs as it thinks fit ... ". 20. Hence, I consider that it can be inferred that in reserving costs to the main proceedings Bolger J. was not satisfied that it was prudent at that point to make a decision on costs and by so reserving the costs indicated that, while the trial judge retained the ultimate discretion, they were likely to follow the ultimate event. 21. Nevertheless, in the particular circumstances of this case, I am satisfied that because the application for leave was contested primarily on a basis that did not succeed at the main hearing it would be appropriate to make no order for costs in relation to the application for leave. I am not satisfied that the applicant should be fixed with costs for that application where the extent of the likely costs were increased by the decision of the respondent and notice party to contest leave ultimately - and perhaps predictably - proved unsuccessful. In making that decision, I am bearing in mind that the applicant ultimately did not succeed on any of the grounds in respect of which leave was granted, and hence I do not consider that the applicant should be awarded the costs of that application. 22. In relation to the substantive application, I am satisfied that the respondent is correct in its analysis of the relevant principles. This was a case that was heard over two days, and while there was a lot of material placed before the court it was not particularly complex. As set out in the main judgment, the applicant did not succeed, even in part, in obtaining any relief. The alternate remedies argument was not accepted by the court because of the particular characteristics of the manner in which the impugned decision was framed, and not because at a level of principle the argument was unfounded. I am not satisfied that, viewed in the round, the introduction of this issue added costs or took so much time to address that it substantially affected the overall running of the case. 23. Likewise, while the court criticised some elements in the manner in which the impugned decision was framed, those criticisms were in respect of matters that were not directly connected to the grounds upon leave was sought but instead were of relevance to the alternate remedies arguments by the defence. Ultimately, I consider that what is sought by the applicant in this aspect of the application for costs would call for the court to engage in the type of " nit-picking " deprecated by the Court of Appeal in the Word Perfect decision referred to above. 24. In relation to the "public interest" points, many of the relevant principles are addressed by the Supreme Court in Little v. Chief Appeals Officer [2024] IESC 53 . Fo r the purposes of matters in the High Court, certain factors were identified that assist in deciding the question of whether an unsuccessful applicant should be relieved of the cost consequences that ordinarily follow from a failed judicial review application. The Supreme Court summarised the position at paragraphs 68 to 71: "First, those Courts enjoy a discretion not to award costs against an unsuccessful plaintiff or applicant in a public interest proceeding. These are civil proceedings against the State, or an organ or agency of the State (including a statutory body) in which the plaintiff or applicant seeks relief in public law, whether in the form of a challenge to the validity, legality or compatibility having regard to the Constitution, European Law, the European Convention on Human Rights or the general principles of administrative law, in respect of an enactment, measure, act, omission or decision of a body of the defendant or respondent whether by way of plenary action, proceedings by way of judicial review, or statutory appeal, and which present the various other features I have outlined at paragraph [34] of this judgment. Second, in determining whether to exercise that discretion in favour of such a litigant, the Court must have regard to all the facts and circumstances. I have identified some relevant considerations at paragraph [35] of this judgment: these are as pertinent to the exercise by the High Court and Court of Appeal of its jurisdiction, as they are in the exercise by this Court of its jurisdiction to award costs. Third, because this is essentially a balancing exercise, there are case specific factors which may cause the Court to exercise its discretion to order costs, even in proceedings in which many of these criteria are met. These include that the case was an obviously weak one, that the point was ultimately found to be covered by well-established authority, that the nature of the private advantage at stake for the unsuccessful party in the action is such that it would be unjust not to award costs (for example if the proceedings were brought for a commercial purpose), that the conduct of the unsuccessful party is such that costs should be awarded against it, or that the point of law in issue is so discrete and particular to the case of the unsuccessful party that it is not appropriate to exempt the claimant from the order that usually follows complete defeat. Fourth, while the courts retain a power to order costs in public interest litigation in favour of an unsuccessful party, the cases in which that power should be exercised are very rare. It would be only in the most exceptional of circumstances that they would not comprise cases where the constitutional issues litigated were ' fundamental' and ' touched on sensitive aspects of the human condition,' cases of ' conspicuous novelty', cases in which the issue was one of ' far reaching importance in an area of the law with general application', in which the courts have clarified an otherwise ' obscure or unexplored area', or cases in which the claimant, although ultimately unsuccessful, prevailed on a discrete issue in the case which was itself significant. Even where a case falls within one or more of these categories, the Court must have regard to the factors I have identified in the preceding paragraph in determining whether to award costs in such circumstances." 25. I am not persuaded that this case falls into the category of case described by the Supreme Court as, exceptionally, warranting absolution from an order for costs. While the case was a public law case against a statutory body, the questions raised, in reality, were very specific to the circumstances of the applicant and which ultimately were directed to his personal advantage. Those questions were resolved mainly by the application of well-established principles. This was not a case of far-reaching importance or conspicuous novelty. While GDPR litigation can raise issues that have yet to be fully explored, this case was primarily directed to the processes adopted by the respondent in answer to the applicant's complaint about the notice party. On balance, I do not consider it unjust or unreasonable for the normal approach to costs to be adopted. 26. Finally in relation to the position of the notice party, it is significant that it was joined to the proceedings from the start by the applicant. The applicant made that choice and must be taken as undertaking the risk that if it was not successful there may be costs implications. In addition, the court notes that the matters underpinning the impugned complaints involved serious allegations against the notice party and suggested that the notice party had acted as a data controller in respect of the applicant personal data and failed in its obligations. From the perspective of the court the notice party simply sought to assist the court in contextualising the underlying factual situation and its submissions at the hearing were focussed and helpful. I am satisfied by reference to the type of factors identified by the Supreme Court in the O'Connor v. Nenagh UDC judgment that the notice party was a necessary party (this cannot be disputed by the applicant where he joined that party), the notice party participated fully in the proceedings, it acted in good faith, and it was successful in its arguments. CONCLUSION 27. In all the circumstances, I am satisfied that no order as to costs should be made in respect of the contested application for leave to apply for judicial review. In relation to the substantive matter - and from the point when leave to apply for judicial review was granted on the 3 November 2023 - I will allow the respondent and notice party their costs as against the applicant, which costs are to be adjudicated in default of agreement. I will make no order in respect of this application for costs in circumstances where none of the parties were fully successful in their arguments. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC314.html