Unused potential in public interest litigation
LEGAL OPINION:PUBLIC INTEREST litigation in Ireland is inhibited by the “loser pays” costs structure, by the absence of provision for class actions or multi-party litigation, and by time-honoured legal doctrines such as mootness, standing and the non-justiciability of socio-economic rights.
Of these, the costs structure is the most vexing. The prospect that an unsuccessful plaintiff with scant financial resources can be liable for the probably substantial costs of the other side undeniably discourages litigating in the public interest. In other jurisdictions, protective costs orders, which can limit or eliminate a plaintiff’s ultimate liability in a narrow category of public interest cases, are granted by courts to ensure courtroom doors are open to all when they need to be.
Irish courts have recognised their jurisdiction to issue protective costs orders, yet have thus far declined to do so. The parent organisation of the Public Interest Law Alliance (Pila), the Free Legal Advice Centres Ltd (Flac), has advocated that provision be made for protective costs orders in its submission on the pending Legal Services (Regulation) Bill. It remains to be seen whether the final version of the Bill will include such a provision.
In the meantime, mindful of the existing costs structure and the other barriers to litigating in the public interest, what options are there for vulnerable individuals and groups in Ireland, as well as for the non-governmental organisations (NGOs) that represent their interests, to pursue law reform in the courts? So far, NGOs in Ireland have not used the courts to further their objectives to the same extent as they have in other jurisdictions.
Nearly a decade ago, an arguably seminal, although little-noticed, decision of the Supreme Court opened the courtroom door (albeit a side door) to NGOs with a law reform agenda and corollary capacity to actively pursue law reform. Iwuala v Minister for Justice, Equality and Law Reform (2004) 1 ILRM 27 involved an appeal on “a point of law of exceptional public importance”.
As such, the Supreme Court decided the United Nations High Commissioner for Refugees (UNHCR) had the right to appear as an amicus curiae, someone who is not a party to a case, but volunteers to offer information to assist a court in deciding a matter before it.
Writing for the court, then chief justice Mr Justice Ronan Keane concludes “the court is satisfied that it does have an inherent jurisdiction to appoint an amicus curiae where it appears that this might be of assistance in determining an issue before the court”. Moreover, “the amicus is no longer expected to be wholly disinterested in the outcome of the litigation”.
Keane’s judgment is notable for the rather broad language he uses to underpin his conclusion. The language effectively vitiates the strict rules about standing that typically prevent Irish NGOs from litigating matters themselves.