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.
He writes: “It is an unavoidable disadvantage of the adversarial system of litigation in common law jurisdictions that the courts are, almost invariably, confined in their consideration of the case to the submissions and other materials, such as relevant authorities, which the parties elect to place before the court. Since the resources of the court itself in this context are necessarily limited, there may be cases in which it would be advantageous to have the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterised as a meddlesome busybody.”
NGOs can certainly assert a bona fide interest in many cases that involve the issues they work to address.
Furthermore, Keane’s judgment distinguishes between an amicus curiae and a third-party intervener. Third-party interveners become parties to litigation and, as such, the issue of costs again comes to the fore. As Keane notes in Iwuala, however, “an amicus curiae, unlike an intervener, has no right of appeal and is not normally entitled to adduce any evidence”.
So long as the putative amicus curiae is prepared to assume the costs of its written and/or oral submission, as the UNHCR did in Iwuala, costs should not pose any real deterrent. If such a submission did give rise to a costs order, it would most likely be minimal.
Although Keane’s judgment clarifies that this “is particularly appropriate at the national level in cases with a public law dimension” and “a jurisdiction which should be sparingly exercised”, it is strange that Iwuala has had so little impact on the legal landscape in the years since it was decided.
Irish courts have carefully reaffirmed the limits on their jurisdiction in this regard when presented with applications in a small number of cases and have stressed that any submission must somehow illuminate the issue(s) at stake in a different way to that in which the parties to the case have.
Nonetheless, the Supreme Court did open the side door to the courtroom in Iwuala. Only when more NGOs take up the court’s invitation to make amicus curiae submissions will we know how effective a tool this can be in public interest litigation in Ireland.
Larry Donnelly is lecturer and director of clinical legal education in the School of Law at NUI Galway. For the past two years he has been manager of the Public Interest Law Alliance ( pila.ie)