Patrick Costello TD, Green Party, has been awarded half of his legal costs arising out of his failed High Court challenge over the constitutionality of aspects of the CETA EU-Canada trade deal. Mr. Costello had argued that certain provisions of the Comprehensive Economic Trade Agreement (CETA) granted protections for Canadian investors and that these provisions usurped the law-making function of the legislature and the judicial competence of the Irish courts in the Constitution.
In awarding the costs order, Ms. Justice Nuala Butler, who had heard and dismissed the challenge in September, stated that she was granting the order because of the fact that the case was of 'clear public interest' and raised 'novel' questions of constitutional law in respect of the State's adherence to international treaties with binding tribunal mechanisms. She was satisfied that the issues were of significant constitutional weight and importance, the legal issues were complex and there was a clear public interest in having them ratified prior to the proposal to ratify the CETA coming back before the Dáil.
Although tentatively accepting that Mr Costello had no personal interest in the outcome of the proceedings in the sense that he had no financial, property, or beneficial interest at stake, Ms. Justice Butler did go on to state 'However, in the case of a politician litigating issues in respect of which political decisions may also have to be taken, high profile litigation certainly associates that politician with those issues in the mid of the public and, regardless of the outcome, does potentially confer a political advantage and a consequent benefit to the individual concerned'.
For those reasons, she made an order directing the State defendants – the Government, Ireland, and the Attorney General - to pay half of the TD’s legal costs, including reserved costs.
The judge stressed she was not making that costs order on other grounds advanced by Mr. Costello. She disagreed with his argument this was a “test” case.