CA and Another (Costs) v The Minister for Justice & Equality and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 10 June 2015
• Neutral Citation: [2015] IEHC 432
• Court: High Court
• Docket Number: [2014 No. 31 J.R.]
• Date: 10 June 2015

[2015] IEHC 432

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2014 No. 31 J.R.]

BETWEEN

C. A. AND T. A. [COSTS]

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE MINISTER FOR SOCIAL PROTECTION, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – Direct provision – Practice & Procedures – O. 99, r. 1 (4) of the Rules of the Superior Courts – Award of costs

Facts: The applicants sought an order of costs on the ground that they had succeeded in the proceedings that the applicants instituted against the respondents attacking the state's receptions facilities for asylum/subsidiary protection seekers. The respondents contended that the relief obtained by the applicants in the said proceedings, wherein it was held that the direct provision entered into by the applicants was contrary to the Constitution, was private in nature and thus the applicants could not recover the costs.

Mr. Justice Colm Mac Eochaidh awarded the costs in favour of the applicants and directed the respondents to pay 20% of costs of the said proceedings to the applicants and that 25% of that sum be taxed in default of agreement. The Court held that the costs should be awarded against the state where an issue of public importance in relation to the Constitution was litigated and similarly to the losing plaintiff in constitutional cases where any new aspect had been raised. The Court held that before making any order as to costs, it must be ensured that the litigant was not intending to gain any personal benefit and the issues raised were for the common good. The Court held that in the present case, the Direct provision for food and other services that imposed unreasonable restriction on the liberty, equality and right of privacy of the applicants raised the issue of the condition of the similarly situate asylum seekers and thus required to be resolved for the greater public benefit.

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 10th day of June 2014.

1 This is the judgment of the court on costs applications arising from the judgment delivered in these proceedings on the 14 November, 2014. (The applicants are mother and son but for ease of reference I shall refer to the mother as the applicant) Both parties have sought their costs to which they say they are entitled on a straightforward application of the default rule as to costs as provided by Ord. 99 r.1 (4) of the Superior Courts which is that costs ‘shall…follow the event’. In other words both parties argue that they have succeeded to some extent. The relevant event for the applicant was its success in securing relief which it had sue to obtain. The relevant event for the respondent was its overwhelming success in resisting the vast majority of the applicant's claims. Alternative positions were also argued and these will be described in more detail later.

2 To appreciate some of the costs arguments made it is necessary to set out certain core documents and pleadings in full. I have set out some of these documents in schedules attached to this judgment.

3 As will be seen from a cursory consideration of these documents the applicant launched a comprehensive attack on the state's reception facilities for asylum/subsidiary protection seekers. Ms. Butler S.C. for the respondent stated that the proceedings aimed a cannonball at every aspect of the reception facilities and related rules referred to throughout the proceedings as ‘direct provision’. The proceedings were indeed ambitious in seeking to attack every conceivable aspect of direct provision - not a formal scheme but a set of circumstances derived from government action and statutory provision - in one court action. The analogy of a cannonball does not adequately describe the nature of the assault which was attempted. The proceedings, in my view, were more in the nature of a cluster bomb, most of which missed its target. The court was aware that in parallel with these proceedings - whether by design or not- a public campaign against the perceived deficiencies in ‘direct provision’ was underway. During the costs application I referred to this litigation as ‘a campaigning case’ and counsel for the applicants' did not demur.

4 The applicant entered direct provision in April 2010. The first complaint (apart from some very minor issues) she made about her circumstances was through her solicitors by letter dated 10th September, 2013. The letter is at schedule 1 hereof. It is a letter of extraordinary length. Like much of the written material advanced on behalf of the applicant, the same effect or better effect could have been achieved using a fraction of the number of words. As will be seen this is not a gratuitous criticism. The reply to the letter is at schedule 2.

5 Not being satisfied with the reply received the applicant instituted these proceedings, very shortly after the exchange of letters, by ex parte application for leave to seek judicial review which the court ordered to be heard on notice. The State did not contest the leave application and leave was granted in the terms in which it was sought. The statement required to ground application for judicial review is at schedule 3 hereof.

6 The case was at hearing for twenty-three days and there were a number of directions hearings. Given the grave allegations of breach of human rights which were alleged, the court was anxious to give the earliest possible date for hearing and permitted the case to commence prior to the delivery of most of the affidavits in the belief that any disadvantage or difficulties which might thereby be caused were outweighed by the expedition achieved in hearing the applicant's case. In retrospect the court regrets having permitted the case to commence when affidavits were awaited. It was in these circumstances that a case which was indicated (by the applicant) would take a week and would not involve any dispute as to facts became a six-week case with fundamental and irresolvable disputes as to fact. In all nine affidavits were filed during the course of the case. With each new affidavit the extent of the dispute as to facts deepened.

7 Prior to the hearing the court expressed concern as to possible disputes as to fact. The court also asked for an issues paper which was delivered by the applicant though not with the agreement of the respondent. No issue identified on that paper is referable to a dispute as to facts. Had the court waited for all of the affidavits to be filed before commencing the hearing it would have been possible to identify the extent as to the dispute as to facts and to suggest or order a plenary hearing or to suggest cross examination on affidavit as a means of permitting the court to resolve disputed facts. At no stage did the applicant seek such measures.

8 Distinct costs arguments were made in relation to the costs of matters adjudicated upon by the court and in relation to measures raised by the proceeding but rendered moot. I shall deal first with the costs of the matters adjudicated upon by the court in its judgment of the 14th November, 2014. The court identified three issues which required adjudication: -

1. Direct provision is a breach of human rights under the Constitution and the European Convention on Human Rights.

2. The direct provision allowance was unlawful.

3. The direct provision scheme is a breach of Article 15 and/or Article 28 of the Constitution.

The respondent acknowledges that the applicant's chief success was in securing the following order from the court: -

‘The Court doth declare that

1) the provisions of the current Reception and Integration Agency House Rules in relation to –

a. the room inspection regime

b. monitoring of presence by way of daily sign-in/registration

c. requirement to notify intended absence

d. prohibition on receiving guests in private quarters constitute a disproportionate interference with the Applicants' right to privacy pursuant to Article 40.3 of the Constitution

2) the Applicants are entitled to an independent complaints handling procedure in respect of their direct provision accommodation.’

9 However the respondent says that that the matter in which the applicant succeeded was barely mentioned in the letter before action or in the applicant's pleadings. I agree with this submission. Whilst acknowledging that the success achieved is of personal importance to the applicant the respondent argues that the extent of the matters in which the applicant succeeded were a very minor part of the overall breach of human rights alleged and in turn, an even more minor part of the proceedings generally. The respondent also accepts that the applicant succeeded in defeating the respondent's argument that the proceedings constituted an attempt to enforce unenforceable social economic rights.

10 Apart from the complaint as to house rules invading privacy and the absence of an independent complaints handling procedure, the focus of the human rights complaint was on the alleged negative effect of direct provision on the applicant. Approximately nine days of the trial was spent dealing with this issue and most of than was spent arguing breaches of the European Convention on Human Rights.

11 During the course of the trial the court observed that no remedies pursuant to the Human Rights Act, 2003 had been sought in the pleadings. The applicant resisted the contention that relief under that Act was the exclusive remedy for breach of a Convention right. The court ultimately ruled that the applicant's pleadings were deficient by reason of this omission and granted the applicant liberty to seek to amend the proceedings to include a claim for damages under the 2003 Act. The respondent did not oppose the application but the court adjourned the application until it had...