G.T. v Minister for Justice and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 08 April 2025
• Neutral Citation: [2025] IEHC 207
• Docket Number: Record No. 2025 264 JR

Between

G.T.

Applicant

and

Minister for Justice and The Commissioner of An Garda Siochána

Respondents

and

The International Protection Appeals Tribunal

Notice Party

[2025] IEHC 207

Record No. 2025 264 JR

THE HIGH COURT

JUDICIAL REVIEW

Costs – Judicial review – Legal Services Regulation Act 2015 s. 169 – Applicant seeking costs against the respondents – Whether there was a sufficiently weighty issue of law of public importance

Facts: The applicant applied to the High Court for costs in respect of three separate court hearings in the proceedings. Firstly, there was an urgent application for leave to proceed by way of judicial review and for injunctive relief which was moved before Simons J on 27 February 2025. Leave together with a time limited injunction was granted. Costs were reserved. This was followed by a subsequent application for bail heard before Phelan J on 4 March 2025. The bail application was the subject of an ex tempore judgment delivered on 5 March 2025 wherein she refused to admit the applicant to bail. The question of costs was left over in circumstances where she gave directions in relation to an expedited hearing. Finally, the substantive proceedings came before her on 11 March 2025 by way of expedited hearing. Her written judgment was delivered on 14 March 2025. She refused to grant the applicant any of the reliefs sought in his application for judicial review. She determined that his proceedings should be dismissed. She was urged to depart from the normal rule as to costs on behalf of the applicant. The central thrust of the applicant’s application for a portion of his costs notwithstanding that he was not successful in obtaining any of the claimed relief in the substantive proceedings was that some clarity had been brought both in relation to the jurisdiction to admit to bail where a challenge is not brought to the deportation order and in relation to the availability of suspensive measures in the form of an application for injunctive relief as part of the architecture of the State’s protection obligations under EU law.

Held by Phelan J that if she were otherwise minded to consider departing from the normal rule by making no order as to costs because some clarification as to the application of the law may be gleaned in the terms of the judgments delivered in the proceedings, the applicant’s conduct in bringing proceedings late in the day in a manifest attempt to frustrate the enforcement of a lawfully made and un-impugned deportation order would weigh heavily against the exercise of that discretion. Combined with the absence of a sufficiently weighty issue of law of public importance, she concluded that this was not a case in which it would be appropriate to exercise a discretion to depart from the normal rule.

Phelan J held that the applicant had not established an entitlement to no order as to costs, still less an order for costs in his favour. Applying established principles and having regard to the terms of s. 169 of the Legal Services Regulation Act 2015, she ordered that the respondents, the Minister for Justice and the Commissioner of An Garda Síochána, be entitled to recover the costs of the proceedings as against the applicant to include reserved costs and the costs of the application for costs itself, all such costs to be adjudicated in default of agreement.

Costs awarded to respondents.

RULING (COSTS) of Ms. Justice Siobhán Phelan, delivered on the 8 ^th day of April, 2025

INTRODUCTION

1 . On this application, the Applicant seeks a departure from the normal rule as to costs by applying for costs against the Respondents notwithstanding failing to secure relief in these proceedings.

BACKGROUND

2 . The background to these proceedings is fully set out in my judgment delivered on the 14 ^th of March, 2025, in ( G.T v Minister for Justice & Ors. (No. 2) [2025] IEHC 154) and will not be repeated here. Suffice to note for present purposes that there have been three separate court hearings in these proceedings in respect of which applications for costs are now made.

3 . Firstly, there was an urgent application for leave to proceed by way of judicial review and for injunctive relief which was moved before Simons J. on the 27 ^th of February, 2025. Leave together with a time limited injunction was granted. Costs were reserved.

4 . This was followed by a subsequent application for bail heard before me on the 4 ^th of March, 2025. The bail application was the subject of an ex tempore judgment delivered on the 5 ^th of March, 2025 ( [2025] IEHC 133) wherein I refused to admit the Applicant to bail. The question of costs was left over in circumstances where I gave directions in relation to an expedited hearing.

5 . Finally, the substantive proceedings came before me on the 11 ^th of March, 2025 by way of expedited hearing. My written judgment was delivered on the 14 ^th of March, 2025. In my judgment in the substantive proceedings herein, I refused to grant the Applicant any of the reliefs sought in his application for Judicial Review. I have determined that his proceedings should be dismissed.

DISCUSSION AND DECISION

6 . There is no ambiguity as to the outcome of the proceedings. The Applicant lost his substantive claim. Although securing a time limited interlocutory injunction on an urgent basis, the Applicant was also refused bail and did not establish an entitlement to an injunction or declaratory relief on a substantive basis.

7 . On an application of the normal rule, the Respondents would be entitled to their costs to include reserved costs as they have been entirely successful in defending the within proceedings within the meaning of s. 169 of the Legal Services Regulation Act 2015 (“LSRA 2015”).

8 . I am urged to depart from the normal rule on behalf of the Applicant. The central thrust of the Applicant's application for a portion of his costs notwithstanding that he was not successful in obtaining any of the claimed relief in the substantive proceedings is that some clarity has been brought both in relation to the jurisdiction to admit to bail where a challenge is not brought to the deportation order and in relation to the availability of suspensive measures in the form of an application for injunctive relief as part of the architecture of the State's protection obligations under EU law.

9 . It is further contended on behalf of the Applicant that the making of an order for costs against the Applicant in these proceedings could have an undesirable chilling effect, contrary to rights of access to the courts, on the bringing of applications of this nature where it has been established that these types of applications exist as the route to assert rights under EU law.

10 . It was also suggested on behalf of the Applicant that proceedings may not even have been necessary were the legislation enacted in clear terms. Had s. 22 of the International Protection Act, 2015 (hereinafter “the 2015 Act”) been clear on the question of whether an appeal to the International Protection Appeals Tribunal (hereinafter the “IPAT”) operated a suspensive effect on an extant deportation order, then it was suggested that proceedings might not have been taken. It is submitted that the litigation was required because of Legislative silence on this question.

11 . The Respondent disputes an entitlement to a departure from the normal rule as to costs on any of the grounds advanced on behalf of the Applicant and relies squarely on an entitlement to costs flowing from the outcome of the proceedings. In particular, the Respondents do not accept that there was any novelty or clarification of the law in these proceedings.

12 . Although I accept that I have a well-established discretion to depart from the normal rule as to costs either by making no order as to costs or even ordering costs (or a portion of costs) in favour of a losing party, this is not an unfettered discretion and falls to be exercised within the statutory parameters guiding its exercise as laid down in the LSRA, 2015, the Rules of the Superior Court (hereinafter “the RSC”) and the jurisprudence.

13 . I am referred on behalf of the Applicant to the recent decision of Murray J. in the Supreme Court in Little v. Chief Appeals Officer & Ors (No. 2) [2024] IESC 53 where the factors which may warrant a court departing from the normal rule that the successful party is entitled to costs in a public law case were considered. In Little, the Supreme Court confirms the discretion conferred by the LSRA 2015 and O. 99 r.1(1) of the Rules of the Superior Courts as general and wide, with the notable constraint that the strong default rule is that imposed by s. 169 of the LSRA 2015. I am further referred to the even more recent decision of the Supreme Court ruling on costs in Chain Wei Wei v. Minister for Justice [2025] IESC 9 for an application of the Little principles. It is clearly established and reaffirmed in Little that the default rule as set down in s. 169 of the LSRA 2015 may only be departed from where there is a principled basis for ordering otherwise.

14 . I have considered the argument made that these proceedings have resulted in a clarification of the law in the wider public interest, a factor which I consider to be essential, in line with the principles as restated in Little, to the exercise of a discretion to depart from the normal rule in public law proceedings whether by ordering costs (or a portion thereof) in favour of a losing party or making no order as to costs.

15 . As there was no dispute before me but that I had jurisdiction to admit the Applicant to bail, I do not accept that my judgment clarified the law in this regard in any real way.

16 . Regarding the substantive issue of whether an appeal to the IPAT had suspensive effect on an extant deportation order, the Respondents refer me to previous, recent decisions of the Supreme Court in Seredych v. Minister for...