Ho v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 13 June 2012
• Neutral Citation: [2012] IEHC 231
• Court: High Court
• Date: 13 June 2012

O (H) (An Infant) v Min for Justice & Refugee Applications Commissioner

BETWEEN/

HO (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND, AAO)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND REFUGEE APPLICATIONS COMMISSIONER (WASTED COSTS APPLICATION)

RESPONDENTS

[2012] IEHC 231

[No. 423 J.R./2009]

THE HIGH COURT

PRACTICE & PROCEDURE

Costs

Wasted costs - Jurisdiction to make wasted costs order - Immigration - Judicial review - Discretionary remedy - Whether litigation pointless and destined to fail - Whether continuation of litigation wasteful or vexatious - Whether failure to deal meaningfully with offer made - Whether critique of written submissions could form basis of application - Tomlinson v Criminal Injuries Compensation Tribunal [2005] IESC 1, [2006] 4 IR 321 and O'Donnell v Tipperary (South Riding) County Council [2005] IESC 18, [2005] 2 IR 483 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 7 - Costs awarded but wasted costs refused (2009/423JR - Hogan J - 13/6/2012) [2012] IEHC 231

O(H) v Minister for Justice, Equality and Law Reform

Facts Proceedings had been instituted by the applicant seeking to challenge a decision of the Refugee Applications Commissioner. It was the contention of the respondents that there was no issues to be litigated as such issues had been settled in cases such as BNN v. Refugee Applications Commissioner [2008] IEHC 308, [2009] 1 I.R. 719 and in Kayode v. Refugee Appeal Tribunal (Supreme Court, ex tempore, 28/01/09). The respondents had indicated that they would consent to a withdrawal of the case with no order as to costs. The applicants maintained that there were issues to litigate and only withdrew the case when it was due to be heard. The respondents brought the present application seeking to have an order of ‘wasted costs’ made pursuant to Order 99, rule 7 of the Rules of the Superior Courts against the solicitors for the applicant. It was contended that costs had been incurred by the respondents without any reasonable cause and these had been effectively wasted in circumstances where the legal representatives of the applicant had been afforded numerous opportunities to withdraw the proceedings.

Held by Hogan in refusing the application for a wasted costs order: The courts must be especially wary of retrospective endeavours to saddle solicitors with wasted costs orders simply because a case had been lost. It was only in very rare and limited circumstances that judicial review was available in respect of a decision of the Refugee Applications Commissioner (as an appeal should be taken first to the Refugee Appeals Tribunal). The applicant had a tenable argument that the case fell within one of the discretionary grounds justifying judicial review in respect of a first instance administrative decision. It could not be said that the prospects were hopeless to the point where the further continuation of the litigation was plainly wasteful and vexatious. The court naturally would award the respondents the costs of the proceedings but would decline to exercise its jurisdiction and make a wasted costs order.

RSC O.99 r7

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308

KAYODE v REFUGEE APPEALS TRIBUNAL UNREP SUPREME 28.1.2009 (EX TEMPORE)

A (TT) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 29.4.2009 2009/2/443 2009 IEHC 215

O (SM) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 7.5.2009 2009/43/10703 2009 IEHC 219

O (U) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 9.10.2009 2009/43/10715 2009 IEHC 451

RIDEHALGH v HORSEFIELD & ANOR 1994 CH 205 1994 3 WLR 462 1994 3 AER 848

CODE OF CONDUCT FOR THE BAR OF IRELAND PARA 5.3

CODE OF CONDUCT FOR THE BAR OF IRELAND PARA 5.8

J (O) & J (T) (MINORS) v REFUGEE APPLICATIONS CMSR & ORS 2010 3 IR 637 2010/24/5929 2010 IEHC 176

CANDLER v CRANE CHRISTMAS & CO 1951 2 KB 164 1951 1 AER 426

CONSTITUTION ART 35.2

M'ALISTER (ORSE DONOGHUE) v STEVENSON 1932 AC 562 1932 SC (HL) 31 1932 SLT 317

KENNEDY v KILLEEN CORRUGATED PRODUCTS LTD 2007 2 IR 561 2006/32/6745 2006 IEHC 385

IDRIS v LEGAL AID BOARD & MIN FOR JUSTICE UNREP COOKE 10.12.2009 2009/28/6823 2009 IEHC 596

TOMLINSON v CRIMINAL INJURIES COMPENSATION TRIBUNAL 2006 4 IR 321 2005 1 ILRM 394 2005/56/11848 2005 IESC 1

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 IR 483 2005 2 ILRM 168 2005/47/9846 2005 IESC 18

REFUGEE ACT 1996 S13(5)

REFUGEE ACT 1996 S13(6)

M (JG) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP CLARK 29.7.2009 2009/37/9108 2009 IEHC 352

REFUGEE ACT 1996 S13

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

BUCKLEY v JUDGE KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395 2000/3/887

1 1. This is an application brought by the respondents pursuant to O. 99, r.7 for what has come to be known as a wasted costs order against the applicant's solicitors, Burns Kelly Corrigan, in respects of the costs incurred by the Chief State Solicitor's Office from the period from the date the case was set down for hearing in June, 2009 to the date of the scheduled hearing on 16 ^th October, 2009, at which point the proceedings were withdrawn.

2 2. The applicant is now a seven year old Nigeria national who arrived in the State on 23 ^rd December, 2008. She applied for asylum on 9 ^th March, 2009. These judicial review proceedings were commenced on 22 ^nd April, 2009, when the applicant asylum seeker challenged a decision of the Office of the Refugee Applications Commissioner to the effect that she had not established a well grounded fear of persecution. The applicant maintained - though her mother and next friend - that she was entitled to asylum by reason of the threat of female genital mutilation in Nigeria.

3 3. So far as the judicial review was concerned, her contention, in essence, was that the Commissioner had breached fair procedures by arriving at conclusions regarding the availability of State protection in Nigeria by reference to material which had not been disclosed to the applicant's mother. This application in turn presented the vexed question of whether a litigant in the position of the applicant was obliged to appeal to the Refugee Appeal Tribunal or whether, alternatively, there were circumstances in which the applicant could directly challenge the decision of the Commissioner injudicial review proceedings.

4 4. On 9 ^th October, 2008, Hedigan J. gave judgment in BNN v. Refugee Applications Commissioner [2008] IEHC 308, [2009] 1 I.R. 719. In that judgment Hedigan J. held that, absent exceptional circumstances, such a decision was not amenable to judicial review and the appropriate response was to appeal to the Refugee Appeals Tribunal. In Kayode v. Refugee Appeal Tribunal the Supreme Court delivered an ex tempore judgment on 28 ^th January, 2009, dealing with this issue. This judgment stressed that intervention by way of judicial review was exceptional, albeit (as we shall presently see) that the challenge in that case was really based on reasonableness and rationality.

5 5. This principle was followed by a series of subsequent decisions of this Court in cases such as A. v. Minister for Justice, Equality and Law Reform [2009] IEHC 215, A. v. Minister for Justice, Equality and Law Reform [2009] IEHC 219. In the light of these decisions the respondents indicated to this Court (Hon. Mr. Justice McGovern) on 15 ^th June, 2009, that they would allow applicants who sought to challenge decisions of the Commissioner at first instance to strike out their cases with no orders as to costs. There was a further direction that those litigants who maintained that they were entitled to maintain their judicial review challenges in respect of the Minister's decision (the recent case-law notwithstanding) and who did not wish to take up the State's offer were directed to reply to the Chief State Solicitor's Office. At this point there were some 282 cases involving the Commissioner awaiting hearing in the court lists.

6 6. The applicant's solicitor's responded by letter dated the 9 ^th July, 2009. In that letter the applicant's solicitors stated:-

"We point out that it is our view that this case may be distinguished in the various recent cases relating to challenges by way of judicial review to decisions of the Refugee Applications Commissioner. We refer to the decision of the High Court cases of [BNN], Diallo, Akintunde, Ajoke, Nnauma and the Supreme Court decision in the case of Kayode. As we see it, the common factor running through these cases is that there was no finding made that any of the decisions in those cases were in breach of fair procedures and natural justice or in breach of any other requirement of the law."

7 The letter writer went on to say:-

"Furthermore, we are of the view that any comments of the High Court contained in the above cases which could be interpreted to mean that judicial review should not be granted in cases where there had been a breach of natural justice and fair procedures (and we do not concede that there are any) would be necessarily obiter given the findings that there is no such breaches. Indeed, this was the view taken by the respondent in their written submissions in the applications made for a certificate to appeal in the cases of Nganzumu and Nnamua."

8 8. The letter writer continued by referring to the breaches of fair procedures alleged in this case and concluded:-

"The applicant's claim was not properly considered leading inevitably to a situation where, if appealed at this juncture, the applicant's claim would effectively be heard only for the first time. We feel that there has been a material illegality in failing to apply the [Subsidiary Protection] regulation[s]… which would be incapable or unsuitable to be dealt with on appeal. It is...