Irm v Mje
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 03 May 2017 |
| Neutral Citation | [2017] IEHC 257 |
| Docket Number | [2015 No. 436 JR] |
| Court | High Court |
| Date | 03 May 2017 |
[2017] IEHC 257
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2015 No. 436 JR]
AND
AND
AND
(No. 3)
Asylum, Immigration & Nationality – O. 99 of the Rules of the Superior Court – Award of costs – Application of normal rule – Mootness – Issues of public importance.
Facts: The applicants sought the costs of the earlier two proceedings filed by them in which they were granted the desired reliefs. The applicants also sought an order for the reserved costs. The respondents argued that the applicants were entitled for a lesser percentage of the costs as they were successful only on one point and unsuccessful on the others. The respondents further submitted that the issues raised by the applicants had become moot at the time of hearing and thus, they were not entitled for full costs.
Mr. Justice Richard Humphreys held that the applicants should be paid 85% of the costs of the proceedings, including the costs of the injunction application and the other reserved costs. The Court, however, held that the applicants were not entitled for the full costs because some of the arguments in relation to the application for an injunction were baseless. The Court held that the applicants had wasted the Court's time by making multiple versions of the statement of grounds. The Court held that the respondents decided to pursue the issue despite knowing that they had become moot and for that reason, the applicants could not be burdened with the costs. The Court found that the respondents had filed an appeal before the Court of Appeal and in the process of making leapfrog application to the Supreme Court for the determination of the moot issues and any meaningful hearing of those appeals would require active participation of the applicants and cause them to incur costs. The Court opined that where the State respondents sought to have moot issues determined in the interests of the public, they should bear some responsibility in relation to the costs incurred by the other party.
In I.R.M. v. Minister for Justice and Equality (No. 1) [2015] IEHC 873, Mac Eochaidh J. granted an injunction restraining the deportation of the first named applicant.
In I.R.M. v. Minister for Justice and Equality (No. 2) [2016] IEHC 478, I dealt with the substantive judicial review application on a telescoped basis, and granted a declaration that the Minister, in considering an application to revoke a deportation order, is required to consider the current and prospective situation of the applicant concerned insofar as relevant to that application (including the prospective position, likely to arise on birth, of any child of the applicant unborn at the time of the application). The remaining relief sought was refused.
I now deal with an application for costs in the proceedings. Mr. Michael Conlon S.C. for the applicant applies for all costs of the proceedings, including reserved costs. Ms. Denise Brett S.C. for the respondents submits that a lesser percentage of costs should be awarded to the applicants, although she did not argue for any specific percentage.
The primary rule in relation to costs is that they follow the event: Dunne v. Minister for the Environment Heritage and Local Government [2008] 2 I.R. 775. The primary issue in the present case, and the one which took up the majority of time, was whether the Minister was required, in considering an application to revoke a deportation order, to have regard to the likely prospective situation, as opposed to simply the current snapshot as of the date of her consideration. On that issue, the applicants were successful. The starting point therefore must be that costs should follow accordingly.
As noted in the I.R.M. (No. 2) judgment, the State specifically requested that issues relating to the degree of consideration required for the unborn child should be decided upon, even though they were moot as of the date of the hearing. It should also be noted that one of the subsidiary issues, namely the entitlement to an injunction where a s. 3(11) application remains undetermined, was also moot by the time it was determined.
This is not a case, such as Godsil v. Ireland [2015] IESC 103 or Cunningham v. President of the Circuit Court [2012] IESC 39, where proceedings became moot prior to hearing and thus a hearing was unnecessary. Rather it is a case where the State has applied to have the hearing go ahead and have the issues determined even though they have already become technically moot.
The position that these matters should be determined is one that the State are maintaining in appellate fora, in that the respondents have already appealed to the Court of Appeal, and are in the process of making a leapfrog application to the Supreme Court, with a view to having these moot issues determined by one or other of those courts. Any meaningful hearing of such appeals will require the active participation of the applicants or of some amicus curiae to make the points which the applicants would have made.
It seems to me that where the State seeks to have a moot issue determined, it is impliedly taking on some responsibility in relation to the costs necessarily incurred by the other party, which after all, by definition, does not have anything tangible to gain from continuing to proceed with the litigation.
There were three core issues at the substantive hearing: the need to consider the prospective situation of the applicants, the question of whether the first named applicant could be deported despite the existence of an undetermined s. 3(11) application (and the related question of whether the second named applicant had an entitlement to have her partner present at the birth of her child), and whether the first named applicant was entitled to specific notice of the date of intended deportation. The applicants prevailed on the first issue, and the respondents prevailed on all other issues. However, both the first and second issues were moot as of the time of the hearing, because the birth had already taken place and because the applicants were no longer pursuing either injunctive relief or a revocation of the deportation order.
It seems to me that the mootness of these issues reinforces the case for awarding costs to the applicants, insofar as the hearing of those issues at the substantive stage is concerned.
The fact that the State are seeking to obtain leave for a leapfrog appeal to the Supreme Court under Article 34.5.4° of the Constitution necessarily involves an expression of view by the respondents that the...
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