Islam v Commissioner of an Garda Siochana
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 16 January 2023 |
| Neutral Citation | [2023] IEHC 12 |
| Court | High Court |
| Docket Number | 2020 No. 921 J.R. |
In the Matter of the Taxi Regulation Act 2013
[2023] IEHC 12
2020 No. 921 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Costs – Moot proceedings – Judicial review – Applicant seeking costs – Whether the proceedings were issued precipitously
Facts: The applicant, Mr Islam, commenced proceedings by way of an ex parte application for leave to apply for judicial review on 7 December 2020. The object of the proceedings had been to secure the grant of a licence which would allow the applicant to operate a small public service vehicle (colloquially, a taxi driver’s licence). The judicial review proceedings became moot shortly after they had been commenced. On 5 January 2021, the respondent, An Garda Síochána (the licensing authority), made a decision to grant the licence. The only outstanding issue between the parties was in respect of legal costs. The applicant applied to the High Court seeking to recover his costs against the licensing authority on the basis that the proceedings had achieved their object, namely the grant of the licence. The licensing authority sought to resist paying costs on the basis, inter alia, that the proceedings were issued precipitously.
Held by Simons J that the just and fair outcome in the case was that there be no order for costs. He held that each party must bear its own costs of the proceedings (to include the costs of the one-hour costs hearing on 11 January 2023). He held that this outcome reflected the fact that whereas the proceedings did achieve the applicant’s desired objective, namely the grant of a small public service vehicle driver’s licence, the applicant might well have achieved the same result had he exhausted the statutory procedure under s. 13 of the Taxi Regulation Act 2013. Simons J held that it was unreasonable for the applicant not to have pursued this option, especially given that it would not have resulted in any material delay to the decision-making process.
Simons J held that, in circumstances where the proceedings were moot, an order would be made striking out the proceedings with no further order.
No order for costs.
Derek Shortall SC and Femi Daniyan for the applicant instructed by GN and Company Solicitors
Kilda Mooney for the respondent instructed by the Chief State Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 16 January 2023
This judgment addresses the allocation of legal costs in proceedings which became moot shortly after they had been commenced. The object of the proceedings had been to secure the grant of a licence which would allow the applicant to operate a small public service vehicle (colloquially, a taxi driver's licence).
The proceedings commenced by way of an ex parte application for leave to apply for judicial review on 7 December 2020. A number of weeks later, on 5 January 2021, the licensing authority made a decision to grant the licence. The only outstanding issue between the parties is in respect of legal costs. The applicant seeks to recover his costs against the licensing authority on the basis that the proceedings had achieved their object, namely the grant of the licence. The licensing authority seeks to resist paying costs on the basis, inter alia, that the proceedings were issued precipitously.
There is a statutory requirement for a person to hold a licence in order to drive a small public service vehicle for the carriage of persons for reward. This requirement is provided for under Section 22 of the Taxi Regulation Act 2013. All references in this judgment to a “licence” should be understood as a reference to a small public service vehicle driver's licence.
The Taxi Regulation Act 2013 envisages that the National Transport Authority will, ultimately, be the licensing authority. However, An Garda Síochána are acting as the licensing authority on an interim basis pending the making of the requisite Ministerial Order pursuant to Section 7 of the Act. In practice, the licensing function is performed by “ authorised officers”, i.e. members of the Garda Síochána, not below the rank of Superintendent, who have been authorised to carry out the licensing function by the Garda Commissioner.
The applicant is a citizen of Bangladesh and has been lawfully resident in the Irish State for more than a decade now, pursuant to a series of temporary immigration permissions. The applicant had been granted a small public service vehicle driver's licence on 14 March 2019. The duration of the licence coincided with that of the applicant's then immigration permission.
The applicant applied to renew his licence on 22 February 2020. This licence application was ultimately refused by decision dated 4 August 2020. The reasons for refusal related to the fact that the applicant's immigration status had not been “regularised” and that he had previously only ever held temporary immigration permissions. It should be observed that this decision to refuse the licence was lawful: see, generally, Rahman v. Healy [2022] IEHC 206.
A number of weeks later, the applicant's immigration permission was renewed until 19 August 2023 by the Minister for Justice and Equality. The applicant contacted the licensing authority on 5 September 2020 and requested that the decision to refuse the licence be reviewed having regard to his changed immigration status. It should be explained that the applicant would have had a statutory right of appeal to the District Court against the decision to refuse the licence. It appears, however, that the applicant took the pragmatic view that it would be more expeditious to have the matter dealt with informally, by way of an internal review rather than an appeal.
On 25 September 2020, the licensing authority sent an email to the applicant informing him that the authorised officer had reviewed his application and had decided to renew his licence. The email went on to state that the licence would be posted to the applicant in the coming weeks. In the event, no licence issued. Instead, the licensing authority wrote to the applicant as follows on 25 October 2020:
“I am to acknowledge receipt of your email below. I refer to your statement below in relation to your immigration permission. Your application was refused on the 11/08/2020 due to the reasons that are listed on the Refusal Notice that was served on you. Following this refusal you produced documentation to this office which stated that you have received a new long term visa from INIS. As per your request, the Authorised Officer reviewed your file and decided to reverse his decision to refuse your application. He instructed that your licence was to issue for the duration of your new visa, providing all other matters were in order.
Further enquiries were carried out in relation to your application prior to final issue. As previously stated said enquiries raised other matters which are now to be brought to the attention of the Authorised Officer who will make a determination on your application. Once said determination has been made you will be contacted by this office.”
It seems that the mention of “other matters” is intended as a reference to the fact that a number of summonses had been issued to the applicant in respect of alleged road traffic offences.
At this point, the applicant retained a firm of solicitors to act on his behalf. The solicitors wrote to the licensing authority on 11 November 2020. In brief, it was contended that, having made a decision to renew the licence on 25 September 2020, it was not now open to the licensing authority to reverse that decision. The letter called upon the licensing authority to issue a licence pursuant to the earlier decision and stated that the firm of solicitors had been instructed to initiate judicial review proceedings if the licence was not provided by 18 November 2020.
The licensing authority never made a formal reply to this letter from the firm of solicitors. Instead, the licensing authority, on 18 November 2020, sent the applicant a statutory notice pursuant to Section 13 of the Taxi Regulation Act 2013. In brief, this section obliges the licensing authority to notify an applicant of a proposed decision to refuse to grant a licence, and to invite representations within fourteen days on the proposed decision. The statutory notice stated that the authorised officer was not satisfied that the applicant was a “suitable person” to hold a small public service vehicle driver's licence because he had been summonsed to attend court in respect of (i) an alleged offence of careless driving, and (ii) three alleged speeding offences.
The statutory notice invited representations within fourteen days as to why the licence application should not be refused. Importantly, the statutory notice went on to state that a decision would be issued within seven days thereafter. It follows, therefore, that the process of the making and receiving of representations would not cause any material delay to the decision-making process.
The statutory notice of 18 November 2020 had been sent by way of ordinary post. It seems that the licensing authority subsequently took the view that the statutory notice should have been sent instead by way of registered post. Accordingly, a second statutory notice, in identical terms, was sent to the applicant by registered post on 4 December 2020.
In the event, the applicant chose not to make representations in response to either version of the statutory notice. Instead, the applicant prepared papers for judicial review proceedings and same were filed in the Central Office of the High Court on 26 November 2020. The ex parte application for leave to apply for judicial review was not made until 7 December 2020. The matter was...
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