KRA [No 3] v Minister for Justice and Equality

CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date03 October 2016
Neutral Citation[2016] IEHC 542
Docket Number[2015 No. 299 J.R.]
Date03 October 2016

[2016] IEHC 542



Humphreys J.

[2015 No. 299 J.R.]




(No. 3)

Asylum, Immigration & Nationality – Leave to appeal to the Court of Appeal – Order for costs – S. 3(11) of the Immigration Act 1999 – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Public interest

Facts: Following the refusal of the Court to grant an order of certiorari for the revocation of deportation order made against the applicant and grant of certificate to appeal from that order, the respondent now sought leave for filing a cross-appeal in the Court of Appeal in relation to an order of the High Court awarding the applicant's costs in the main refusal proceedings. The issue that arose in the present case was whether the High Court was required to give leave in order to facilitate a cross-appeal. The respondent also lodged an objection concerning the grant of injunction on the deportation of the applicant pending the determination of appeal before the Court of Appeal.

Mr. Justice Richard Humphreys refused the application of the respondent for leave to appeal. The Court observed that a party that had been granted leave might argue other ancillary issues apart from those for which leave was not granted but the opposite party was not entitled to raise any points, including costs unless leave was obtained by that opposite party. The Court held that the respondent had not shown any point of exceptional importance that would warrant the grant of certificate. The Court found that no public interest would be served by grant of leave as the issue in relation to the application of S. 5 of the 2000 Act to the judicial review of s. 3(11) of the Immigration Act 1999 was decided by the Court with the consent of the parties. The Court noted that the respondent had wasted the Court's time and energy by not disclosing certain facts and lodged pleading objection inspite of clearly telling the Court that it would not do so. The Court varied the existing injunction order to restrain the deportation of the applicants until further orders. The Court directed both the parties to make submissions in favour of discharge or continuation of injunction on the next date of hearing.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of October, 2016

In The Art of the Advocate (London, 1980) (pp. 49 to 50), Richard du Cann gives an account of the celebrated libel action, Laski v. Newark Advertiser Co. Ltd., tried by Lord Goddard L.C.J. and a jury in 1946. At an earlier point in the trial, the plaintiff's junior counsel Sir Valentine Holmes conceded, in a single, somewhat off-hand sentence, that damages would not be sought in relation to one particular allegation imputing cowardice to the plaintiff. In his final speech however, leading counsel for the plaintiff Sir Gerald Slade Q.C. asked for a verdict in his client's favour on this allegation. Sir Patrick Hastings Q.C., counsel for the defendant, then intervened to demonstrate by reference to the transcript that Slade's junior had previously abandoned this point. Du Cann acknowledges the tremendous pressure this must have created for Slade at that moment: ' In that one possibly ill-considered sentence, which was not vital to the argument then taking place, the whole of Slade's point, one upon which he believed he could win the whole case, was swept away in the middle of his final speech. Whatever the obligations to his client and whatever the personal feelings he had himself, Slade recognized the most important single fact of the situation: Hastings had already addressed the jury on the basis that the point was abandoned'. Slade then told Lord Goddard: ' I am not going back on anything Sir Valentine Holmes said, any more than I should go back on anything I said myself; and I therefore prefer to err on the side of fairness and I shall not ask the jury to deal with that part of the libel at all'. Du Cann's comment on this is that '[t]his is honest dealing of a very high order indeed'. But it is also advocacy at its most practical. Any other course would have been unworkable for the simple reason that the earlier representation had been relied upon.


Just how unworkable has been demonstrated in the present case where an alternative approach was taken. When it was drawn to the attention of leading counsel for the respondent that the submissions and objections being made, at a very late stage in the day after the hearing proper had concluded, were radically inconsistent with concessions and submissions made at an earlier point by his junior counsel, the court was metaphorically afforded an insouciant shrug and was simply told that these were good points and would be persisted in – even though the earlier representations had been relied upon by the other participants in the proceedings and the court itself. The fallout from that ill-founded strategy continues in the present application.


In the substantive decision in this case, K.R.A. (No. 1), I refused an application for certiorari of a decision not to revoke deportation orders under s. 3(11) of the Immigration Act 1999. In K.R.A. (No. 2), I granted the applicants leave to appeal that refusal to the Court of Appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000, and also awarded the applicants their costs in the particular circumstances of the case. The respondent now applies for leave to appeal against the order in relation to costs and in relation to the interlocutory injunction granted pending the determination of the appeal. I have considered the relevant case law in relation to leave to appeal including Arklow Holidays Ltd v. An Bord Pleanála [2007] 4 I.R. 112 and Glancré Teoranta v. Cafferkey [2004] 3 I.R. 401.


Following the circulation of an unapproved version of the present judgment, the respondent applied to me to have certain matters clarified, and the present version is the revised version taking into account those submissions and including other appropriate clarification and refinement.

Does a party need leave of the High Court in order to cross-appeal to the Court of Appeal?

The first issue that arises is whether I should entertain the application for leave to appeal, or in other words, whether I should take the view that the High Court is required to give leave in order to facilitate a cross-appeal, where leave has been given to the other party to file an appeal to the Court of Appeal.


In the present case, there are a number of factors militating in favour of finding that such leave to appeal is required. Firstly, both parties are agreed that leave to cross-appeal is required.


K.I. v. Minister for Justice [2012] IEHC 501 (Unreported, High Court, 9th May, 2012) appears to be the only case where this precise question has appeared for judicial consideration. In that case, Hogan J. took the view at para. 14 that where the applicant sought to appeal against a costs order, a certificate was required to do so. At para. 16, he refused such a certificate, and at para. 17, stated that the Minister's application for a certificate to cross-appeal the same costs order did not arise. Thus, at a minimum, Hogan J. did not seem to see anything wrong with the approach adopted in that case by the respondent, namely that leave to cross-appeal was required.


In McPhillips v. Minister for Justice, Equality and Law Reform [2015] IESC 47 (Unreported, Supreme Court, 18th May, 2015), the respondent sought to appeal a costs order without a certificate. Murray J. noted at para. 40 that 'the Oireachtas had in mind any appeal from the "decision" including all elements of the decision, of the High Court'. The reference to ' all elements of the decision' is particularly apposite in this case.


Canty v. Private Residential Tenancies Board [2008] 4 I.R. 592, was another case where an applicant was not entitled to appeal a costs order without leave, as were Rowan v. Kerry County Council [2015] IESC 99 (Unreported, Supreme Court, 18th December, 2015) and Browne v. Kerry County Council (Unreported, Supreme Court, 24th May, 2014).


As a matter of first principles, Mr. David Conlan Smyth S.C. for the respondent makes the point that if a party that was granted leave to appeal subsequently withdraws the appeal, that would leave a cross-appealing respondent high and dry if such a party was then seeking to ask the appellate court to vary the order of the High Court without any extant certificate to its benefit in that regard.


One might also envisage a multi-handed fight where, just to take an example, the Human Rights and Equality Commission were brought in to argue that a particular provision was incompatible with the ECHR. If a losing applicant appealed with a certificate and pursued a point of Irish law only, and if the Commission did not seek a certificate, the doctrine that leave for one...

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