M.S. (Afghanistan) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 16 March 2021
• Neutral Citation: [2021] IEHC 164
• Docket Number: [2018 No. 490 JR] [2018 No. 962 JR]
• Court: High Court

BETWEEN

M.S. (AFGHANISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

BETWEEN

M.W. (AFGHANISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

AND

BETWEEN

G.S. (GEORGIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(NO.2)

[2021] IEHC 164

Humphreys J.

[2018 No. 490 JR]

[2018 No. 796 JR]

[2018 No. 962 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judgment of Humphreys J. delivered on Tuesday the 16th day of March, 2021

1 In M.S. (Afghanistan) v. Minister for Justice and Equality (No. 1) [2019] IEHC 477, [2019] 7 JIC 0209 (Unreported, High Court, 2nd July, 2019), I decided to refer three questions to the CJEU. The Advocate General delivered an opinion which suggested the determination of the proceedings in favour of the State ( Case C-616/19, M.S. v. Minister for Justice and Equality (Court of Justice of the European Union, Opinion of Advocate General Saugmandsgaard Øe, 3rd September, 2020, ECLI:EU:C:2020:648)).

2 The CJEU then delivered a judgment answering the first and third questions with a composite answer which required the proceedings to be determined in favour of the State and deciding that it was not necessary to answer the second question: Case C-616/19, M.S. v. Minister for Justice and Equality (Court of Justice of the European Union, Judgment of the Court (First Chamber), 10th December, 2020, ECLI:EU:C:2020:1010). In essence the first question had it been answered independently would have been answered adversely to the State, but the finding is in the body of the judgment and not the curial part of it (see para. 36), and the second question wasn't answered at all as it wasn't necessary to do so (para. 55).

3 On foot of that judgment it has been agreed that the proceedings would be dismissed, but an issue has arisen regarding costs. All parties applied for their costs albeit that the applicants, being the losing parties, majored more on the possibility of a portion of their costs.

Section 169 of the 2015 Act is not retrospective

4 The first question is the relevance or otherwise of s. 169 of the Legal Services Regulation Act 2015. The section was commenced on 7th October, 2019 (after the institution of these proceedings) by the Legal Services Regulation Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2019 (S.I. No. 502 of 2019), art. 2(n). In Sweetman v. Shell E&P (Ireland) Ltd. [2016] IESC 58, [2016] 1 I.R. 742 the Supreme Court decided that the law on costs is substantive rather than procedural, which has the logical consequence that a change in the law regarding the costs regime for proceedings is not retrospective. I appreciate that the Court of Appeal recently left this question open in Chubb European Group SE v. Health Insurance Authority [2020] IECA 183 (Unreported, Court of Appeal, Murray J. (Whelan and Power JJ. concurring), 8th July, 2020), at paras. 7 and 8, but that was because there was no argument on the point (see also Kellett v. RCL Cruises Ltd. [2020] IECA 287 (Unreported, Court of Appeal, 21st October, 2020)). However, here there has been some argument on the issue, and, in particular (with the caveat that the court might not need to decide the point), counsel for the respondent accepted in written submissions that Sweetman decided that “as substantive rules rather than procedural rules, any changes in the costs rules apply only prospectively” and in oral submissions that “the logic of Sweetman” suggests a similar result here. I think it does. It seems to me to follow from the Supreme Court decision in Sweetman that the law in relation to the costs of any given proceedings must be the law as it stood when the proceedings were commenced, at least absent any express and constitutionally-compatible statutory provision to the contrary. Thus the law governing the costs of the present proceedings must be that pre-dating the 2015 Act.

The basic principle that costs follow the event remains relevant

5 Even if I am wrong about that, the context is that the basic principle of costs following the event is deeply established in the law (see particularly Dunne v. Minister for the Environment [2007] IESC 60, [2008] 2 I.R. 775). The Legal Services Regulation Act 2015 seems to involve a change of focus, or at least of language, in the sense that the “event” prior to the 2015 Act was primarily identified by reference to whether relief was granted or refused whereas post the 2015 Act, the court has focused more on the outcome of specific issues (see per Simons J. in Náisiúnta Leictreach Contraitheoir Éireann v. Labour Court [2020] IEHC 342 (Unreported, High Court, 31st July, 2020), at para. 42 and Higgins v. Irish Aviation Authority [2020] IECA 277 (Unreported, Court of Appeal, 9th October, 2020), at para. 16 per Murray J. (Noonan and Binchy JJ. concurring)).

6 It is by no means clear that any change in focus was actually intended by the Oireachtas. And there is a second independent problem: the position in relation to costs seems to have been also unintentionally complicated by the listing in s. 169(1)(a) to (g) of large numbers of factors which could apply in vast numbers of cases. Experience in the brief period since s. 169 was commenced might suggest that it seems to have had the effect of encouraging applications that costs should not in fact follow the event. I don't think that such an outcome was the intention of the legislature.

7 It is not clear from anything I can see in the legislative history that it was ever suggested that it would change the principle that costs follow the event. Rather the Act seems to have been designed to reinforce that principle. The background includes the following.

8 The report of the Legal Costs Working Group in 2005 (at para. 2.1 of the executive summary), refers to “the absence of a convincing case for change” and says “given the paucity of research on this topic, the Group does not recommend abandoning the principles underpinning our system of costs recovery.”

9 The Competition Authority report, Competition in Professional Services, Solicitors and Barristers, December 2006, did not suggest any change to the rule that costs follow the event either.

10 What is now s. 169 of the 2015 Act began as s. 108 of the Legal Services Regulation Bill 2011. The explanatory memorandum dated 9th October, 2011 says that, “ Section 108 sets out the general principle that costs are to follow the event. In other words, a party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties. Nothing in this Part is to be construed as affecting section 50B of the Planning and Development Act 2000 or Part 2 of the Environment (Miscellaneous Provisions) Act 2011.”

11 While the explanatory memorandum is (typically for such documents) more a paraphrase than an explanation, the term “[i]n other words” implies that the Minister in introducing the Bill appeared to be under the impression that the section was simply setting out the principle that costs were to follow the event and proceeded on an assumption that the pre-existing principle was an equivalent concept to that provided for in the section. However, the explanatory memorandum gave no explanation as to why the Minister was setting out such a principle in primary legislation. One could argue that the State missed a trick by largely providing a paraphrase of the legislation without a legible explanation of its background history and rationale. The explanatory memorandum certainly did not explain who asked for this change or what the mischief was that was intended to be addressed. That paraphrase-as-explanation is fairly typical of the genre unfortunately, and it is certainly not the first time that one has seen situations where the State is missing out by such an approach by passing up the opportunity to put its intentions and analysis on the formal record in a way that would have been helpful in later judicial consideration.

12 The rule that costs follow the event is very much in the space of lawyers’ law. While parliaments can of course legislate on whatever they want, this type of rule is not the sort of thing that legislatures either here or elsewhere tend to dabble in without some clear purpose, or without some clear stimulus emanating from a particular legal development, for example a report on law reform.

13 In this instance, when one asks what the Oireachtas was trying to achieve, what the mischief was, where this provision came from and what change was sought to be enacted, answer comes there none; or at least none...