Matta v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 26 July 2016
• Neutral Citation: [2016] IESC 45
• Docket Number: [Appeal No. 290/10 & 238/11]
• Court: Supreme Court
• Date: 26 July 2016

MacMenamin J.

Dunne J.

O'Malley J.

BETWEEN:

ELIAS MATTA

APPLICANT/APPELLANT

-v-

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND

&

THE ATTORNEY GENERAL

RESPONDENTS

[2016] IESC 45

MacMenamin J.

[Appeal No. 290/10 & 238/11]

THE SUPREME COURT

Immigration – Residency – Costs – Appellant seeking costs – Whether High Court judge was correct in making no order for costs in the circumstances

Facts: The appellant, Mr Matta, was born in Lebanon. He moved to Ireland in 2003. On 9th May, 2008, he applied to the first respondent, the Minister for Justice, Equality and Law Reform, for ?Long Term Residency Stamp 4? status. The appellant?s then employers were considering a redundancy package for him. The appellant wrote to the Minister, seeking the grant of long term residency and naturalisation on an accelerated basis, to ease his situation for future employment. However, the Minister did not give an undertaking to accelerate the process. In June and July, 2009, the appellant engaged in further correspondence, outlining the possibility of a new job for him, and indicating that the absence of Stamp 4 status could be detrimental to him. Proceedings were then brought on 27th July, 2009, seeking to compel the Minister to determine the appellant?s application for long term residency. On 18th August, 2009, the Minister did grant the appellant long-term residency. The judicial review proceedings then became moot. On 21st July, 2010, the High Court (Harding Clark J) made an order determining that the appellant was not entitled to the costs of?mandamus?proceedings. The appellant appealed to the Supreme Court against that order contending that he should have been awarded his costs. The respondents cross-appealed submitting that the judge should have awarded costs to them in the circumstances. The appellant submitted that the Supreme Court should infer that the mootness arose because the Minister did what the proceedings called on him to do.

Held by MacMenamin J that the critical issue which arose in this appeal was whether it could be established that the appellant?s case became moot as a result of a factor outside the control of the parties, as in?Cunningham v The President of the Circuit Court?[2012] IESC 39, or whether there had been some very proximate unilateral action by the respondents, that is, an ?event? in the sense of Gillian Godsil v Ireland & The Attorney General?[2015] IESC 103, caused by the appellant?s proceedings. Applying Hay v O?Grady?[1992] IR 210, MacMenamin J held that the Court was not in a position to interfere with the findings and inferences of the trial judge, as both were based on factual material before the court. Thus, viewed within the parameters laid down in?Cunningham, MacMenamin J held that it was open to the judge to infer the matter became moot as a result of an occurrence?outside?the control of the parties. MacMenamin J held that the judgment delivered by Harding Clark J was of some precedential value in that it clarified the law and laid down a more general principle of application regarding the correct approach to be taken by the High Court in dealing with moot applications.

MacMenamin J held that he would affirm the High Court judge?s order, and, therefore, dismiss both the appeal and cross-appeal. MacMenamin J proposed that the Court hear applications in relation to the costs of the appeal, in the light of these findings.

Appeal dismissed.

Judgment of Mr. Justice John MacMenamin dated the 26th day of July, 2016

1 On the 21st July, 2010, the High Court (Ms. Justice Maureen Harding Clark) made an order determining that the appellant herein was not entitled to the costs of mandamus proceedings, and making an order for costs. She gave her reasons in a detailed reserved judgment. The proceedings had been brought on the 27th July, 2009, seeking to compel the respondent Minister (?the Minister?) to determine the appellant's application for long term residency. The applicant/appellant has appealed that order, (Appeal No. 290/2010), now contending that he should have been awarded his costs. The respondents have cross-appealed (Appeal No. 238/2011). They submit the judge should have awarded costs to them in the circumstances.

2 As matters transpired, three weeks after the application, the Minister did grant the applicant long-term residency, on the 18th August, 2009. The judicial review proceedings then became moot. The question which arises in this appeal is, as to whether the High Court judge was correct in making no order for costs in the circumstances? While the judgment and order under appeal were given in 2010, the jurisprudence has significantly developed since that time. Two authorities are particularly relevant to this specific issue.

3 In the first, Cunningham v. The President of the Circuit Court [2012] I.E.S.C. 39, [2012] 3 I.R. 222, Clarke J., speaking for this Court, addressed a situation where a case became moot as a result of a factor or occurrence outside the control of the parties. In such a scenario, he held at p.230 that ? a court, without being overly prescriptive as to the application of the rule, should, in the absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which have become moot as a result of a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot.? (Emphasis added)

4 In the second authority, Gillian Godsil v. Ireland & The Attorney General [2015] I.E.S.C. 103 (Unreported, Supreme Court, 24th February, 2015, a judgment of McKechnie J.), this Court had to deal with a different scenario. As the decision is heavily relied on by the appellant, Godsil requires more detailed consideration. The judgment hinges on the dictum ? costs follow the event?. In that case, the essential aim of the proceedings was to achieve a situation where the appellant would not be debarred from being nominated for, or running in, the European Parliamentary Elections, solely on the basis of her status as an un-discharged bankrupt. The State respondents contended that an amendment to the law, very proximate in time to the proceedings being brought, which allowed the appellant to stand for election, had not been caused by her legal challenge, but rather by ? policy considerations?. McKechnie J. entirely rejected this submission. He held that the decision to amend the law could only be understood, in the vastly truncated time period involved, as being in direct response to the proceedings as issued. In those circumstances, he held that there existed an ? event? by which the issue of costs should be determined (See paragraphs 58 to 64). Thus, the applicant was awarded costs. The judgment emphasises that, on facts such as those in Godsil, even where a substantive point had become moot, a first inquiry, on a costs issue, was to decide whether or not there had been an ? event?, in the sense of the general principle that costs follow the event. (See Order 99, Rule 1(3) and (4), Rules of the Superior Courts).

5 Applying the dicta from these two authorities, therefore, it seems to me that the critical issue which arises in this appeal is, whether it can be established that the appellant's case became moot as a result of a factor outside the control of the parties, as in Cunningham's case, or whether there had been some very proximate unilateral action by the respondents, that is, an ? event? in the Godsil sense, caused by the appellant's proceedings.

Background

6 In the year 2009, and subsequently, legal issues arose because of a delay in dealing with long-term residency applications. The two High Court judges then dealing with the asylum and immigration process had to consider whether or not applications for mandamus should be permitted, in circumstances where the respondent Minister's position was that he had, in fact, put in place an administrative procedure, and that as a result, applications were generally being dealt with on a strictly chronological basis, having regard to resource implications. However, in circumstances where there was a truly pressing need, the system allowed such applications to be dealt with out of turn. One might infer that there was a justifiable judicial concern as to the potential for abuse of court process, in the sense that it might be thought the very bringing of mandamus proceedings might have the effect of accelerating an application, thereby allowing applicants for long-time residency to ?jump the queue?, followed by applications for costs, if and when the judicial review application became moot, because the residency had...