Minister for Justice and Equality v Olejkiewicz

CourtHigh Court
JudgeMr. Justice Mark Sanfey
Judgment Date07 August 2020
Neutral Citation[2020] IEHC 397
Docket Number[Record No. 2020/452 S.S.]
Date07 August 2020



[2020] IEHC 397

Mark Sanfey J.

[Record No. 2020/452 S.S.]


Costs – Mootness – Interim care order – Applicant seeking costs – Whether costs should follow the event

Facts: The applicant, on 27th March, 2020, made an ex parte application to the High Court (Sanfey J) for an inquiry pursuant to Article 40.4.2 of the Constitution. Sanfey J directed an inquiry to be held on 31st March, 2020. On that date, having heard counsel for both parties briefly in relation to the matter, he encouraged the parties’ representatives to discuss the matter outside court to see if an acceptable accommodation could be reached, failing which he would hear the matter. Counsel agreed to do so. He was subsequently informed by counsel that an agreement had been reached by the parties, the substance of which was as follows: “It is hereby agreed between the parties that: (1) The within proceedings be adjourned until Wednesday the 8th April, 2020. (2) The [respondent, the Child and Family Agency] will issue a fresh application for an Interim Care Order pursuant to Section 17 of the Child Care Act, 199 [sic], on notice to the applicant, returnable for Monday the 6th April, 2020. (3) The [respondent] will make an application on Monday, the 6th April 2020 to discharge the current Interim Care Order that is in place. (4) The applicant will consent to [the applicant’s youngest child] remaining in the voluntary care of the [respondent] until the conclusion of the said application and any order made therein.” He adjourned the Article 40 application to 8th April, 2020. He was informed that, when the matter came before the District Court on 6th April, 2020, the respondent had in accordance with the agreement instituted a fresh application on notice to the applicant for an interim care order, and applied to discharge the interim care order of 25th March, 2020. Having consented to the applicant’s youngest child remaining in the voluntary care of the respondent until 6th April, 2020, the respondent agreed on that date to enter into a voluntary care agreement pursuant to s. 4 of the 1991 Act in respect of the applicant’s youngest child. The applicant’s position was that, as a result of these events, the Article 40 application had become moot. The matter was adjourned on 8th April, 2020, and ultimately came back before him for hearing in relation to the question of costs. The applicant sought her costs of the application against the respondent. Notwithstanding that the matter was resolved by agreement, the applicant contended that this agreement achieved the objective sought by the applicant, and that it constituted an “event” which costs should follow. The respondent strongly opposed this position, and submitted that there should be no order as to costs.

Held by Sanfey J that, in circumstances where the parties negotiated the basis upon which the interim care order would be discharged and a fresh application on notice to the applicant would be made, arriving at a mutually acceptable outcome, he did not believe that he could regard the steps taken by the respondent which rendered the Article 40 application moot as being a unilateral act. In any event, he considered that he was precluded from inquiring into the legality of the District Court order, and, in particular, whether the procedure leading to the making of that order involved a breach of fair procedures. As such, he thought that it would not be appropriate for him to conclude that the effect of the settlement had been to “right a wrong”, as it were.

Sanfey J held that the appropriate order to be made was that there be no order as to costs

No order as to costs.

JUDGMENT of Mr. Justice Mark Sanfey delivered on the 7th day of August, 2020

This judgment concerns complex issues in relation to the costs of an application pursuant to Article 40.4 of the Constitution. The substantive matter was ultimately resolved, but the costs of the application were a contentious enough issue to warrant substantial debate and elaborate written submissions.


The applicant seeks her costs of the application against the respondent. Notwithstanding that the matter was resolved by agreement, the applicant contends that this agreement achieved the objective sought by the applicant, and that it constituted an “event” which costs should follow. The respondent strongly opposes this position, and submits that there should be no order as to costs.


In order to understand the issues and the context in which they arise, it is necessary to set out the background to the matters in some detail.


The sequence of events which led to the applicant making the application to this Court under Article 40.4 is not disputed. Those events were set out in detail in the affidavit of Joan Callan of 27th March, 2020. Ms. Callan is the managing solicitor of Chancery Street Law Centre, and it is of some significance to note that, in addition to acting for the applicant in the present proceedings, Ms. Callan had acted for the applicant in respect of emergency and interim care orders obtained by the respondent in respect of the applicant's three older children in July, 2019. The applicant herself also swore a brief affidavit in support of the application, which exhibited an interim care order in respect of the applicant's youngest child, “D,” made on the 25th March, 2020 by the District Court, to which I shall refer in more detail below. A helpful of chronology of events was also appended to the applicant's written submissions.


The facts leading to the Article 40 application can be briefly stated. On 11th July, 2019, the respondent sought from the District Court emergency care orders pursuant to s.13 of the Child Care Act 1991 (“the 1991 Act”) in respect of the applicant's three older children. The applicant was placed on notice of this application and was present at the hearing, but was not represented. The District Court granted the orders sought.


On 18th July, 2019, the respondent applied for and was granted interim care orders pursuant to s.17 of the 1991 Act in the District Court in respect of these three children. The applicant, who was due to give birth in or around the day of the hearing, was represented by Ms. Callan and counsel, and contested the application. Ms. Callan states in her affidavit that these interim care orders have since then been extended in or around every 28 days by the District Court.


D was born on the following day, and remained in the care of the applicant for a period of eight months. While I do not propose in this judgment to address the details of the applicant's mental health, it is relevant to note that, during this period, the applicant sought medical assistance in respect of her mental health, ultimately being referred to a specialist mental health team. It appears that this resulted in a diagnosis of psychosis, for which the applicant was prescribed medication. While Ms. Callan deprecated the apparent use of certain social work, nursing and medical reports furnished to her by the respondent's solicitors on 25th March, 2020 for the purpose of supporting the respondent's application for an interim care order on that date, she expressed the view in her affidavit of 27th March, 2020 grounding the application under Article 40 that one of these reports in particular by a consultant psychiatrist of 3rd March, 2020 demonstrated that the applicant “would have had an arguable case for defending the application for an interim care order had she been provided with an opportunity to do so” (para. 31, Joan Callan affidavit).


Ms. Callan avers that, as manager of the Chancery Street Law Centre, she has access to the court list for the District Court in Chancery Street, and would normally have “at least one [case] and usually several” in the court's list. On checking the list on 24th March, 2020, she noticed a case “ CFA v. O” listed for the next day. Being conscious of the proceedings regarding the applicant's three older children, Ms. Callan contacted the respondent's solicitor who had carriage of those proceedings. That solicitor, Mr. Diego Gallagher, was unable to update Ms. Callan and said that he would have to take instructions.


The following day, while present in the Law Centre, Ms. Callan heard CFA v. O being called over the Tannoy system. She approached Mr. Gallagher to enquire about the matter, but avers that she was told that Mr. Gallagher “was not in a position to provide me with the information that I was seeking”.


Ms. Callan further avers that she entered the courtroom, now suspecting that CFA v. O did indeed relate to her client. She states that she asked the judge - who was, in fact, the judge who had previously made interim care orders in respect of the applicant's three older children - to whom the application referred, and was told that it was indeed the applicant. Ms. Callan avers that she informed the court that neither the applicant nor she had received notice of the application, and that she had contacted Mr. Gallagher but had received no information. Mr. Gallagher then informed the judge that he intended to move the application on an ex parte basis, and the judge accordingly invited Ms. Callan to leave the courtroom, which she did. The application then proceeded in her absence.


Later that day, Mr. Gallagher sent an email to Ms. Callan informing her that the District Court had made an interim care order in respect of D, and that a guardian ad litem had been appointed. Mr. Gallagher attached the various reports presented to the court. As this email was sent at 18:48pm, Ms. Callan did not see it until the following day.



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