Nyembo v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 06 October 2006
• Neutral Citation: [2006] IEHC 388
• Docket Number: [No. 895 J.R./2004]
• Court: High Court
• Date: 06 October 2006

[2006] IEHC 388

THE HIGH COURT

[No. 895 J.R./2004]

NYEMBO v REFUGEE APPEALS TRIBUNAL

DUBLIN

RICHARD NYEMBO

APPLICANT

and

THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

and

JAMES NICHOLSON

moving party

TARA EXPLORATION & DEVELOPMENT CO LTD v MIN FOR ENERGY 1975 IR 242RSC O.34

DUFFY v NEWS GROUP NEWSPAPERS LTD 1994 3 IR 63 1993 7 1954

MCCABE v IRELAND 1999 4 IR 151

POPOVICI & ANDREEVA v NICHOLSON & ORS UNREP DEVALERA 28.4.2006 2006 IEHC 152

Abstract:

Practice and procedure - Judicial review - Trial of preliminary issue of law - Immigration and asylum law - Factors to be considered - Saving of time and costs - Whether trial of preliminary issues should be allowed - Rules of the Superior Courts, order 34

the applicant had been granted leave by the High Court (Butler J.) to challenge a decision of the respondent by way of judicial review. An application was made to have the following issues of law determined as a preliminary issue: 1. whether as a matter of law statistical evidence on the outcome of decisions of the respondent as a member of the Refugee Appeals Tribunal was admissible in evidence; 2. whether as a matter of law statistics and/or evidence relating to the outcomes or results of decisions made by the Refugee Appeals Tribunal could without more constitute a basis for a finding of actual or apparent bias.

Held by Mr Justice Feeney in directing the trial of the preliminary issues that the purpose behind a court order permitting the trial of a preliminary issue of law was primarily to save time and costs and the court had an obligation in exercising its discretion as to whether to allow the trial of a preliminary issue to weigh up the likelihood of achieving savings in costs and time. The relevant factors were: i) that it was a judicial review case where the legal issues had been clearly defined and limited by the order granting leave;

ii) that the proposed preliminary issue would not cause any duplication of evidence; iii) that the legal issue was one that would require to be fully argued involving the same time at either a preliminary stage or at full hearing;

iv) that the determination of the preliminary issue in favour of the respondent would be likely to result in the claim being either concluded or curtailed; and

v) the hearing of the preliminary issue would be likely to bring order and direction to any full hearing and reduce its duration and define the scope and extent of discovery.

Reporter: P.C.

Mr. Justice Feeney

1 Now I propose to give judgment in the Nyembo case issue which has been argued in front of me as it was accepted by the parties that that would be the one which would be argued to conclusion.

2 This is an application to have a preliminary issue of law determined prior to the full hearing. It is made within a judicial review proceeding. The purpose behind a court order permitting of the trial of a preliminary issue of law is primarily to save time and costs and the authorities have highlighted the possible use of such order where it has the capacity to result in the dismissal and/or significant truncating of the plaintiff applicant's claim.

3 The Court in considering an application such as this must have particular regard to the obligation to weigh up the likelihood of achieving savings in costs and time.

4 Particular regard must be had to whether, in the Court's judgment, there will be a saving or a duplication. In this case there are a number of factors which are of importance in that weighing exercise. Firstly, this is a judicial review case where the legal issues and grounds have been clearly defined and limited by the order granting leave. That order was granted after a contested hearing.

5 Secondly, this does not appear to be a case where the proposed preliminary issue would cause any duplication of evidence.

6 Thirdly, the legal issue sought is one that will require to be fully argued involving the same time at either a preliminary stage or at the full hearing.

7 Fourthly, and most importantly, the determination of the preliminary issue in favour of the respondent would be likely to result in the applicant's claim being either concluded or very significantly curtailed.

8 Fifthly, the hearing of the preliminary issue would be likely to bring order and direction to any full hearing and reduce its duration and define the scope and extent of discovery.

9 The authorities and in particular the case ofTara Exploration and Development Limited v. The Minister for Industry and Commerce [1975] I.R. 242 have identified the circumstances in which it is appropriate to permit the trial of a preliminary issue. Both sides have identified the Tara case as the central authority. The Tara case, which was a Supreme Court decision, establishes that an order pursuant to Order 34 for the preliminary...