Ononkewagbe v Governor of the Dochas Centre

 
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[2017] IEHC 243

THE HIGH COURT

Barton J.

[2016 No. 846 S.S.]

IN THE MATTER OF THE CONSTITUTION AND IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40 OF THE CONSTITUTION

BETWEEN
PEPS ONONKEWAGBE

AND

GRAZIA EDOKHAMEN (A MINOR SUING BY HER MOTHER AND NEXT FRIEND PEPS ONONKEWAGBE)
APPLICANTS
AND
THE GOVERNOR OF THE DOCHAS CENTRE

AND

THE CHILD AND FAMILY AGENCY
RESPONDENTS

Constitution – Art. 40 of the Constitution – S. 5 of the Immigration Act, 1999 – Non-compliance with deportation orders – Imprisonment – Award of costs – s. 14 (2) of the Courts (Supplemental Provisions) Act, 1961 – O. 99 of the Rules of Superior Courts – Departure from rule

Facts: The parties in the present proceedings sought an order for costs. The applicants contended that notwithstanding the unsuccessful proceedings instituted by them under art. 40 of the Constitution, the special circumstances that existed in the present case would entitle them for the award of costs for making the relevant application. The applicants submitted that the substantive proceedings determined the issues of public importance and it was a "test case," and thus, the costs should be awarded to them.

Mr. Justice Bernard J. Barton made no order as to the costs against the respondents. The Court, however, held that the applicants were entitled for half of their costs, including any reserved costs. The Court held that the present case was a "test case" as for the first time, the provisions of s. 5(11) of the Immigration Act 1999 as substituted by s. 78 of the International Protection Act 2015 and s.12 (1) of the Childcare Act 1991 were interpreted in the present case. The Court found that by way of the present case, the Court was required to consider an issue of public importance, which was in relation to the permission granted to the designated member of the An Garda Siochana to enter a dwelling for the purpose of making an arrest under s.5 (11) of the 1999 Act. The Court held that the absurdity, which resulted from strict interpretation of s. 12 (1) of the Act of 1991, was removed in the present case by giving it a purposive interpretation.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 7th day of April, 2017.
1

The Applicants are foreign aliens who had been the subject matter of deportation orders dated 28th November, 2008, which were not complied with. Ultimately, on 26th July, 2016, the first Applicant was arrested in her home at the Mosney Accommodation Centre, County Meath pursuant to s. 5 of the Immigration Act, 1999 as substituted and amended by s. 78 of the International Protection Act, 2015 for the purposes of giving effect to the deportation orders. The first Applicant packed bags for herself and her daughter, the second Applicant. She complied with her mother's requests to get dressed and go with her to Dublin Airport. Shortly before the time for boarding the aircraft on which they were to be flown out of the State the Applicants were requested to board the plane, however, they refused to cooperate further with the deportation process as a consequence of which the first Applicant was arrested and incarcerated in the Dochas Centre at Mountjoy and the second Applicant was taken into care by the second Respondent.

2

It was against this background that the Applicants instituted these proceedings under Article 40 of the Constitution for an enquiry into the lawfulness of their detention and in respect of which the judgment of the Court was delivered on 10th August, 2016, on foot of which the detention of the Applicants was found to be lawful.

3

Each of the parties have sought orders for their costs in respect of which written and oral submissions have been made and considered by the Court. It is not considered necessary to repeat or summarise these for the purposes of this judgment. Suffice it to say that the Respondents point of departure on their applications was that having regard to the well settled principles applicable to the exercise by the Court of its jurisdiction to make an award for the costs of the proceedings there were no good or sufficient reasons or special circumstances which would warrant a departure by the Court from the general rule that costs should follow the event.

4

Additionally, the Respondents contend that as the Applicants chose not to apply at the commencement of the proceedings for legal aid under the Custody Issues Scheme for which, given the nature of the proceedings and their limited financial circumstances, it is likely they would have qualified, they ran the risk that in the event they were unsuccessful they would be exposed to costs orders in favour of the Respondents in addition to having to meet their own costs whereas under the Scheme such risk would have been avoided.

5

The kernel of the central controversy between the parties is concerned with whether or not there are special circumstances or factors in this case which warrant the Court in departing from the ordinary rule that costs follow the event.

6

Not surprisingly the Applicants take issue with the submissions of the Respondents and in their turn submit that there are such special circumstances in this case, that these are evident from the judgment delivered by the Court and that they found the basis upon which the Court's discretion could and should be exercised by making an award for some or all of their costs.

The law.
7

The jurisdiction of the Court to make an order for costs in civil proceedings is...

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