Rahman v Healy (Costs)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] IEHC 354 |
| Court | High Court |
| Docket Number | 2020 No. 441 JR |
In the Matter of the Taxi Regulation Act 2013
[2022] IEHC 354
2020 No. 441 JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Form of order – Costs – Applicant seeking to challenge a decision to grant a small public service vehicle driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission – Whether the decision to grant a small public service vehicle driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission was invalid
Facts: The applicant, Md. Rahman, applied to the High Court seeking to challenge two decisions. The first decision of December 2019 had been to grant a small public service vehicle (SPSV) driver’s licence with a duration coterminous with that of the applicant’s temporary immigration permission. The second decision impugned was the refusal of an SPSV driver’s licence in May 2020. Simons J held that that the first decision of December 2019 was invalid, an SPSV driver’s licence has a fixed duration of five years and the licensing authority is not entitled to grant a licence for a shorter period of time. He held that the licensing authority is entitled to make it a condition of a licence that the licensee produce to the authority a renewed immigration permission on the expiration of the current one; if a renewed immigration permission is not produced on time, then the licensing authority would be entitled to revoke the SPSV driver’s licence forthwith pursuant to s. 12 of the Taxi Regulation Act 2013. He held that the applicant had not established any grounds for setting aside the second decision of May 2020 and the licensing authority acted lawfully in having regard to the adverse findings made against the applicant by the immigration authorities. Simons J held that, ordinarily, the appropriate remedy in the circumstances would have been an order setting aside the first decision of December 2019 and remitting the matter for reconsideration by the licensing authority in light of the findings of the court. He held that matters were complicated by the fact that the Minister for Justice, by a decision which postdated the institution of the judicial review proceedings, had affirmed the first-instance decision to refuse the applicant a right of residence. Simons J held that the applicant had no entitlement to remain in the State, still less to work in the State. Were the matter to be remitted against that factual background, it seemed inevitable to Simons J that the application for a licence would be refused. He held that he would hear further from counsel before forming a concluded view as to the appropriate order; this was done against a background where there were separate judicial review proceedings pending before the High Court which sought to challenge the refusal of a right of residence.
Held by Simons J that, having regard to the findings in the principal judgment, and to the relief sought at paragraphs (d) (1) and (d) (8) of the statement of grounds, he proposed granting a declaration in the following terms: “Having regard to regulation 7 of the Taxi Regulation (Small Public Service Vehicle) Regulations 2015, a small public service vehicle driver’s licence has a fixed duration of five years. It is hereby declared that the licence issued to the Applicant in December 2019 is invalid in circumstances where it purports to have a duration of less than five years.”
Simons J held that an order would also be made, pursuant to Part 11 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts, directing that the applicant was to recover his costs as against the third respondent, the Commissioner of An Garda Síochána, having regard to the public interest in the proceedings. Simons J held that the costs order was made against the Commissioner in his capacity as the interim licensing authority under the 2013 Act. Simons J held that the first and second respondents, Superintendents Healy and Murphy, had only been joined to the proceedings in their capacity as authorised persons under s. 70 of the 2013 Act and had no personal liability. Simons J held that the costs were to include all reserved costs; the costs of the various sets of written legal submissions; and the costs of the costs application. He held that all such costs were to be adjudicated under Part 10 of the 2015 Act in default of agreement between the parties.
Costs order in favour of applicant.
Rosario Boyle, SC, Aengus Ó Corráin and Marie Flynn for the applicant instructed by Thomas Coughlan & Co. Solicitors (Cork)
Robert Barron, SC and Kilda Mooney for the respondents instructed by the Office of the Chief State Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 20 June 2022
The principal judgment in these proceedings was delivered on 5 May 2022 and bears the neutral citation [2022] IEHC 206. This supplemental judgment addresses the form of the final order and the allocation of legal costs. In particular, this judgment addresses the approach to be taken to legal costs in proceedings which have been heard as a “ test case” notwithstanding that, from the perspective of the applicant, the proceedings are largely moot.
There is a statutory requirement for a person to hold a licence in order to drive a small public service vehicle for the carriage of persons for reward. This requirement is provided for under section 22 of the Taxi Regulation Act 2013. A licence of this type will be referred to in this judgment as an “ SPSV driver's licence”.
The applicant for judicial review (“ the Applicant”) is a citizen of Bangladesh. The Applicant had been refused an SPSV driver's licence on the basis first, that his immigration permission had not been regularised, and, secondly, that his current immigration permission to remain and work in the State was temporary. The Applicant sought to challenge this refusal in these judicial review proceedings.
At the time these proceedings had been instituted, the Applicant held a temporary immigration permission which authorised him to reside in the State and to enter into employment. This permission was one of a series of temporary immigration permissions which had been granted to the Applicant pending the determination of his application for a review of a first-instance decision refusing him a right of residence following his divorce from an EU citizen.
By the time these judicial review proceedings came on for hearing, however, the first-instance decision had been affirmed and the right of residence refused. As of the date of the hearing, therefore, the Applicant no longer had an immigration permission which would allow him to remain in the State.
The initial response of the public service vehicle licensing authority to this change in the immigration status of the Applicant had been to say that these judicial review proceedings were now moot. More specifically, it was said that the Applicant had no right, not even a temporary right, to remain and work in the State and accordingly there was no basis for his being entitled to an SPSV driver's licence. This was the stance adopted by the licensing authority in its statement of opposition and written legal submissions.
At the hearing of the proceedings, however, the licensing authority indicated that it wished to have the issues of principle in the proceedings determined in any event. Counsel for the licensing authority explained that there are a number of appeals against the refusal of SPSV driver's licences pending before the District Court.
As recorded in the principal judgment (at paragraphs 37 and 38), these proceedings fulfil the criteria for the determination of a moot as laid down in Lofinmakin v. Minister for Justice, Equality and Law Reform [2013] IESC 49; [2013] 4 I.R. 274. Given that there is a public interest in there being an authoritative interpretation of the Taxi Regulation Act 2013, and having regard to the pending appeals before the District Court, I was satisfied that the proceedings should be heard and determined.
By the very nature of the issues raised, legal challenges to the refusal of an SPSV driver's licence on grounds related to immigration status will often be overtaken by events. This is because the applicants will, by definition, almost always be awaiting a decision on their long term immigration status. In many instances, judicial review proceedings will be rendered moot as a result of the anticipated decision having been made on their immigration status before the hearing and determination of the proceedings. If an applicant is, for example, granted a right to reside, then the supposed impediment to the grant of an SPSV driver's licence will have fallen away. Conversely, if a final and conclusive decision is made refusing the applicant leave to remain, then they are not entitled to an SPSV driver's licence.
Put otherwise, the issues raised in this type of proceeding are ephemeral, and will often evade capture because of the likelihood of a change in the immigration status of an applicant prior to the determination of the judicial review.
For completeness, it should be explained that the Applicant, in separate judicial review proceedings, successfully challenged the review decision made by the...
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