A v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Clarke CJ.,O'Donnell J.,Dunne J.,Charleton J.,Baker J. |
| Judgment Date | 15 March 2021 |
| Neutral Citation | [2021] IESC 14 |
| Date | 15 March 2021 |
| Court | Supreme Court |
| Docket Number | [Record No. 2019/000200] [Record No. 2019/000209] |
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and
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[2021] IESC 14
Clarke CJ.
O'Donnell J.
Dunne J.
Charleton J.
Baker J.
[Record No. 2019/000200]
[Record No. 2019/000201]
[Record No. 2019/000209]
THE SUPREME COURT
Costs – Normal rule – Constitutionality – Parties seeking costs – Whether costs should follow the event
Facts: The applicants/respondents in the first two cases referred to in the title of these proceedings were amongst a number of parties who sought to challenge the provisions of s. 56(9)(a) of the International Protection Act 2015 on the basis that it was repugnant to the Constitution or incompatible with the European Convention on Human Rights. The applicants succeeded in their challenge to the provisions of the Act in the High Court. The respondents/appellants, the Minister for Justice and Equality, the Attorney General and Ireland, were granted leave to appeal to the Supreme Court and in a judgment of the 8th December 2020 ([2020] IESC 70), the Court found that the provisions of the Act were not unconstitutional and were not incompatible with the European Convention on Human Rights. The applicants sought the costs of the appeal against the appellants. The appellants also sought the costs of the appeal and of the proceedings before the High Court. The applicants stated that the position in law concerning the treatment of pre-application and post-application marriages under the Act and in particular, s. 56(9)(a) of the Act has been clarified. They noted that following the judgment of the High Court in these proceedings, there were two conflicting High Court judgments regarding the constitutionality of the section, this decision and that in the case of RC (Afghanistan) v Minister for Justice [2019] IEHC 65. They also pointed out that the appellants in the application for leave accepted that the appeals raised points of serious public importance which justified a leapfrog appeal. It was also contended that these were test cases and that there were a number of similar cases in the High Court which were awaiting the outcome of these appeals. They added that the effect of the judgments of the High Court in this case and in RC together with this judgment had clarified the law in this area. They pointed out that not all of the arguments put forward by the appellants as to the justification for a difference in treatment as between pre-application marriages and post-application marriages were successful. Thus, they sought an order for their costs or a portion thereof.
Held by the Court that this was not a test case as the question at issue had been decided in a similar case, RC, just a few months earlier and the fact that the judgment of the High Court came to a different conclusion resulted in a lengthy consideration of the circumstances in which one judge of the High Court could depart from the decision of another judge of the High Court in this appeal. The Court held that the fact that the appeal was a leapfrog appeal and thus met the constitutional threshold for such an appeal was not a decisive factor in deciding an application for costs (Simpson v Governor of Mountjoy Prison [2020] IESC 52). The court held that it was necessary to determine the issue of the constitutionality and compatibility of the impugned section and resolve the conflict that had arisen by virtue of the existence of two separate judgments coming to different conclusions but that was not a reason for a departure from the normal rule that costs follow the event. The Court held that the fact that it did not accept all of the reasons put forward by the appellants to justify the difference in treatment between pre-application and post-application marriages was likewise not a factor in this case which...
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