W (B) v Refugee Appeals Tribunal and Others (No.1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 November 2015
• Neutral Citation: [2015] IEHC 725
• Court: High Court
• Date: 17 November 2015

W (B) v Refugee Appeals Tribunal & Ors (No.1)

No Redaction Needed

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED, AND

IN THE MATTER OF THE IMMIGRATION ACT 1999, AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

B.W.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

(No. 1)

[2015] IEHC 725

[No. 335 J.R./2012]

THE HIGH COURT

Asylum, Immigration & Nationality – The Refugee Act, 1996 – The Immigration Act, 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act, 2003 – Practice & Procedures – Amendment of Statement of grounds set in complaint – O. 84, r. 20 (4) (b) of the Rules of Superior Courts 1986 – Practice direction H.C.56 of 19 ^th December, 2011

Facts: Following the decision of the first named respondent refusing the applicant's claim for asylum and the challenge of the said decision in the High Court, the applicant now sought an order for an amendment to the statement of grounds on the basis that none of the points relied on at the hearing were properly pleaded.

Mr. Justice Richard Humphreys granted an order for amendment to the statement of grounds. The Court observed that there were three elements as set out in Keegan v Garda Siochana Ombudsman Commission [2012] 2I.R. 580 that the Court must see before exercising its discretion to allow an amendment and those were the arguability of a point, the explanation offered and the absence of irreparable prejudice to the other party. The Court held that the point raised should be arguable as emanated from its context and a very light threshold should be kept for the explanation that was being offered for seeking out amendment such as oversight by a lawyer. The Court held that there was no need to seek amendment by way of presenting affidavits of solicitors that they simply overlooked the relevant facts and the Court should adopt a lenient approach towards the genuine mistake or simple overlooking of points by the lawyers. The Court, however, cautioned that the introduction of any new point for being pleaded would not be allowed by way of an amendment.

1 1. In any application to amend proceedings, it is clear that the interests of justice and the protection of the applicant' right of access to the courts are of paramount importance, as is the need for the court to ensure that the real issues in dispute are determined (see Keegan v. Garda Siochána Ombudsman Commission [2012] 2 I.R. 580; [2012] IESC 29per Fennelly J. at paras. 29 and 47 and O'Neill v. Applebe [2014] IESC 31per O'sDonnell J. at para. 14). In addition, the right of access to the court is supplemented by the right to an effective remedy pursuant to Article 13 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union.

2 2. In the Keegan case, the Supreme Court gave leave to amend judicial review proceedings to include a legal point that was simply "overlooked" by the applicant's lawyers prior to the application for the amendment (para. 39). The amendment was "an entirely new ground in law" which "substantively enlarge [d]" the application (para. 38). The amendment was sought well outside the time period for application for judicial review. Nonetheless, the Court held that "[t]he appellant should not, without good reason, be deprived of the right to argue a very significant point of law" (para. 46).

3 3. O'Donnell J. in O'Neill at para. 14 emphasised that:

"The High Court, and this Court on appeal, has a very extensive power of amendment where it is necessary to permit the real issues in dispute to be determined. There is nothing which prevents the court from re-amending proceedings, even if that re-amendment would reintroduce a claim that had previously been removed by amendment"

4 4. It would appear that on the basis of Keegan, there are three elements that an applicant should address. Firstly, that the point should be arguable (para. 38), secondly, that there be an "explanation" for the point not having been pleaded (para. 39), and thirdly, that the other party should not be unfairly prejudiced (see para. 32), which I consider, given the court's power to remedy any unfairness, would in practice amount to a test that he or she should not be irremediably prejudiced.

Arguability

5 5. The first test, arguability, is self-explanatory, and in contexts such as planning and asylum, should of course be read as a test requiring substantial grounds for the amendment sought.

Explanation

6 6. The second test, that an explanation (or good reason) be offered for the amendment, must, having regard to the actual result in Keegan, be viewed as being a very light threshold particularly in a case where the need for the amendment arises from an oversight by the applicant's lawyers. Regard also needs to be had to the already-cited conclusion in Keegan that good reason needs to exist for a party to be deprived of the opportunity to raise an important point. In addition the Supreme Court decision in O'Neill would seem to militate against a high threshold under this heading that would interfere with the court's ability to deal with the real issues in the case.

7 7. Oversight can take many forms. One can simply overlook a point, or one can wrongly or even carelessly take the view that the point is already covered in one's pleadings and only have it brought home to one at a later stage that this may not be the case.

8 8. As compared with some of the case law which preceded it, Keegan appears to me to strike a more tolerant note regarding the approach to the amendment of proceedings, and in particular of judicial review proceedings and a more central focus on the balance of the interests of justice.

9 9. A mistake whereby something is overlooked completely is clearly a more fundamental mistake than one whereby the applicant's lawyers incorrectly think that the impugned point is a permissible elaboration or particularisation of something which they think is already latent in the pleadings. Therefore, if the court is to be forgiving and understanding of oversight by way of complete omission, as it was in Keegan, the court should be even more receptive to arguments based on a misconception that the point was within existing pleadings.

10 10. There is a human aspect to this issue which I feel has not been altogether brought to the foreground in some of the pre- Keegan caselaw. For any person intent on performing a public competitive task to the best of his or her ability, the intense coming into focus in the run-up to the decisive performance, the accentuation of concentration, resolve and exertion, the exclusion of all other concerns from the mind of the participant, the physical and mental pressure of the public spectacle on an important stage and an important occasion, the commitment and irreversibility involved in entering a crucial stage of contest, the face-to-face confrontation with opponent and referee, and the sheer human drama and theatre of the event, make it all but inevitable that the most effective contribution that the person can make will come to the forefront on the day itself in a way that simply cannot be replicated in advance. To fail to fully understand this is to fail to do full justice to the deeply human nature of any social endeavour, including the legal endeavour.

11 11. In the specifically legal context, there are of course very many cases which ultimately turn on tactical decisions made long in advance of the trial following careful consideration of the issues. Such advance preparation is crucial. But the immersive experience which begins its critical phase at the latest on the day before the hearing, and continues until the hearing is over, whereby the advocate sets aside all other considerations and focuses intently and exclusively on the imminent preparation and conduct of the actual hearing of a particular case, will bring into focus in that person's mind the best statement of his or her case in a way that no leisurely preparation further in advance, critical though that is, can quite achieve. Within that intense personal immersion lie some of the deepest satisfactions of the art of the advocate. That this will involve some change to the way the case is worded on the pleadings or in written submissions is all but inevitable. Sometimes that change can be a pruning back, or the astute concession of a subsidiary point. Sometimes it may be a recalibration, an elaboration, a particularisation or a development of a point, which may well not require amendment in any event. But at some point, elaboration crosses over into novelty and an amendment may be called for. Judicial approaches to requests for such amendments should reflect the human reality of the process, and respond to that process in a tolerant and understanding way, the primary issues being, not arid technicality and procedure, but a sympathetic concern for where the interests of justice lie and for the vindication of the rights of the parties to access to the court and to an effective remedy, and for ensuring that the real issues in dispute are addressed.

12 12. It is also important to emphasise that there is nothing in the rules or in logic to require that in any particular case, an amendment must be sought by notice of motion grounded on affidavit. Unnecessary formality adds to the cost, delay and inconvenience of litigation and is something to be avoided. Indeed, insofar as a demand for formal motions can sometimes be a reflex response to an application to amend, this rather tends to subvert the goal of saving time and money which a respondent to such an application will...