Y.Y. v The Minister for Justice and Equality No.13

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 07 May 2019
• Neutral Citation: [2019] IEHC 326
• Court: High Court
• Docket Number: [2016 No. 774 J.R.]
• Date: 07 May 2019

[2019] IEHC 326

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 774 J.R.]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 13)

Costs – Deportation – Certiorari – Parties seeking costs – Whether costs should be awarded to the applicant

Facts: The High Court (Humphreys J) dealt with costs of the proceedings to date. The parties agreed that the appropriate approach was that set out in Veolia Water UK Plc v Fingal County Council (No. 2) [2006] IEHC 240, and accordingly sixteen separate modules were identified for costs purposes: (i) pre-leave matters; (ii) application for certiorari of the deportation order and the first decision under s. 3(11) of the Immigration Act 1999; (iii) leave to appeal application; (iv) application for stay pending appeal; (v) application to amend the proceedings to include second s. 3 (11) decision; (vi) application for certiorari of second s. 3 (11) decision; (vii) hearing on the appropriate consequential order; (viii) application to amend following third s. 3(11) decision; (ix) application for certiorari of third s. 3(11) decision; (x) a hearing on the appropriate consequential order following quashing of the third s. 3(11) decision; (xi) application to amend proceedings following fourth s. 3(11) decision; (xii) application for certiorari of the fourth s. 3 (11) decision; (xiii) application to amend; (xiv) hearing on the appropriate order following the court’s decision in principle that there was a prima facie problem with the fourth s. 3(11) decision; (xv) application to amend; and (xvi) application for certiorari of fifth s. 3(11) decision and of deportation order.

Held by Humphreys J that: (i) it was agreed by the parties that costs of this module would be awarded to the applicant; (ii) even if one were to take the most generous possible view in favour of the applicant by awarding the full costs of the s. 3(11) challenge, that would need to be offset against the costs to which the respondent was entitled under the heading of the deportation order and measuring both as equal on the basis of a 50/50 approach, which was not disagreed with by the parties, the net order would be no order as to costs of this module; (iii) the applicant must be regarded as having been correct to apply for leave to appeal and in the context where he obtained leave to appeal to the Supreme Court, the leave to appeal application to the High Court was a necessary preliminary step, so he should therefore recover the costs of this module; (iv) it was agreed that the applicant should be awarded costs of this module; (v) it was agreed that the applicant should be awarded costs of this module; (vi) it was agreed that the costs of this module should be awarded to the applicant; (vii) given that the applicant was unsuccessful in his submission on the question of the consequential order he could not reasonably expect to be awarded costs and therefore no order would be made as to costs of this module; (viii) it was agreed that the applicant should be awarded costs of this module; (ix) it was agreed that the applicant should be awarded the costs of this module; (x) the applicant was unsuccessful on the thrust of the points made in this module so he could not reasonably expect an order for costs in his favour and therefore no order would be made as to costs of this module; (xi) it was agreed that the applicant should be awarded 50% of the costs of this module; (xii) the punchline of this module was that the applicant’s challenge as it then stood was dismissed so costs follow the event and must be ordered in favour of the respondent; (xiii) it was agreed that there should be no order for the costs of this module; (xiv) as the applicant broadly succeeded under this heading, costs of the module follow the event in favour of the applicant; (xv) it was agreed by the parties that no order for costs should be made in relation to this module; and (xvi) it was agreed that the respondent be awarded costs of this module.

Humphreys J held that it was agreed by both sides that insofar as different orders were made under different modules, all costs would be set off against each other resulting in a single net figure, and furthermore that set-off would also apply between those costs and any other orders made within the proceedings by any court, which may include any future orders that may be made prior to payment of the costs. Humphreys J held that all costs were to be taxed in default of agreement.

Judgment approved.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 7th day of May, 2019

1 This is the latest, although possibly the last, judgment in what has been something of a record-breaking case. I noted in a previous round of the proceedings that the application for leave to appeal to the Supreme Court in this case involved a record fifteen alleged points of exceptional public importance. The case has also involved a record-breaking number of post-nominal judgment numberings, of which this is number thirteen at High Court level and fifteenth ruling overall if one includes the Supreme Court determination and subsequent judgment.

2 I am dealing in the present judgment with costs of the proceedings to date. The parties have agreed that the appropriate approach is that set out in Veolia Water UK Plc v. Fingal County Council (No. 2) [2006] IEHC 240 [2007] 2 I.R. 81, and accordingly sixteen separate modules have been identified for costs purposes.

3 I should note that the applicant has identified the specific costs incurred under each module whereas the respondent has not. Thus insofar as I will mention specific items of expenditure claimed, that is in an attempt to identify the costs being sought by the applicant because the detail of what costs were incurred were provided by him. The respondent has not provided such detail so the absence of specific costs incurred by the respondent under any given module is not intended to exclude such appropriate costs as may be advanced on behalf of the respondent in the course of taxation. Also, mention of specific costs is purely by way of noting what is being claimed and does not predetermine the question of whether such costs are properly allowable on taxation.

Module 1: pre-leave matters

4 Module 1 concerns pre-leave matters. The leave application was originally intended to be moved on 17th October, 2016 and adjourned to 18th October, 2016 because of the volume of cases in the list. On that date the applicant was directed to put the respondent on notice of the leave application and of an application for an interlocutory injunction for 19th October, 2016. Costs of this module include the statement of grounds, grounding affidavit and affidavit of interpreter and written submissions for the leave application. It is agreed by the parties that costs of Module 1 will be awarded to the applicant.

Module 2: application for certiorari of the deportation order and the first decision under s. 3(11) of the Immigration Act 1999

5 Module 2 involved a considerable expenditure of court time. There was an amendment application, a short application on 12th December, 2016 and also then a substantive hearing of nine days on 26th October, 2016, 2nd, 3rd, 4th, 7th and 14th November, 2016 on 13th, 14th and 15th December, 2016. Judgment in Y.Y. v. Minister for Justice and Equality (No. 1) [2017] IEHC 176 [2017] 3 JIC 1306 (Unreported, High Court, 13th March, 2017) was delivered on 13th March, 2017. The other costs, apart from brief and instruction fees for the hearing dates, were costs of the mention dates on 21st October 2016, 24th October 2016, 5th December, 2016, 11th January, 2017, 20th January, 2017, 20th February, 2017 and 13th March, 2017. There was also a prison consultation through an Arabic interpreter on 17th November, 2016, a notice of motion seeking to amend and a supporting affidavit, a proposed amended statement of grounds of 9th December, 2016, applicant's written submissions of 12th December, 2016, a further consultation with an interpreter on 13th December, 2016, two further proposed versions of amended statement of grounds on 13th December, 2016, a table of country information prepared jointly by both sides and costs of taking judgment on 13th March, 2017.

6 In relation to Module 2 the applicant seeks costs of this module with the costs of the substantive hearing limited to seven days of hearing. The respondent vigorously contests the applicant's characterisation of the module and proposes that the appropriate order is no order as to costs. It is important in this regard to emphasise the multiplicity of points raised by the applicant, the diffuse nature of the challenge and the fact that the ground on which the applicant ultimately succeeded on appeal in the Supreme Court was relatively narrow in the context of this module overall. In the judgment in Y.Y. v. Minister for Justice and Equality (No. 1) at paras. 67 and 127 I summarised the various points made by the applicant under the headings of both the deportation order and the s. 3(11) decision. Under the heading of the deportation order, the applicant's points were

(i). that the deportation decision was subject to EU law, which required such decisions to be made by the tribunal;

(ii). that general rule of law considerations compelled such conclusion; and

(iii). that art. 3 of the ECHR required independent review of the assessment of the claim, which could not be achieved unless the Minister was bound by the tribunal's views.

The applicant failed on all of those points and that conclusion was undisturbed on appeal to the Supreme Court. In relation to the s. 3(11) process, a number of further points were made as follows:

(iv). the decision was wrongly treated as ad misericordiam;

(v). it was wrongly arrived at on the basis of the incorrect premise of the standard to be applied was different to that considered by the tribunal;

(vi...