High Court of Ireland Decisions

Judgment Title: A. -v- MJELR & Anor

Neutral Citation: [2010] IEHC 518


High Court Record Number: 2008 626 JR

Date of Delivery: 30/11/2010

Court: High Court

1. This is an application for costs. In a judgment that I delivered on 5th November 2010, I granted leave to the applicant to bring proceedings to challenge the validity of a decision of the Refugee Appeals Tribunal.

2. The applicant accepts that the normal practice in these cases when leave is granted is to reserve the costs to the judge who hears the substantive application. Nevertheless, counsel argues that the applicant has succeeded in establishing the necessary substantial grounds that are specified in the legislation as a special standard that applies to asylum cases, that the Rules of the Superior Courts require that costs be granted, that it is reasonable and just that she should be awarded costs and that the respondents unreasonably refused to have a telescoped hearing in which leave and substantive applications were heard together.

3. I do not think that the applicant is entitled to an award of costs and I propose to reserve the costs to the trial judge in this case. My reasons are as follows.

4. Order 99 of the Rules was amended in 2008 so as to read as follows, so far as relevant:-

“4(A)The High Court or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

5. If para 4(A) does apply to the present situation, then the applicant is entitled to an award of costs unless “it not possible justly to adjudicate upon liability for costs”. The onus in this situation is obviously on the party resisting costs because the default position is that costs shall be awarded. My view is that the qualification is applicable here. I do not think that it is possible to adjudicate justly on liability for costs at this stage.

6. The question in this case is whether the applicant is entitled to quash the decision of the Refugee Appeals Tribunal and to have her case remitted for fresh consideration of her appeal. If she succeeds or fails, that result is the event upon which one would anticipate that costs would depend. That is the approach that was taken in the cases that were cited to me on this motion for costs. The authorities acknowledge that there may be circumstances in which it is just for an award of costs to be made at the leave stage but such an award was not in fact made and no case has been cited where that actually happened. The courts are careful to leave open the possibility of a legitimate claim being made for costs at the leave stage and I am quite satisfied that such a jurisdiction exists and I follow the authorities in point. I also agree that the approach one takes is conditioned by all the circumstances, including most relevantly the ultimate outcome of the case. At that stage it may be possible looking back to the find circumstances that dictate that there should be an order of costs in favour of an applicant notwithstanding the ultimate failure of his or her judicial review proceedings.

7. The respondents did not go along with my suggestion of having a telescoped hearing whereby the leave application and the substantive case would be considered together. That was their entitlement and I do not think that my decision to grant leave makes it wrong for the respondents to have chosen as they did.

8. I propose to follow the general practice of not awarding costs at this stage and of reserving them to the trial judge who hears the full application for judicial review, based on the leave that I have granted.