Sherlock & anor v Clare County Council [2019] IEHC 676 (16 October 2019)

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JUDGMENT of Mr Justice Garrett Simons delivered on 16 October 2019.

1. This judgment addresses the question of the appropriate costs order to be made in

respect of the within judicial review proceedings. The judgment arises against a

background where the proceedings were, in effect, rendered moot by the making of an

offer of alternative residential accommodation to the Applicants by the Respondent, Clare

County Council. This offer was made very shortly before the hearing date.

2. The determination of the appropriate costs order turns largely on the application of the

principles set out by the Supreme Court in Cunningham v. President of the Circuit Court

3. The proceedings had been listed for hearing for six days commencing on Tuesday 8

October 2019. On the second day of the hearing, the parties indicated to the court that

they had reached an agreement whereby the proceedings could be struck out. This

4. The Applicants submit that they are entitled to their costs in circumstances where they

say that Clare County Council (“the Local Authority”) has now offered to do the very thing

which the Applicants had brought the proceedings to compel the Local Authority to do.

More specifically, the Applicants submit that the principal relief sought in the proceedings

had been an order of mandamus directing the Local Authority to assess their housing

needs, and that an offer made last week to provide them with alternative accommodation

means that the objective underlying this relief has now been achieved. In response, the

Local Authority suggests that the offer of alternative accommodation came about in the

ordinary discharge of its duties under the Housing Acts, and is not directly related to the

5. The position is, therefore, that both sides are broadly in agreement that the judicial

review proceedings are moot, in that the Applicants could not have achieved an outcome

to the proceedings more favourable than the offer of alternative accommodation.

However, the parties are in dispute as to whether the making of this offer can be properly

characterised as an event of the proceedings for the purposes of the costs rules under

6. The principles governing the approach to be taken to costs in moot proceedings have

been considered in detail by the Supreme Court in Cunningham v. President of the Circuit

Court [2012] IESC 39; [2012] 3 IR 222 (“Cunningham”), and Godsil v. Ireland

7. The judgment in Cunningham indicates that the court should consider the nature of the

event which had caused the proceedings to become moot, and drew a distinction between

(i) factors external to the parties, and (ii) unilateral action by one of the parties. See

“[…] a court, without being overly prescriptive as to the application of the rule,

should, in the absence of significant countervailing factors, ordinarily lean in favour

of making no order as to costs in cases which have become moot as a result of a

factor or occurrence outside the control of the parties but should lean in favour of

awarding costs against a party through whose unilateral action the proceedings

It must, of course, be acknowledged that some cases which have become moot

may not fit neatly into the category of proceedings which have become moot due to

entirely external events, on the one hand, or due to the unilateral action of one of

the parties, on the other hand. In particular there will be cases where the

immediate reason why proceedings have become moot is because a statutory

officer or body has decided not to go ahead with a threatened course of action

(such as the criminal prosecution in this case). However, the reason why it may

have been necessary or appropriate for that statutory officer or body to adopt a

changed position may, to a greater or lesser extent, be due to wholly external

8. The judgment in Cunningham recognises that a public authority may be under an

obligation to keep its decision under review, and that the mere fact that a public authority

adopts a changed position which renders judicial review proceedings moot does not

necessarily mean that it is appropriate to characterise the proceedings as having become

moot by reason of a unilateral act of one party. The change in position may have been as

the result of external events. If a public authority wishes to assert that there has been an

external event, then there is an onus on the public authority to put evidence to that

“It does, however, seem to me that, where the immediate or proximate cause of

proceedings becoming moot is the action of such a statutory officer or body but

where it is sought to argue that the true underlying reason is an external factor

outside the control of that officer or body, it is incumbent on the officer or body

concerned to place before the court sufficient evidence to allow the court to assess

whether, and if so to what extent, it can fairly be said that there was a sufficient

underlying change in circumstances sufficient to justify, in whole or in part, it being

appropriate to characterise the proceedings as having become moot by reason of a

change in external circumstances. Against those general observations it is

necessary to turn to the circumstances in which these proceedings became moot.”

9. The principles in Cunningham were subsequently endorsed by the Supreme Court in

Godsil. The gravamen of the complaint in Godsil had been that a statutory prohibition

which precluded an undischarged bankrupt standing as a candidate for election to the

European Parliament was invalid. Within two weeks of the proceedings having been

instituted, the Government had introduced draft amending legislation, and same was soon

passed by the Oireachtas and signed into law by the President. The effect of the

amending legislation was to remove the statutory prohibition complained of. The period

between the date of the institution of the proceedings and the enactment of the amending

10. The Supreme Court held that the enactment of the amending legislation could only be

understood as being in direct response to the proceedings. The applicant was accordingly

entitled to her costs. See paragraph [63] of the judgment as follows.

“The actions of the respondents, despite their protestations that the same were

driven by policy considerations, can only reasonably be understood, in the vastly

truncated time period involved, as being in direct response to the proceedings as

issued. It is difficult to recall any other comparable example where, by a

combination of the executive and legislative branches of government, a

constitutional challenge has been so responded to. Such can only be regarded as

being an explicit acknowledgment and admission of the legal validity of the

challenge as mounted. In effect, if the claim was unmeritorious, it could hardly be

deserving of legislative amendment. Therefore, I am entirely satisfied that in this

case, there exists an “event”, by which the issue of costs should be determined.”

11. I turn to consider the application of the principles in Cunningham and Godsil to the facts

12. The incidence of costs in this case will turn largely on whether the offer of alternative

residential accommodation is to be regarded as (i) the result of external events outside

the control of the parties, or (ii) a unilateral action on the part of the Local Authority in

13. In order to determine which pigeonhole the case falls into, it is necessary to consider very

briefly the nature of the relief being sought in the case. The Applicants are a traveller

family, made up of a father and mother (the first and second named applicants) and their

children. The Applicants have, since December 2014, been residing in residential

accommodation provided by the Local Authority in Carrowgar, Lahinch. The principal

complaint made by the Applicants in the judicial review proceedings is that this

accommodation is insufficient for their needs, and that the Local Authority is in breach of

its obligation to carry out a housing needs assessment pursuant to section 20 of the

Housing (Miscellaneous Provisions) Act 2009. The Applicants also seek to call in aid the

14. The Applicants’ solicitors sent a letter to the Local Authority on 13 June 2017 calling upon

the Local Authority inter alia to carry out an assessment of the housing needs of the

Applicants. The letter concluded by stating that in default of the Local Authority

complying with the requested requirements, the Applicants reserved the right to issue

such proceedings as required to secure compliance without further notice. The letter also

indicated that the costs associated with the issue of such proceedings would be sought

15. Counsel on behalf of the Applicants sought to characterise this letter of 13 June 2017 as a

“mandamus letter”. This characterisation overstates the legal effect of the letter. The

letter is phrased in legalese, and lists off a series of statutory provisions without any

attempt to explain the context of same. The letter signally fails to state what precisely it

is that the Local Authority is being requested to do. It does not, for example, explain why

it is that the Applicants required a further housing assessment in circumstances where

they had been assessed in 2014, and had entered into a tenancy agreement with the

Local Authority in December 2014. Indeed, the letter can properly be characterised as a

pro forma letter, and there is nothing contained therein which makes express reference to

the particular circumstances of the Applicants. The content of the letter is so general and

vague that it could have been written in respect of any traveller family. I will return to

discuss the consequences of these shortcomings for the costs application now made by

16. It does not appear that the Local Authority made any substantive response to this letter.

The Applicants instituted judicial review proceedings on 1 September 2017. The position

adopted by the Local Authority in opposition to the judicial review proceedings was that a

proper assessment had been carried out at the time the Applicants were provided with a

tenancy of the dwelling house at Carrowgar, Lahinch, and that no further assessment was

required at this stage. This argument was put forward by way of affidavit evidence.

There was, at no stage, a formal written explanation as to why the Local Authority

17. It is stated in the statement of opposition, and verified on affidavit, that the

accommodation consists of a single-story dwelling house, with five bedrooms, a living

room, dining room, kitchen, bathroom and lobby area. The dwelling is said to measure

approximately 69 metres squared. The Local Authority also indicated that it was

amenable to constructing an extension to the dwelling house in order to facilitate the

dynamic nature of the Applicants’ accommodation needs. (The household had increased

18. The judicial review proceedings wended their way through the court system, and

accumulated some twenty-two affidavits en route. The case was ultimately listed for

hearing this legal term, some two years after the proceedings had first been instituted on

19. The case opened before me on the afternoon of Tuesday, 8 October 2019. During the

course of his opening, leading counsel on behalf of the Applicants, Mr James O’Reilly, SC,

very properly brought to my attention a recent exchange of correspondence between the

parties. This correspondence had taken place in September and early October of this

20. The background to this correspondence was as follows. It seems that, notwithstanding

that the Applicants were represented by a firm of solicitors, officials from the Local

Authority had contacted the Applicants directly in September 2019. The first and second

Applicants, Mr and Mrs Sherlock, were invited to attend for a meeting with the Local

Authority for the purposes of a housing needs assessment. Following a false start, it

21. The upshot of these exchanges was that the Local Authority then made an offer of

alternative accommodation to the Applicants. (This offer was brought to the attention of

the Applicants’ solicitors by way of email, but it seems to have been missed initially).

“At your assessment you indicated your dissatisfaction with the property at

Carhugar based on its location and size. Your expressed a preference for housing is

a detached 5/6 bed property in Ennistymon/Lahinch area. Clare County Council

does not have such a property in our housing stock in this or any other area.

To date, Clare County Council has not had a suitable alternative property available

to accommodate a family of 2 adults and 9 children and, accordingly, it has been

the Council’s intention to progress an extension of the property in which you are

currently accommodated at Moy, Carhugar, Lahinch. It will be necessary to provide

temporary accommodation to you family to facilitate the construction of an

The up to date situation is that Clare County Council anticipates that a five bedroom

property located in the North Clare area will become available for allocation in the

coming weeks. The property has recently come back into our housing stock and is

currently undergoing extensive refurbishment, which is expected to complete within

the next couple of weeks. Clare County Council Housing Department considers that

this property may be suitable accommodation for you and your family.

In order to consider your family for this property, we request that you formally

complete a transfer application in circumstances where, despite your request to be

transferred out of the property in which you are currently residing, a formal

23. The Applicants’ solicitors wrote to the Local Authority’s solicitors on 7 October 2019. The

letter expressly asked the Local Authority to confirm whether the letter offering

alternative accommodation was said to be “in satisfaction of” the judicial review

“This request that your client complete an application for a transfer arose in the

context of the Housing Authority’s normal interactions with your clients arising out

of the housing needs assessment which took place on Thursday last. As we have

previously pointed out to you, it is a matter for the Housing Authority to

communicate in relation to such matters directly with housing applicants/tenants.

This request of the Housing Authority to your clients is not made in satisfaction of

the above entitled proceedings. It is made in the normal course of matters as

between the Housing Authority and housing applicants/tenants. We intend to

The fact that a suitable property has now become available to your client, which

would appear to meet your client’s needs and which will be available imminently for

allocation, is a fact that will be brought to the attention of the Court in the context

of the judicial review proceedings with a view to providing the Court with the most

up to date position in relation to the housing situation both in terms of what is

available to your client and what has been and will be available by our clients for

allocation. You will recall that this housing assessment had been scheduled with

your clients 12th September 2019 but they did not attend at that time”

25. The event which caused the judicial review proceedings to become moot was the making

of the offer of alternative accommodation by letter dated 4 October 2019. The gravamen

of the complaint made by the Applicants in the judicial review proceedings had been that

the Local Authority had failed to carry out a fresh assessment of their housing needs.

This assessment, it is said, should have had regard to changes such as the increase of the

household following the birth of the twins in January 2017; and the fact that the dwelling

house has fallen into disrepair and is now damp and subject to rodent infestation. Had

the judicial review proceedings been heard and determined by the court, and had the

Applicants succeeded, the principal relief to which they would have been entitled would

have been an order of mandamus directing the Local Authority to carry out such an

assessment. Leading counsel for the Applicants, very properly, accepted that this court

would not have jurisdiction to direct that any particular accommodation be provided to

the Applicants as to do so would represent a breach of the separation of powers.

26. The practical consequence of the letter of offer of 4 October 2019 was, therefore, that the

Applicants were put in as good a position as they would have been had the proceedings

been heard and determined in their favour. In these circumstances, both parties

27. The key issue to be determined for the purposes of the costs application is whether the

making of an offer of alternative accommodation represents an external event, based on

new circumstances. The Local Authority, in its correspondence, has sought to portray the

events of September and October 2019 as occurring in the ordinary course of exchanges

between a housing authority and its tenants. The implication being that any link with the

imminent hearing date for the judicial review proceedings had been coincidental.

28. Whereas the letter from the Local Authority is careful to say that the offer of alternative

accommodation was not in “satisfaction of” the judicial review proceedings, the letter

goes on to state that it is intended to bring this offer to the attention of the court in the

29. Having regard to the chronology, it would be unrealistic to categorise the offer of

alternative accommodation as an external event. Rather, the only reasonable inference

to be drawn is that the Local Authority took a decision to address (belatedly) the

complaints raised in the judicial review proceedings. In particular, the Local Authority

offered in September 2019 to undertake a housing needs assessment, i.e. the very thing

for which the Applicants had been agitating in the judicial review proceedings. The timing

of the approach, i.e. one month shy of the hearing date of 8 October 2019, cannot have

30. If the Local Authority had wished to resist the inference that the offer was connected to

the judicial review proceedings, then the Authority should have filed affidavit evidence

explaining its position. This is the approach endorsed by the Supreme Court in

Cunningham v. President of the Circuit Court [2012] IESC 39; [2012] 3 IR 222 at [28]

31. In the absence of an explanation by the Local Authority, I am driven to the conclusion

that the event giving rise to the proceedings becoming moot was a unilateral action on

the part of the Authority, namely the carrying out of a housing needs assessment and the

offer of alternative accommodation. Therefore, applying the principles in Cunningham

and Godsil, the Applicants are, in principle, entitled to an order for costs in their favour

insofar as they have succeeded in obtaining a tangible benefit from having brought the

32. I pause here to observe that it does not follow as a necessary corollary of a finding that a

party is entitled, in principle, to an order for costs of proceedings which have become

moot that the order must extend to the costs of a full contested hearing. There is a

public interest in encouraging public authorities to take a reasonable approach to litigation

and to compromise cases where it is appropriate to do so. There would, however, be little

incentive for a public authority to compromise cases if it is to be liable for the full costs

regardless. Such an approach to costs would create a risk that a public authority might

decide—at least in borderline cases—that it may as well defend the case in full on the off

chance that it might succeed. This might result in more cases going to full hearing than

would otherwise be the position, and this would put unnecessary strain on scarce judicial

resources and on litigants who might not be as well-funded as a public authority.

33. A court exercising its discretion in respect of costs should give some weight to these

public interest considerations. In particular, regard should be had to the timing of the

offer to compromise the proceedings. The current rules governing the quantification of

costs (“taxation of costs”) allocate the bulk of the costs to the trial of action, with

relatively modest fees for pre-trial work and drafting. If a public authority makes an offer

to compromise proceedings well in advance of the trial date, then the costs order should

reflect this. See, by analogy, in J. C. Savage Supermarkets Ltd. v. An Bord Pleanála

[2011] IEHC 488 (“J. C. Savage”) where the costs payable to the other side were limited

to one-third in circumstances where an applicant for judicial review had withdrawn its

34. In the present case, the offer of alternative accommodation was only made days before

the trial date. Had the offer been made earlier, I would have considered applying a

discount of the type applied in J. C. Savage. Regrettably, the offer of alternative

accommodation only crystallised on the eve of the trial and no discount can be allowed on

35. The Applicants are, therefore, in principle entitled to a costs order in their favour. There

are, however, certain aspects of the manner in which the case was presented which

should be reflected in the detail of the costs order. First, the approach taken on behalf of

the Applicants both in the pre-litigation correspondence and their subsequent pleadings

tended to obscure rather than identify the real issues in controversy. In particular, the

so-called “mandamus letter” of 13 June 2017 left a lot to be desired. Had the terms of

that letter—and the subsequent statement of grounds—been clearer, then it might have

been more obvious to the Local Authority what precisely the Applicants were seeking out

of the proceedings. In particular, had it been made known to the Local Authority that the

claim was confined to one by way of procedural relief, namely the carrying out of a proper

housing needs assessment (as opposed to a direction that a particular house be

provided), it is possible that the proceedings might have been compromised at an earlier

36. Secondly, the statement of grounds did not comply with the requirements of Order 84 of

the Rules of the Superior Courts. The statement of grounds reads more like a statement

of claim in plenary proceedings, and does not comply with the requirements of Order 84,

“(3) It shall not be sufficient for an applicant to give as any of his grounds for the

purposes of paragraphs (ii) or (iii) of sub-rule (2)(a) an assertion in general terms

of the ground concerned, but the applicant should state precisely each such ground,

giving particulars where appropriate, and identify in respect of each ground the

37. Thirdly, the written legal submissions filed did not comply with the Practice Direction

HC68 (Written Submissions). The nature of the case being advanced was not at all clear

from the written legal submissions, and it was necessary for this court to direct the

preparation of an issues paper in an attempt to identify the real issues in controversy.

38. Fourthly, the case should not have been called on for six days. It was at the very most a

two-day case, once the legal issues were properly identified. There was no need for

cross-examination. Nor did the case necessitate the briefing of both senior and junior

counsel. Whereas it is ultimately a matter for a litigant, with his or her solicitor’s advice,

to decide whether to brief counsel at all, and, if so, how many, a litigant cannot assume

that they will receive a full indemnity for the costs of same from the other side. The legal

issues were net, and could have been dealt with by a single counsel.

40. For the reasons set out above, I have concluded that the Applicants are entitled to a

(limited) costs order as against the Local Authority. More specifically, the Applicants are

to recover the costs of the proceedings measured on the basis that the full hearing would

have taken two days only. The costs for counsel are to be confined to a single counsel.

No costs are recoverable in respect of the costs associated with (i) the statement of

grounds; (ii) the written legal submissions; and (iii) the motions in respect of cross-

examination.

Result: Applicant awarded costs

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