Supreme Court allows appeal on Refugee Applications Commissioner decision due to lack of reasoned judgment.

THE SUPREME COURT

Clarke C.J.

O'Donnell J.

McKechnie J.

Dunne J.

O'Malley J.

Appeal No. S:AP:IE:2017:000036

BETWEEN

I.G.

APPELLANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Appeal No. S:AP:IE:2017:000038

BETWEEN

F.G. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND I.G.)

APPELLANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Appeal No. S:AP:IE:2017:000037

BETWEEN

X.G. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND I.G.)

APPELLANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Judgment of O’Donnell J delivered on the 16th day of May 2018

1 I agree that the point raised in this case is of sufficient substance to satisfy the test set out in McNamara v An Bord Pleanála (No.

1) [1995] 2 ILRM 125, and Meadows v The Minister for Justice, Equality and Law Reform [2010] 2 IR 701, and therefore that this

appeal should be allowed on the first issued identified in the judgment of Dunne J. I wish to add some observations on the second

issue which raises matters of more general importance.

2 A threshold question is whether the second issue is necessary to be determined once the first issue is decided in favour of the

appellants. Indeed it is in my view doubtful if the second issue raises a separate ground of appeal. If for example, this Court had

concluded that the High Court Judge was correct in determining that the issue raised did not satisfy the test of establishing

substantial grounds for challenging the decision of the respondent, then it is difficult to think that the Court would nevertheless have

concluded that the High Court Judge was wrong not to have followed the earlier decision of MacEochaidh J. granting leave (which on

this hypothesis would have been wrong) would therefore have set aside the decision of the High Court Judge (again on this

hypothesis correct) and granted leave to seek judicial review, which in the light of the Court’s decision on the first issue would have

been doomed. In truth, I consider the observations on this issue are more a matter of guidance than a rule, breach of which would

give rise to a successful appeal.

3 For this reason and others, I agree with Dunne J. that this case does not fit easily within the terms of the decision In Re Worldport

[2005] IEHC 189. I also agree that what was involved here raised questions of prudence, practicality, and the necessity for judicial

humility: the recognition that it is possible that the decision which seems obvious might be wrong. It is difficult to see (especially in

the circumstances which have transpired) that the simpler route would not have been to have granted leave, even while expressing

doubts as to the merits of the point and its substance. That would have allowed all the cases raising this point to be decided in the

High Court giving rise if necessary then, to a single appeal to the Court of Appeal and/or if appropriate to this Court. Any appeal

would then seek to ensure that all cases were aligned and treated in the same way, I also agree with Dunne J. that in addition there

are important considerations in play, derived from the requirement that citizens be held equal before the law. An understandable

sense of injustice at inconsistent treatment of the same issue, and an unavoidable sense that the administration of justice has been

arbitrary, can too easily follow from diametrically opposed judgments on the same issue, particularly if not the subject of detailed

reasons.

4 However, these are considerations of prudence and practicality. The rule as I conceive it, is that a court is not bound by the

decision of a court of coordinate jurisdiction in such a way that the subsequent court must as a matter of law or stare decisis follow

the first decision. The approach (as so described) in Irish Trust Bank v Central Bank of Ireland [1976-77] ILRM 50, and In Re

Worldport, is that a subsequent High Court Judge should not lightly depart from a previous decision, unless there are strong reasons

for so doing. It is an approach (rather than a rule) cast in terms of “ought not unless” rather than “must not”.

5 I think it must be recognised also that this approach cannot apply with the same force where the decision in question is one on an

ex parte application, particularly when what is involved is a decision without a reasoned judgment. It is axiomatic that an ex parte

application involves one side only, and notwithstanding the obligation of disclosure and uberrima fides on the applicant, the range of

considerations, material and authority, and the emphasis put on them may vary considerably as, it might be added, may the time

available and the familiarity of a particular judge with the area involved. More particularly, the absence of a reasoned judgment, is in

my view, a factor which if anything, lessens the force of the Worldport approach in a case such as this, rather than strengthens it.

Worldport itself recognises that a previous decision may not be followed “where on review, the earlier decision was not based on a

recognised significant authority”, or where “there was a clear error in the [earlier] judgment”. Both these considerations are central to

the approach and require that there be a reasoned judgment available. If it is said that a judge is obliged as a matter of law to follow

a decision, even if unexplained, and that a failure to do so is a ground of appeal then the approach becomes an almost mechanical

rule and comes close to the version of precedent so stigmatised by Jeremy Bentham and Jonathan Swift. There is in my view

something wrong with an approach which would accord greater respect, and binding force to an unreasoned decision, than a fully

reasoned judgment. I appreciate that the approach taken in the judgment of Dunne J. is more nuanced, but since there is an

inevitable tendency towards oversimplification of decisions, and since it may be some time, if at all, before this issue is considered by

this Court again, I consider there may be some benefit in adding these observations.

6 It must also be recognised that there are areas of law where generic points are taken which apply if correct to all applications or

decisions made in that area. Therefore, the effect of obtaining leave to seek judicial review in one case may rapidly generate a large

number of applications seeking to piggy-back on the first decision. This in turn may mean that all cases are brought to a halt pending

the resolution of the legal issue first raised. It does not appear to me unreasonable if a judge particularly familiar with the area, and

feeling confident that on further argument his or her colleague would not have granted leave, should if necessary say so. Even then,

considerations of judicial humility, prudence and practicality might indicate that the later judge might be wiser simply to grant leave

while expressing strong reservations. Nevertheless, there must remain a capacity for a conscientious judge to depart even with

reluctance from the course taken in the earlier case. That can itself be an important signal of the strength of the opposing view as

occurred recently in the issue considered in Permanent TSB v Langan and AG [2017] IESC 71. Such differences of opinion may be an

inevitable component of the necessary independence of the judiciary, which includes the independence of mind of the individual

judge, tempered it is hoped, by the wisdom to recognise those instances where it is necessary to express a different view. For these

reasons and the reasons set out above I would however allow the appeal.