High Court awards respondent costs in judicial review proceedings regarding detention and deportation orders.

[2019] IEHC 326

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 774 J.R.]

BETWEEN

Y.Y.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 13)

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). the Minister failed to properly consider Strasbourg and UK caselaw put forward by the applicant;

(vii). the Minister failed to deal clearly with the applicant’s evidence regarding secret detention centres in Algeria and the

Minister’s finding lacked a proper evidential basis and failed to explain why country material supporting the applicant was

not operative;

(viii). the decision appeared to apply a judicial review test at first instance;

(ix). the decision failed to give adequate reasons or was unreasonable; and

(x). the correct legal test had not been applied in that the Minister failed to consider the significance and durability of

changes in line with the cessation provisions of the 2004 qualification directive which the applicant submitted reflected a

test under art. 3 of the ECHR.

7. It is clear when one looks at the wide suite of points made by the applicant under the s. 3(11) heading that while the applicant

was ultimately successful in the Supreme Court on the question of failure to give adequate reasons, he cannot be regarded as having

been successful on the bulk of other points made by him.

8. So while the applicant lost on all points in the High Court, much of what he sought leave to appeal on was not the subject of a

grant of leave to appeal; and on such appeal he formally won only on one point, namely, the level of reasons in the s. 3(11) decision.

The most appropriate way to deal with the question of costs at this juncture is for me to consider what I would have done if I had

originally adopted the position that prevailed following the Supreme Court judgment: namely, to have upheld the challenge to the s.

3(11) decision on the reasons point. Had I taken that approach I would have adjourned the challenge to the original deportation

order, a challenge which the applicant ultimately would have gone to lose, as he in fact did; and I would have granted certiorari of

the first s. 3(11) decision. In those circumstances, taking what appears to be the best perspective of how the matter should have

been dealt with had I adopted the view that was to prevail in the Supreme Court, the most appropriate approach would be to treat

the deportation order and the s. 3(11) process separately for costs purposes. I suggested to the parties that the best view was that

the costs fell approximately 50/50 as between those two aspects. Mr. Michael Lynn S.C. and Mr. David Leonard B.L. for the applicant

indicated they could not disagree with that and Mr. Remy Farrell S.C. with Ms. Sinead McGrath B.L. for the respondent indicated

likewise. Thus it appears that a 50/50 approach measuring the costs of the deportation order issue in Module 2 as being equal to the

costs of the s. 3(11) issue in Module 2 is the appropriate one.

9. As regards the costs of the challenge to the deportation order, they should follow the event, and while the challenge to the

deportation order would have been adjourned in 2017 had I taken the approach that was ultimately to commend itself to the Supreme

Court, that challenge did ultimately fail, so those costs would ultimately have been ordered to the respondent.

10. As regards costs in favour of the applicant to the successful challenge to the s. 3(11) decision, it is important to note that the

applicant did not succeed on all points of challenge. The Supreme Court was to some extent critical of what Mr. Farrell calls the

“sawn off shotgun” approach taken by the applicant. In the Supreme Court determination Y.Y. v. Minister for Justice and Equality

[2017] IESCDET 38 at para. 10, the Supreme Court noted that: “The High Court judge observed with some merit that the application

was something of a scattergun approach. Regrettably that approach has been repeated here. Some of the points are simply

tendentious. Others are irrelevant, since even if there was merit in a particular observation in respect to statements made in the

judgment, they would not amount to a valid ground of appeal, as even if this Court took a different view it would not result in a

different outcome. … The practice of formulating multiple points of criticism of a judgment without apparent consideration of

whether the issue presented can withstand any fair investigation, or whether it is an important or necessary part of the reasoning

of the decision sought to be appealed from, is one which must be deprecated. Apart from the difficulties which such a practice

presents for this Court, it also creates a real risk that the proliferation of points of little substance will obscure a point which may

have merit.”

11. While those observations related particularly to the application for leave to appeal, the Supreme Court in the substantive

judgment, Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109, was to return to the theme more broadly.

O’Donnell J. at para. 23 noted that the applicant’s submissions contained “an assertion not previously made” which was only

introduced at the s. 3(11) stage. That submission “also contained information which appeared to be incorrect”. At para. 79 O’Donnell

J. noted that “much of the interaction between the applicant and the Minister here consisted at every stage of generalised

statements detached from the precise focus of the case, submitted without any link being made to the particular case on behalf of

the applicant, and responded to by a collection of generalised and sometimes enigmatic statements on the part of the Minister.” At

para. 82 O’Donnell J. said that “it can be said that the applicant's case only became focused, to the extent that it did, at the stage

of the revocation application.”

12. Given that Module 2 was a nine day hearing it is a very different situation to, for example, a one day hearing where a party

advances a number of points and is successful only on one of them. There the points lost do not really add much to the costs of the

hearing and would not normally detract from an order following the event in favour of the party that won on the one successful point.

Mr. Farrell submitted persuasively that the nine-day length of Module 2 was “very much a function of the number of points raised by

the applicant”.

13. 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 is 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 Module 2. In a sense that is a favourable position from the applicant’s point of view because had a

strict Veolia Water approach been applied the applicant could have been required to pay eight-tenths of the costs of Module 2 given

that only one of the ten points was successful to be set off against the nine on which the applicant lost.

14. Mr. Lynn finally argued that because of the stay granted by the court, the original deportation order could not be implemented, so

he “didn’t lose” the challenge to the deportation order. That unfortunately is not a jurisprudentially accurate description of what

happened. The grant of an interim or interlocutory stay or injunction does not carry with it an automatic entitlement to costs at the

end of the day. It addresses a different question, that of the balance of justice in the interim versus an actual legal entitlement to

relief. I emphasise that the important feature for present purposes is that the vast majority of the scattergun points made by the

applicant at the original hearing failed. He only succeeded on one point after nine days plus an appeal so no order as to this module is

in many respects a favourable one in that situation.

Module 3: leave to appeal application

15. Module 3 related to the application for leave to appeal under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. That involved a

short application on 20th March, 2017 and judgment in Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC

2405 (Unreported, High Court, 24th March, 2017) delivered on 24th March, 2017. The costs involved were the applicant’s written

submissions of 16th March, 2017 and taking judgment on 24th March, 2017. The applicant sought costs of the module and the

respondent argued that costs should follow the event and be awarded to the respondent because the application was refused.

16. It is true that the applicant did lose the application and it is also true that the grant of leave to appeal by the Supreme Court in

favour of the applicant was based on a different, and to some extent more permissive test, and indeed that this is technically

speaking a different event; but it is a closely related event. I did note in the leave to appeal judgment Y.Y. v. Minister for Justice and

Equality (No. 2) at para. 2 that the applicant had advanced no less than sixteen complex and technical grounds to the challenge not

counting sub-grounds as well as the allegation that there were fifteen points of law of exceptional public importance arising from the

decision. Nonetheless, it is clear that the Supreme Court in the context of a leapfrog application in a certificate case expects an

applicant to have previously made an application to the High Court for leave to appeal to the Court of Appeal: see Grace v. An Bord

Pleanála [2017] IESC 10 (Unreported, Supreme Court, 24th February, 2017), O.M.R. v. Minister for Justice and Equality [2017]

IESCDET 14. Such a procedure has a number of possible advantages that immediately strike one:

(i). the Supreme Court is not then dealing with the question of the suitability of issues for appeal on a completely first-

instance basis;

(ii). that court has the benefit, such as it may be, of such proposed questions having been weighed, assessed,

considered and discussed by the High Court; and

(iii). that court may also perhaps be an a position to take a more sceptical view of questions that are formulated for the

first time for the purpose of the leapfrog appeal and that were not submitted to the High Court for certificate purposes.

17. The Supreme Court is by definition not in any way constrained by any views expressed by the High Court in that context, but at

least it is given something to work with. Thus 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 from that court, the leave to appeal application to the

High Court was a necessary preliminary step, so he should therefore recover costs of the leave to appeal application. Thus the costs

of Module 3 will be awarded to the applicant.

Module 4: application for stay pending appeal

18. The stay application was made on 24th March, 2017 and took half a day, and judgment was delivered in Y.Y. v. Minister for

Justice and Equality (No. 3) [2017] IEHC 334 [2017] 3 JIC 2409 (Unreported, High Court, 24th March, 2017) on 24th March, 2017. It

is agreed that the applicant should be awarded costs of this module.

Module 5: application to amend the proceedings to include second s. 3 (11) decision

19. This module included a re-amendment of the amended statement of grounds on 2nd October, 2017 after a short hearing, and an

application to further amend the proceedings on 17th October, 2017, also involving a short hearing, resulting in judgment in Y.Y. v.

Minister for Justice and Equality (No. 4) [2017] IEHC 690 [2017] 10 JIC 1706 (Unreported, High Court, 17th October, 2017). Costs

claimed were brief and instruction fees, the amended statement of grounds re-amended retrospectively on 2nd October, 2017, a

motion seeking to amend, dated 13th October, 2017, a grounding affidavit of Gavin Booth and an amended statement of grounds

dated 13th October, 2017. Under this heading it is agreed that the applicant should be awarded costs of this module.

Module 6: application for certiorari of second s. 3 (11) decision

20. This module involved a substantive one-day hearing on 7th November, 2017 and judgment in Y.Y. v. Minister for Justice and

Equality (No. 5) [2017] IEHC 815 [2017] 12 JIC 1907 (Unreported, High Court, 19th December, 2017). Other costs claimed apart from

brief and instruction fees were a notice of motion seeking certiorari dated 20th October, 2017, an affidavit of Gavin Booth of 20th

October, 2017, and applicant’s written submissions of 1st November, 2017. In this regard it is agreed that the costs of Module 6 be

awarded to the applicant.

Module 7: hearing on the appropriate consequential order

21. Module 7 concerns the hearing on the appropriate consequential order following the quashing of the second s. 3(11) decision of

27th September, 2017. That involved a short hearing on 21st December, 2017 and judgment in Y.Y. v. Minister for Justice and

Equality (No. 6) [2017] IEHC 811 [2017] 12 JIC 2111 (Unreported, High Court, 21st December, 2017). The applicant seeks costs of

this module and the respondent asks for no order as to costs. In relation to this issue, given that the applicant was unsuccessful in

his submission on the question of the consequential order he cannot reasonably expect to be awarded costs and therefore I will

accept the respondent’s proposal to make no order as to costs of this module.

Module 8: application to amend following third s. 3(11) decision

22. This involved a short hearing on 9th July, 2018; other costs claimed were a further amended statement of grounds dated 26th

June, 2018, and affidavit of Gavin Booth of 26th June, 2018. In this regard it is agreed that the applicant should be awarded costs of

this module.

Module 9: application for certiorari of third s. 3(11) decision

23. This involved a substantive one-day hearing on 24th July, 2018 and judgment in Y.Y. v. Minister for Justice and Equality (No. 7)

[2018] IEHC 459 [2018] 7 JIC 3134 (Unreported, High Court, 31st July, 2018). Other costs claimed apart from brief and instruction

fees were the applicant’s written submissions of 13th July, 2018, and an affidavit of Gavin Booth of 18th July, 2018. Under this

heading it is agreed that the applicant should be awarded the costs of this module.

Module 10: a hearing on the appropriate consequential order following quashing of the third s. 3(11) decision

24. This module involved a short hearing on 25th September, 2018 and judgment in Y.Y. v. Minister for Justice and Equality (No. 8)

[2018] IEHC 537 [2018] 9 JIC 2505 (Unreported, High Court, 25th September, 2018). Other costs claimed apart from brief and

instruction fees were for the applicant’s written submissions of 11th September, 2018. The applicant seeks costs of this module and

the respondent proposes no order as to costs. This module is similar to Module 7. While I accept Mr. Lynn’s point that among the

various questions I put to the parties under this heading was whether the s. 3(11) decision should be quashed in full or in part, and

while in the end I did quash it in full, that was a very marginal part of the discussion. The respondent’s submissions on that issue were

not all that vigorous, saying only that the decision should be quashed to the extent of the flaws identified (para. 7(1) of the written

submissions). Mr. Lynn does not recall it as having been particularly contested by way of oral submission but on any view the

applicant was unsuccessful on the thrust of the points made in this module so again he cannot reasonably expect an order for costs

in his favour. Again, it appears that I should accept the respondent’s proposal to make no order as to costs here. When one looks at

the judgment in Y.Y. v. Minister for Justice and Equality (No. 8) [2018] IEHC 537 [2018] 9 JIC 2505 (Unreported, High Court, 25th

September, 2018) it is clear that the point about quashing the decision in full only took up one sentence out of the entire judgment

and the respondent was successful on the principal issues, so on one view no order as to costs could even be regarded as generous

to the applicant under the heading of this module.

Module 11: application to amend proceedings following fourth s. 3(11) decision

25. This involved a short application to amend on 10th December, 2018, an affidavit of Barry O’Donnell of 6th December, 2018 and a

further amended statement of grounds dated 10th December, 2018. It is agreed under this heading that the applicant should be

awarded 50% of the costs of this module.

Module 12: application for certiorari of the fourth s. 3 (11) decision

26. This involved a substantive hearing of two days on 15th and 18th January, 2019 culminating in the judgment in Y.Y. v. Minister

for Justice and Equality (No. 9) [2019] IEHC 27 [2019] 1 JIC 2808 (Unreported, High Court, 28th January, 2019). Other costs claimed

were the applicant’s written submissions dated 8th January, 2019. The applicant seeks 50% of his costs of this module. The

respondent argues that costs should follow the event and be awarded to him. It is true that I did identify a possible error in the

Minister’s approach in the course of this module but that error is dealt with in a later module and the applicant is given credit for that

there. It would be double counting to allow a benefit under this heading. The order made at para. 20 of the judgment in Y.Y. v.

Minister for Justice and Equality (No. 9) is: “(i) that the proceedings be dismissed insofar as they challenge the latest s. 3(11)

decision on the grounds as currently pleaded; and (ii) that the proceedings be adjourned to allow the applicant an opportunity if he

wishes to seek an amendment to the pleadings regarding the issue of reports of incommunicado detention as referred to in the

judgment.”

27. The punchline of Module 12 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.

Module 13: application to amend

28. This involved a short amendment application on 11th February, 2019, culminating in the judgment in Y.Y. v. Minister for Justice

and Equality (No. 10) [2019] IEHC 77 (Unreported, High Court, 11th February, 2019). Other costs claimed by the applicant were an

affidavit of Michael Clements filed on 8th February, 2019 and a further amended statement of grounds filed on 15th February, 2019. It

is agreed that there should be no order for the costs of this module.

Module 14: 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

29. This involved a short hearing on the appropriate order on 25th February, 2019 and judgment in Y.Y. v. Minister for Justice and

Equality (No. 11) [2019] IEHC 122 (Unreported, High Court, 25th February, 2019). Other costs claimed by the applicant were the

applicant’s written submissions of 18th February, 2019. The applicant seeks costs of the module, whereas the respondent submits

that no order should be made. As the applicant broadly succeeded under this heading, costs of the module follow the event in favour

of the applicant.

Module 15: application to amend

30. This was a short hearing that took place in the Monday list on 25th March, 2019. The applicant’s other costs were for a further

amended statement of grounds of 22nd March, 2019. It is agreed by the parties that no order for costs should be made in relation to

this module.

Module 16: application for certiorari of fifth s. 3(11) decision and of deportation order

31. While the original schedule of costs did not include the certiorari of the deportation order which in the end was something of a

formality because no additional arguments were advanced on behalf of the applicant, there was agreement in oral submissions on

costs by Mr. Lynn that the deportation order should be included as part of Module 16.

32. Module 16 involved a hearing on 1st April, 2019. The applicant’s other costs apart from brief and instruction fees were for an

affidavit of Michael Clements. There was also an amended statement of opposition from the respondent. It is agreed that the

respondent be awarded costs of this module.

General matters

33. It is agreed by both sides that insofar as different orders are 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 these 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 present

costs. The applicant has already got the benefit of a costs order in relation to the Supreme Court appeal, although that has not been

agreed or taxed as yet. All costs are to be taxed in default of agreement. By consent, I will make no order as to the costs of the

costs hearing itself.