Court allows appeal on certiorari but reduces costs due to appellant's conduct and partial success.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2024/264 High Court Record Number: 2023/410 JR Neutral Citation Number: [2025] IECA 142 Binchy J. Hyland J. Collins J.

BETWEEN/

K

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR JUSTICE

RESPONDENT

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 11th day of July, 2025

I. Scope of Judgment

1. By judgment delivered on 27 May 2025 ([2025] IECA 122), this Court decided to allow the appeal in part, to set aside that part of the Order of the High Court of 19 September 2024 insofar as it refused to make an order of certiorari to quash the Exclusion Order addressed to the appellant dated 27 January 2023, to make an order of certiorari by way of judicial review to quash the said Exclusion Order, and to dismiss the balance of the application for judicial review. The judgment expressed the provisional view that the appellant was entitled to an order against the respondent for the costs of the proceedings both in the High Court and in this Court, to be adjudicated upon in default of agreement, notwithstanding that he had partially succeeded in these proceedings by obtaining an order to quash one of the two orders that he had sought to impugn. In the event the respondent disagreed with that proposed order, he was invited to file and serve a written submission setting out the reasons for making a different order, after which the appellant had a further 14 days in which to respond in writing thereto.

2. The said submissions having been filed on 10 and 13 June 2025 respectively, this judgment rules upon the costs of the proceedings.

II. Ruling on Costs

3. Whilst he acknowledges that s. 168(2) of the Legal Services Regulation Act 2015 (hereafter ‘the Act’) is expressly stated to be without prejudice to sub-section (1) thereof, thereby preserving the Court’s general discretion as to the award of costs, the respondent submits that, pursuant to s. 168(2)(d) of the Act, where a party is partially successful in proceedings, a Court may order a party to pay costs relating to the successful element or elements thereof. Relying upon the observations of Murray J. at para. 14 of his judgment in Higgins v. Irish Aviation Authority [2020] IECA 277 and of MacMenamin J. at para. 13 of his judgment in O’Callaghan v. Ireland [2021] IESC 73, the respondent contends that a party that is only partially successful in proceedings is not prima facie entitled to the costs of that element of proceedings in respect of which it did not succeed. The respondent fairly concedes that the Court retains a discretion to order that a partially successful party recover the entire cost of proceedings in circumstances where the issue on which the partially successful party failed did not add materially to the length or cost of the proceedings or where material opened in respect of the issue in which s/he was unsuccessful was relevant to other issues in the case (Thornton v. Revenue Commissioners (No. 2) [2022] IEHC 568 at para. 9 per Egan J.). That discretion ought not, however, to be exercised in favour of the appellant in circumstances where, notwithstanding that the High Court had certified two questions of law for consideration by this Court, he had caused some fourteen points to be raised in this appeal. The respondent further contends that he ought to be awarded the costs of the challenge to the Removal Order by reason of the fact that the appellant’s conduct had the effect of rendering that proceeding moot.

4. The appellant asserts that, in circumstances where the order to quash the Exclusion Order had, for all practical purposes, the consequence of nullifying the Removal Order, he has won the ‘event’ for the purpose of allocating costs: Veolia Water UK Plc v. Fingal County Council (No. 2) [2007] 2 I.R. 81, per Clarke J. at para. 12 refers. The respondent has not, moreover, clearly established that the appellant’s challenge to the Removal Order “actually and materially increased the costs of the case” (see M.D. v. N.D. [2016] 2 I.R. 438 per Clarke J. at para. 9). Every argument directed to the validity of the Removal Order applied equally to the legality of the Exclusion Order. The hearings in the High Court and in this Court were conducted expeditiously and the written submissions were not of excessive length. The proceedings were neither protracted nor complex as to justify the application of the approach towards the allocation of costs in Veolia Water. Given the nature of these proceedings, the appellant suggested that a more apposite analogy was to be found in the High Court judgment on costs in Chenchooliah v. Minister for Justice [2019] IEHC 735 per Humphreys

J. at para. 16.

5. Paragraph 44 of the judgment delivered in this matter on 27 May 2025 finds that the appellant partially succeeded in these proceedings. It follows, as the respondent contends, that s. 168(2)(d) of the Act applies, and that the Court may therefore make an order in the appellant’s favour for those of his costs that relate to the element or elements of the proceedings in which he succeeded. The Court nevertheless retains a discretion under s. 168(1) of the Act as to whether to award the appellant the balance of the costs of the application as against the respondent.

6. In considering the exercise of that discretion, I accept the appellant’s submissions that the thrust of his arguments as to the validity of the Removal Order were equally directed at the legality of the Exclusion Order. In that context it should be observed that Counsel for both parties made commendably economic oral and written submissions in the High Court and before this Court. Nor could it be said that the proceedings were sufficiently lengthy or complex as would justify this Court launching into the exercise the High Court declined to embark upon when it ruled the costs in Chenchooliah v. Minister for Justice. I thus propose to treat the litigation as one unit for the purposes of attributing responsibility for costs.

7. The exercise of the Court’s discretion does not, however, cease at that point. The respondent does not criticise the manner in which the appellant’s representatives conducted the proceedings nor, it might be added, is there any basis for such a finding. The respondent nonetheless contends that the appellant’s unheralded departure from the territory of the State on an unascertained date in November 2024 unilaterally rendered moot the challenge to the Removal Order that the appellant’s representatives pursued in the appeal before this Court. In the respondent’s submission, where the unilateral action of a party to proceedings has the effect of rendering them moot, that party should be fixed with the costs thereof: Hughes v. Revenue Commissioners [2021] IECA 5, per Murray J. at paras 30 to 34. The respondent points to the fact that, on being informed of the appellant’s departure at the outset of the hearing, Counsel immediately raised the issue of the mootness of the challenge to the Removal Order. The issues of mootness and of whether the Court ought to entertain the challenge to the Removal Order, notwithstanding that it had become moot, were both determined in the respondent’s favour.

8. It is contended on the appellant’s behalf that, in circumstances where the High Court had certified two questions for this Court, the question of the mootness of the challenge to the Removal Order was effectively taken out of the parties’ control and that it is this Court that was responsible for finding that the challenge to the Removal Order was moot. Section 169(1)(a) of the Act is exclusively directed to the conduct of litigation and not that of the parties outside the context of that process. Since the appellant was entitled to leave the State in circumstances where he had been the subject for almost two years of an unlawful order there was in fact no misconduct on his part.

9. Paragraph 24 of the judgment delivered in these proceedings on 27 May 2025 states:

“The appellant’s compliance with the Orders he seeks to challenge in these proceedings could be described as cavalier. From the papers before this Court, at no point in time does it appear that he made any request, let alone submitted an application, to stay the operation of either Order. It follows that, since 27 January 2023, the appellant has either been under an obligation to present himself at the GNIB at a specific time and date or, at least until an unknown date in November 2024, been at risk of arrest and detention for the purposes of being removed from the State. His apparent non-compliance with the Removal Order is an offence contrary to Reg. 30(1)(k). The Court has no details of whatever engagement he may have had with An Garda Siochána, a matter that is within his direct knowledge. He apparently informed his solicitor that he left the territory of the State sometime in November 2024 and that he continues to return there from time to time. Such evasive and unexplained conduct is so inconsistent with seeking relief by way of judicial review that it raises an issue as to whether it is in the public interest to entertain the question the High Court certified with respect to the validity of the Removal Order.”

10. The submissions filed on the appellant’s behalf on 13 June 2025 do not engage with the findings in the aforecited paragraph. In particular, there is no evidence that, at any time, the appellant sought to have the effect of either or both of the Orders he sought to challenge stayed, in which case his subsequent behaviour might have been considered irreproachable. It appears the appellant instead chose to treat the Removal Order that, subject to arguments that it is spent and/or unlawful in the light of this Court’s first judgment in these proceedings, remains valid, and the Exclusion Order, which was valid until this Court declared otherwise, as simply not binding upon him, notwithstanding that Reg. 30(1)(k) of the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015, hereafter ‘the Regulations’), makes failure to comply with a removal order an offence under Reg. 30(4) thereof. The appellant does not explain why he commenced these proceedings if he was of the view that he could flout with impunity both of the Orders that had been directed to him, nor does he give any explanation for his conduct in light of the fact that his attitude towards the Removal Order was manifestly unlawful. The Court is thus of the opinion that, by his actions, the appellant manifested at the very least a certain disrespect for the operation of the very processes that he caused to have invoked for the purpose of asserting his rights.

11. To adjudicate upon costs, it is sufficient for this Court to find whether the appellant, by his unilateral conduct, rendered his challenge to the Removal Order moot. The appellant does not seriously contest that fact. The respondent’s Counsel, quite properly and presumably acting on instructions in the light of the correspondence that his solicitors had received from the solicitors for the appellant on 13 March 2025 (i.e. some five days prior to the date of the hearing of the appeal), raised the issue of the mootness of the challenge to the Removal Order at that hearing, to which Counsel for the appellant had the opportunity to respond. It thereafter fell to this Court to rule upon those submissions. Contrary to what the appellant now appears to contend for, when the Court determined the issue of mootness it did not act of its own motion, notwithstanding that it would have been entitled to do so (see the observations of McKechnie J. in Lofinmakin & Ors. v. Minister for

Justice, Equality and Law Reform & Ors. [2013] IESC 49, [2013] 4 I.R.

274 at paras. 35 – 53).

12. Having regard to both the nature of the case and the appellant’s conduct during the currency of his appeal, as discussed above, the Court considers it appropriate, in the exercise of its powers under s. 168 of the Act, to reduce the size of the award of the costs that the respondent is to pay the appellant. Such of the appellant’s submissions as are directed to the interpretation of s. 169(1) of the Act are therefore irrelevant since that provision governs the entitlement of a party who has been entirely successful in civil proceedings, which is not the case here as observed at para. 5, above.

III. Conclusion

13. The Court orders that the respondent pay the appellant the costs of the proceedings in the High Court, no issue concerning his behaviour having arisen at that stage. Taking account of the considerations set out in Part II of this judgment, including the findings made as to the appellant’s personal conduct during the currency of this appeal, the Court orders that the respondent pay the appellant 70% only of the costs of the appeal. Both orders are liable to be adjudicated upon in default of agreement as between the parties.

14. As this judgment is delivered electronically, I am authorised by Binchy and Hyland JJ. to state that they agree with it and the orders that are proposed therein.

Appearances:

For the Applicant/Appellant: Conor Power SC and Ian Whelan, instructed by Monahan Solicitors

For the Respondent: Eoin Carolan SC and Mark William Murphy, instructed by the Chief State Solicitor