Court of Appeal dismissed appeal on standing and awarded costs to respondents under Legal Services Regulation Act 2015.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

APPROVED – NO REDACTION NEEDED

Court of Appeal Record Number: 2025 70 High Court Record Number: 2023 19 JR Neutral Citation Number: [2025] IECA 248

Whelan J. Pilkington J. Collins J.

BETWEEN/ W.P.L. AND B.P.

APPLICANTS/APPELLANTS

- AND -

THE MINISTER FOR JUSTICE AND EQUALITY, THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 3rd day of December 2025

I. Scope of Judgment

1. On 8 October 2025 ([2025] IECA 198), this Court dismissed the appeal in its entirety and allowed the respondents’ cross-appeal against that part of the High Court order that held that the appellants had standing to maintain these proceedings. In the light of both that outcome and the default position under s. 169(1) of the Legal Services Regulation Act 2015 whereby parties that have been entirely successful in proceedings are entitled to an award of costs against an unsuccessful party unless the court hearing the matter orders otherwise, the Court expressed the provisional view that the respondents were entitled to an order against the appellants for the costs of the proceedings before this Court, to include any reserved costs.

2. If the appellants wished to contend for another form of costs order, they were invited to file and serve a written submission of not more than 1,500 words within fourteen days of the delivery of that judgment, in which event the respondents were afforded an identical period of time in which to respond. The parties accepted this invitation by lodging submissions dated 22 October and 7 November, respectively.

3. Paragraph 3 of the appellants’ submissions states that there should be no order as to costs “in these proceedings”, in contradistinction from those filed on the respondents’ behalf, which address the costs of the appeal in line with the invitation in the judgment of 8 October. In so far as the appellants’ submissions may be construed as seeking to reverse that part of the High Court Order that required them to pay the costs of the proceedings in that Court to the respondents, the question arises as to whether that Court’s order was within the range of those that it could have made in the circumstances before it, in which case this Court will not disturb it: see T.A.O. v. Minister for Justice [2021] IECA 293, per Collins J. at paras 30 & 51-52; Pembroke Equity Partners Ltd. v. Corrigan [2022] IECA 142, per Collins J. at para. 19; Lynch v. Minister for Health [2025] IECA 216, per Anthony Collins J., at para. 31).

4. Since the High Court dismissed the application before it and declined to issue a certificate for leave to appeal pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, I am of the view that the costs order it made on 13 November 2024 was within the range of those it was entitled to make, by reason of which that order ought to not be disturbed.

II. Ruling on the Costs of the Appeal

5. The appellants do not dispute that the respondents have been entirely successful in this appeal and that, in the ordinary course of events, s. 169(1) of the Legal Services Regulation Act 2015 entitles the latter to an order for the costs thereof as against the former. To do otherwise this Court must have regard to the particular nature and circumstances of the case and the conduct of the proceedings.

6. The appellants ask this Court to make no order for costs by reference to the following considerations: that the case raised novel and important points of law concerning the designation of safe countries of origin under s. 72 of the International Protection Act 2015; the High Court’s finding that the appellants had standing to challenge the designation of their country of origin; the reasonableness of their conduct in prosecuting the appeal; the deterrent effect of prohibitive costs orders on international protection applicants who seek to bring “systemic legal issues” before the Superior Courts; due exclusively to “jurisdictional limitations” “arguable grounds of appeal” could not be pursued; proportionality and the interests of justice.

7. In ruling on the costs of this appeal, the considerations the appellants seek to rely upon fall to be examined in the light of what the judgment of 8 October 2025 decided. The appeal contained eight grounds. On foot of the respondents’ preliminary objection that this Court had no jurisdiction to entertain grounds of appeal 6 to 8, at the hearing on 28 July 2025 the Court asked the parties to address that issue so as to allow it to rule upon that objection before hearing the balance of the appeal. For the reasons explained at Part II of the judgment, which were delivered immediately after the parties had presented argument, the Court held that it had no jurisdiction to receive those grounds of appeal. The Court thereafter heard the parties on grounds of appeal 1 to 5, with respect to which the respondents maintained that the appellants lacked standing to advance them. In its reserved judgment on those grounds, this Court affirmed the High Court’s finding of fact that the designation of South Africa as a safe country of origin played no role in the procedure that led to the second named respondent’s decision. Paragraphs 16 to 18 of the appellants’ written submissions in support of this Court making no order for costs accept that the High Court’s finding that they had standing to make those arguments rested upon two contingencies, the first of which ceased to exist on 13 November 2024, when the High Court made its final order. The submissions do not address the second contingency, which this Court ruled was so far removed from the matters to which the application related as not to constitute the sufficient interest required to allow the High Court to make the orders the appellants sought by way of judicial review.

8. As a consequence of both its want of jurisdiction to hear part of the appeal and the appellants’ lack of standing to pursue the balance of the grounds advanced, this Court never reached what is contended are novel and important points of law concerning the designation of safe countries of origin under s. 72 of the International Protection Act 2015. The appellants admit that, as of the making of the High Court order of 13 November 2024, and therefore before the lodgment of this appeal, the first contingency upon which they had been afforded standing had evaporated. Their submissions on costs do not address the second contingency. In these circumstances, it is difficult to understand how the

decision to pursue this appeal could have been considered as a reasonable one to take: whatever the explanation for that decision, the subjective views of a party that maintains proceedings is irrelevant to the award of costs, as the respondents observe at para. 3.8 of their submissions on that question, citing Re M/V ‘Lady Magda’ [2021] IECA 51 Collins J. at para.

6. Those observations also respond to the arguments in support of the appellants’ claims that no costs order ought to be made by reference to proportionality and the interests of justice. Since the judgment of this Court did not address any of the “systemic legal issues” to which the appellants refer, any deterrent effect that prohibitive costs orders might have on international protection applicants who bring proceedings which raise such issues did not materialise. To contend that “jurisdictional limitations” prevented this Court from considering what are alleged to be “arguable grounds of appeal” begs the question why the notice of appeal contained grounds 6 to 8, the High Court having refused to issue a certificate for leave to appeal on any ground in the exercise of its exclusive jurisdiction under s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000.

9. The appellants have, accordingly, not identified any basis upon which this Court either could, or should, depart from the rule in s. 169(1) of the Legal Services Regulation Act 2015 in adjudicating upon the costs of this appeal.

III. Conclusion

10. For the reasons set out at Part II, above, the respondents are entitled to an order to recover the costs, including any reserved costs, of this appeal as against the appellants.

11. Since this judgment is delivered electronically, I am authorised by Whelan and Pilkington JJ. to state that they agree with it and with the order it proposes.

Appearances:

For W.P.L. & B.P.: Eamonn Dornan, instructed by BKC Solicitors

For the Respondents: David Conlan Smyth SC and Mark William Murphy SC, instructed by the Chief State Solicitor