Court of Appeal dismisses appeal on costs, awarding respondents costs as they were entirely successful.

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL

Court of Appeal Record Numbers: 2025 68 & 2025 69 High Court Record Numbers: 2024/23 JR & 2024/63 JR Neutral Citation Number: [2025] IECA 258

APPROVED – NO REDACTION NEEDED

Pilkington J. Hyland J. Collins J.

BETWEEN/ A.A.H.

APPLICANT/APPELLANT

- AND -

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

RESPONDENTS

AND BETWEEN/ M.H.A.

APPLICANT/APPELLANT

- AND -

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 9th day of December 2025

I. Scope of Judgment

1. On 15 October 2025 ([2025] IECA 203), this Court dismissed these appeals in their entirety. The default position under s. 169(1) of the Legal Services Regulation Act 2015 (hereafter ‘the Act of 2015’) is that a party that has been entirely successful in proceedings is entitled to an award of costs against the unsuccessful party unless the court hearing the matter orders otherwise. The Court thus took 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 all costs in the cause.

2. If the appellants disagreed with that proposed order, they were invited to file and serve a written submission of not more than 2,000 words within fourteen days of the delivery of judgment, after which the respondents had a further fourteen days in which to respond by the lodgment and service of a reply of no greater length. The parties accepted this invitation by the lodgment of submissions dated 28 October and 11 November 2025 respectively.

II. Ruling on the Costs of the Appeal

3. The appellants accept that the respondents were entirely successful in these appeals. In reliance upon paras. 35 and 36 of the judgment of Murray J. in Little v. Chief Appeals Officer [2024] IESC 53, they nonetheless ask this Court to make no order as to the costs of these appeals on four grounds. The first contention is that, since the High Court certified two questions of law pursuant to s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000 (hereafter ‘the Act of 2000’), the appeals involved points of law of general public importance within the parameters laid down in Little since the test in that provision requires the High Court to find that the points of law it certified are of exceptional public importance and that it is desirable in the public interest that an appeal be taken. Second, whilst the appellants accept that the appeals were not “pure pathfinder cases as such”, they submit that they had a similar character since “…many other cases have in effect been “parked” after the granting of leave pending the outcome of these cases to see whether that outcome determines those other cases.” Third, the appellants ask this Court to take account of their situation as prospective returnees to Greece. Finally, the appellants contend that the respondents benefitted from this Court’s clarification, in M.H.A., of the meaning of s. 46(8) of the International Protection Act, 2015, a hitherto unclear provision of systemic importance, evidenced by the different interpretations of it that the High Court and this Court arrived at.

4. The respondents emphasise that, as a consequence of their having been entirely successful in these appeals, s. 169(1) of the Act of 2015 requires that the costs follow unless this Court exercises its discretion to direct otherwise having regard to the factors enumerated in that provision: Higgins v. Irish Aviation Authority [2020] IECA 277, para. 10 per Murray J. Whilst the respondents accept that the High Court certified that two discrete points of law were of exceptional public importance, the appellants did not confine their appeals to those grounds and instead sought to advance no fewer than eleven additional grounds of appeal. Whilst it was open to the appellants to pursue that course, it has consequences for the assessment of their liability for the costs of the appeals. The respondents also point to four factors in the judgment of Murray J. in Little that militate in favour of making a costs order against the appellants. That a point of law is of general public importance is “…a necessary, but not sufficient, condition to the exercise of the power…” (para. 35(i) of the judgment). The appeals engaged the appellants’ personal interests (para. 35(ii) of the judgment). Whilst accepting the High Court’s finding that the proceedings had “quasi-pathfinder status”, the appeals were not dispositive of other pending claims since the test in Joined Cases C-297/17, C-318/17, C-319/17 & C-438/17, Ibrahim & Others, EU:C:2019:219 requires that the particular circumstances of each applicant be examined (para. 35(vi) of the judgment). Finally, the “unanimous and unequivocal” judgment of this Court made it clear that the appeals on both the certified and the uncertified grounds were insubstantial (para. 35(iii) of the judgment).

5. The citation of this Court’s judgment in Higgins, to which the previous paragraph refers, reiterates the content of s. 169(1) of the Act of 2015. That ss. (1) confers an entitlement on an entirely successful party is emphasised by ss. (2), which provides that where a court decides to deprive that party of the right described at ss. (1), “it shall give reasons for that order”, which requirement does not exist where a court decides to award that party the costs of proceedings under ss. (1). It is thus incumbent on a party who resists an application by a party who has been “entirely successful in civil proceedings” to put sufficient material into the balance as to persuade a court why it ought not to accede to that application. In assessing that material, a court is entitled to take account of all relevant circumstances that are brought to its attention, which include the matters set out at s. 169(1)(a) to (g) of the Act of 2015.

6. At the core of the appellants’ case for resisting the respondents’ application for the costs of these appeals is the assertion that since the High Court certified two questions of law pursuant to s. 5(6)(a) of the

Act of 2000, they undoubtedly involved points of law of general public importance. Absent that consideration, the grounds for resisting the respondents’ application are very weak: the argument that the appeals were in the nature of “pathfinder cases” ignores the fact that the law requires a case-by-case assessment of the particular circumstances of each applicant, whilst insofar as it is contended that account should be taken of the appellants’ impecuniosity, it is well settled, as the respondents observe in their written submissions, that it is not a basis upon which to resist a costs order: e.g. Smith v. Cisco Systems Internetworking (Ireland) Ltd [2023] IECA 238, at paras. 28 – 29 per Whelan J.

7. The respondents identify clearly the difficulty that the appellants face in seeking to rely upon the High Court’s certification of two questions for consideration by this Court to oppose the respondents’ application for the costs of the appeals: the fact that the appellants were not content to confine the appeals to those questions but instead advanced eleven additional grounds of appeal. Whilst it is understandable why the appellants chose to pursue that course, it is clearly relevant to the determination of costs, as s. 169(1)(a), (b) and (c) indicate. In addition to the fact that a very considerable amount of time and effort was taken up in debating and considering those additional grounds of appeal, the respondents also recite the observations at para. 39 of the judgment “…that the thrust, if not the entirety, of these aspects of these appeals do not appear to be directed to perceived frailties in the High Court judgment but rather to alleged errors that the High Court allegedly declined to identify in the first named respondent’s decisions”. In that context it is relevant that the High Court made no order for costs, thereby shielding the appellants from liability for the respondents’ costs at first instance, notwithstanding that it dismissed the applications on their merits. The additional grounds advanced on appeal did not arise out of developments before the High Court that this Court might have been required to examine, but for the most part repeated criticisms of the first named respondents’ decisions that the High Court had considered and rejected. In these circumstances, the appellants have not put sufficient material into the balance to show why the respondents, who it is conceded were entirely successful in defending these appeals, should be deprived of their statutory entitlement to the costs incurred in that endeavour.

III. Conclusion

8. For the reasons given at Part II, above, I award the respondents the costs of these appeals, to include the costs in the cause and any reserved costs.

9. Since this judgment is delivered electronically, I am authorised by Pilkington and Hyland JJ. to state that they agree with it and with the orders proposed therein.

Appearances:

For A.A.H.: Michael Conlon SC and Eamonn Dornan, instructed by Trayers & Co., Solicitors

For M.H.A.: Michael Conlon SC and Garry O’Halloran, instructed by Trayers & Co., Solicitors

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