Supreme Court dismisses costs appeal in immigration case, ruling taxpayer should not bear unsuccessful appellants' costs.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Supreme Court Record No. 2023/86

O’Donnell C.J. Woulfe J. Hogan J. Murray J. Donnelly J.

Between:

CHAIN WEN WEI

Appellant

-and-

THE MINISTER FOR JUSTICE AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

Respondents

-and-

TANG TING TING

Appellant

-and-

THE MINISTER FOR JUSTICE AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

Respondents

RULING of the Court as to Costs delivered on the 7th day of March, 2025

1. This is the ruling of the Court in relation to costs arising from the substantive appeal judgment delivered by this Court on the 19th December, 2024 (see: [2024] IESC 58). The Court dismissed the appellants’ appeal against the decision of the Court of Appeal delivered on the 2nd June, 2023, which had dismissed their appeals against the judgments of the High Court (Burns J.) delivered on the 23rd March, 2021. The High Court refused the appellants’ applications for judicial review of the decisions made by the immigration authorities to refuse them a permission to land or be in the State pursuant to s.4 of the Immigration Act, 2004 (“the 2004 Act”).

2. On the same date, the Court directed that if the parties could not come to an agreement as to costs, they should file written submissions with regard to same. The respondents subsequently filed submissions dated the 30th January, 2025, and the appellants filed submission dated the 7th February, 2025.

3. In their submissions, the appellants seek orders granting them a portion of their legal costs, whether limited by percentage, by jurisdiction or by both. They submit that this case is one of the rare cases in which it would be appropriate to consider an award of some costs to the unsuccessful appellants, for six stated reasons. Firstly, the issue raised in the appeals is one which was certified by the High Court as a point of law of exceptional public importance. Secondly, this Court admitted the appeal on the basis that it raised “significant and important issues” which “quite obviously [had] implications for virtually all non-EU/EEA travellers seeking to enter the State”, and also raised difficult questions of statutory interpretation, and the issues raised were “manifestly ones of general public importance”.

4. Thirdly, Woulfe J. noted in his judgment that “public policy”, while a much wider concept than “national security”, is also one that is “more difficult to clearly define”. Fourthly, they refer to the different interpretations of “public policy” in Ezenwaka v.

Minister for Justice, Equality and Law Reform [2011] IEHC 328 and in Li and Wang v. Minister for Justice and Equality [2015] IEHC 638. They submit that, as a result of the appellants’ appeals the resulting uncertainty has now been resolved, and the issue has been clarified both in the public interest and to the benefit of the State. It is submitted that this outcome, which they say appears to place it in the third category of case contemplated in Collins v. Minister for Finance [2014] IEHC 79 (“Collins”), coupled with the relatively unusual circumstances in which it occurred, are substantial factors weighing in favour of granting the appellants some portion of their costs.

5. Fifthly, the appellants cite Ononkewagbe v Governor of the Dóchas Centre and the CFA [2017] IEHC 243, where the applicants were awarded half their costs on the basis that one aspect of the judgment had a general application which would enure for the benefit of the State through its law enforcement agencies, and, in relation to the other aspect, the statutory provisions fell to be interpreted for the first time in circumstances which could well be repeated in the context of future deportations. Sixthly, while the outcome at each jurisdiction level has been the same, the argument which the respondents succeeded on before this Court and/or its reasoning were somewhat different from those in/of the Courts below. In addition, the appeals have resulted in the clarification of the parameters of the noscitur a sociis maxim.

6. In their submissions the respondents highlight that they have been entirely successful in defending these proceedings in the Courts below and before this Court. They cite the judgment of Murray J. in Little v The Chief Appeals Officer & Ors (No.2) [2024] IESC

53 (“Little (No. 2)”) and, in light of the principles identified therein, submit that it would be appropriate for this Court to make the following costs orders:

(i) that there be no order as to costs in respect of the appeal to this Court;

and

(ii) an order on consent setting aside the costs orders in favour of the respondents in the High Court and the Court of Appeal and substituting each of those orders with no order as to costs.

7. As regards the appellants’ application for an award of some of their costs, the respondents submit that this is not such a rare, exceptional or extraordinary case that could justify the taxpayer being ordered to pay a portion of those costs. They refer to the decision in Dunne v. The Minister for the Environment [2008] 2 I.R. 775, and note that Murray J. stated in Little (No. 2) that the cases since then “have consistently applied a far stricter test in awarding costs to an unsuccessful litigant in public interest litigation than to the decision whether to exempt such litigants from an adverse order”. Murray

J. also stated (at para. 62) that where the making of an award of costs in favour of such a party is proposed, “the Court should do so only in cases of real substance, in which there is a clear and significant public interest on a matter of fundamental importance served by the clarification brought to the law by the suit”.

8. The respondents note how the divisional court in Collins identified four types of cases in which an award of costs in favour of an unsuccessful party had been made, and how Murray J. in Little (No. 2) had added a fifth example. They submit that this case does not fall within any of the categories identified, but rather involves the application of well-established principles of statutory interpretation as set down in the case law.

9. While the respondents fully acknowledge that there was divergence of High Court jurisprudence as to the correct meaning of the term “public policy”, which has now been definitively clarified by this Court, they submit that this feature of the proceedings alone does not set it apart as exceptional, rare or foundational, such as to warrant the State paying any portion of the appellants’ costs. It is contended that, having regard to ss. 168 and 169 of the Legal Services Regulation Act, 2015, making no orders as to costs sufficiently acknowledges and does justice to the issues arising in this case, while also taking into account recent judicial pronouncement.

Decision

10. The issue of awarding costs, or a proportion of costs, to an unsuccessful party has recently been considered by this Court in Little (No. 2), as referred to above when summarising the respondents’ submissions. The four types of cases identified in Collins in which such orders had been made, and the fifth category added by Murray J. in Little (No. 2) are as follows:

(i) Proceedings where the constitutional issues litigated were

“fundamental” and “touched on sensitive aspects of the human condition”.

(ii) Constitutional cases of “conspicuous novelty”, often where the issue concerned aspects of the separation of powers between branches of Government.

(iii) Cases in which the issue was one of “far reaching importance in an area of the law with general application”.

(iv) Cases in which the courts have emphasised that the decision clarified an otherwise “obscure or unexplored area”.

(v) Cases in which although a claimant may have lost their action and failed to prevail on the ultimate argument, the claimant won a significant issue in the appeal.

11. In Little (No. 2) Murray J. stated that the more recent decisions of this Court have agreed with the suggestion that the cases in which costs will be awarded in favour of a successful claimant have tended to be those in which “foundational issues of constitutional or European law” have been raised. In that case itself, Murray J. declined to award any costs in favour of the unsuccessful appellant for the following reasons (at para. 76): “Leaving aside what I have said about the strength of the case, the appeal revolved around the application to the 2005 Act of well-established principles of statutory interpretation. It did not raise an issue of constitutional or European law, it did not involve an issue that could be described as “foundational”, it was a case pursued in the appellant’s personal interest and while a point of general importance, it did not present a legal question of such significance (or argument of such strength) that the taxpayer should fairly bear the appellant’s own costs.”

12. The Court is satisfied that similar considerations apply in the present case. This appeal again involved the application to the 2004 Act of well-established principles of statutory interpretation. It did not directly concern an issue of constitutional or European law; it did not involve an issue that could be described as “foundational”; it was a case pursued by the appellants for their own personal advantage; and while involving a matter of general public importance, as almost all appeals to this Court must do, it did not present a legal question of such significance (or an argument of such strength) that the taxpayer should fairly bear any of the appellants’ own costs.

13. The Court will therefore make the costs orders suggested by the respondents, as set out at para. 6 above.