Supreme Court dismisses appeal against High Court's refusal to order wasted costs for solicitor negligence.

THE SUPREME COURT

Appeal No: 360/12

Denham C.J.

Murray J.

Clarke J.

Between/

HO (an infant suing by her mother and next friend AAO)

Applicant/Respondent

and

The Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner

Respondents/Appellants

Judgment delivered on the 23rd October, 2013 by Denham C.J.

1. This is an appeal by the Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner the

respondents/appellants, referred to as “the appellants” against the judgment of the High Court (Hogan J.) delivered on the 13th June,

2012, and the order made on the 20th June, 2012, and perfected on the 4th July, 2012.

2. HO (an infant suing by her mother and next friend AAO) is the applicant/respondent in this appeal, and is referred to as “the

respondent”.

3. At issue is the learned trial judge’s decision not to award a wasted costs order under Order 99, rule 7 of the Rules of the Superior

Courts against the solicitors for the respondent.

Background

4. The respondent instituted judicial review proceedings (through her next friend) on the 22nd April, 2009, challenging a decision of

the Refugee Applications Commissioner (the “ORAC”) to refuse her refugee status.

5. At the time of the institution of proceedings, the High Court had established in a number of cases the principle that, absent

exceptional circumstances, a decision of the ORAC is not amenable to judicial review and that an appeal to the Refugee Appeals

Tribunal was the appropriate remedy. This principle had been approved by this Court in an ex tempore judgment delivered by Murray

C.J. in Kayode v. The Refugee Applications Commissioner, (Unreported, Supreme Court, Murray CJ, 28th January, 2009).

6. The respondent was given a number of opportunities to withdraw the case, without incurring any costs, but did not do so. When

the judicial review came on for hearing at first instance in the High Court, Clark J. indicated that there did not appear to be any issue

in the case which had not been decided. Counsel for the respondent sought an adjournment, which was opposed by the appellants,

and the High Court refused an adjournment. Counsel for the respondent then withdrew the case. The issue of costs was adjourned.

7. The issue of costs and the wasted costs application was heard in the High Court on the 20th April, 2012, by Hogan J. Judgment

was delivered on 13 June, 2012, and this appeal is against the judgment and decision on a wasted costs order.

The High Court Judgment

8. The High Court refused to make a wasted costs order. However, it was ordered that the next friend of the respondent pay to the

appellants the costs of the proceedings. It was also ordered that the appellants pay to Burns, Kelly, Corrigan, solicitors for the

respondent, such costs as were incurred in respect of the application under Order 99, rule 7 of the Rules of the Superior Courts.

9. In considering the Court’s jurisdiction to make a wasted costs order, the learned trial judge stated:-

“In considering this question, it must be recalled, of course, that it is a pure fallacy to suggest that all (or even a

significant majority of) litigants will follow the advice of their lawyers. It is for the lawyer to advise and the client to

decide. Once the client has decided to continue with the litigation, it becomes the task of the advocate lawyer – be he or

she a solicitor or barrister – to put the best possible case before the court for that client. It is for this reason that the

mere fact that a hopeless case is pursued will not in itself justify the making of a wasted costs order: see, e.g., the

comments of Sir Thomas Bingham MR in Ridehalgh v Horsegfield [1994] Ch. 205, 234:- ‘legal representatives will, of

course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure.

But clients are free to reject advice and insisted that cases be litigated. It is rarely, if ever, safe for a court to assume

that a hopeless case is being litigated on the advice of the lawyers concerned. They are there to present the case; it is.

…for the judge and not the lawyers to judge it.’”

10. Having reviewed some legal principles Hogan J. stated:-

“All of this means that the courts must be especially wary of retrospective endeavours to saddle solicitors with wasted

costs orders simply because the case has been lost. Obvious cases such as misconduct, lack of bona fides and a

vexatious desire to harass and oppress one's opponent by litigation aside, the jurisdiction to impose a wasted costs order

must otherwise be confined to those cases where it is obvious that the litigation is so obviously pointless. The jurisdiction

under 0. 99, r. 7 has, of course, been comprehensively examined by Finnegan P. in Kennedy v. Killeen Corrugated

Products Ltd. [2006] IEHC 385, [2007] 3 I.R. 561 and by Cooke J. in OJ v. Refugee Applications Commissioner [2010]

IEHC 176, [2010] 3 I.R. 637 and Idris v. Legal Aid Board [2009] IEHC 596. As one would expect, these cases make it plain

that the jurisdiction must be exercised sparingly.”

11. The learned High Court judge reviewed the situation on the asylum list where the issue had arisen as to whether a litigant, after a

decision by the ORAC, was obliged to appeal to the Refugee Appeal Tribunal or whether, alternatively, there were circumstances in

which an applicant could directly challenge the decision of the Commissioner in judicial review proceedings.

12. Reference was made to BNN v. Refugee Applications Commissioner [2009] 1 I.R. 719, where Hedigan J. held that, absent

exceptional circumstances, a decision of the Commissioner was not amenable to judicial review and that the appropriate step was to

appeal to the Refugee Appeals Tribunal.

13. There were a further series of cases where the issue was considered and on the 15th June, 2009, it was indicated by the Minister

that he would allow applicants who had sought to challenge decisions of the Commissioner by judicial review to strike out their cases

with no order as to costs. Litigants who considered that they were entitled to continue their judicial review case were directed to

write to the Chief State Solicitor’s office. At that time there were hundreds of cases listed in the judicial review list challenging

decisions of the Commissioner.

14. The respondent’s solicitor wrote to the Chief State Solicitor stating that this case could be distinguished from the series of cases,

including BNN v. Refugee Applications Commissioner [2009] 1 I.R. 719. Thus, the respondent continued with the judicial review

application.

15. Hogan J. reviewed the case law:-

“It is clear in the light of this series of recent decisions that it is only in very rare and limited circumstances indeed that

judicial review is available in respect of an ORAC decision. The investigative procedure with which ORAC is tasked must be

properly conducted but the flaw in that procedure that entitles an applicant to judicial review of an ORAC decision must

be so fundamental as to deprive ORAC of jurisdiction. The Courts, the applicants themselves, and the general public have

a right to expect that no such fundamental flaw should ever occur in such an application. An applicant must demonstrate

a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the RAT. If

such a clear and compelling case is not demonstrated, the applicant must avail of the now well established procedure that

has been set up by the Oireachtas, which provides for an appeal to the RAT.”

16. The learned High Court judge stated that the very fact that the issue falls to be determined by discretionary principles, rather

than a jurisdictional barrier, tells heavily against a successful litigant who also wishes to invoke the exceptional O. 99, r. 7 jurisdiction

on the ground that the litigation was pointless and destined to fail.

Hogan J. held:-

“In the present case, the [respondent] had a tenable argument that the case fell within one of the discretionary grounds

justifying intervention by way of judicial review in respect of a first instance administrative decision. Given the high hurdle

which such an applicant would in all likelihood face, the prospects of success were admittedly not great, but when viewed

by reference to what Denham J. expressly said in Tomlinson and impliedly so observed in 0'Donnell, it cannot be said that

the prospects were hopeless to the point where the further continuation of the litigation was plainly wasteful and

vexatious.

Naturally, the fact that the proceedings were abruptly withdrawn on the morning of the hearing might, perhaps, be

thought to suggest otherwise. This decision was, however, almost certainly taken in view of the judicial comments to the

effect that the case was not particularly strong and in circumstances where discretion seemed the better part of valour.

But it cannot be said that the case was untenable and certainly not in the sense of being wasteful and vexatious.”

17. The learned High Court judge referred to the respondent’s submissions, of which a complaint had been made, which did not refer

to case law such as BNN v. Refugee Applications Commissioner [2009] 1 I.R. 719, Kayode v. The Refugee Applications Commissioner,

(Unreported, Supreme Court, Murray CJ, 28th January, 2009), or other cases dealing with the alternative remedy. He stated that this

is, at best, a reflection on the quality of the submissions, but that simply because written submissions can be critiqued is not a basis

for an application based O. 99, r. 7.

18. The learned High Court judge concluded:-

“It follows, accordingly, that there is simply no appropriate basis on which a wasted costs order could possibly be made

against the [respondent’s] solicitors. While I will naturally award the [appellant] the costs of the proceedings against the

applicant, I will refuse to make the wasted costs order sought pursuant to O.99, r.7 against the [respondent’s] solicitors

for the reasons just stated.”

Notice of Appeal

19. The appellants appealed against the judgment and order of the High Court. The following grounds of appeal were filed:-

(i) The learned High Court judge failed to consider that by unduly prolonging this action, without proper justification,

the conduct of the solicitor for the respondent was misconduct within the meaning of Order 99, rule 7 and resulted

in costs being improperly or without reasonable cause incurred by the appellants.

(ii) The learned High Court judge erred in his conclusion that the solicitor for the respondent had complied with the

direction of the High Court in its letter dated 10th July, 2009, in circumstances where said letter failed to properly

set out the grounds on which this case could be continued (in direct contravention of said direction), and where

said case was then abruptly withdrawn on the morning of the hearing, 16th October, 2009, with no proper or

adequate explanation.

(iii) The learned High Court judge failed to properly consider that these proceedings were wastefully continued in

circumstances where many opportunities were afforded to the respondent to withdraw, before the appellants had

incurred substantial costs.

(iv) The learned High Court Judge failed to take into account that this case was one of a category of cases (a

challenge to a decision of the Refugee Applications Commissioner), which the High Court and the Supreme Court had

ruled could only succeed in very rare circumstances and which case was unduly prolonged, without proper

justification for such continuance.

(v) The learned High Court Judge failed to consider that the solicitor for the respondent failed to properly comply

with the High Court direction that was made to promote the active management of the list in circumstances where

the failure to comply with the direction led to the wasting of court time and resources and was a dereliction of the

solicitor’s duty to the Court.

(vi) Such further and other grounds of appeal as the appellants may with leave of this Honourable Court seek to

advance at the hearing of this appeal.

Submissions

20. Written and oral submissions were given to the Court.

Submissions on behalf of the Appellants

21. Extensive written submissions were filed on behalf of the appellants and were the foundation of the oral submissions. Ms.

Moorhead S.C., counsel for the appellants, pointed out that a day of High Court time was wasted on the 16th October, 2009. Counsel

stated that there was no suggestion that the solicitor for the respondent was grossly negligent, but that Order 99, r. 7, also covers

breach of duty to the Court. When Mr. Byrne wrote the letter on the 10th July, 2009, he said that the case involved fair procedures

issues, but when the submissions were lodged, they did not deal with the narrow category of cases which were the exception under

the law on challenging a Commissioner’s decision. This, counsel submitted, was misconduct. Counsel said that if the case had gone to

hearing on the 10th July, 2009, an Order 99, r. 7 order would not have been sought. But it had been said that the respondents

believed they had a case, that they would argue it, that it came within the exception to the law, and on the morning of the hearing

they withdrew it without explanation. Counsel submitted that that was a breach of duty to the Court.

22. In written submissions it was stated that the law on challenging ORAC’s decision in judicial review had been well settled and was

well known to Burns, Kelly, Corrigan, Solicitors, in April 2009, when these proceedings were issued. It was submitted that the letter

written on the 10th July, 2009 was vague and set out no basis for the continuation of the case. It was submitted that the High Court

did not adequately consider the vagueness of the letter, which appeared to be a pro forma letter. Criticisms were raised as to the

submissions filed on behalf of the respondent. It was pointed out that when Clark J., on the hearing date of the application, stated

that she did not see any issue in the case that had not already been determined in other cases, the respondent’s counsel sought an

adjournment. It was only when an adjournment was refused that the case was withdrawn and that no explanation was given. Further,

it was submitted that the learned High Court judge did not consider the evidence of misconduct or default or negligence that could be

inferred from the standard form letters sent by Burns, Kelly, Corrigan, solicitors, to the appellants in a large number of cases, which

showed that a failure to obey the rulings of the court in this case was not an isolated incident, and they showed that the said

solicitors failed to engage with the relevant case law. It was submitted that the directions by the Asylum Judges had the important

purpose to distinguish between those claims that had merit and those which had not, and to free up the lists so that genuine

stateable cases could be heard promptly. There was evidence in the High Court that on the 26th June, 2009, Burns, Kelly, Corrigan,

solicitors, represented applicants in 282 ORAC cases which were awaiting hearing in the court lists. Only 19 were withdrawn in June

and July pursuant to the court direction, although 6 were withdrawn in October, either on the day of the hearing or shortly prior

thereto. It was submitted that this evidence was not considered in the High Court judgment. It was also submitted that the

respondent had limited means and that there was little or no prospect of ever satisfying an order of costs against her. Also, it was

submitted that this Court should consider the fact that the respondent refused to avail of the offer in June to withdraw the case,

with no order of costs against her. It was submitted that it was difficult to perceive of any ground on which this litigation was

legitimately pursued. It was submitted that the conduct of Burns, Kelly, Corrigan, solicitors, came clearly within the principles set out

in O.J v. Refugee Applications Commissioner [2010] 3 IR 637 and Idris v. Legal Aid Board [2009] IEHC 596, in that the litigation was

vexatious and wasteful. It was submitted that the litigation had no purpose other than that of prolonging the process and postponing

a final determination of the asylum application. It was also submitted that a wasted costs order should be imposed as the conduct

complained of falls within the principles of Myers v. Elman [1940] AC 282, as explained by Lord Wright, it was conduct “which involves

a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the course

of justice”.

Submissions on behalf of the Respondents

23. Feichín McDonagh, S.C., counsel on behalf of the respondent, relied on the written submissions filed. It was submitted as this

Court has frequently stated, that when a judge of the High Court exercises his discretion in relation to an order for costs, this Court is

slow to intervene. It was submitted that the learned High Court judge correctly identified the relevant legal principles and correctly

determined that there was no reasonable basis in law upon which an award of costs should be made against the solicitor acting for

the respondent. Alternatively, it was submitted that even if this Court were to hold that the learned High Court judge erred in law

either in his interpretation of the law or in his analysis of the correspondence between the parties, in particular the letter of the 10th

July, 2009, then any solicitor who shared the approach of the learned trial judge, could not be viewed as acting in breach of his duty

to the court in light of the subsequent vindication of his approach by a judge of the High Court, even if that judge were to be held to

have erred.

24. In oral submissions counsel stated that the issue of the 282 cases of the solicitors’ firm was not opened in the High Court, and if

it had been opened there could have been an answer on the number of cases that had settled or were successfully litigated.

25. In relation to the case before this Court, it was said it was withdrawn with no explanation. Counsel opened the affidavit of Brian

Burns, deposed on the 8th December, 2009, where he set out the facts, history, advice of counsel and what happened in the list.

26. Mr. Burns referred to a series of cases and stated that it was not the view of his counsel that the cases, including Kayode v. The

Refugee Applications Commissioner, (Unreported, Supreme Court, Murray CJ, 28th January, 2009), were finally decisive in relation to a

significant amount of cases his firm initiated in respect of decisions of the Commissioner. He described the process and plans for the

listing of cases in the Asylum list. He stated that the main point in contention then was the effect of the European Communities

(Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) which incorporated into domestic law the provisions of Council

Directive 2004/38/E.C. of 29 April, 2004 on the right of citizens of the Union and their family members to move and reside freely within

the territory of the Member States, OJ L 158, 30.4.2004. It was decided to list, in 2009, sequentially, a number of cases before Cooke

J. Mr. Burns deposed in his affidavit dated the 8th December, 2009:-

“By the 16th October 2009 several of the cases had been dealt with by Cooke J. and any ones in which judgement had

been handed down were unsuccessful. Upon a review of the cases that had been dealt with it was becoming clear that

some of the cases yet to be heard were so similar in nature to ones that had already been dealt with that it appeared to

me and my Counsel that there was little point in proceeding with them, as given the results of the ones already heard, it

was inevitable that they would be lost and indeed that it would be an inefficient use of court time to hear same in the

circumstances. That was the view taken by myself upon counsel's advice at that juncture. In that light instructions were

taken from the [respondent] in the case of 0yenuga (the within case) and instructions were given to seek to adjourn the

case and if that proved unsuccessful to withdraw same. It was hoped that, as had been the previous practise of the High

Court on frequent occasions, that if a case was withdrawn in the asylum list, even as late as the morning of the hearing

that no order for costs would be made. This was a practise so far as I am aware introduced by his Honour Judge

Birmingham when he had been previously in charge of the asylum list and continued, to some extent, by Judge Hedigan,

the idea being that unless an Applicant had an incentive to withdraw their case there would be no reason to withdraw

and time would be taken up unnecessarily. It was in this context that on the morning of the hearing, the 16th October

2009, Mr. Ian Whelan B.L. for the [respondent] applied initially, for the matter to be adjourned and when that application

was refused, withdrew the case and the question of costs left over to a later date. No indication was given at that

juncture by the opposition that any application would be intended to be made on the basis of Order 99, Rule 7 of the

Rules of the Superior Courts. Indeed the first indication of this was contained in the letter of the 6th November 2009 …

Several of the other cases listed subsequently were also withdrawn and costs were ordered to be paid with an order for

costs in favour of the Respondents. I should say at this juncture that advices had been given (on an informal basis) by

Senior Counsel in relation to the consideration of the possibility of applying for a certificate pursuant to Section 51 of the

Illegal Immigrants Trafficking Act 2004 to appeal one or more cases to the Supreme Court. In fact a definite decision was

later reached to apply for a certificate in relation to two of the cases involved, Igbinoba and Rajib (one of which, my firm

was not the Solicitor on record for, namely Igbinoba). A decision had been made to apply for a certificate in relation to

these cases but on or about the 6th November 2009 judgement was handed down in the case of Olunloyo by Cooke J.

(which had been the first case of the series heard). As a result of further considerations by Junior and Senior Counsel, in

the light particularly of the Olunloyo decision, it was decided ultimately not to make any application for a Certificate. This

decision was arrived at on Wednesday 18th November 2009, the day Justice Cooke had fixed, at the request of the

Applicants, a time for application for a certificate. In the circumstances no application for a certificate was made.

Counsel for the [appellants] subsequently indicated that in other cases no order for costs would be sought where the

cases were withdrawn on or before the 9th December 2009 and I am currently obtaining instructions from numerous

clients in relation to the said offer and anticipate that a substantial number of cases will be withdrawn to take advantage

of the offer in the circumstances that have now arisen. The above is the general background to the position that is now

current and I set out hereunder my response firstly to the Affidavit of Majella Donoghue filed herein.

In relation to Paragraphs 3 and 4 of the Affidavit of Majella Donoghue I say that the facts therein are true and accurate

but the interpretation of the law is a matter for legal argument in any particular case.

In relation to Paragraph 8 of the said Affidavit under reply I say that Notice of Appeal to the Refugee Appeals Tribunal

was lodged ‘without prejudice’ to the application for Judicial Review. I say that reliance was being placed in this case and

intended to be placed in all of the other cases against ORAC listed in the current term on the fact that the Statutory

Instrument applied to the particular decision and that there was no application of the said regulations applicable in the

cases comprising what is described as the ‘Kayode/Nganzunu line of case law’.

In relation to Paragraph 9 of the Affidavit under reply I say that my advice from Counsel was that in view of the

judgments already given and the cases that had already been heard and the general impression that there were more

than enough ‘test cases’, and being conscious of the scarce resources of the Court together with our duty to act

responsibly, that it would be well to adjourn some of the cases given that the facts and arguments did not differ

significantly. This advice was partly on the basis of the Okoh judgement [sic] handed down that day. My instructions from

my client in the light of that advice was to withdraw the case unless an adjournment would be granted.

With regard to Paragraph 10 of the Affidavit under reply I say that on the 16th October 2009 the Applicant’s Counsel, Mr.

Ian Whelan, indeed agreed that there did not appear to be an issue in the case which had not already been decided by a

number of cases. This, I am informed by Counsel, referred, as far as Mr. Whelan was concerned, to cases which had been

heard this term i.e. the ‘test cases’.

In relation to Paragraph 12 of the Affidavit under reply I say that the so called ‘Kayode principles’ were not applicable to

this case, insofar as these cases were distinguishable by virtue of the statutory instrument point. I say that the letter of

the 10th July 2009 from my firm to the Chief State Solicitor exhibited in the affidavit under reply does seek to explain why

this case fell outside those ‘principles’ in that regard. I say that it is correct to say that in a number of similar cases costs

have been awarded to the Respondents but no application has been made to date pursuant to Order 99 Rule 7 of the

Rules of the Superior Courts and no indication was given until 6th November 2009 that such application was intended to

be made.”

27. Murray J. pointed out that the Kayode principles were not relevant.

28. Counsel for the respondent referred to the issue of the withdrawal of the case without sufficient explanation and argued that that

was not misconduct. He stated that they had answered this in their explanation. He submitted that in a wasted costs case one must

identify action or actions of a solicitor that are grossly negligent. He submitted that the reasons a case may be withdrawn may be

connected to client privilege. He pointed out that they were not required to give a full explanation when withdrawing the case. He

submitted that it was unsatisfactory when a court day is lost, but that what happened here was not misconduct by a solicitor who

was acting on the advice of counsel.

Decision

29. This case was one of many hundreds in the Asylum list. On the 15th June, 2009, a practice direction was issued and applied by

the judges of that list as to asylum cases against the ORAC. It permitted judicial review cases to be withdrawn with no costs

awarded against the applicants. The respondent did not wish to withdraw her case, and in a letter of the 9th July, 2009, the solicitors

for the respondent pointed to that fact and further that the case could be distinguished from recent cases.

30. Having referred to the practice direction, the letter of the 9th July, 2009, from the solicitors for the respondent, stated:-

“We are instructed by our client (through her next friend) that she wishes to proceed with the hearing of her application

for leave to apply for Judicial Review in the above proceedings. We would point out that it is our view that this case may

be distinguished from the various recent cases relating to challenges by way of Judicial Review to decisions of the

Refugee Applications Commissioner.

We refer to the decisions in the High Court cases of Nganzumu, Diallo, Akintunde, Ajoke, Nnauma and the Supreme Court

decision in the case of Kayode. As we see it the common factor running through these cases is that there was no finding

made that any of the decisions in those cases were reached in breach of fair procedures or natural justice or in breach of

any other requirement of the law.

In the case of Nganzumu, Mr. Justice Hedigan expressed the view that only in rare and exceptional circumstances should

relief be granted by way of Judicial Review, and provided an example of such circumstance, i.e. where (in certain

circumstances) no oral hearing was available to an applicant on appeal. It was however not stated in that case, or in the

other cases mentioned, that a breach of fair procedures or natural justice of sufficient significance in arriving at a

decision could not be a ‘rare and exceptional circumstance’ such as might influence the High Court to exercise it’s

discretion and grant leave/review. Furthermore, in the more recent case of Ojuroya, the Honourable Mr. Justice Cooke

stated (as per stenographer’s note – approved Judgement not yet available): ‘It is sufficient to say that the court

considers that it is now settled law that consistently with the scheme and legislative intention of the 1996 Act, this court

should intervene to review a section 13 report and recommendation in advance of a decision on appeal by the RAT only in

the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report which is

incapable of or unsuitable for rectification by the appeal, which will have continuing adverse consequences for the

applicant independently of the appeal, or is such that if sought to be cured by the appeal, will have the effect that the

issues or that some wrongly excluded evidence involved will not be reheard but will be examined only for the first time on

the appeal’.

Furthermore, we are of the view that any comments of the High Court contained in the above cases, which could be

interpreted as to mean that Judicial Review should not be granted in cases where there has been a breach of natural

justice or fair procedures (and we do not concede that there are any) would be necessarily obiter given the findings that

thee were no such breaches. Indeed this was the view taken by the Respondents in their written Submissions in the

applications made for a certificate to appeal in the cases of Nganzumu and Nnauma.

We are of the view that there will be continuing adverse consequences for the Applicant independent of any appeal in

that, should her appeal be unsuccessful, then the Section 13 Report will be relied on by the Minister in any subsequent

application for leave to remain on Humanitarian Grounds or Subsidiary Protection, pursuant to S.I. 518 2006.

We are of the view that in the instant case there have been breaches of natural justice, fair procedures and lawful

obligations (in particular EU (Eligibility for Protection) Regulations) which, in our view, should bring this case within the

category of case in which it is open to the High Court to exercise its discretion and grant leave/review. In particular and

without prejudice to the generality of the foregoing we respectfully refer you to the Statement Required to Ground

application for Judicial Review herein.

There are several main grounds for complaint made by our client in the within proceedings inter alia: Breach of Audi

Alterem Partem, wrongful reliance on assistance that might be available from NGO’s in Nigeria, failure to assess the

effectiveness of any State protection that might be available, disregard of the minimum standards required in assessment

of the claim pursuant to S.I. 518/2006 together with the other grounds set out in our client’s Statement of Grounds

herein. The applicant’s claim was not properly considered leading inevitably to a situation where, if appealed at this

juncture, the Applicant’s claim would effectively be heard only for the first time; We feel that there has been a material

illegality in failing to apply the Regulations referred to above which would be incapable or unsuitable to be dealt with on

appeal. It is our view that, individually or cumulatively, these complaints, (if upheld), or some of them may take this case

into the category of cases where the discretion of the court might be exercised in favour of Judicial Review and we are

therefore not in a position to advise our client that it would be in her best interests to accept the offer made that the

case be withdrawn with no order as to costs and accordingly, on our client’s instructions, same is rejected.”

31. The facts of the case have been rehearsed previously. On the day of the hearing of the case there was an application on behalf

of the respondent for the case to be adjourned and when that was not acceded to the case was withdrawn. The issue of costs was

adjourned.

32. No issue of wasted costs was raised that day. The misconduct alleged in the application was non compliance with the practice

direction, and proceeding with the case until the day set for the hearing. However, it was deposed that the respondent wished to

proceed with the case, and that it was believed that the case was distinguishable from recent decisions, and further that the solicitor

was acting on the advice of counsel. Consequently, issues of client’s instructions and privilege arise also.

33. In these circumstances the learned High Court judge refused to make an order of wasted costs against the solicitor for the

respondent, as detailed previously.

34. Order 99, rule 7 of the Rules of the Superior Courts states:-

“If in any case it shall appear to the Court that costs have been improperly or without any reasonable cause incurred, or

that by reason of any undue delay in proceeding under any judgement or order, or of any misconduct or default of the

solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the Court may

call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not

be disallowed as between the solicitor and his client and also (if the circumstances of the case shall require) why the

solicitor should not repay to his client any costs which the client may have been ordered to pay any other person, and

thereupon may make such order as the justice of the case may require. The Court may refer the matter to the Taxing

Master for inquiry and report; and may also nominate a solicitor to attend and take part in such inquiry. Notice of the

order shall be given to the client in such manner as the Court may direct. Any costs of the solicitor nominated as

aforesaid shall be paid by such parties, or out of such funds as the Court may direct; or, if not otherwise paid, may be

paid out of such moneys (if any) as may be provided by the Oireachtas.”

35. The law as to a wasted costs order was set out comprehensively by Finnegan P. in Kennedy v. Killeen Corrugated Products

Limited [2007] 2 I.R. 561. In that case Finnegan P. described the ambit of such an order:-

“The inherent jurisdiction of the High Court over solicitors has not been affected by the Solicitors Acts 1954 to 2002:

Solicitors Act 1954, s. 14 (3). Order 99, r. 7 of the Rules of the Superior Courts 1986 has its origin in the exercise of that

jurisdiction. The courts have fixed solicitors personally with costs in a wide variety of circumstances – acting for either

plaintiff or defendant in an action without authority, joining a plaintiff without his authority, acting for a non-existing

plaintiff, defending an action with knowledge that no defence is possible, failure to deliver bills of costs, acting against a

former client, instituting fraudulent proceedings, instituting a collusive action, instituting a frivolous and vexatious action,

unreasonably pleading fraud and undue influence. In short, the jurisdiction has been exercised where there has been

improper conduct during proceedings.”

Finnegan P. analysed leading cases on the matter and he held:-

“On my review of the authorities I am satisfied that the power of the court to make an order under Order 99, Rule 7,

whether as to costs as between the solicitor and his own client or an Order that the solicitor personally bear the costs

awarded against his own client, depends upon the solicitor being guilty of misconduct in the sense of a breach of his duty

to the court or at least of gross negligence in relation to his duty to the court. In the present case I am satisfied that the

conduct of the solicitor falls far short of this requirement. In particular I have regard to the circumstance that the

solicitor acted on the advice of counsel. While acting on such advice would not justify a breach of duty to the court, it

will, in general, be an answer to a charge of negligence. Put at its highest, in the present case the solicitor has been

guilty of negligence but not of negligence which could be characterised as ‘gross’. In these circumstances the jurisdiction

to make the Order, whether that jurisdiction be punitive, compensatory or both, did not arise and the Order ought not to

have been made.”

36. I adopt and apply the analysis of Finnegan P. In so doing I would dismiss the appeal.

37. In this case there are several relevant factors in considering the applicability of an Order 99, rule 7 order. These factors include:

the letter of the 9th July, 2009, from the solicitors for the respondent, as set out earlier in this judgment; the description of the

factual situation deposed to by Brian Burns in his affidavit of the 8th December, 2009; and the fact that the solicitors for the

respondent were acting on the advice of counsel.

38. In addition, there is the fact that this is a discretionary matter. The learned High Court judge has addressed the facts and law in

a reserved judgment and has exercised his discretion therein. This Court is slow to interfere with the exercise of discretion by a trial

judge. Indeed, if the learned High Court judge has been persuaded that there is no basis for an order under Order 99, r. 7 it is difficult

for an appeal court, though not impossible, to find that there has been misconduct by the solicitor.

39. Solicitors must comply with practice directions. Such directions are made to assist the administration of justice. It is thus a duty

for court officers to comply with these directions, and a wasted costs order remains an important tool of a judge to enforce such

directions. However, in this case there is a factual basis upon which the learned High Court judge could and did find that there was no

misconduct. The normal sanction of costs against a losing party applies. However, there was a foundation of facts, a stateable basis,

upon which the learned High Court judge could find that there were no grounds for an Order 99, r. 7 order.

40. It is very unfortunate that there has been such delay in this case. The system for addressing asylum cases is constantly being

considered by those judges who take the Asylum list in the High Court, and the Minister for Justice has indicated that the whole

system is under review. However, the delay in all the circumstances, is not a basis for an order under Order 99, r. 7

Conclusion

41. For the reasons given I would dismiss the appeal.