Supreme Court dismisses appeal and orders wasted costs for unnotified EU reference application in deportation case.

THE SUPREME COURT

[Appeal No. 166/2014]

MacMenamin J.

Laffoy J.

Charleton J.

BETWEEN

P.O. AND S.O. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND, P.O.)

APPELLANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Ms. Justice Laffoy delivered on the 16th day of July, 2015

History of appeal and issues raised during its course

1. This is an appeal against the judgment of the High Court (McDermott J.) delivered on 21st March, 2014 (Neutral Citation [2014]

IEHC 141) and the order of the High Court (McDermott J.) made on 7th April, 2014 refusing an application by way of judicial review for

an order of certiorari quashing a decision made by the first named respondent (the Minister) on 25th February, 2013 affirming the

deportation orders made against the appellants on 17th May, 2012. After the appeal was initiated, the appellants brought a motion

before this Court, which was returnable on 25th July, 2014, for an injunction restraining their deportation pending the hearing of the

appeal. Because of the pressure of work in the motion list on 25th July, 2014, the Court was not in a position to hear the motion on

that day. However, it arranged to have it heard as early as possible and it was listed for hearing on 20th October, 2014. In the

interim, the Court granted a stay on the deportation of the appellants pending the hearing of the motion, which stay has continued

up to the present time.

2. As is outlined in the judgment of MacMenamin J. delivered in this matter on 29th January, 2015 (the First Judgment), when the

motion for the interlocutory injunction was back before the Court for hearing on 20th October, 2014 counsel for the appellants,

without any prior notice to either the respondents or the Court, made an application for a reference to the Court of Justice of the

European Union for a preliminary ruling on a point of law identified for the first time in written submissions handed into the Court when

the motion was being opened. What happened on the hearing of the motion is outlined in the First Judgment at para. 13. The Court

explored the possibility of dealing with the substantive issues on the appeal, rather than the application for an interlocutory

injunction, but the respondents were not agreeable to that course.

3. The difficulty with which the Court was confronted on 20th October, 2014 by being requested to make a reference in the context

of an interlocutory application is outlined in the First Judgment. The difficulty was resolved in the First Judgment, as is set out in

paragraph 18, by the Court determining that the application for a reference would be heard as part of the substantive appeal, rather

than in the course of the application for an interlocutory injunction. The Court arranged for the hearing of the substantive appeal at

an early date. The motion for the interlocutory injunction was not disposed of at that stage.

4. The substantive appeal was listed for hearing on 11th March, 2015. However, in written submissions filed on behalf of the

appellants on 6th February, 2015 it was stated that, following consideration of the position and of the legal submissions which had

been filed on behalf of the respondents, which had been delivered on 24th October, 2014, the appellants were withdrawing the

application for a reference for a preliminary ruling by the Court of Justice of the European Union. The position, therefore, was that on

11th March, 2015 the Court was primarily concerned with the substantive appeal. However, the motion for the interlocutory injunction

was still pending. Moreover, an additional issue had been raised on behalf of the respondents in the written submissions filed on their

behalf in response to the appellants’ written submissions filed on 6th February, 2015. The additional issue arose out of the decision of

the appellants to withdraw the application for a reference. It was that the respondents sought an order “for wasted costs pursuant

to Order 99, rule 7 [of the Rules of the Superior Courts 1986 (as amended) (the Rules)] against the appellants’ solicitors”. In the

respondents’ written submissions it was stated that the wasted costs order sought was limited to –

“The costs incurred in the hearing of 20th October, 2014, and the respondents’ legal submissions filed on 24th October,

2014, both relating to the application for a reference to the Court of Justice.”

At the hearing on 11th March, 2015 there was some lack of clarity as to whether the respondents were seeking the costs of the

hearing on 20th October, 2014, in addition to the costs of the written submissions of 24th October, 2014. However, in reality, the

hearing on 20th October, 2014 was primarily concerned with the application for an interlocutory injunction.

Concurrence on substantive issues

5. On the substantive issues raised on the substantive appeal, I am in agreement with the conclusions reached by MacMenamin J. and

Charleton J. that the trial judge was correct in his decision to dismiss the application for certiorari, on the basis of their analysis of

the judgment of the trial judge and the reasons they advance. The issues which I propose to comment on are the pending motion for

an interlocutory injunction and the respondents’ application for a wasted costs order.

Motion for interlocutory injunction

6. Prior to 20th October, 2014 the motion for an interlocutory injunction pending the determination of the appeal had been subject of

no less than two sets of written legal submissions on each side. Understandably, the decision of this Court in Okunade v. Minister for

Justice [2012] 3 I.R. 152 was at the core of the submissions. However, the respondents’ position was that there were features in the

appellants’ case which distinguished it from Okunade.

7. First, particular emphasis was attached to the fact that the validity of the deportation orders had never been challenged by the

appellants in this case. It is notable that during the long history of the procedures which pre-dated the judicial review proceedings in

the High Court –

(a) there had been no appeal by the appellants within time against the decision of the Refugee Applications Commissioner

dated 1st October, 2007 refusing to recommend that the appellants be granted refugee status,

(b) judicial review proceedings which had been initiated by the appellants in the High Court against that decision were

withdrawn by them in 2010,

(c) no representations had been made on behalf of the appellants in response to the “three options” letter sent by the

Minister to the appellants on 20th January, 2010 outlining the Minister’s intention to deport the appellants on foot of the

failed asylum claim, and no application for subsidiary protection or for leave to remain in the State was made to the

Minister on behalf of the appellants, and

(d) the validity of the deportation orders made on 9th May, 2012 and notified to the appellants in accordance with the

statutory requirements of s. 3 of the Immigration Act 1999 (the Act of 1999) was not challenged by the appellants.

In fact, the decision of the Minister which was challenged in the judicial review proceedings the subject of this appeal was made on

foot of an application made on behalf of the appellants on 21st September, 2012 under s. 3(11) of the Act of 1999 to revoke the

deportation orders. In the light of the foregoing circumstances, the position of the Minister was that, having regard to the decision of

this Court in L.C. v. Minister for Justice [2007] 2 I.R. 133, the Court should not grant an interlocutory injunction restraining the

Minister from executing the deportation orders pending the determination of the appeal.

8. Secondly, it was argued on behalf of the respondents that, unlike the position in Okunade, the appellants’ motion for an

interlocutory injunction was not brought in advance of an adjudication of their claims against the respondents, but rather after the

judgment of the High Court following the full hearing in the High Court on the substantive application for judicial review.

9. This Court having decided to dismiss the substantive appeal, in my view, the following additional features must be considered.

First, this Court has decided definitively that the appellants have failed on each ground advanced in support of the application for

judicial review and on every issue which is relevant to that decision. Secondly, the point in time at which the interlocutory injunction

would, in any event, cease to be effective, the determination of the substantive appeal, has been reached. Accordingly, at this point

in time, the application for the interlocutory injunction is moot. If the Court were to embark on a consideration of the extent to which

the test in Okunade is applicable in the circumstances outlined and of the application of the test to the facts in determining whether

an interlocutory injunction pending the determination of the appeal should be granted by reference to the period between the

initiation of the motion and the determination of the substantive appeal, in reality it would be determining a matter which is

hypothetical because there can no longer be a real live legal controversy between the parties, given that the substantive appeal has

been finally determined against the appellants.

10. Accordingly, in my view, it is not necessary for the Court to make a determination on the pending motion for the interlocutory

injunction on the basis that it is moot. Moreover, as the controversy which was alive between the parties on the application for the

interlocutory injunction before the substantive appeal was finally determined against the appellants, in my view, it is not appropriate

to express any view on submissions made by each side in relation to that motion. As has been noted, up to the present time, the

appellants have had the benefit of the stay granted initially on 25th July, 2014.

Wasted costs

11. In seeking a reference for a preliminary ruling in the written submissions handed into the Court on 20th October, 2014, counsel for

the respondents relied for the first time in the proceedings on Article 7 of the Charter of Fundamental Rights of the European Union

(the Charter). The essential position of the respondents in the written submissions filed on 24th October, 2014 in response was that

the decision of the Minister pursuant to s. 3(11) is not a matter within the “scope of Union law” within the meaning of Article 51 of

the Charter, and the Charter, therefore, has no application to the case. On the hearing of the substantive appeal, counsel for the

appellants conceded that the provisions of the Charter apply only when Member States are implementing Union law and that it had

become obvious that the application for a reference was flawed when the respondents’ written submissions of 24th October, 2014

were delivered. Nonetheless, no step was taken to withdraw the application until after the Court’s First Judgment and, indeed, until

after the matter was listed before the Chief Justice on 5th February, 2015, after the First Judgment was delivered, for case

management.

12. In support of the application for an order for wasted costs against the solicitors for the appellants, counsel for the respondents

relied on the decision of the High Court (Cooke J.) in O.J. v. Refugee Applications Commissioner [2010] 3 I.R. 637. That case involved

an application for leave to apply for judicial review against the Refugee Applications Commissioner in what, broadly speaking, may be

characterised as an asylum context. The decision of the High Court in that case is analysed in Delany and McGrath on Civil Procedure

in the Superior Courts, 3rd Ed., at paras. 23 – 144 to 23 – 146. As is pointed out there, Cooke J. explained that rule 7 of Order 99 of

the Rules is “directed primarily at the relationship between a solicitor and his own client against whom an order for costs has been

made and with disallowing his reimbursement of improperly incurred costs by his client and with ordering him to repay to any client any

such costs which the client has been ordered to pay to a third party”. Therefore, an order could be made pursuant to rule 7 requiring

the solicitor for the applicants in that case to reimburse –

(a) their costs, if they were unnecessarily incurred, and

(b) costs which they were ordered to pay to the respondents.

The issue raised by the respondents on this appeal relates to the type of costs referred to at (b).

13. In the O.J. case, stating that the test to be employed was that the solicitor had to be guilty of misconduct requiring at least

gross negligence in relation to his duty to the court, Cooke J. emphasised that legal practitioners owed a duty to the court and the

court should be prepared to make a wasted cost order when this duty was breached, outlining the nature of that duty in the following

passage which is relied on by the respondents (at p. 644 – 645):

“The first duty of legal practitioners is, of course, to ensure that the legitimate interests of their clients are secured in

exercising their right of access to the courts. In asylum cases their duty is to see that throughout the asylum process

appropriate steps are taken to ensure that an application for asylum receives full and fair consideration and results in a

lawful determination of the claim. Practitioners have also, however, a duty to the court to ensure that the right of access

to the court is not abused by vexatious, wasteful or speculative litigation. There is no obligation to pursue litigation at all

costs simply because it is possible to do so, especially when it has no purpose other than that of prolonging the process

and postponing a final determination of the asylum application.

Whenever the court has good reason to conclude that there has been a failure in the discharge of this latter duty such

that proceedings have been unnecessarily commenced or wastefully continued, it should be made clear that recourse will

be had to O. 99, r. 7 in order to protect the integrity and effective operation of the asylum process in the interests of the

proper administration of justice and of the interests of those genuinely in need of protection and whose determination is

likely to be delayed by abuses of process in other cases.”

14. Cooke J. did, however, caution against overuse of the wasted costs jurisdiction. Nonetheless, on the facts before him he found

that there had been “a clear default in the discharge of the duty owed by the legal practitioners to the court in commencing and

continuing the proceeding” and he concluded that it was a case where costs had been incurred without reasonable cause and that,

by reason of default on the part of the applicants’ solicitor, costs had been incurred which had proved fruitless to the applicants. In

the circumstances, he did not consider it just that the applicants be required to pay the costs. Accordingly, he made an order for

costs against the applicants, but he made a further order pursuant to rule 7 that the solicitors for the applicants indemnify them in

respect of the amount of those costs, to be taxed in default of agreement, by bearing those costs personally.

15. In support of the application for an order in favour of the respondents under Order 99, rule 7, it was submitted on behalf of the

respondents that the application for a reference for a preliminary ruling had no purpose other than prolonging the process and

postponing the implementation of valid deportation orders, which had not been challenged in the substantive proceedings. It was

submitted that the application for a reference was unnecessarily commenced and that it was an abuse of process, delaying the

determination of the application for an injunction and the implementation of the valid deportation orders. That the purpose of the

application was to delay proceedings in this Court, it was suggested, is to be inferred from the fact that it was not withdrawn when

the respondents’ written submissions were delivered on 24th October, 2014, but only after this Court had delivered the First Judgment

and this Court had engaged in further case management on 5th February, 2015. It was submitted that it was incumbent on the

appellants’ legal advisers to advise this Court at the earliest opportunity of their intention to withdraw the application for a reference

and that there could be no excuse for failing to bring the matter to the attention of the Court as soon as possible after 24th October,

2014.

16. I agree with the principles enunciated by Cooke J. in the O.J. case and the approach he adopted in that case. I am satisfied that

in this case there has been a clear default by the appellants’ legal advisers in the discharge of the duty owed by legal practitioners to

the Court in making the application for a reference, which was, as ultimately conceded, bereft of any legal basis. The default was

exacerbated by the application not being withdrawn immediately after the respondents’ written submissions were delivered on 24th

October, 2014 and, thus, by failing to obviate wasteful use of the time and energy of this Court in having to address the

appropriateness of hearing the application in the context of an application for an interlocutory injunction. Accordingly, I consider that

it is an appropriate case in which to make a wasted costs order under Order 99, rule 7, which is the only jurisdiction which the

respondents have invoked. However, I consider that it should be limited to the legal costs of the respondents’ written submissions of

24th October, 2014.

17. As to the form of the order, following the form of the order made in the O.J. case, it will be that the appellants are required to

pay the respondents’ legal costs of the written legal submissions delivered on 24th October, 2014 and that, pursuant to Order 99, rule

7, the solicitors for the appellants are ordered to indemnify the appellants in respect of the amount of those costs, to be taxed in

default of agreement, by bearing those costs personally.

Concluding observation

18. I think it is fair to record that, in response to the request that the particular circumstances of the case be drawn to the attention

of the first named respondent (the Minister), the Court received a letter dated 13th March, 2015 from the Chief State Solicitor’s

Office, in which it was stated that the current legal reality was that they were unchallenged deportation orders in place in relation to

both appellants, which were not the subject of these proceedings, so that the Minister was not in a position to say that she would

not enforce those orders. However, it was stated that the Minister “is always open to receipt of fresh representations in connection

with applications pursuant to s. 3(11) of the [Act of 1999], where fresh circumstances, particularly any humanitarian considerations

relating to the [second named appellant], can be put to the Minister for consideration in accordance with law”, which situation will

continue to apply at the conclusion of the proceedings, regardless of outcome. While that is comforting, given that the second named

appellant was born in the State, has lived all his life in the State and will be nine years of age in less than four months time,

nonetheless, I must concur with the concluding observation of MacMenamin J.