Supreme Court dismisses appeal on mootness costs where minister's action was outside parties' control.

THE SUPREME COURT

[Appeal No. 290/10 & 238/11]

MacMenamin J.

Dunne J.

O’Malley J.

BETWEEN:

ELIAS MATTA

APPLICANT/APPELLANT

-v-

MINISTER FOR JUSTICE, EQUALITY AND

LAW REFORM, IRELAND & THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 26th day of July, 2016

1. On the 21st July, 2010, the High Court (Ms. Justice Maureen Harding Clark) made an order determining that the appellant herein

was not entitled to the costs of mandamus proceedings, and making an order for costs. She gave her reasons in a detailed reserved

judgment. The proceedings had been brought on the 27th July, 2009, seeking to compel the respondent Minister (“the Minister”) to

determine the appellant’s application for long term residency. The applicant/appellant has appealed that order, (Appeal No. 290/2010),

now contending that he should have been awarded his costs. The respondents have cross-appealed (Appeal No. 238/2011). They

submit the judge should have awarded costs to them in the circumstances.

2. As matters transpired, three weeks after the application, the Minister did grant the applicant long-term residency, on the 18th

August, 2009. The judicial review proceedings then became moot. The question which arises in this appeal is, as to whether the High

Court judge was correct in making no order for costs in the circumstances? While the judgment and order under appeal were given in

2010, the jurisprudence has significantly developed since that time. Two authorities are particularly relevant to this specific issue.

3. In the first, Cunningham v. The President of the Circuit Court [2012] I.E.S.C. 39, [2012] 3 I.R. 222, Clarke J., speaking for this

Court, addressed a situation where a case became moot as a result of a factor or occurrence outside the control of the parties. In

such a scenario, he held at p.230 that “a court, without being overly prescriptive as to the application of the rule, should, in the

absence of significant countervailing factors, ordinarily lean in favour of making no order as to costs in cases which have become

moot as a result of a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a

party through whose unilateral action the proceedings have become moot.” (Emphasis added)

4. In the second authority, Gillian Godsil v. Ireland & The Attorney General [2015] I.E.S.C. 103 (Unreported, Supreme Court, 24th

February, 2015, a judgment of McKechnie J.), this Court had to deal with a different scenario. As the decision is heavily relied on by

the appellant, Godsil requires more detailed consideration. The judgment hinges on the dictum “costs follow the event”. In that case,

the essential aim of the proceedings was to achieve a situation where the appellant would not be debarred from being nominated for,

or running in, the European Parliamentary Elections, solely on the basis of her status as an un-discharged bankrupt. The State

respondents contended that an amendment to the law, very proximate in time to the proceedings being brought, which allowed the

appellant to stand for election, had not been caused by her legal challenge, but rather by “policy considerations”. McKechnie J.

entirely rejected this submission. He held that the decision to amend the law could only be understood, in the vastly truncated time

period involved, as being in direct response to the proceedings as issued. In those circumstances, he held that there existed an

“event” by which the issue of costs should be determined (See paragraphs 58 to 64). Thus, the applicant was awarded costs. The

judgment emphasises that, on facts such as those in Godsil, even where a substantive point had become moot, a first inquiry, on a

costs issue, was to decide whether or not there had been an “event”, in the sense of the general principle that costs follow the

event. (See Order 99, Rule 1(3) and (4), Rules of the Superior Courts).

5. Applying the dicta from these two authorities, therefore, it seems to me that the critical issue which arises in this appeal is,

whether it can be established that the appellant’s case became moot as a result of a factor outside the control of the parties, as in

Cunningham’s case, or whether there had been some very proximate unilateral action by the respondents, that is, an “event” in the

Godsil sense, caused by the appellant’s proceedings.

Background

6. In the year 2009, and subsequently, legal issues arose because of a delay in dealing with long-term residency applications. The

two High Court judges then dealing with the asylum and immigration process had to consider whether or not applications for

mandamus should be permitted, in circumstances where the respondent Minister’s position was that he had, in fact, put in place an

administrative procedure, and that as a result, applications were generally being dealt with on a strictly chronological basis, having

regard to resource implications. However, in circumstances where there was a truly pressing need, the system allowed such

applications to be dealt with out of turn. One might infer that there was a justifiable judicial concern as to the potential for abuse of

court process, in the sense that it might be thought the very bringing of mandamus proceedings might have the effect of

accelerating an application, thereby allowing applicants for long-time residency to “jump the queue”, followed by applications for

costs, if and when the judicial review application became moot, because the residency had been granted.

7. In Nawaz v. The Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 354 (Unreported, The High Court, Harding Clarke J.,

29th July, 2009) therefore, a naturalisation case, Harding Clark J. held that it would be unreasonable for an applicant to issue

mandatory proceedings, in circumstances where the respondent Minister had provided resource-related explanations for anticipated

delays, and where there was no actual right to a certificate of naturalisation, as opposed to an entitlement to apply for one. (See

paragraphs 13, 19, and 20). The judge held at para. 21 that, in the absence of cogent evidence of arbitrary or capricious behaviour in

the consideration of naturalisation applications, it would be inappropriate for a court to direct a Minister to carry out a discretionary

function within any particular time limit. The judge gave warning that, in subsequent cases arising from the same, or similar facts, a

court might actually consider it appropriate to make a costs award against an applicant.

8. Later, in Nearing v. The Minister for Justice, Equality and Law Reform [2009] I.E.H.C. 489, [2010] 4 I.R. 211, (Cooke J) the court

again emphasised at p.214, para. 8, that there was no legal entitlement to long-term residency, pointing out that the grant of such

status was entirely at the discretion of the Minister. Cooke J. held at p. 217, para. 20 that mandamus should not issue against an

administrative decision-maker, simply because there was a duty to make a decision. He observed that the remedy lay only in order to

make good an illegal default in the discharge of a public duty. Consequently, he held, there must have been an express or implied

wrongful refusal to make a decision on the part of the Minister, or, perhaps, such egregious and unjustified delay in dealing with the

application as to be tantamount to a refusal in its effect.

9. The judge deprecated the suggestion that it was the role of the High Court, in the exercise of a judicial review function, to dictate

how a scheme should be managed, or to prescribe staffing levels, or rates of productivity, in the relevant section of the Minister’s

department. He held that, once it was clear from the evidence that there was in place an orderly, rational and fair system of dealing

with applications, the Court had no reason to infer any illegality in the conduct of the Minister, unless some specific wrongdoing or

default was demonstrated. (See para. 25, page 219 of the judgment).

Submissions

10. The appellant was born in Lebanon. He moved to this State in 2003. On 8th April, 2008, after 5 years stay, it is said he became

entitled to what is termed “Long Term Residency Stamp 4” status. He applied to the Minister on 9th May, 2008 for this. The

application was acknowledged with an indication that, at the time, the Department was dealing with applications received in August,

2006. In May, 2008, the appellant’s then employers were considering a redundancy package for him. The appellant’s solicitor wrote to

the Minister, seeking the grant of long term residency and naturalisation on an accelerated basis, to ease his situation for future

employment. However, the Minister did not give an undertaking to accelerate the process. In June and July, 2009, the appellant’s

solicitor engaged in further correspondence, outlining the possibility of a new job for him, and indicating that the absence of Stamp 4

status could be detrimental to him. As indicated earlier, the proceedings were then brought on 27th July, 2009. In the instant case,

counsel on behalf of the appellant/applicant sought, in the High Court, to distinguish his case from Nawaz. He referred to

correspondence which, he submitted, put the Minister on notice of what were characterised as special and pressing circumstances

requiring an earlier consideration of the long-term residency application. This involved a description of the appellant’s unavailability for

work due to his wife’s illness over a number of years, followed by an imminent job offer which, it was suggested, would lapse if his

residency status was not determined.

11. Harding Clark J. engaged in a detailed assessment of the correspondence. She found as a fact that there was insufficient

evidence to establish any causal link between the bringing of the proceedings, and the subsequent grant of the long-term residency

application, even though they were close in time. The judge held that the appellant had not been in a position to identify any

evidence of arbitrary or capricious behaviour in the Minister’s consideration of his long-term residency and naturalisation applications,

when the proceedings were issued, or afterwards. She pointed out that the appellant had been made aware, by both the long-term

residency and naturalisation sections of the Minister’s department, that the system was that applications were placed in a queue and

dealt with in strict chronological order. She found no evidence that any other application was arbitrarily prioritised over the

appellant’s, nor that his application had been dealt with in any distinguishing way from that of other applicants.

The Case before this Court

12. It will be remembered that the judicial review proceedings here issued on the 27th July, 2009. Prior to June, 2009, the appellant

had been unavailable for work, as he was caring for his wife, who was ill. The judge referred in particular to those parts of the

correspondence, which reflected that, even before the judicial review proceedings were brought, on the 24th July, 2009, the

Minister’s officials had written, saying that the Long Term Residency Section were, by that point, processing applications received in

October, 2007, in the context where the appellant had sought long-term residency in May, 2008.

13. The judge also referred to subsequent correspondence from McAfee Incorporated, the potential employer, which showed that the

appellant’s firm job offer, in fact, came after the judicial review proceedings were brought. The judge also referred to a letter written

by the appellant’s solicitor to the Minister, on the 29th July, 2009, proposing that if the application was dealt with immediately, the

proceedings would not be pressed, thereby avoiding costs beyond the decision date.

14. The judge also referred to a series of communications with McAfee Incorporated, the appellant’s potential employer in the week

after the judicial review was brought. At the applicant’s solicitor’s suggestion, McAfee indicated there would be a job available,

provided the appellant had a residency permit. The solicitor then wrote to the Minister claiming actual prejudice or detriment because

of the delay. There was further correspondence to the effect that, within one day of the job offer, the potential employers had

indicated they themselves were willing to obtain a work permit for the appellant through the Department of Enterprise, Trade &

Employment.

15. But, having regard to the chronology of events, the judge observed that it was difficult to see that the appellant had actually

been prejudiced by reason of administrative delay in the processing of his long-term residency application. She concluded that the

situation might have been different if the potential employer had been requested, and then refused, to apply for a work permit, or if

there had been a real danger that the appellant would, in fact, entirely lose the job offer.

16. There was affidavit evidence on both sides. This set out that, in the years preceding the application, the appellant had been

unavailable for work because he had been helping his wife, who had been seriously ill. The appellant’s wife returned to work in July,

2009. As it happened, his job application succeeded: thus whatever the appellant, or his solicitors, might have anticipated or feared

regarding his ability to legally re-enter the labour market, the judge concluded, was not realised.

17. Counsel for the appellant submitted to this Court that, we should infer that the mootness arose because the Minister did what the

proceedings called on him to do. He laid emphasis on the fact that the proceedings were initiated on the 27th July, and the long-term

residency had been granted on the 18th August. This could not be a coincidence, he suggested. He submitted that the only

reasonable inference for the decision having been taken “out of sequence”, as he put it, was the existence of the judicial review

proceedings. Counsel invited the Court to infer that the correspondence from the Minister indicated that applications were divided into

batches, processed in a chronological order, on a month-by-month basis. Counsel pointed to the fact that the appellant’s application,

which had been put in on the 12th May, 2008, would not normally have been determined until February, 2010. Yet the residency was

granted by the Minister on the 18th August, 2009, within three weeks of the bringing of the judicial review mandamus proceedings.

Questions were raised as to whether the appellant could have obtained a work permit earlier, or whether one could have been

obtained for him. None of the material regarding the appellant’s ability (or otherwise) to have applied for a work permit in 2008, or

McAfee Incorporated’s willingness to apply for a work permit for him in 2009, is relevant to the central issue. That central issue is as

to whether or not there was an event in the sense outlined earlier.

18. The key question is, was there material before the trial judge which allowed her to draw other inferences about what actually

triggered the grant of long-term residency status? In fact, there was. Part of the respondent’s case was an affidavit of Fionnuala

McEvoy, one of the officials dealing with long-term residency applications. She swore that, in fact, the issuing of the judicial review

proceedings had no bearing on the determination of this particular application. In fact, the application had been determined in the

light of the appellant having eventually obtained clearance from An Garda Siochana in early August, 2009.

19. Counsel for the appellant criticised these averments. He submitted that Ms. McEvoy was not the relevant official dealing with the

appellant’s application, and that what was deposed was inherently unlikely, in the light of the timeframe involved. Counsel relied on

the decision of this Court in Godsil, where the court held the proceedings had caused the legislation to be brought in.

20. There was a conflict of fact on the affidavits. The Court is now invited to infer that the mootness arose because the Minister did

what the proceedings called on him to do. But, Ms. McEvoy was not cross-examined on her affidavit. There was sworn evidence that

the garda clearance had been received earlier than expected. There was, therefore, material before the judge which would allow her

to conclude that, in fact, there has been no causal nexus between the bringing of the proceedings, and the grant of long-term

residency. The judge was entitled to draw that inference. This Court, on appeal, should be slow to draw any different conclusion, in

circumstances where Ms. McEvoy’s evidence had been untested in cross-examination.

21. Applying the dicta in Hay v. O’Grady [1992] I.R. 210, and other authorities to the same effect, this Court is not in a position to

interfere with the findings and inferences of the learned trial judge, as both were based on factual material before the court. Thus,

viewed within the parameters laid down in Cunningham, it was open to the judge to infer the matter became moot as a result of an

occurrence outside the control of the parties. I would apply that principle in the circumstances. Godsil addresses a different situation.

The applicant in Godsil did not have any entitlement to a decision by the State defendants. The State could have opted to defend

the proceedings and let the Court make the decision. The instant case concerns a situation where the appellant was always entitled

to a decision, (that is an “event”), one way or the other, but was in a queue. The fact that a decision is made after the institution of

proceedings did not necessitate that a costs order be made in those circumstances.

22. I would, however, add that the judgment delivered by Harding Clark J., in this case, was of some precedential value. It clarified

the law. It laid down a more general principle of application regarding the correct approach to be taken by the High Court in dealing

with moot applications. Harding Clark J., at p.216, correctly distinguished the circumstances of the case before her, from a decision of

Herbert J. in Garibov v. The Minister for Justice, Equality & Law Reform [2006] I.E.H.C. 371 (Unreported, High Court, Herbert J., 16th

November, 2006), which should now be regarded as decided on its own facts. That judgment must now also be taken as having been

superseded by the judgments of this Court in Cunningham and Godsil, and I would not apply it. In fact, the High Court judge made no

order for costs, as she held the full situation might not have been appreciated when these proceedings were initiated.

23. I would affirm the learned High Court judge’s order, and, therefore, dismiss both the appeal and cross-appeal. I would, however,

propose that the Court hear applications in relation to the costs of the appeal, in the light of these findings.