Gaeilge

Title:	Lofinmakin (a minor) & ors -v- Minister for Justice Equality & Law Reform
Neutral Citation:	[2013] IESC 49
Supreme Court Record Number:	138/11
High Court Record Number:	2009 946 JR
Date of Delivery:	11/20/2013
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Fennelly J., McKechnie J., MacMenamin J.
Judgment by:	McKechnie J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham C.J. Link Murray J., Fennelly J., MacMenamin J. McKechnie J. Link Fennelly J.

---

Denham C.J.
Murray J.
Fennelly J.
McKechnie J.
MacMenamin J.
Judgment delivered on the 20th day of November, 2013 by Mr. Justice William M. McKechnie.

The Leave Application:
1. The infants named in the above entitled proceedings are both Irish citizens, having been born in this country on the 18th May, 2000 and on the 17th March, 2003, respectively. Their parents, who are of Nigerian nationality and who are married to each other, are the third and fourth named appellants. Their mother, Rachel Yinka Amonusi, the fourth named appellant, arrived in this country in December, 1999 and currently is a lawful resident pursuant to the terms of an administrative scheme known as the Irish Born Child Scheme, 2005 (IBC/05). Nothing therefore turns on the personal position of either the children or the mother, save for their relationship with each other and with the third named appellant.

2. In August, 2003 Mr. Lofinmakin arrived in Ireland and, either on that occasion or on some later date, was given the first of a number of temporary entry permits, entitling him to lawfully reside in this country. The last permit so granted expired in June, 2007, with his application to extend the period of that permit having earlier been refused. On the 20th August, 2009 the first named respondent (“the Minister for Justice” or “the Minister”) made a deportation order in respect of him, having previously rejected an application made on his behalf to remain in the State. Judicial review proceedings were then commenced on his behalf and that of his family in September, 2009.

3. The following reliefs were sought:

(i) an order of certiorari quashing the said deportation order, together with interim relief restraining the implementation of that order;

(ii) a declaration that the legal and constitutional rights of the applicants were infringed, as were their rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Protocols thereto, more commonly known as the European Convention on Human Rights (“the Convention”);

(iii) a declaration that the rule of law enunciated in O’Keeffe v. An Bord Pleanála & Ors. [1993] 1 I.R. 39, which governs the judicial scope of the remedy available to challenge such an order, on the basis of unlawfully interfering with fundamental rights, was incompatible with the European Convention on Human Rights Act 2003; and

(iv) a declaration that the failure of the State to have in place a process or regime by which a decision to refuse a person permission to remain in the State, made under s. 3 of the Immigration Act 1999, as amended (“the Immigration Act 1999”), can be appealed to an independent body, is in breach of article 13 of the Convention.

Further ancillary orders were also sought.

4. A total of 26 grounds were set out in support of the application. Many of these according to the trial judge, were unstateable and several others were phrased in such general and vague terms as to be, as he put it, “untenable”. In reality, the primary argument was that recourse to judicial review under O. 84 of the Rules of the Superior Courts 1986 to 2013 did not provide an effective remedy compliant with article 13 of the Convention, by reason of what was described as the “common law constraints” of judicial review. As this was the only procedure available to the applicants, it was alleged that their rights were thereby infringed in this regard.

5. In the affidavit supporting such proceedings, Mr. Lofinmakin asserted a right of residence in Germany, although he failed to outline any basis for this claim. In a later affidavit he acknowledged that the permission which he once had to reside in that country had lapsed and that he no longer had authority to enter Germany. Nothing further turns on this issue. In addition, some debate was had as to the precise nature of the request which was made to the Minister, in a letter dated the 14th September, 2009. Whilst it was treated by him as an application to revoke the deportation order, the third named applicant, on the other hand, described it as simply seeking permission to remain in the State on humanitarian grounds, until his legal position in Germany had been clarified. Again, nothing further turns on this point as the learned trial judge refused to accept a submission that the making of that request was an acknowledgment of the validity of the order.

6. Having heard the leave application over three days, Cooke J., in a judgment delivered on the 1st February, 2011 ([2011] I.E.H.C. 38) (“the main judgment”), dismissed the application on all grounds, holding that the applicants had failed to advance, under s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000 (“the 2000 Act”), any substantial grounds for contending that the Minister’s decision ought to be quashed and set aside. He also awarded the respondents their costs. He did however defer the making of a formal order as the applicants had notified the Court of their intention to avail of section 5(3)(a) of the 2000 Act. That section permits an appeal to this Court from a determination of the High Court, such as that given in this case, only where that Court “… certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

Zambrano:
7. Very shortly prior to that application being heard, the European Court of Justice, sitting in Grand Chamber, issued a ruling under Article 234 of the Treaty Establishing the European Community (now Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) in Ruiz Zambrano v. Office National de l’Emploi (Case C-34/09) [2011] E.C.R. I-01177 (“Zambrano”). That case was then considered important in several respects, but in particular for the manner in which it might impact upon asylum/immigration law. Mr. and Mrs. Zambrano, who were both citizens of Columbia, had two children whilst living in Belgium. They had applied, unsuccessfully, on several occasions for asylum. A direction had issued requiring them to leave the country but the notifying order also included a non-refoulement clause, stating that they should not be sent back to Columbia in view of the civil war then prevailing in that country. In addition, the father of the children had also been denied a work permit as well as having been refused unemployment benefit, which was in fact the most immediate motivating factor in the issuance of proceedings.

8. In its decision the Court held that, as in accordance with domestic law the children were Belgian nationals, Article 20 TFEU conferred on them Union citizenship, which pursuant to EU law is intended to be the fundamental status of all nationals of each member state. As such, they were entitled to exercise the rights which this status bestows upon them. That being so, Article 20 TFEU prohibits the existence of any national measure which deprives them the enjoyment of such rights. If the father was deported or if he was forced to leave on account of not being able to work, it had to be assumed that the children would likewise have to follow him. If that occurred, they could not enjoy the rights which their EU citizenship conferred on them.

9. Accordingly, in answering the referred questions, the Court said that Article 20 TFEU is to be interpreted as meaning:

“that it precludes a [m]ember [s]tate from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the [m]ember [s]tate of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen” (para. 45).

The Certified Questions:
10. This decision was evidently open to the trial judge at the certification hearing, in respect of which he delivered a second judgment on the 25th March, 2011 ([2011] I.E.H.C. 116) (“the March judgment”). In that judgment he referred to two particular conclusions which he had arrived at in the main judgment. Firstly, his decision that Article 24 of the Charter of Fundamental Rights of the European Union (or “the Charter”), which the applicants had relied upon, had no relevance to the making of a deportation order as in his view such was purely a matter for domestic law (para. 48 of the main judgment). In accordance with Article 51, the Charter, which is addressed to the institutions, bodies, offices and agencies of the Union, applies to member states only when they are implementing some aspect of EU law. As that was not the situation in the instant case, it could not be said that the Article 24 point constituted substantial grounds for the purposes of the 2000 Act.

11. Secondly, Cooke J. also held that in the context of an application for judicial review of a narrative decision such as, inter alia, a deportation order, it is not sufficient as a matter of law to simply assert that the decision is unreasonable, irrational, unlawful, unfair, disproportionate or otherwise flawed, without also identifying “the specific feature, fact or omission” which constitutes the basis of the proposed challenge (para. 9 of the main judgment). In other words it is impermissible to simply invite a court “to re-evaluate the substantive decision which is challenged and, in effect, to substitute its own view of the merits of the application which the contested decision determines” (para. 4 of the March judgment). Moreover, in the instant case Article 24 of the Charter was relied upon and not Article 20 TFEU, as in Zambrano.

12. Having thus identified these points, which he described as significant, the learned judge said that he felt constrained to issue a certificate in respect of the first question, as otherwise he would have delivered a judgment in respect of which no appeal was available within the meaning of Article 267(3) TFEU. The only alternative was to seek a preliminary ruling from the Court of Justice but if that were to become necessary, the referral question(s) in his view would best be formulated after full consideration by the Supreme Court of the implications of the Zambrano decision.

13. The second question was certified so that clarification could be obtained on this Court’s earlier decision in Meadows v. Minister for Justice, Equality and Law Reform & Ors. [2010] 2 I.R. 701 (“Meadows”), in particular with regard to the test of “rationality and reasonableness” and how both should be applied to the type of decision under challenge in the instant case. The issue he felt is important, particularly to the asylum list where differing views exist as to how precisely Meadows should be applied in the context of such cases. Accordingly he was satisfied that the provisions of the certifying section had been met.

14. The two questions therefore submitted to this Court are as follows:

“1. Whether the High Court was correct in law in holding (in para. 48 of the judgment,) that [a]rticle 24.3 of the Charter of Fundamental Rights of the European Union when read in conjunction with its Article 51.1 has no application to a decision made on the 20th August 2009 by the first named respondent under s. 3 (1) of the Immigration Act 1999 to deport a third country national illegally present in the State who is the parent of a minor Irish and Union citizen resident in the State?

2. Whether in applying the test or principle reaffirmed by the Supreme Court in the case of Meadows … to an application to quash a decision made by the respondent under the above section to deport a non-EU national who is the parent of a minor Irish citizen, the High Court was correct in law in exercising its jurisdiction in judicial review on the basis that:


a) It is not sufficient that an application merely asserts that the decision is irrational, unreasonable and disproportionate and invites the Court to reassess the balance of reasonableness as between the interests of the State and the rights and interests of the applicant and the child or family concerned;

b) The Court is entitled to require the applicant to identify the particular error, omission or other flaw in the respondent’s reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate?”

15. As the appeal was being case managed by the Chief Justice, a significant decision was made by the Minister, who on the 21st February, 2012, apparently on a further review of the position following Zambrano, revoked the deportation order and granted Mr. Lofinmakin permission to temporarily reside in this jurisdiction, for the period up to the 24th February, 2014. As a result of this decision, the respondents formed the view that the appeal was moot and so communicated this to the Chief Justice who, in the face of a conflicting viewpoint from the appellants, directed both parties to lodge written submissions on this issue.

16. At the resulting hearing this Court heard argument on the moot issue with each side making submissions which reflected their individual positions. It also heard argument on the questions as certified, but evidently a determination on the moot point is first required. This is my judgment on that issue.

Submissions:
17. The respondents contend that the appeal, in the form of the certified questions, is moot, as following the decision above mentioned, there is no longer in existence any deportation order in respect of the third named appellant. Consequently, he is not a person at risk of deportation from the ministerial order, the subject matter of the within challenge. Therefore, to determine the first question would amount to a purely academic exercise giving rise to a purely advisory opinion. Such a course should not be embarked upon as any decision so given can have no effect on Mr. Lofinmakin’s residency status in this country.

18. Likewise it is claimed that the appellants have no locus standi to seek from this Court a review of its earlier decision in Meadows, as any clarification of such decision or even comments or observations thereon could not be of any practical use or benefit to them.

19. Several cases are referred to, in which the issue of mootness has been considered or in which related issues have been discussed. These include Murphy v. Roche & Ors. [1987] I.R. 106 (“Murphy”) and Goold v. Collins & Ors. [2004] I.E.S.C. 38 (“Goold”), where reference is also made to the importance of the discretionary nature of certiorari, as explained by Denham J., as she then was, in De Roiste v. Minister for Defence & Ors. [2001] 1 I.R. 190 at p. 204. In Goold, Hardiman J. quoted with approval from Professor Tribe’s book, American Constitutional Law, 3rd Ed., (New York, 2000) where, at paras. 3 to 11 it is stated that:

“A case is moot, and hence not justiciable if the passage of time has caused it completely to loose ‘its character as a present, live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law’ … Thus, the Supreme Court has recognised that mootness can be viewed as ‘the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)’.”

20. Whilst it is acknowledged by the Minister that there are exceptions to this rule, it is said that the instant case is not one of them, as the appellants do not have a material interest in any decision which the Court might give. Accordingly, it is claimed that the instant circumstances are clearly distinguishable from those which prompted the Supreme Court to hear the appeal in O’Brien v. The Personal Injuries Assessment Board (No. 2) [2007] 1 I.R. 328 (“O’Brien”) and in Irwin v. Deasy & Anor. [2010] I.E.S.C. 35 (“Irwin”) and from what persuaded Hogan J. to continue with Salaja (a minor) & Anor. v. Minister for Justice, Equality and Law Reform [2011] I.E.H.C. 51 (“Salaja”). In each of these cases, apart altogether from the importance of the point of law involved, at least one of the parties continued to have a real interest in the outcome of the issue(s). That is not the situation here and accordingly it is said that the general or prevailing rule should apply.

21. Finally, Borowski v. Canada (Attorney General) & Ors. [1989] 1 S.C.R. 342 (“Borowski”) is cited as being a leading authority in this area and the Court is asked to specifically note that part of the judgment of Sopinka J. (speaking on behalf of the Court), where the rationale for the rule was outlined.

22. The appellants appear (para. 72 infra) to deny that the appeal is moot and claim that the deportation order is not the only issue involved. They point to a High Court order for costs which stands against them as a result of their failure to obtain leave. They say that the only way in which this Court can decide whether such an order should be reversed or varied is by determining the appeal on its merits. They submit that this is what the Supreme Court did in Caldwell v. Mahon Tribunal & Ors. [2011] I.E.S.C. 21 (“Caldwell”) where, in order to determine the “costs issue”, the Court heard the substantive appeal. A similar conclusion they say follows from O’Brien where, as one of the grounds for permitting the appeal to proceed, the Court acknowledged that the respondent had a “real current interest in … the substantial question of costs” (Murray C.J. at pp. 333 to 334). Accordingly, even if for no reason other than costs, the appeal should be determined.

23. The second principal submission made on behalf of the appellants is directed at the discretionary aspect of the Court’s jurisdiction to determine a point, even if otherwise moot. Based on certain observations made in Borowski, they claim that the Court’s intervention in this case is well justified on the grounds of both judicial economy and judicial efficiency. They point to the certifying process as involving a decision by the trial judge that in his view, the questions of law as submitted are of exceptional public importance and also that it is in the public interest to have such questions determined. In particular, a decision on the second question would be of great assistance to judges in dealing with the asylum list, as presently there is an element of legal uncertainty as to how the ratio in Meadows should apply to such cases. The only other option to address this confusion is to await the emergence of another case in which the same issue arises. Even however if that should occur, there is no certainty that the same arguments would be advanced or that the trial judge would certify, in a manner similar to that which he has in this case. Consequently, it makes the utmost sense from a prudential point of view to have all issues determined, whereas the contrary decision would involve a complete waste of resources.

24. The essence of this argument seeks to suggest that when there is an issue which is likely to reoccur, frequently and in diverse circumstances, the courts have expressed a willingness to engage with the point even if the proceedings in question are no longer of direct interest to either party. This approach it is submitted, can be seen in In the Matter of Article 40 of the Constitution: Zwann and Ors. [1981] I.R. 395 (“Zwann”), later reaffirmed in Maloney v. Member in Charge (Terenure Garda Station) (Unreported, Supreme Court, Keane C.J., 18th May, 2004) (“Maloney”) and more recently in Dunne v. Governor of Cloverhill Prison [2009] I.E.S.C. 43 (“Dunne No. 1”), where the Court decided the underlying point even though the outcome could have had no possible bearing on the accused’s liberty, which had been the sole cause of the Habeas Corpus application in the first instance. Moreover, as the circumstances of the instant case are extremely analogous to those in Dunne No. 1, it is suggested that this Court should likewise decide the issues.

25. It is further claimed that cases like Murphy are of no assistance as they simply apply the well-established rule that constitutional issues should be deferred at least until all other issues capable of resolving the inter partes dispute have been decided. The facts of Irwin are much more akin to the current circumstance.

26. Finally, it is also asserted that the question of locus standi simply does not arise, as it is beyond dispute that at the commencement of the proceedings, the appellants had sufficient interest to sustain their institution.

27. In conclusion, they submit that the appeal through the certified questions should be determined.

Decision Regarding Mootness:
28. The rule by which a court will decline to hear and determine an issue on the grounds of mootness is firmly based on the deep rooted policy of not giving advisory opinions, or opinions which are purely abstract or hypothetical. This policy stems from and is directly related to the system of law within which our courts discharge their essential function of administering justice. Apart from any special jurisdiction conferred by statute, by the Constitution, or resulting from our membership of the European Union, the system in question is fully adversarial. Consequently, there must exist some issue(s), embedded within a factual or evidential framework, the determination of which is/are necessary so as to resolve the conflict or dispute which necessitated the proceedings in the first instance. It has therefore always been recognised that without such a concrete foundation, the courts typically will decline to intervene.

29. In addition to this basic justification for the rule, there are a number of other reasons which support its existence, including what has been described as “judicial economy”, which can also be termed “judicial efficiency” or “judicial effectiveness”. In a time of scarce and declining resources on the one hand and of an ever increasing stream of litigation, much of which is lengthy and complex on the other, the courts must consciously scrutinise and carefully calculate how best they can fulfil their functions. Consequently, where necessity of resolution is not required, the courts quite correctly will be most reluctant to get involved.

30. There is another related but broader consideration which must also be kept in mind: it is that the discharge of the judicial function is best performed where the reference point is focussed on resolving defined issues in a concrete legal setting. In that way there is much less danger of inadvertently overstepping the reach of the judicial role as envisaged in Article 34 of the Constitution. In this regard I respectfully agree with the views of Hogan J. in Salaja who said at para. 7 that:

“… the provision by judges of such advisory opinions would not, at least generally speaking, serve the proper functioning of the administration of justice, since if unchecked or not kept within clearly defined limits, it would involve the judicial branch giving gratuitous advice on legal issues to the Oireachtas and the Government, a function which was never conferred on it by the Constitution.”

31. In essence therefore, this particular rule and its underlying utility are designed, like a number of other related judicial practices, to serve justice and to drive the administration of it.

32. Mootness, which has its foundation in the Common Law, but which now has a legislative and even a constitutional basis in a number of jurisdictions (for example s. 2(1) of Article III of the Constitution of the United States of America), can be described both by reference to the circumstances in which it applies and those circumstances in which it has no application. Tribe speaks of a case being moot when “it has completely lost its character as a present, live controversy between the parties” (Tribe, American Constitutional Law, 3rd Ed., (New York, 2000)). Borowksi says that a decision should be avoided if it does not result in the resolution of some controversy affecting or potentially affecting the rights of the parties. Hardiman J. in Goold, who cited with approval certain passages from both Tribe and Borowski, felt that:

“A proceeding may be said to be moot where there is no longer any legal dispute between the parties.”

Therefore as can be seen, where the action has lost its utility by reference to the issues and the parties, the case is classified as moot.

33. The use by Tribe of the phrase “live controversy” is to be understood as indicating that such controversy must be found within a set of tangible as opposed to imagined facts: it must have a definite setting and not one based on conjecture. Although speaking in a different context and indeed at a time when the constitutionality of a section was tested by reference not only to particular, but also to universal facts, Ó Dálaigh C.J. (dissenting) in McDonald v. Bord na gCon & Anor. [1964] I.R. 350 pointed to the desirability of decision-making being conducted in a real, as opposed to an abstract context. In a passage at p. 356 of the report, which applies no less to the doctrine of mootness than it does to constitutional practice, the learned Chief Justice said:

“Moreover, while the constitutional validity of a statue has to be determined by reference to the statute’s general application, I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of.”

34. A case, an appeal, or some issue within either, may cease to give rise to any real or actual conflict between the parties for numerous reasons. Changed circumstances may result in either the loss or absence of a legal interest for many causes. A few examples will suffice to illustrate the point:

• the repeal of the impugned provision or the expiry of the entire statute leaving no issue;

• the completion of the process which was sought to be prohibited (Caldwell);

• the resolution of the underlying dispute by agreement or other circumstance (Irwin);

• the attainment of what was sought to be achieved, by means other than those in dispute (P.V. (a minor) v. The Courts Service & Ors. [2009] 4 I.R. 264);

• the dissolution of a legislative assembly, where an injunction was sought to prevent a member from exercising his/her functions as such;

• the unconditional release, with no residual effects, of a party who had challenged a decision peculiar to him/her, such as his/her right to liberty or right to parole;

• the death of a party who was contesting the validity of a statutory provision in circumstances individual to him/her (unreferenced);

• the reaching of a specified age after which the relief sought could not be obtained (e.g. adoption).

Those examples for which no authority is cited can be referenced to Borowski unless identified as “unreferenced”. One further point: in some of the cases which otherwise were moot there remained the outstanding question of costs. That issue is one which I will again refer to later in this judgment.

35. It has never been the case however that the rule of mootness is absolute: even therefore when an issue is moot, the courts have always maintained a discretion to hear and determine the point. One of the earliest cases touching on this issue is Condon & Ors. v. Minister for Labour & Anor. [1981] I.R. 62 where despite the expiry of the statute, the constitutionality of which was in issue, the defendants’ assertion of mootness was rejected. Where there was a live possibility that similar legislation could be re-enacted, and where it was far from clear that rights had not been interfered with, the existing challenge could not be said to be moot (O’Higgins C.J. at p. 70 and Kenny J. at pp. 74 and 75). In any event, where the court proceeds to determine a moot point, the issue in question is not thereby reclassified: rather, it remains moot, but for justifiable reasons the court will nonetheless intervene. There are therefore two steps in the evaluative process. The first is to decide whether the point is moot: if it is not, that is an end to the inquiry: if it is, and if either or both parties still wish to proceed, the second question centres on the courts’ discretion. The basis for the exercise of this discretion has not been particularised to any great extent and perhaps it should not be, for to do so may have the unintended effect of being overly prescriptive or of foreclosing on the limits of a discretion, with rigid or inflexible consequences.

36. At the level of principle however it seems to me that, where the overriding interests of justice require a decision on the moot, the same should be given.

37. Moreover, again at the level of principle, Borowski points out that a consideration of the underlying rationale for the rule will be informative as to which particular factors may be influential in this second tier of the process. From the resulting analysis and by reference to the adversarial structure of the Canadian system of law, which undoubtedly has similarities to this jurisdiction, Sopinka J., in giving the Supreme Court’s judgment explained:

(i) that even where an issue may be redundant for the purposes of the existing proceedings, nonetheless the same may still retain its character as a matter of live controversy, if a decision would be beneficial to either party in related proceedings: this he referred to as a decision having “collateral consequences” and gave as an example a case where a civil dispute about the “necessity” for a licence to operate a restaurant had been settled, but where because of its expiry, criminal charges were still pending against the operator;

(ii) that expense may still be justifiably incurred in determining an important and recurring point, otherwise moot, which by the nature of the proceedings is likely to evade review if the doctrine is strictly applied: he instanced the validity of interlocutory injunctions given as part of industrial disputes which in his experience were almost always resolved by appeal date; and

(iii) that the courts, should always be mindful of their true role as the adjudicative branch of government.

38. There can be no doubting the relevance of the Borowski decision to this aspect of law, but like all decisions from other jurisdictions, it is important to retain a measure of reserve in its application, as a full understanding of the principles and policies upon which such judgments are based may not always be readily apparent from the text of the decision itself. This is particularly so in the area of discretion, as the margin afforded to the decision maker may be heavily influenced by matters such as rules of court, domestic precedent, prevailing practices, and/or developing trends. Murray C.J., as he then was, highlighted in O’Brien (at p. 333) the importance of exercising restraint in this regard when making reference to the practice in the United States of vacating a decision later found to be moot and of dismissing the complaint (City of Mesquite v. Aladdin’s Castle, Inc. 455 U.S. 283 (1982)). Therefore, whilst such decisions are instructive, the learned Chief Justice warned that “one must be cautious in applying too literally the principles as expressed or applied in other countries.” I respectfully agree with these observations.

39. There are a number of cases in this jurisdiction in which a point, the resolution of which could have no possible utility in further sustaining the inter partes proceedings, was nonetheless the subject matter of court decision: two in particular can be mentioned; O’Brien and Irwin.

40. Pursuant to s. 11 of the Personal Injuries Assessment Board Act 2003 (“the Act”), Mr. O’Brien, like every claimant who desires to institute civil proceedings for personal injuries, was obliged firstly to apply to the respondent Board (“P.I.A.B.” or “the Board”) for its assessment of his claim. As part of that process, he requested the Board to deal directly with his solicitor. It refused. On that issue, in the resulting proceedings, the plaintiff obtained a declaration from the High Court that such refusal was contrary to s. 7 of the Act. He also obtained an order for costs.

41. Following the service of a notice of appeal, but before the commencement of the appeal hearing, the statutory process under the Act had been concluded, with the result that it was no longer necessary for either party to engage with each other. An issue thus arose as to whether in these circumstances the appeal was moot.

42. The Supreme Court allowed the appeal to proceed, effectively I believe, on the basis that the point in issue, namely, whether P.I.A.B. was obliged to deal directly with a solicitor who had been duly nominated and authorised by the client to act on his behalf for this purpose, was one which directly affected that body in the exercise of one of its core statutory functions. In that regard as the Court pointed out, the respondent of course had a wider interest in the issue than the plaintiff in that by reason of the extant declaration it was constrained in the exercise of its powers. The plaintiff, apart from the cost order, had no continuing interest in the proceedings themselves. Notwithstanding the absence of such interest however, the then Chief Justice, Murray C.J., did not believe that the proceedings had “completely” lost their character as containing a live issue, or that a decision would not further resolve “‘some controversy affecting or potentially affecting the rights of the parties’” (p. 334). In such circumstances he was of the opinion that P.I.A.B. retained a real current interest in the issue and therefore its appeal should be determined.

43. The Court also gave as a further reason for its decision the real possibility that at some future time Mr. O’Brien might again have to engage with the Board, if he finds himself unfortunate enough to have another claim. If that should occur, the Board in its dealings with him would remain disadvantaged by the existing decision. Therefore, in this way it could be said that he also retained an interest in the proceedings.

44. Finally there is mention in the judgment of the Board’s interest in the order for costs which the High Court granted to the plaintiff. The appellants in the instant case rely heavily on such references (para. 20 supra) in support of their submission that the instant appeal should proceed. This point, I will come back to later in the judgment.

45. Whilst the factual context was different, Irwin was quite similar to O’Brien at the level of principle. In that case, the Revenue Commissioners (“The Revenue”) were a judgment creditor of the husband and had security in the form of three judgment mortgages over his moiety in certain registered lands. His estranged wife was the co-owner. In the “well charging” proceedings brought by the Revenue, the High Court felt that the only remedy available, where the security touched upon the interest of only one co-owner, was either an order for partition or a sale in lieu, followed by a distribution of the proceeds. The Court went on to hold however, that a judgment creditor in such circumstances had no locus standi to maintain a suit for partition and further that the Court itself had neither inherent jurisdiction nor statute-based jurisdiction to order a sale in lieu of partition.

46. Whilst the Revenue’s appeal was pending, the indebtedness of the husband was compromised by way of agreement. Therefore, the underlying purpose of the action disappeared. Nonetheless, the Supreme Court allowed the appeal to proceed, resting its decision on much the same principles as it applied in O’Brien. As the Revenue had upwards of 20 cases involving this identical point, it retained a material interest in having it definitively ruled upon at appeal level. However, Murray C.J., who delivered the Court’s decision as he had in O’Brien, pointed strongly to the general practice when reaffirming the court’s objection to hearing any appeal of a hypothetical or academic nature. In a passage which highlights the importance of the underlying policy, it was stated that:

“In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due and proper administration of justice determine such a question”.

Accordingly, the learned judge concluded that: “[i]t is for these considerations, and having regard to the exceptional circumstances and nature of the case”, that the Court would allow the appeal to proceed.

47. It is important to bear in mind that neither O’Brien nor Irwin should be seen, as has been suggested, as representing some form of relaxation in the application of this doctrine, or as extending the historical remit of the discretion which the Court enjoys. To so conclude would be to fail to properly appreciate the key elements peculiar to both cases, and would also be to disregard the forceful underpinning of the general policy, as exemplified for example in the passage above quoted from Irwin.

48. With regards to O’Brien, it is unclear if the Court ever considered that the appeal issue was truly moot within the meaning above ascribed to that term. It was certainly satisfied that there remained an adversarial context and that P.I.A.B. retained an active interest in the issue (para. 42 supra). In addition and again disregarding the question of costs, the Court also seems to have been satisfied, albeit for different reasons, that Mr. O’Brien likewise had such an interest (para. 43 supra). Viewed in this way, the case may not have been one of mootness at all. However, even if this should be wrong and if the decision to proceed was a discretionary one, nonetheless the same can be explained by reference to the significant consequences which the extant declaration had for the operation by the Board of its preferred business model, in the discharge of a key function for which it was established to perform. Likewise, the Court’s ruling in Irwin had the capacity to frustrate, if not entirely nullify, a most important form of security enforcement in revenue debt recovery. Consequently, both High Court decisions, in some very definite, specific and constraining way, gravely impacted on the performance of statutory functions. Moreover, both bodies were anxious to have the issues determined. Consequently, the decisions to proceed in both cases fall comfortably within the existing jurisprudence.

49. There is one further case in this particular context which should be mentioned. Dunne v. The Governor of Cloverhill Prison [2009] I.E.S.C. 43 (“Dunne No. 2”), where Denham J., as she then was, at para. 17, identified as a specific but important factor the following matter in the exercise of this type of discretion: the learned judge said that:

“In the circumstances the issue of the new charge is not justiciable and scarce judicial resources should not be used to advance an academic analysis. In all the circumstances the matter is now a moot.”

50. In addition to these cases the appellants, as recorded above (para. 24), also place reliance on three further aforementioned cases, namely Zwann, Maloney and Dunne No. 1, which they offer as examples of situations where this Court has continued with the appeal, even though the issues in question had been rendered moot. O’Brien (at p. 335 of the report) explains the uniqueness of Zwann, which I entirely agree with. The issue in Maloney, by express acknowledgment of the State, had not become moot by the appeal date, as the validity of the applicant’s detention was still capable of having a significant bearing on the admissibility of any statements/confession made by him during the custody period. Dunne No. 1 can be understood in a number of ways: firstly, it would appear that the issue under discussion was not raised during the course of argument and thus did not feature in either the Court’s deliberations or in its resulting judgment. Secondly and in any event, given that the point at issue was central to the exercise by the District Court of its jurisdiction to extend time for the service of a book of evidence – a jurisdiction which as a matter of notoriety is exercised with the utmost frequency – it may well be that, noting the widespread and grave consequences which would result from the wrongful exercise of such a power, the Court decided, as a matter of discretion, to determine the appeal. Whichever may have been the precise reason for the Court’s decision in that case, it is clear to me that none of these decisions can in reality support the position of the appellants in the instant case. Therefore, I do not believe that these cases add anything further to the principles above discussed.

51. From the relevant authorities thus reviewed and leaving aside the issue of costs which is dealt with separately (para. 71 infra et seq.), the legal position can be summarised as follows:

(i) A case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing.

(ii) Therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined.

(iii) The rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model.

(iv) It follows as a direct consequence of this rationale, that the court will not – save pursuant to some special jurisdiction – offer purely advisory opinions or opinions based on hypothetical or abstract questions.

(v) That rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two-step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness.

(vi) In conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved. It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice.

(vii) Matters of a more particular nature which will influence this decision include:-


(a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;

(b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;

(c) the type of relief claimed and the discretionary nature (if any) of its granting, for example certiorari;

(d) the opportunity for further review of the issue(s) in actual cases;

(e) the character or status of the parties to the litigation and in particular whether such be public or private: if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;

(f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

(g) the impact on judicial policy and on the future direction of such policy;

(h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;

(i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and

(j) the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.

52. The matters above mentioned as being material to the exercise of the courts’ discretion are indicative only and are not intended in any way to be exhaustive and may well have to be adjusted to reflect the particular circumstances of any given situation. However, once all appropriate matters are established and their relevance identified, the conclusion of the resulting analysis in all cases should reflect the basic purpose of the rule and should be concordant with its underlying rationale.

53. In summary it can be said that in light of the considerations stated above, the courts do not in principle try issues which are moot, notwithstanding that these may have been an important question of law in issue between the parties and it is only where there are a range of exceptional circumstances that the courts will exercise their discretion to do so.

Application of the Doctrine to the Instant Case:
54. It is immediately apparent from the reliefs sought in this case that the single issue of complaint upon which each relief is founded is the deportation order made by the Minister for Justice on the 20th August, 2009. That order, and its making, had immediate and personal consequences for Mr. Lofinmakin and also for his family, including his two Irish-born children, all of whom as a result would suffer at least a major disruption to, if not a complete severance of, family and personal life as heretofore enjoyed in this jurisdiction. Therefore, it is without argument that the substratum or basic foundation of the challenge, both factually and legally, is referenced to this order.

55. As explained above, that order no longer exists as it was revoked by the Minister on the 21st February, 2012. There is no question of it again having effect, either retrospectively or prospectively, or at any time henceforth. It can have no bearing on any rights or entitlements which Mr. Lofinmakin or his family had, have, or which they may wish to assert in the future. Both the order and the process by which such was made are circumstances entirely of the past. Moreover, it is now accepted that its original making will have no residual repercussions whatsoever for the appellants. He is therefore not at risk from that order as it is devoid of legal effect and is not capable of reactivation at any time. As such, it cannot have any direct consequences for him or any indirect consequences for the three other appellants, including his children. Can it therefore be said that there remains in existence any legal dispute between the parties?

56. If it cannot, it seems to me that it is legally impossible to sustain a continuing challenge to an order, of no effect and which no longer exists, and that even if it were possible, it would be an exercise in the utmost futility to do so. This must equally apply to the underlying process, as both are inextricably linked.

57. The issue is in fact put beyond debate by a consideration of what would follow even if the appeal was allowed and leave granted. The answer, as Counsel on behalf of the appellants was obliged to concede, is that the case would still be at an end, as there is no possible relief or remedy which could be obtained at a substantive hearing. Evidently therefore, neither the evidential nor legal framework necessary to sustain an issue in controversy between the parties continues to exist. In these circumstances, the appeal in my view must undoubtedly be considered moot.

58. This conclusion applies to both aspects of the appeal as each is fundamentally predicated on the existence of a deportation order and on the unlawfulness of the disruption to family life which would follow if Mr. Lofinmakin was deported to a third country. That has not and can now never happen(ed), by reference to such order.

59. The issue then arises under the second tier of the analysis, as to whether, notwithstanding this finding of mootness, the Court should nonetheless exercise its discretion and proceed to hear and determine the appeal. For this purpose it should be noted that both of the certified questions have matters in common, but also have matters individual to each other. In addition, under this heading it will be necessary to consider the submission that, in any event, since there is an outstanding issue on costs, the appeal should be heard.

60. If the Court should so proceed and pronounce on the certified questions, it would in so doing be departing from what is now a well-established practice, firmly grounded on policy considerations, of declining to intervene when a case is moot. It will not lightly embark upon such a course and indeed normally will be most reluctant to do so. Strong, compelling, and persuasive reasons will therefore need to exist before exceptions are made to such practice.

61. It is very difficult, if not impossible to see the existence of any remaining aspect of an adversarial context at this juncture of the proceedings. For the reasons set out above, the present conflict between the appellants and the respondents – certainly the judicial conflict as established in the pleadings – is at an end. As to the future, the position of the children is secure in that they are immune from the direct application of the asylum process: that of their mother – now lawfully resident in this jurisdiction – has remained constant since December, 1999 and there are no indications that such may alter. With regards to the third named appellant, it must be noted that even if the Minister for Justice should again invoke the s. 3 procedure, although there are no indications that he intends to, any challenge thereto would have to be in the context of the circumstances then existing. Such, even as presently known, would be significantly different to those grounding the within proceedings. The following instantly come to mind: firstly, the decision to revoke the deportation order and the reasons which lay behind it; secondly, the consequences which that decision may have for the lawfulness or otherwise of Mr. Lofinmakin’s preceding period of residency in this country; thirdly, the same questions may arise from the decision to grant the latter permission to reside in this State; fourthly, both he and his wife, together with their children, will, as a family unit, have established a further period of lawful residence in this jurisdiction; and finally, the ramifications of the Zambrano decision.

62. The basis of that decision has particular relevance for this appeal, for as above noted, its foundation rested on Article 20 TFEU and not on Article 24.3 of the Charter, which is the context in which the first question has been referred. It seems most probable therefore that if any further proceedings should be embarked upon, the appellants would rely, or also rely, on the TFEU article, whereas that provision was not argued in this case and thus is not arguable on appeal. Consequently, even if the third appellant should again face peril from a ministerial proposal, both the legal context and the factual context are likely to be so different from the present, that a decision on the instant case would have virtually no effect on any future case, which of course in itself remains uncertain and unpredictable, and indeed may never even materialise.

63. In addition, two further points should be noted in this context: (i) in light of Zambrano, Article 24.3 of the Charter may have to be reassessed for the directness of its importance, even if otherwise relevant to the underlying argument; and (ii) notwithstanding how the first question is phrased, it seems that the learned judge has in mind that this Court will deliberate on the effects of Zambrano, with even the possibility of a reference being made.

64. With respect, I think that it would be highly undesirable for this Court to discuss Zambrano for a number of reasons, which include: firstly, the absence of any decision on its application in the High Court; secondly, the absence of any concrete set of circumstances in which any such discussion might take place; thirdly, it is quite unclear if its effects are causing any difficulties for those who perceive benefit from its provisions or those charged with the administration of the statutory scheme; fourthly, there is no fear of the issue escaping future scrutiny, as the statutory appeal process, even though specifying a “substantiality” threshold, is nonetheless sufficiently capable of accommodating a further appeal if the need to do so should arise. Finally, in view of its recent origin, it is self-evident that little opportunity has existed for judicial debate on the scope of its application: in such circumstances, one should exercise considerable forbearance and should defer further consideration of its impact, unless and until it becomes necessary to do so.

65. With regards to the second certified question, which is set out at para. 14 above, and which relates to the Meadows decision given by this Court, it seems to me that whilst acknowledging the importance of that decision and its potential significance to the underlying issues being considered, nonetheless it must be remembered that that case had a live set of circumstances as its context, unlike the instant situation. That factor, and the nature and scope of the decision itself, really beg the essential question, which is whether it is more desirable to academically overview the decision, or to adhere to the general practice of deferring its further consideration until the emergence of a concrete situation to which its consequences can be applied?

66. In many respects, this question is, I think, at least partially answered by recalling the potential breadth of the Meadows decision, as argued for, and the scope of the circumstances to which it might apply. It is said that such may not be confined to a particular category of right or to a defined type of decision or to a specific class of decision maker. Indeed, the learned trial judge himself instanced its potential scope when he said at para. 8 of the March judgment:

“Furthermore, as the concept of proportionality as a facet of reasonableness in administrative law is not necessarily confined to cases involving alleged encroachment on the rights to life, to protection against torture or to protection of family life as typically raised in asylum cases, but may presumably extend to other personal constitutional rights if not also to the validity of quasi-judicial or administrative decisions generally, the issue potentially affects the exercise of the judicial review function as a whole and will be of exceptional public importance for that reason.”

67. Whilst I do not find it necessary to offer any view on its potential consequences and whilst I recognise that this description by Cooke J. was, in the main, intended to highlight the point’s public importance, nonetheless, it is quite clear that the influence of the decision itself cannot be said to have been as yet fully determined. Very much because of this I am disinclined to entertain the question in the abstract, as in my view it would be more productive and orderly in the long-term for its consequences to be integrated into our case law in the normal way, rather than by some notional pronouncement. Quite frequently a principle of law – certainly one involving concepts such as those referred to above – can best be understood in its practical application, as distinct from its theoretical positioning.

68. It should also be noted that the Minister for Justice opposes the application to have these questions determined. That of course cannot in any way be decisive, but given the centrality of his role as the decision-maker, and as operating the process by which such decisions are arrived at, his views must inevitably carry some weight in the exercise of the courts’ discretion. In this respect, the case is unlike Dunne No. 1, O’Brien, or Irwin where the equivalent office holder was most anxious to have the matters determined.

69. A further reason for my reluctance to deal with the questions relates to the adjudicative role of the courts in our system of law. Given the nature of the Minister’s responsibility in the context under discussion, which undoubtedly involves, from time to time, some margin of judgment within overall policy – albeit one to be exercised in accordance with law – a decision in hypothetical circumstances is less appropriate than what it might be in other circumstances.

70. For the above reasons therefore, I would refuse to determine the appeal.

The Issue of Costs:
71. In the High Court, the respondents were awarded their costs against the appellants following the failure of the leave application. The appellants wish to appeal that order and say that unless the substantive grounds are determined on the merits, it will not be possible to decide whether the order should stand, or stand varied, or be discharged. Accordingly, on this almost discrete ground, it is urged that the Court exercise its discretion and determine the appeal.

72. The submission made in this regard is somewhat unclear in that it may be viewed as suggesting that the existence of a disputed cost order is sufficient to prevent a case otherwise moot, from being so treated. In other words, such an issue of itself would have the effect of sustaining, as a “live controversy” within the first aspect of the rule, the entirety of the appeal. Reference is made to the course adopted by this Court in Caldwell, and to the remarks made by Murray C.J., the then Chief Justice, in O’Brien (para. 22 supra) in support of this position. The alternative view of the submission is that the existence of the cost order is but one factor to be considered – albeit a factor which it is said should weigh, and weigh heavily in this case, in favour of the Court exercising its discretion to proceed. Whilst I have no difficulty in accepting this viewpoint, I must however say that if the intention of the submission is to convey the former, I would have to emphatically reject it.

73. The type of “issue” which keeps a case alive and to which the doctrine of mootness is attached, is one which of itself gives rise to a dispute or controversy which the courts are called upon to resolve, so that some contested position may thereby be clarified. It is an issue which grounds the proceedings in the first instance and which motivates their institution ab initio. It will typically have the features of a lis or other legal dispute, the resolution of which is intended to have an impact on one’s legal position or on one’s rights, obligations or status. It will give rise to a cause of action and will stand to the forefront of the substantive relief therein sought. Further, it will be of a class or kind which our adversarial system will recognise as such, and which it is primarily designed to deal with. It is only an issue characterised by these notions, that mootness is intended to deal with.

74. The question of costs, as arising in this case, lacks in my view the essential features of the type of issue above mentioned. Firstly, it would be senseless to speak of instituting proceedings regarding costs in the present context: proceedings could never be justified solely on that question. Secondly, a decision on costs will follow from a determination of issues which have been the object of court intervention in the first instance: as the phrase “costs follow the event” is understood, the event is not the issue of costs, but rather the preceding determination as mentioned. Thirdly and finally, the very existence of a question of costs is entirely subsidiary to and dependant upon earlier court decision. Consequently in my view, costs is not a matter which of itself impacts upon the mootness or otherwise of any given issue or case.

75. There are two further reasons for which I would reject this submission. Firstly, because if accepted, the same could in practice almost totally nullify the doctrine of mootness. In virtually all cases some question of costs generally arises: any order – even one to the effect that each party bears their own costs – could be said to disadvantage one side or the other. Sometimes it may be possible to say that an order was granted by reference to some discreet or specific finding, but even then the background to such issue or finding may have to be explored. On many occasions however, that will not be the case, with some aspect of virtually every issue being influential in the making of a cost order. In either situation, if the submission as advanced was accepted, such would have a major impact on the application of the rule and would in reality grossly undermine its effectiveness. It would be very difficult, if not at times impossible to declare a case, an issue, or an appeal moot, if a disputed cost order could entirely neutralise that classification.

76. Secondly, for a disputed cost issue to operate in the manner which this submission entails would be to invest scarce judicial resources in an exercise which in the vast majority of cases would yield little or no return. That could not serve the administration of justice or individual parties. I therefore do not believe that the legal situation is as suggested.

77. Apart from Caldwell, there was no authority open to this Court supporting such a proposition. I do not accept that the isolated references in O’Brien to the question of costs can be so regarded. On the contrary, it seems quite clear from a reading of the judgment as a whole, that the appeal would not have been determined in the absence of the other substantive reasons given by Murray C.J. for so doing. Caldwell can be differentiated on the ground that the Court simply proceeded with the appeal without either party raising the issue before it: in other words the Court was not called upon to consider, and therefore did not deal with what the legal position is where the only outstanding issue is costs. Secondly, given the very special circumstances with which that case was concerned, it can be considered as a decision in its own right. Consequently, I do not believe that there exists any decision, judgment or ruling of this Court which truly supports the argument as advanced.

78. In summary therefore, for the above reasons I do not accept that a case or an appeal or an issue within either, which is otherwise properly classified as moot, ceases to be so classified purely because of the existence of a disputed cost order. I therefore do not accept the appellants’ submission in this regard.

79. In saying this, I do not of course underestimate the importance of cost orders in the litigation process: in fact quite the contrary. It is of the first importance that a court should have the power to address the cost position of parties who appear before it. A plaintiff who has been forced to obtain a court order so as to establish rights should ordinarily be entitled to his reasonable costs of having been put in that situation: likewise, with a successful defendant who should never have been sued in the first place. How precisely this issue is dealt with will evidently be case specific. Matters such as: the “reasonableness” of raising issues or of contesting them; the pursuit of unmeritorious applications or the opposition to appropriate ones; and the litigation conduct of both parties, particularly if such leads to additional and unnecessary costs being incurred are all factors appropriate to this consideration, as obviously will also be the ultimate result (Farrell v. Governor and Company of Bank of Ireland & Ors. [2013] 2 I.L.R.M. 183). There is no doubting therefore the justification for having available cost orders as part of the courts’ armoury in disposing justly of the litigation which comes before them.

80. Finally, it should of course be noted that the issue of costs which I have been dealing with is quite distinct to a situation where a court is asked to determine only the question of costs, in a case otherwise acknowledged to be moot: Cunningham v. The President of the Circuit Court & Anor. [2012] 2 I.L.R.M. 449 and Rye Investments Ltd. v. The Competition Authority [2012] I.E.S.C. 52. In those and similar cases there was never a question of either party wishing to have the underlying issues proceeded with or of the Court determining them. Its sole function was to decide on costs as matters then stood.

81. The last aspect which must be considered therefore is whether in the exercise of its discretion this Court should determine the appeal purely because of the costs dispute. At the level of principle, I could see no basis for doing so. In any event, I would be firmly against such a course in light of a concession made by the Minister during the course of the appeal hearing: on his behalf, Counsel indicated that the costs order as made against the applicants in the High Court could be vacated with the result that such applicants will not continue to be disadvantaged thereby.

82. Finally, in addition to the reasons above advanced for declining to entertain the questions as certified, I would add that I am not convinced that such a course would be justified, by reference to judicial efficiency or effectiveness.

83. For these and the above reasons I would declare the appeal moot and in the exercise of the courts’ discretion would not entertain its determination.