Supporting Documents:

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment and order of the Court of Appeal

REASONS GIVEN

1. This Determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Ryan P., Irvine and Binchy JJ.) delivered on the 22nd May, 2017, and from the resulting order of that Court made on the same date and perfected on the 25th May, 2017.

2. Mr. B. is referred to as the “applicant” throughout this Determination, with the Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General, all of whom oppose the application, being collectively referred to as “the respondents”.

Jurisdiction

3. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

4. Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

5. Prior to enacting the Regulations next mentioned, Ireland operated what can be described as a bifurcated system to deal with applications for asylum and thereafter with applications for subsidiary protection. It was the only country in the European Union in which both applications were procedurally separated, which gave rise to considerable difficulty and resulted in unnecessary delays in the processing of persons who sought international protection. This matter was addressed by the passing of the European Union (Subsidiary Protection) Regulations 2013 (“the 2013 Regulations”). Thereafter, the office of the Minister for Justice was no longer involved in the process; its former role was transferred to the Office of the Refugee Applications Commissioner (“ORAC”), with an appeal being provided for, to the Refugee Appeals Tribunal (“RAT”), before which an oral hearing could be obtained. It was those Regulations which Mr. M.B. challenged in the substantive judicial review proceedings, which I will further refer to in a moment.

The High Court

6. On the 29th January, 2009, one week after he had arrived in Ireland, Mr. M.B. made an application for asylum. This application received a negative recommendation from ORAC on the 15th May, 2009, which included the making of negative credibility findings against him. His appeal to the RAT was unsuccessful, and so by application dated the 20th April, 2010, he applied for subsidiary protection and for leave to remain in the State. Subsequently, on the 30th September, 2013, the applicant married a British-born national with dual citizenship of the United Kingdom and Ireland. As a result, whilst his formal application for residency based on his wife’s status was being progressed, he was given permission to remain in the state.

7. Following the making of the 2013 Regulations, the applicant was invited to present himself for interview at ORAC on the 11th April, 2014. By way of response, his solicitors outlined a series of objections which their client had to this body hearing the pending application for subsidiary protection, and threatened judicial review proceedings. The reason was that the self-same entity had previously dealt with his application for asylum and had made negative credibility findings against him. Notwithstanding this, but without prejudice and under protest, Mr. M.B. duly attended for interview before ORAC: the outcome was that a Mr. Donal Horgan endorsed a negative recommendation in respect of his application. Such was signed by Mr. Horgan on the 27th June, 2014, and was said to be “For the Refugee Applications Commissioner”.

8. In the judicial review proceedings which followed, the applicant made a wide-ranging and extensive challenge to the validity of the said Regulations. Essentially, he claimed that such were ultra vires section 3 of the European Communities Act 1972, and thereby were repugnant to Article 15.2.1° of the Constitution, and/or breached his rights under Article 40.3 of the Constitution, Articles 6 and 13 of the European Convention on Human Rights, and Articles 41 and 47 of the EU Charter of Fundamental Rights. Following a telescoped application, Mac Eochaidh J. delivered a judgment on the 6th March, 2015, in which he rejected all grounds of challenge and dismissed the proceedings in their entirety. Apart from how the result of the proceedings fed into the question of costs, which is the point of the current application, nothing as such turns on the substance of this challenge.

9. In due course the learned trial judge came to deal with the costs issue. In his ex tempore judgment of the 18th December, 2015, he granted the applicant costs, including reserved costs based on a three day hearing, with the same to be taxed in default of agreement. Notwithstanding the ultimate outcome, the judge justified this approach on the basis that:

• There was a degree of inevitability that someone would challenge the new regime;

• There was no personal gain for Mr. M.B. as his primary challenge related simply to the method by which the substance of the Regulations could be implemented into domestic law;

• The case was one of public importance;

• The judgment as given “bedded down” the legality of the new regime;

• The case conferred a benefit on the system generally; and, finally,

• The challenge raised an issue about the delegation of power within the legislative arm of government.

Court of Appeal

10. On the 22nd May, 2017, the Court of Appeal, via an ex tempore judgment of Irvine J., set aside the High Court order in relation to costs and, having heard further submissions on the respondents’ application for costs, the Court in effect reversed the order and directed the applicant to pay the respondents the costs of the proceedings, including reserved costs based on a three day hearing, as well as the costs of the appeal to that Court. It is arising out of this judgment and order that the present application for leave arises.

Appeal to this Court

11. The applicant seeks leave to appeal to this Court against the said judgment and resulting Order of the Court of Appeal. The reasons submitted in support of his application are set out in detail in the Application for Leave and Notice of Appeal document. The respondents object to this application, with their reasons for so doing being likewise set out in their Respondents’ Notice. Since all such documentation is available with this Determination on the Courts Services website, the reasons for both the application and the objection thereto are set out here in summary form only.

Application for Leave and Notice of Appeal

12. Mr. M.B. submits that the decision of the Court of Appeal involves a significant departure from the principles set out by this Court in Dunne v. Minister for the Environment [2008] 2 I.R. 775. An injustice has been done to the applicant in that the Court of Appeal applied a test different to that approved by this Court. It is of general public importance to clarify the law on the award of costs in litigation of public importance. The Court of Appeal’s approach was in contrast to the judgment of the High Court, which followed what have been regarded as the well-established and standard principles applicable to an application of this nature. The applicant therefore asks this Court, first, what are the correct legal principles to be applied by a trial court in awarding a portion of costs to an unsuccessful applicant; secondly, to what extent should the Court of Appeal have regard to the exercise of discretion by a trial judge in making such a decision; and, thirdly, whether that court was correct in its analysis of the High Court’s judgment and/or whether it took into account irrelevant factors. The applicant claims that individually or collectively these constitute either matters of general public importance and/or are such as meets the ‘interest of justice’ requirement.

Respondents’ Notice

13. In their opposition papers, the respondents dispute that either limb of the constitutional test is satisfied. They claim that the Court of Appeal followed Dunne v. Minister for the Environment and that, as is evident from its reasoning, the Court applied those principles to the facts of this case. It is not argued by the applicant that the decision of the High Court on the cost issue is unreviewable by an appellate court. As is clear from its judgment, the Court of Appeal had regard to the nature of the Order under review but, as it was entitled to, came to the conclusion that the trial judge erred in the application of the Dunne principles. Accordingly, in their view, no point would be served in asking this Court to reaffirm the principles set out in Dunne, to confirm what is known and accepted, namely, that due regard must be paid to a trial court in the context of a costs Order, or to agree with the position which has existed for many years regarding the ability of an appellate court to reverse that type of order when it is satisfied that it should do so. Accordingly, it rejects each of the grounds advanced in support of this application.

Decision

14. This Court is not being asked to revisit Dunne v. Minister for the Environment or to set a test or identify principles that are in any way at variance with that decision. It is accepted by all that when an unsuccessful litigant seeks his costs in whole or in part, the decision in Dunne is instructive as to how such an application should be approached. Therefore, there would seem to be no point in simply asking this Court to reaffirm Dunne when its correctness is not in issue.

15. That the making of a costs Order involves the exercise of the trial judge’s discretion is likewise accepted by each party. That discretion, however, is not open-ended: in particular, for the purposes of this appeal the same is undoubtedly reviewable by an appellate court, a proposition which has not been doubted since In bonis Morelli (Vella v. Morelli) [1968] I.R. 11. It is equally accepted that when conducting such review, due regard should be had to the discretionary aspect of the trial judge’s jurisdiction when dealing with such an application. However, having afforded the required degree of respect to that view, an appellate court is entitled to alter, vary or reverse such an Order, in whole or in part, where it is satisfied that the discretion has been exercised inappropriately.

16. From the judgment of the Court of Appeal (Irvine J.), it is evident that the relevant authorities were open to the Court on the appeal hearing. The entire discussion was focused on what should follow in this case from an application of Dunne v. the Minister for the Environment, which clearly was referred to and relied upon by both parties. Therefore there can be no question of the decision being per incuriam.

17. Two of the matters raised can conveniently be dealt with at this point. The first arises from Ground No. 3 of the Applicant’s Notice of Appeal, whereat he claims that the Court of Appeal was wrong as a matter of law and fact in saying that the trial judge, when awarding costs, gave his dislike of the bifurcated system which prevailed prior to the Regulations of 2013 as one of his reasons for so doing.

18. There is no doubt but that from a reading of the transcript of 18th December, 2015, the learned trial judge did convey such views and commented, adversely it appears, both on the system itself and on the absence of an adequate explanation by Ireland for having it in place in the first instance. That system, whatever its faults, was then the choice of the legislature and could not of course be a ground of relevance on the application then before him. It cannot therefore be doubted but that the Court of Appeal was entitled to comment, as it did, on this observation. In any event, such a narrowly described complaint, even if well-founded, which it is not, would in most circumstances not meet, and in this particular case does not meet, the constitutional threshold for leave to appeal.

19. The Court of Appeal also referred to the personal gain which the applicant sought to achieve by the institution of these proceedings. Again, it is clear from the transcript of the hearing that the learned trial judge himself also acknowledged this but explained that such gain was not of the monetary type, but rather was directed towards obtaining a fair hearing. Having a personal interest in the proceedings was mentioned as a factor of significance in Dunne: consequently, as that decision is not in any way sought to be challenged on this application, reference to such point by the Court of Appeal must be considered entirely unobjectionable.

20. The principal ground of complaint made is, in this Court’s view, unfounded; there is no justification for the assertion that a test different from Dunne v. the Minister for the Environment was either considered or applied by the Court of Appeal. Such was not suggested by it, nor can it be inferred from the judgment itself.

21. Thus it appears to this Court that the high point of the applicant’s argument is that by reaching the conclusion which it did, the Court of Appeal failed to properly reflect that degree of respect which the decision of the learned trial judge deserved.

22. There can be little doubt but that the court was conscious of the type of order it was reviewing, namely, one which involves a discretionary element. Whilst its analysis was different to that of the High Court, nonetheless what appears to be the essence of its ruling was premised on the proper start point of a costs application, that is, that costs should follow the event. In this case, on any understanding of that term, the “event” was the respondents’ successful rebuttal of the substantive judicial review proceedings. This factor, in the Court of Appeal’s view, was not given sufficient weight by the trial judge. In other words, he did not give full appreciation to the normal rule, which has as a corollary that it is only in rare circumstances that an unsuccessful party should be awarded the whole or a portion of his costs.

23. Moreover, the Court of Appeal also disagreed with the learned judge that the reasons given by him for the making of such an Order constituted some form of special grounds of general importance, which might justify the course which he adopted. It is difficult to see how it was not entitled to come to this conclusion in light of its overall assessment of the case.

24. In this Court’s view it cannot therefore be said that the decision arrived at was such as to substantially stand down, without cause, the discretionary element of the Order so made. If that be the case, and if satisfied that the original decision could not be supported, it has not been established that the Court of Appeal fundamentally erred in the approach which it took and in its view that it is only in rare circumstances that an unsuccessful party should be awarded the whole or a portion of its costs. No error of principle is thus apparent from its decision.

25. The Court of Appeal proceeded to look at the various factors involved and, by its conclusion, it must have decided that appropriate weight was not given to the ultimate outcome of the substantive judicial review proceedings when the learned trial judge was dealing with the question of costs. Quite evidently, therefore, it felt that the discretion so vested in him was not exercised correctly and, accordingly, his decision could not stand.

26. As stated, the application fails to identify any matter which would meet the constitutional requirements for a further appeal to this court. Contrary to the applicant’s submissions to this Court, the Court of Appeal has not altered the well-established Dunne principles, nor did it come up with a new test to be applied in awarding costs to an unsuccessful litigant; rather it reviewed the routine application of these principles by the trial judge to the facts of this case, albeit that it came to a different conclusion than that reached at first instance. Even accounting for the respect which must be shown to the exercise of the trial judge’s discretion on this issue, this conclusion was one which the Court of Appeal was certainly entitled to reach. No point of more general application beyond the instant case arises from its judgment, and it is not the constitutional function of this Court to grant a further review in the circumstances as outlined. Moreover, although the applicant is evidently displeased with the manner in which the Court of Appeal applied the Dunne principles, the mere fact that it reversed the costs Order does not amount to an injustice against him. The application of established legal principles by the Court of Appeal will frequently leave one party dissatisfied but that alone is no basis for a further review by this Court. Accordingly, neither of the requirements for a further appeal to this Court have been satisfied.

27. This decision is not to be taken as suggesting that in no circumstances could a further appeal be taken to this Court from a decision of the Court of Appeal on a cost Order made by a trial court. The conclusion presently reached is based on the facts and circumstances of this case, which may of course differ significantly from other cases where a similar or like issue should arise. In those circumstances any future such application would of course be determined solely on the basis of the Constitution threshold.

28. For these reasons, the Court will refuse to grant leave.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.