High Court denies costs at leave stage in asylum judicial review, reserving them for final trial judge.

Neutral Citation Number: [2010] IEHC 518

THE HIGH COURT

JUDICIAL REVIEW (APPLICATION FOR COSTS)

2008 626 JR

BETWEEN

A.A.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice Ryan delivered the 30th November 2010

1. This is an application for costs. In a judgment that I delivered on 5th November 2010, I granted leave to the applicant to bring

proceedings to challenge the validity of a decision of the Refugee Appeals Tribunal.

2. The applicant accepts that the normal practice in these cases when leave is granted is to reserve the costs to the judge who

hears the substantive application. Nevertheless, counsel argues that the applicant has succeeded in establishing the necessary

substantial grounds that are specified in the legislation as a special standard that applies to asylum cases, that the Rules of the

Superior Courts require that costs be granted, that it is reasonable and just that she should be awarded costs and that the

respondents unreasonably refused to have a telescoped hearing in which leave and substantive applications were heard together.

3. I do not think that the applicant is entitled to an award of costs and I propose to reserve the costs to the trial judge in this case.

My reasons are as follows.

4. Order 99 of the Rules was amended in 2008 so as to read as follows, so far as relevant:-

“4(A)The High Court or the Supreme Court, upon determining any interlocutory application, shall make an award of costs

save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

Is this an interlocutory application? If one looks at O. 50 of the Rules, which deals with interlocutory applications, it is not at all clear

that this leave application is properly considered an interlocutory application. It is true that it comes at a stage prior to the

substantive hearing of the matter but it is not at all similar to an application for in injunction or a motion for discovery or a proceeding

of that kind that is ancillary to and preliminary to a substantive hearing. The applicant has, it is true achieved a certain element of

success in that she is free to pursue her claim for judicial review but that is not decisive. In the result, it is not clear to me that para.

4(A) of O. 99 is applicable to the present circumstances.

5. If para 4(A) does apply to the present situation, then the applicant is entitled to an award of costs unless “it not possible justly to

adjudicate upon liability for costs”. The onus in this situation is obviously on the party resisting costs because the default position is

that costs shall be awarded. My view is that the qualification is applicable here. I do not think that it is possible to adjudicate justly

on liability for costs at this stage.

6. The question in this case is whether the applicant is entitled to quash the decision of the Refugee Appeals Tribunal and to have her

case remitted for fresh consideration of her appeal. If she succeeds or fails, that result is the event upon which one would anticipate

that costs would depend. That is the approach that was taken in the cases that were cited to me on this motion for costs. The

authorities acknowledge that there may be circumstances in which it is just for an award of costs to be made at the leave stage but

such an award was not in fact made and no case has been cited where that actually happened. The courts are careful to leave open

the possibility of a legitimate claim being made for costs at the leave stage and I am quite satisfied that such a jurisdiction exists and

I follow the authorities in point. I also agree that the approach one takes is conditioned by all the circumstances, including most

relevantly the ultimate outcome of the case. At that stage it may be possible looking back to the find circumstances that dictate that

there should be an order of costs in favour of an applicant notwithstanding the ultimate failure of his or her judicial review

proceedings.

7. The respondents did not go along with my suggestion of having a telescoped hearing whereby the leave application and the

substantive case would be considered together. That was their entitlement and I do not think that my decision to grant leave makes

it wrong for the respondents to have chosen as they did.

8. I propose to follow the general practice of not awarding costs at this stage and of reserving them to the trial judge who hears the

full application for judicial review, based on the leave that I have granted.