High Court awards costs to acquitted EAW applicant who successfully secured return to home state.

Neutral Citation [205] IEHC 767

THE HIGH COURT

Record No.2015/459JR

BETWEEN

NACER BENLOULOU

APPLICANT

– and –

MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr Justice Max Barrett delivered on 3rd December, 2015.

Part 1: Background.

1. Mr Benloulou is an Algerian national. He moved to France in 1984 and holds a valid carte de séjour that entitles him to stay in that

jurisdiction. On 19th February 2014, Mr Benloulou was transferred from France to Ireland pursuant to a European Arrest Warrant to

face prosecution for having been illegally resident in Ireland at some previous time. On 17th July of this year, he was acquitted of all

the charges laid against him and immediately released. Unfortunately, because he has no connection with Ireland, Mr Benloulou found

himself without shelter, without food, without money, without medication, without transport and even without the possibility of

returning to France. He was apparently told by Air France that it could not fly him to France if his sole form of I.D. was a carte de

séjour. He was apparently told by the French Embassy that it was unable to assist him in terms of providing suitable travel

documents. And, as there is no Algerian Embassy in Dublin, he seems to have been unable to access whatever, if any, diplomatic or

consular assistance an embassy would typically provide to nationals in Mr Benloulou’s position. To cap all of this, the Irish authorities

denied that they had any responsibility to facilitate Mr Benloulou’s return to France. So, not unlike the ill-fated Mr Navorski (Tom

Hanks) in “The Terminal”, Mr Benloulou found himself trapped in a place where he did not want to be, unable to go where he wanted

to be, and, as his acquittal demonstrates, all through no fault of his own. Things were so bad that Mr Benloulou’s solicitor, who is to

be applauded for this, lent Mr Benloulou some money to tide him over. Meanwhile attempts were being made by Mr Benloulou’s legal

team to seek some sort of remedy via the courts.

2. On 30th July last, an application for leave to bring a judicial review application against the Minister for Justice, Ireland and the

Attorney General was brought to the High Court. The net issue arising in the application was whether and to what extent a person

who is surrendered to the State under a European Arrest Warrant, and who is tried and acquitted here, must be facilitated in

returning to the State that has surrendered him, in circumstances where it has proved impossible for him so to do (here because Mr

Benloulou did not, and perhaps still does not, possess a passport, was outside the Schengen Area and was otherwise precluded from

entry into France).

3. As drafted, the application to the High Courtinitially indicated that various reliefs were being sought. Several of these were later

dropped, until all that remained was an application seeking (a) that the respondents promptly take all necessary steps to enable Mr

Benloulou to be returned to France, (b) damages, and (c) certain ancillary reliefs. Me Benloulou’s team went before the President of

the High Court on an ex parte basis on31st July; he directed that the application proceed on notice and be heard on 5th August. On

the Minister’s application, the hearing was adjourned to 7th August so that a replying affidavit could be provided. Meanwhile, on 6th

August, a Department of Justice official wrote a letter of considerable humaneness to Mr Benloulou indicating that if he applied for a

temporary travel document (an exceptional form of travel document that the Irish authorities can lawfully issue), the authorities

would waive the ‘residency in Ireland’ requirement that is a usual pre-requisite to the issuance of such a document and, all being in

order, he would be granted same. On 7th August the High Court again adjourned proceedings, this time until 14th August, it by now

appearing that the temporary travel document would largely resolve the impasse that had arisen.On the same day, Mr Benloulou made

application for the temporary travel document. On 11th August, his application was approved. And on 13th August, he jetted back to

France.

Part 2: Present Application and Some Applicable Case-Law.

4. Counsel and the solicitor who brought Mr Benloulou’s judicial review application have come now to court seeking costs. As the

court understands matters, the State opposes the application on the basis that most of the reliefs initially sought have been

abandoned, and that neither of the two principal remaining reliefs sought (the return of Mr Benloulou to France and damages) has

been ordered by the court.

5. The court has been referred to a trio of relevant authorities by the parties. Paramount among them is the decision of the Supreme

Court earlier this year in Godsil v. Ireland and the Attorney General (Unreported, Supreme Court, 24th May, 2015). That was a case in

which Mrs Godsil had been adjudicated a bankrupt but wanted to stand for election in last year’s European Parliament elections. At

the time it was not possible for an undischarged bankrupt to stand in such an election. Mrs Godsil brought a challenge to this ban but

before matters were adjudicated upon, the State changed the relevant legislation so that she could now stand for office.

6. Abstracting the details of Godsil ever so slightly, it is clearly a case on ‘all-fours’ with the present case: the State is perceived by

an applicant to have committed some wrong; legal proceedings are commenced; the alleged wrong is corrected independent of the

litigation but prompted by the legal proceedings. How then are costs to be allocated when there is no victory as such in proceedings,

but there is a victory in terms of securing the true objective sought? Or, to put matters otherwise, how are costs to be allocated

when proceedings have been rendered moot by virtue of a respondent taking such steps as were clearly the central objective of the

now moot proceedings?

7. In his judgment in Godsil, McKechnie J., in a consideration of the ‘costs follow the event’ rule observes as follows, at paras.58–64:

“58. It seems to me that even where the substantive point has become moot, the first inquiry which a court must

make on a follow on cost application, is to decide whether or not there exists an ‘event’ to which the general rule can be

applied….

59. It will be recalled that the essential aim of these proceedings was to achieve a situation whereby the appellant

would not be barred, solely on the basis of her un-discharged bankruptcy status, from being nominated for or running in

the European Parliamentary elections of 2014. She asserted a legal right to do so in defiance of the statutory provisions

above referred to which, ex facia and in a way permitting of no argument, prevented her from so doing….

61. As it happened the Houses of the Oireachtas enacted amending legislation which had the effect of repealing the

relevant provision of the 1992 Act. If this had not occurred but if successful in the High Court she would have obtained a

Declaration that the provisions in issue were, inter alia, unconstitutional, with the effect that they would have been

erased from the statute book; giving rise to precisely the same legal result as in fact happened.

63. The actions of the respondents, despite their protestations that the same were driven by policy considerations, can

only reasonably be understood…as being in direct response to the proceedings as issued….Therefore, I am entirely

satisfied that in this case, there exists an ‘event’, by which the issue of costs should be determined.

64. For the reasons above stated…I cannot see any reason why costs should not follow the event….I cannot find

anything in the case which, either in justice or in logic, would justify anything less than a full cost order in this regard.”

8. In reaching these conclusions, McKechnie J. appears to have viewed with disfavour the assertion by Cooke J. in his judgment in

Nearing v. Minister for Justice, Equality and Law Reform [2010] 4 I.R. 211, para.17, that:

“Where litigation does not proceed to trial because, for practical purposes, the relief is no longer needed, an applicant

can only be said to have ‘won the event’ if the matter had become moot by the withdrawal of a defence in recognition

and concession that the claim made was well-founded and was entitled to succeed.”

9. Of this last assertion, McKechnie J. observes, at para. 57 of his judgment in Godsil: “This manner of describing what an ‘event’ is

for cost purposes would seem to suggest a more strict or technical approach than the more straightforward query as to ‘who won

the event’” – and it is this more straightforward query that McKechnie J. favours.

10. Given this binding authority, which is directly ‘on point’, the court does not consider it necessary to consider the decision of the

High Court in Gilani v. The Minister for Justice and Equality [2012] IEHC 193, or indeed the decision of the High Court of England and

Wales in R. (Henderson) v. Secretary of State for Justice [2015] EWHC 130 (Admin), to which the court was also referred by counsel.

Part 3: Conclusion

11. It is clear that the principal relief sought in, and the true objective of, Mr Benloulou’s application was his prompt return to France.

It is equally clear that this was achieved and that this constitutes the ‘event’ for the purposes of the within application and, more

particularly for the ‘costs follow the event’ rule. True, Mr Benoloulou’s return to France was not ordered by the court. Nor did he win

damages, although this was never really what he was about; he just wanted to go home. This last end was achieved, the bringing of

the judicial review application was clearly a critical factor in achieving same, and it is therefore to Mr Benloulou that the court now

awards costs.