THE MINISTER FOR JUSTICE AND EQUALITY
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does grant leave to the applicant to appeal to this Court from the Court of Appeal
1. The facts and issues in this matter have been set out in the determination of the Court on the Application for Leave brought by the respondent to this application, NHV, in 2016 IESCDET 51. On this application, the applicant, the Minister for Justice and Equality, (the Minister) seeks leave to cross appeal under Article 34.5.3°, from an order of the Court of Appeal (Finlay Geoghegan J., Irvine J. and Hogan J.). The order appealed against was made on the 6th April, 2016 on foot of a judgment delivered in the appeal on the 14th day of March, 2016 and the order was perfected on the 7th day of April, 2016 in which the Court of Appeal made no order as to costs in respect of NHV’s appeal which had been dismissed by the Court of Appeal.
2. The proceedings
The Respondent herein, NHV, sought leave to apply for an order of certiorari from the High Court quashing the decisions of the Applicant herein (hereinafter referred to as the Minister) that NHV, as an asylum seeker in the State, was precluded from entering employment pursuant to the terms of s. 9(4) of the Refugee Act, 1996 (as amended). NHV was granted leave to apply for relief by way of judicial review and the matter proceeded to a hearing in the High Court before Mr. Justice McDermott. By order of the 23rd April, 2015, perfected on the 28th April, 2015, McDermott J. refused the reliefs sought and made no order for costs in respect of the proceedings.
On the 16th May, 2015, NHV appealed to the Court of Appeal for an order setting aside and discharging the entire judgment of the High Court. By order of the Court of Appeal the appeal was dismissed (Ryan P. and Finlay Geoghegan J., Hogan J. dissenting). Finlay Geoghegan J. delivered the majority judgement held that NHV did not have a right to work or earn a livelihood in this State which was protected by Article 40.3 of the Constitution and that there was no necessity therefore to assess the further question of whether s. 9(4) of the Refugee Act 1996 was repugnant to the Constitution. Hogan J. in his dissenting judgment concluded that s. 9(4) of the Refugee Act 1996, as amended, with “open-ended and indefinite exclusion of [NHV] from the labour market” was repugnant to the Constitution. Following the delivery of the judgments in the Court of Appeal the matter was adjourned to the 6th April, 2016 for the purpose of dealing with the issue of costs. On that date Finlay Geoghegan (Irvine J. and Hogan J. concurring) held that it was the unanimous view of the Court that there were exceptional circumstances which related in part to the delays identified in the case and in part to a point of public importance raised. It was held that these were the circumstances justifying the making of no order as to costs on the appeal. Accordingly the appeal was dismissed with no order as to costs.
Thus, it is the order in respect of costs that is sought to be appealed by the Minister.
3. The contentions of the parties
The notice of application for leave to appeal together with the responses is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purpose of this determination it is sufficient to summarise the basis upon which the Minister suggests that the constitutional threshold for leave to appeal has been met.
The Minister contends:
The respondent in their notice has stated that:
(1) That an award of costs to NHV in this case or even a refusal to award the Minister its costs means that the costs incurred by the Minister in successfully defending the entirety of the proceedings will have to be met from the public purse.
(2) Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs, the Court is not completely at large and;
(a) must consider whether or not the costs of successfully defending the proceedings will have to be met from the public purse;
(b) must consider whether or not NHV was seeking a private personal advantage in the proceedings and whether the issues raised are of special and general public importance;
(c) must do so on a reasoned basis indicating factors which are truly exceptional.
(3) Where a Court considers that it should exercise a discretion to depart from the normal rule as to costs on the basis of circumstances which are exceptional, the factual basis of those circumstances must have been adjudicated upon, if in dispute between the parties.
(4) It is also contended that the Court of Appeal erred in law and on the facts in failing to balance the specific factors identified with all other circumstances of the case when deciding whether there was sufficient reason to exercise a discretion to depart from the general rule that costs follow the event.
(5) It is further contended that the Court of Appeal erred in law and on the facts in failing to take into account that the costs of successfully defending the proceedings in their entirety will have to be met from the public purse.
This application for leave concerns the order made in respect of costs by the Court of Appeal in these proceedings. The Court considers that it is in the interests of justice that the Court hearing the appeal brought by NHV on the substantive issues between the parties should also be in a position to hear the arguments of the Minister in respect of the issue of the costs order made by the Court of Appeal, therefore the Court will allow an appeal. The precise question to be considered may need to be addressed at a case management hearing but at the moment it would appear that the issue to be determined in the cross appeal is as follows:
In refusing to make an order for costs following the event in favour of the Minister, did the Court of Appeal depart from well established principles of law as to the exercise of discretion in relation to costs?
Consequently, the Court does grant the application for leave to appeal under Article 34.5.3° in respect of the issues set out in this determination.
AND IT IS HEREBY SO ORDERED ACCORDINGLY