Judgment Title: Ho -v- Minister for Justice & Ors
Neutral Citation: 2012 IEHC 231
High Court Record Number: 2009 423JR
Date of Delivery: 13/06/2012
Court: High Court
Composition of Court:
Judgment by: Hogan J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 231
THE HIGH COURT
[2009 No. 423 J.R.]
HO (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND, AAO)
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND REFUGEE APPLICATIONS COMMISSIONER (WASTED COSTS APPLICATION)
JUDGMENT of Mr. Justice Hogan delivered on the 13th June, 2012
1. This is an application brought by the respondents pursuant to 0. 99, r.7 for what has come to be known as a wasted costs order against the applicant's solicitors, Burns Kelly Corrigan, in respects of the costs incurred by the Chief State Solicitor's Office from the period from the date the case was set down for hearing in June, 2009 to the date of the scheduled hearing on 16th October, 2009, at which point the proceedings were withdrawn.
2. The applicant is now a seven year old Nigeria national who arrived in the State on 23rd December, 2008. She applied for asylum on 9th March, 2009. These judicial review proceedings were commenced on 22nd April, 2009, when the applicant asylum seeker challenged a decision of the Office of the Refugee Applications Commissioner to the effect that she had not established a well grounded fear of persecution. The applicant maintained - though her mother and next friend - that she was entitled to asylum by reason of the threat of female genital mutilation in Nigeria.
3. So far as the judicial review was concerned, her contention, in essence, was that the Commissioner had breached fair procedures by arriving at conclusions regarding the availability of State protection in Nigeria by reference to material which had not been disclosed to the applicant's mother. This application in turn presented the vexed question of whether a litigant in the position of the applicant was obliged to appeal to the Refugee Appeal Tribunal or whether, alternatively, there were circumstances in which the applicant could directly challenge the decision of the Commissioner in judicial review proceedings.
4. On 9th October, 2008, Hedigan J. gave judgment in BNN v. Refugee Applications Commissioner  IEHC 308,  1 I.R. 719. In that judgment Hedigan J. held that, absent exceptional circumstances, such a decision was not amenable to judicial review and the appropriate response was to appeal to the Refugee Appeals Tribunal. In Kayode v. Refugee Appeal Tribunal the Supreme Court delivered an ex tempore judgment on 28th January, 2009, dealing with this issue. This judgment stressed that intervention by way of judicial review was exceptional, albeit (as we shall presently see) that the challenge in that case was really based on reasonableness and rationality.
5. This principle was followed by a series of subsequent decisions of this Court in cases such as A. v. Minister for Justice, Equality and Law Reform  IEHC 215, A. v. Minister for Justice, Equality and Law Reform  IEHC 219. In the light of these decisions the respondents indicated to this Court (Hon. Mr. Justice McGovern) on 15th June, 2009, that they would allow applicants who sought to challenge decisions of the Commissioner at first instance to strike out their cases with no orders as to costs. There was a further direction that those litigants who maintained that they were entitled to maintain their judicial review challenges in respect of the Minister's decision (the recent case-law notwithstanding) and who did not wish to take up the State's offer were directed to reply to the Chief State Solicitor's Office. At this point there were some 282 cases involving the Commissioner awaiting hearing in the court lists.
6. The applicant's solicitor's responded by letter dated the 8th July, 2009. In that letter the applicant's solicitors stated:-
10. The next development was that on the 9th October, 2009, the applicant's solicitors sought an adjournment of the case on the basis of considering an appeal to the Supreme Court by reference to certain (relatively similar) cases which had been heard in the recent past, most recently the decision of Cooke J. in U 0 v. Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner  IEHC 451. The respondents dispute the relevance of the decision in UO. and maintain – effectively - it was being used a pretext to abandon the present proceedings. This letter referred to the judgment which had been delivered by Cooke J. in UO. that very morning, and the letter writer continued:-
At this juncture we are unsure as to whether an application we have made and we wish to consult with Senior Counsel as soon as a copy of the judgment is available.
We believe that certain findings in relation to the application of the provisions of S.I. No. 518 of 2006 will have considerable ramifications in respect of the above cases and that it is unrealistic to proceed with hearing same until it has been decided whether to seek to appeal same and, if so, the result of any such appeal. It is in these circumstances that we would wish to adjourn these cases and we would be obliged if you would indicate whether you consent to such an application."
12. In the event, all decisions on the question of costs were ultimately adjourned by Clark J. pending the respondents' application under 0. 99, r.7 and the parties were agreed that it fell to me to make all relevant costs orders. There is no doubt at all but that there are no grounds which would justify the court's declining to make an order for costs in favour of the respondents. There remains the more difficult question of whether this is case which would justify the court exercising its exceptional jurisdiction pursuant to 0. 99, r. 7.
13. This provides in material part:-
The jurisdiction to make wasted costs order
17. Nor would it be in the public interest that the creativeness and inventiveness of the legal profession should be stifled or that much cherished independence thwarted by the threat of a wasted costs order. If that were so, then there would be a real danger that the wasted costs procedure - or even the threat of it - would become an instrument of oppression in the hands of the wealthy or the powerful or the vested interests who, for example, feared legal change being brought about by ground-breaking litigation.
18. This is especially true in the context of asylum law, since, as Cooke J. observed in OJ
20. Of course, as Article 35.2 of the Constitution makes clear, the independence of the judiciary is subject to the law, a concept which in this context includes established legal principle and binding precedent. But the judge must always be open to the possibility that the hitherto accepted conventional wisdom of the bar, bench and legal academy is wrong or, at least, that fundamental and timeless legal principles have been misapplied. Or, as Lord Macmillan put it in Donoghue v. Stevenson  A.C. 532, 619:-
22. It is clear from Kennedy that the jurisdiction to make the wasted costs order against the solicitor for the losing party is contingent on either the solicitor "being guilty of misconduct in the sense of a breach of his duty to the court" or "at least of gross negligence in relation to his duty to the court":  3 I.R. 561, 568. As Finnegan P. noted in Kennedy the fact that the solicitor in that case was acting on the advices of counsel was a major factor in the court's decision that he could not properly be adjudged to have been guilty of gross negligence.
23. In OJ the applicants were two young Nigerian teenagers who arrived in the State in July, 2007 to be re-united with their mother and sibling. As a result of what appears to have been a misunderstanding, an application was made to the Refugee Applications Commissioner for asylum on behalf of the two teenagers. It appears that they never sought asylum at all, but rather wished to be re-unified with their mother. For reasons which remain obscure, they nonetheless persisted in commencing judicial review against the Refugee Applications Commissioner contending that they were entitled to a declaration that they had made a valid application for family unification status before the Commissioner.
24. Cooke J. held that these proceedings were entirely misconceived and should never have been commenced. He continued:-
Whenever the Court has good reason to conclude that there has been a failure in the discharge of this latter duty such that proceedings have been unnecessarily commenced or wastefully continued, it should be made clear that recourse will be had to 0. 99, r. 7 in order to protect the integrity and effective operation of the asylum process in the interests of the proper administration of justice and of the interests of those genuinely in need of protection and whose determination is likely to be delayed by abuses of process in other cases."
Had the proceeding been withdrawn in the spring or early summer of 2008 before the respondents had been put to the expense of contesting the proceeding and preparing for a hearing, it would have been difficult to justify recourse to Order 99, rule 7. The gravamen of the present case, in the Court's judgment, lies in the fact that, in spite of the lapse of time between July, 2008 and October, 2009; of the deliberate examination of the basis of claims called for by the Court's direction to provide certificates in cases against the Commissioner; and the protests from the respondents as to the lack of purpose in the proceeding, no serious attention appears to have been given to the legal basis and practical utility of the proceeding at any stage. A decision was taken to proceed and a certificate to do so was given. A date for hearing was sought. It was only on 24th January, 2010 after that date had been fixed and the hearing was imminent, that the claim against the Tribunal was withdrawn and on the basis of a reason that could and should have been obvious from the outset.
In pressing the Court for the order sought under rule 7, and relying upon the approach to that rule expounded by Finnegan P. in Kennedy v. Killeen Corrugated Products Ltd., counsel for the respondents emphasised that it was not suggested that there had been "gross misconduct" on the part of the solicitor in the present case. He insisted, however, that costs had been necessarily incurred by the respondents without any reasonable cause and that the costs of appearing on various dates and then at the hearing were effectively wasted in circumstances where the legal representatives of the applicant had been afforded numerous opportunities to reconsider the proceeding and to withdraw it before such costs were incurred by the respondents.
The Court agrees that this ought not to be characterised as a case involving gross misconduct in the sense of professional misconduct as such. There has however been a clear default in the discharge of the duty owed by legal practitioners to the Court in commencing and continuing the proceeding. No minimal consideration appears to have been given to the legal objective sought to be achieved by the proceeding. No thought appears to have been given to whether the application could have any bearing or effect upon an application for family reunification when the applicants' mother was not a refugee. No acceptable explanation has been given as to why the proceeding was commenced and especially as to why it was pursued in the light of the applicants' patent lack of a claim to be asylum seekers and thus the irrelevance of the asylum process to their situation."
In the Court's judgment, there was no valid reason for incurring further costs in pursuing the application against the Board and no interest to be gained for the applicants; and by doing so, wasted costs were thereby incurred. Nevertheless, the Court is inclined to the benign view that this was a misjudgement rather than serious misconduct or gross negligence and it does not therefore meet the threshold indicated by Finnegan P. in the Kennedy case. As the learned President did in that case, the Court takes into account the likelihood that the misjudgement may have been attributable to the advice of counsel upon which the solicitor was acting.
Therefore, with some hesitation, the Court will not accede to the application made under 0. 99, r. 7, in this case and the normal order for costs will be made."
The basis of the present application
The decision in BNN
"[W]here Parliament has provided a self-contained administrative and quasi judicial scheme, postulating only a limited use of the Courts, certiorari should not issue when, as in the instant case, use of the statutory procedure for the correction of error was adequate (and, indeed, more suitable) to meet the complaints on which the application for certiorari is grounded."
The Courts must, of course, engage in the weighing of the relative merits of an appeal as opposed to judicial review, as is required under the test first established in McGoldrick v An Bord Pleanála  1 IR 497. The weighing of the relative merits -both in asylum cases and otherwise- is, in the words of O'Leary J. in Kayode v Refugee Applications Commissioner  IEHC 172, "a matter for the Court's discretion and will depend on the facts of the case." Guidance may be gleaned, however, from the significant number of asylum cases in recent years in which the Court has refused to grant certiorari (or leave) on the basis that the matters raised were of the type that might be raised in the course of an appeal, relating - by and large - to the quality of the decision rather than the defective application of legal principles..... .
By way of example, I would note that a clear and compelling case that an injustice at ORAC is incapable of being remedied on appeal to the RAT might be demonstrated where the ORAC officer's findings include one or more of the findings specified in section 13(6) of the Refugee Act 1996 (as inserted by section 7(h) of the Immigration Act 2003). These findings include, inter alia, that the applicant failed to show a minimal basis for the contention that he or she is a refugee; made false, contradictory, misleading or incomplete statements leading to the conclusion that the application is manifestly unfounded; or failed to make an application as soon as reasonably practicable after arrival in the State, without reasonable cause. Any appeal against an ORAC report that includes such findings must be determined without an oral hearing, in accordance with s. 13(5) of the Act of 1996. As noted by Clarke J. in Moyosola v Refugee Applications Commissioner  IEHC 218, "[t]he combined effect of sections 13(5) and 13(6) is to impose significant limitations on the extent of the appeal that will be available to an applicant to the RAT." For that reason, an injustice complained of may be incapable of being remedied on appeal and this may constitute one of the rare and limited circumstances where the applicant may be entitled to judicial review of an ORAC decision.
The procedure established by the Oireachtas envisages in the first place an application to ORAC. It is the role of that body to conduct an administrative investigation to determine if the State should extend its assistance and protection to a person in flight from danger. It is imperative in the interest primarily of such persons that the State provides a decision in as expeditious a manner as is possible, consistent with a fair and thorough investigation. If ORAC makes a positive recommendation, then the matter is concluded. If ORAC makes a negative recommendation, then the system put in place by the Oireachtas provides for an appeal to the RAT. In situations where s. 13(5) and s.13(6) of the Act of 1996 do not apply, this stage of the process provides a dissatisfied applicant with a more elaborate procedure involving legal representation and the right to an oral hearing.
The Court is of the view that the existence of a statutory right of appeal to the RAT - with the exception of cases where ss.13(5) and 13(6) of the Act of 1996 apply - is a fundamental reason not to grant judicial review. This Court should not intervene until the statutory asylum process has been completed. To do otherwise would be to usurp the authority that has been granted to the RAT by the Oireachtas. The Oireachtas has put in place a process that aims to ensure that asylum applications are decided upon with all due expedition. The purpose of this process will necessarily be defeated if each and every applicant can issue judicial review proceedings before the process has been exhausted. Judicial review proceedings can take a year or longer to come on for hearing. This has the effect that applicants are deprived of a definitive and expeditious decision, and are thereby left in a legal limbo, unable to progress their lives. This is an undesirable state of affairs, which does justice to no-one."
In this case, the core issue is the jurisdiction of the respondent to make the decision, thus the right of an alternative remedy is not so weighty a factor as to exclude the applicant from the court. In all the circumstances, in the context of common sense, the more just remedy is that of judicial review. To obtain a determination on the issue, which is a question of law going to the jurisdiction of the respondent, the just result is to proceed by way of judicial review."
34. Quite, apart, therefore from the special and specific case of where the Commission has invoked the provisions of s. 13(5) and s.13(6) of the Refugee Act 1996 - and which was acknowledged as such by both Clarke J. in Moyosola and by Hedigan J. in BNN - so that the applicant has no entitlement to an oral hearing, there may be particular cases where the Commission has breached fair procedures or otherwise erred in law which would justify recourse by way of judicial review, even though the remedy of appeal to the Refugee Appeal Tribunal is also available. This, indeed, is illustrated by a decision of Clark J. delivered on 29th July 2009 - and which was thus contemporary to the matters at issue so far as the present application is concerned - in M v. Refugee Applications Commissioner  IEHC 352. Here the Commissioner had found that the applicant was not in need of international protection because he was entitled to avail of Mozambiquean citizenship through the paternal line. Clark J. found that there had been a breach of fair procedures in that the matter had scarcely been raised with the applicant during the course of two interviews and even though the decision maker had not properly investigated the citizenship issue. Clark J. further held that an appeal was an inadequate remedy, since the Tribunal would not have had the benefit of an oral hearing whereby any of the discrepancies in the Commissioner's s. 13 report could have been properly explored. In these circumstances, Clark J. granted certiorari to quash the Commissioner's decision.
35. It is true that cases such as M are exceptional and rare, but as further exemplified by the Supreme Court's decisions in Stefan and Tomlinson, they do exist.
The Supreme Court decision in Kayode
38. The very fact, however, that the issue falls to be determined by discretionary principles rather than by reference to some ex ante jurisdictional barrier tells heavily against the successful litigant who also wishes to invoke the exceptional 0. 99, r.7 jurisdiction on the ground that the litigation was pointless and destined to fail. In the present case, the applicant had a tenable argument that the case fell within one of the discretionary grounds justifying intervention by way of judicial review in respect of a first instance administrative decision. Given the high hurdle which such an applicant would in all likelihood face, the prospects of success were admittedly not great, but when viewed by reference to what Denham J. expressly said in Tomlinson and impliedly so observed in 0'Donnell, it cannot be said that the prospects were hopeless to the point where the further continuation of the litigation was plainly wasteful and vexatious.
39. Naturally, the fact that the proceedings were abruptly withdrawn on the morning of the hearing might, perhaps, be thought to suggest otherwise. This decision was, however, almost certainly taken in view of the judicial comments to the effect that the case was not particularly strong and in circumstances where discretion seemed the better part of valour. But it cannot be said that the case was untenable and certainly not in the sense of being wasteful and vexatious.
40. In any event, the decision in UO did at least have some relevance to this issue, not least having regard to the argument regarding the Subsidiary Protection Regulations advanced by Messrs. Bums Kelly Corrigan in their letter of July 10th. Here the contention was that the European Communities (Eligibility for Protection) Regulations 2006 imposed a particular obligation on the authorised officer at first instance, such that a breach of that obligation was incapable of being remedied on appeal. Cooke J. addressed this argument by saying that mere error on the part of the officer did not render it so "fundamentally unlawful for want of compliance with the Regulations as to require it to be quashed because it is incapable of being remedied on appeal".
41. Nor can I agree at all with the suggestion made by the respondents in their replies to notices for particulars that the letter from Burns Kelly Corrigan of 10th July, 2009 did not identify how this case had "survived the principles" established in BNN and Kayode or that the applicants had thereby "failed to deal meaningfully with any issue outstanding." The letter-writer referred to those decisions and stressed (correctly) that there was no finding "that any of the decisions were reached in breach of fair procedures or natural justice or in breach of any other requirement of the law". The letter writer went on to say (again, correctly) that any comments of this Court in those to the effect that had there been a breach of fair procedures (and the letter writer did not concede that there had been any) "would be necessarily obiter given the findings that there were no such breaches." The letter writer then went to say that the contentions advanced in the present case did relate, inter alia, to breaches of fair procedures such that, if accepted, the applicant's claim "would effectively be heard only for the first time" and the letter concluded with the argument that this case accordingly fell into the category of exceptional cases "where the discretion of the Court might be exercised in favour of judicial review".
42. One does not have to agree with every word of the letter writer's contentions to accept that this was a perfectly tenable response to the respondents' letter of 15th June. The letter writer skilfully analysed the recent case-law and provided a sophisticated response in order to demonstrate why cases such as BNN and Kayode were not dispositive of the applicant's case. I cannot, with great respect, accept that this letter was not a meaningful response or that it somehow flouted this Court's directions and there is, frankly, no basis for suggesting otherwise.
43. It is true that the applicant's written submissions filed on 14th September, 2009 (of which complaint is also made) do not refer to BNN or Kayode or the other recent decisions of the High Court dealing with the alternative remedy issue. They do, however, refer to well established Supreme Court case-law such as Stefan and Buckley v. Kirby  IESC 18,  3 I.R. 431. They might also with advantage have referred to other more recent Supreme Court authority such as Tomlinson, 0'Donnell and Clark J.'s decision in M. (assuming that the latter decision had been available). But the fact that the submissions did not refer either to adverse - but possibly distinguishable - authority from this Court on the question or other - somewhat more favourable - Supreme Court authority on point is, at best, a reflection on the quality of the submissions. It could not seriously be suggested, however, that the fact the written submissions can be critiqued on this basis could in itself form the basis of an application based on 0. 99, r. 7.
44. It follows, accordingly, that there is simply no appropriate basis on which a wasted costs order could possibly be made against the applicant's solicitors. While I will naturally award the respondents the costs of the proceedings against the applicant, I will refuse to make the wasted costs order sought pursuant to 0. 99, r.7 against the applicant's solicitors for the reasons just stated.