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Cite as: [2025] IEHC 328

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APPROVED

 

AN ARD-CHÚIRT

THE HIGH COURT

 

[2025] IEHC 328

Record No. 2024/1578 JR

BETWEEN:

DAMIEN DONNAN

APPLICANT

-AND-

 

THE PAROLE BOARD, THE IRISH PRISON SERVICE, THE GOVERNOR OF ARBOUR HILL PRISON, THE HSE NATIONAL OFFICE FOR MENTAL HEALTH, THE MINISTER FOR JUSTICE, THE MINISTER FOR HEALTH, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 4th day of June 2025

 


CONTENTS

INTRODUCTION.. 3

Preliminary. 3

Draft decision & decision of the Parole Board. 3

THE PROCEEDINGS. 6

CHRONOLOGY & CORRESPONDENCE.. 8

DISCUSSION & DECISION.. 12

PROPOSED ORDER.. 19

 

 

 

 

 

 

 

 

INTRODUCTION

 

Preliminary

1.      This is a costs application in relation to an application for leave to apply for judicial review which has been rendered moot.

 

2.      The application is contested: the Applicant seeks his costs; the First Named Respondent ("the Parole Board" or "the Board") submits that each party should bear their own costs. In the alternative (and without prejudice to this primary submission), the Parole Board submits that an appropriate reduction should be made in the event that I determine that the Applicant is entitled to his costs.

 

3.      In describing the background to this application, I am mindful that it is well-settled in assessing factors such as whether the matter has become moot because, for example, of a change in external circumstances, I should not embark upon a determination of the merits of the underlying case.

 

4.      Briefly put, therefore, this judicial review application concerned the Applicant's challenge to a decision by the Parole Board ("the Board") made on 19th September 2024 which treated as discretionary, the mandatory obligation in section 13 of the Parole Act 2019 ("the 2019 Act") to prepare a report once the Board had decided to direct a report when dealing with the Applicant's application for parole.

 

Draft decision & decision of the Parole Board

5.      The draft decision of the Parole Board in respect of Mr. Donnan's application was dated 23rd May 2024 and, in the "Decision" section, the following is stated:

 

"The Parole Board refuses parole on this occasion. The Parole Board will require a detailed, advance release plan, at the time of Damien Donnan's next application. This will be directed by the Parole Board pursuant to section 13 of the Parole Act 2019. In directing the preparation of such a report, the Parole Board is not pre-empting any future decisions to be made by the members of the Parole Board. Any such report prepared will aid the Parole Board in its deliberations.

 

On that basis, the Parole Board decided to refuse Damien Donnan's application on this occasion.

 

The Parole Board decided that Damien Donnan will be eligible for parole again in November 2025.

 

In line with section 30(2) of the Parole Act 2019, the Board made the following recommendation in relation to the management of Damien Donnan's sentence

 

-        The Parole Board recommend that a detailed release plan be drafted in advance of Damien Donnan's next application for parole, to help the Parole Board in its deliberations. This is not to pre-empt a future decision of Parole Board but to aid their discussions and deliberations.

 

The Parole Board, pursuant to section 14.1 of its procedures, decided to make a draft to allow Damien Donnan and his legal representative to make written observations on the draft prior to finalisation".

 

6.      The Applicant's solicitors, by letter dated 15th July 2024, made submissions in relation to the draft parole decision. This was further replied to by letter from the Chairperson of the Parole Board dated 18th October 2024.

 

7.      The relevant paragraphs of the draft decision dated 23rd May 2024 (referred to above) can be compared to the final decision which is dated 19th September 2024 and which states as follows:

 

"The Parole Board refuses parole on this occasion. The Parole Board will require a detailed, advance release plan, at the time of Damien Donnan's next application. This will be directed by the Parole Board pursuant to section 13 of the Parole Act 2019. In directing the preparation of such a report, the Parole Board is not pre-empting any future decisions to be made by the members of the Parole Board. Any such report prepared will aid the Parole Board in its deliberations.

 

On that basis, the Parole Board decided to refuse Damien Donnan's application on this occasion.

 

The Parole Board decided that Damien Donnan will be eligible for parole again in November 2025.

 

In line with section 30(2) of the Parole Act 2019, the Board made the following recommendation in relation to the management of Damien Donnan's sentence.

-        The Parole Board recommend that a detailed release plan be drafted in advance of Damien Donnan's next application for parole, to help the Parole Board in its deliberations. This is not to pre-empt a future decision of Parole Board but to aid their discussions and deliberations.

 

Any recommendations made by the Parole Board in this regard are non-binding in nature.

 

In line with section 30(2) of the Act, these recommendations are addressed to the Irish Prison Service are not binding."

 

8.      It is highlighted on behalf of the Applicant that the following sentence - "[a]ny recommendations made by the Parole Board in this regard are non-binding in nature"– was not contained in the initial draft decision of the Parole Board dated 23rd May 2024.

 

THE PROCEEDINGS

 

9.      In accordance with the amended procedure which prescribes applications for judicial review in S.I. No. 163/2024, the Applicant's judicial review papers were filed in the Central Office of the High Court on 18th December 2024 and a return date was given for 10th February 2025. For the purposes of the issue of 'time', as prescribed in O. 84 RSC 1986, the application for leave to apply for judicial review was therefore deemed to be 'made' on 18th December 2024.

 

10.  When senior counsel for the Applicant moved the ex parte application before the High Court (Gearty J.) on the return date of 10th February 2025, the gravamen of the Applicant's case was summarised to the court, namely that the decision of the Parole Board dated 19th September 2024 ought to be quashed because the Board had treated as discretionary, the mandatory obligation in section 13 of the 2019 Act to prepare a report once the Board had decided to direct a report when dealing with the Applicant's application for parole.

 

11.  In the circumstances, the court directed that the solicitors for the Applicant write to the Parole Board pointing out this apparent error and affording it the opportunity to address the matter.

 

12.  The application for leave to apply for judicial review was then adjourned to 10th March 2025 and, further, to 31st March 2025 to facilitate time for counsel for the Parole Board to clarify its position. The matter was further adjourned to allow counsel for the Parole Board to file written submissions in response to those furnished on behalf of the Applicant in relation to the question of costs.

 

 

 

CHRONOLOGY & CORRESPONDENCE

 

13.  Consequent upon the court's observations on the making of the ex parte application, the Applicant's solicitor (Philip Hannon Solicitors) wrote on the same date, by letter of 10th February 2025, to the Chairman of the Parole Board and stated as follows:

 

"I refer to the Board's decision of 19th September 2024 wherein your office recommended that a detailed release plan be drafted in advance of Mr. Donnan's next application.

 

It is our position that the Parole Board has erred in its exercise of the powers conferred on it by section 13 of the Parole Act 2019. Section 13 empowers the Parole Board, for the purpose of considering an application for parole, to direct that a report in writing relating to the relevant person be prepared by such person as it considers appropriate. The Parole Board has discretion whether to direct a report but once the direction is made, it is a mandatory obligation that the report is prepared. The nature of this provision is mandatory and by treating this provision as discretionary, the Parole Board has erred in the exercise of the powers vested in it by the Oireachtas by recommending the preparation rather than directing the preparation of the report. The Board in its decision of 19th September 2024 goes on to state that the recommendation was non-binding. That is wholly erroneous.

 

An Ex Parte Judicial Review was made before Ms. Justice Gearty today. The court was of the view that the Parole Board should be notified in writing of the error in the exercise of its powers prior to the Court determining the matter. The ex parte application has been adjourned to 10th March 2025. We attach the pleadings for your benefit, though we were not directed to do so and nor is the application on notice.

 

We await hearing from you and your replying correspondence will be put before the court on 10th March 2025.

 

It appears to us that the Board, as a statutory body, is functus officio and should consider consenting to certiorari".

 

14.  After sending the letter dated 10th February 2025, various emails were exchanged between the parties and ultimately this resulted in a letter dated 26th March 2025 from the solicitors on behalf of the Parole Board. This letter stated as follows:

 

"We refer to your client Mr. Donnan and the current proceedings before the High Court. As you are aware, Ms. Justice Gearty adjourned the leave application and invited the parties to engage to see whether the issues in this case could be resolved.

 

It appears to us that the central issue in the judicial review is a complaint that your client does not have certainty regarding whether or not a direction has issued under section 13 of the Parole Act 2019 ("the Act") in relation to his next application for parole.

 

As you may be aware, your client was notified that he was again eligible to apply for parole and was invited to apply for parole by letter dated 22nd November 2024. As matters stand no such application has been received.

 

In the event your client makes an application for parole we confirm our instructions that the Parole Board will, as soon as an application for parole is received, issue a direction pursuant to section 13 of the Act for a detailed advance release plan as was previously recommended in the decision impugned.

 

It appears to us that in the event that such an application is received and the foregoing direction issues, that this resolves any issue for your client in the judicial review. Please confirm by return whether it is your client's intention to make such an application for parole and so the direction can issue".

 

15.  On 27th March 2025, the Applicant's solicitors wrote to the Parole Board's solicitors in response to their letter of 26th March 2025. In this letter, dated 27th March 2025, the Applicant's solicitors, inter alia, stated:

 

"We confirm that Mr. Donnan intends to apply for parole, and we request that the direction under section 13 of the Parole Act 2019 for a detailed advance release plan should then issue as per your letter.

 

Please note that we shall apply to the High Court for our costs in this matter on 31st March 2025 and presume that you will have no objection to same".

 

16.  By letter dated 28th March 2025, the Parole Board's solicitors responded to the Applicant's letter dated 27th March 2025 and inter alia stated as follows:

 

"We note that you have confirmed that Mr. Donnan intends to apply for parole. The Parole Board have not yet received his application for parole. Can you please confirm it remains your client's intention to submit his application for parole.

We further note that on 31st March 2025 you intend to apply to the court for your costs in this matter. Please note that our client is not consenting to an order for costs and will object to same".

 

17.  By letter dated 4th April 2025, the Applicant's solicitors wrote to the Parole Board enclosing Mr. Donnan's letter of confirmation, which confirmed that he wished to apply for parole.

 

18.  By letter dated 4th April 2025, the Operations Section of the Parole Board wrote to the Applicant's solicitors acknowledging receipt of their letter of 4th April 2025 received by them on the same date. The letter, inter alia, stated as follows:

 

"Please note that we sent Mr. Donnan an invite to apply for parole with regards to his 2nd application on 22nd November 2024 and again on 23rd January 2025. This invite was received by Mr. Donnan and a proof of receipt was signed by Mr. Donnan. Unfortunately we did not receive a complete form from him.

 

We will again send the forms and request them to be completed. I will also attach them with this email in case you wish to visit Mr. Donnan yourself to help him to sign them.

 

We will advise you when we receive the completed forms."

 

DISCUSSION & DECISION

 

  1. The law in relation to the costs of proceedings which have been rendered moot is well-settled: Cunningham v The President of the Circuit Court [2012] 3 IR 222, Godsil v Ireland [2015] 4 IR 535, MATA v Minister for Justice [2016] IESC 45, MKIA (Palestine) and C.Z. v The International Protection Appeals Tribunal, The Minister for Justice and Equality Ireland and the Attorney General [2018] IEHC 134, P.T. v Wicklow County Council [2019] IECA 346, and Hughes v The Revenue Commissioners and the Minister for Public Expenditure and Reform [2021] IECA 5.

 

  1. In Hughes v The Revenue Commissioners and the Minister for Public Expenditure and Reform [2021] IECA 5, Murray J., giving the judgment of the Court of Appeal (Costello J. (as she then was), Murray and Pilkington JJ.) reviewed the leading authorities and re-stated the law as follows:

 

"(31) First, where the mootness arises as a result of an event that is entirely independent of the actions of the parties to the proceedings, the fairest outcome will generally be that the parties should bear the costs themselves. Neither is responsible for the mootness, and neither should have to pay for costs rendered unnecessary by an event for which they bear no responsibility.

 

(32) Second, however, where the mootness arises because of the actions of one of the parties alone and where those actions (a) can be said to follow from the fact of the proceedings so that but for the proceedings they would not have been undertaken, or (b) are properly characterised as 'unilateral' or - perhaps - (c) are such that they could reasonably have been taken before the proceedings, or before all of the costs ultimately incurred in the proceedings were suffered, the costs should often be borne by the party whose actions have resulted in the case becoming moot. In the first of these situations, it can be fairly said that there was an event which costs can and should follow in accordance with conventional principle. In the second, it will frequently be proper that the party who is responsible for the unilateral action which results in the mootness should bear the costs. In the third, it might be said that where a party who could reasonably have acted so as to prevent the other party from incurring costs failed to do so, it is proper that they should have to discharge those costs.

 

(33) The third general proposition addresses the particular position of statutory bodies. Agencies with obligations in public law cannot be expected to suspend the discharge of their statutory functions simply because there are extant legal proceedings relating to the prior-16-exercise of their powers. They must be free to continue to exercise those powers in accordance with their legal obligations. At the same time, it would be wrong if under the guise of exercising their powers in the normal way, the statutory authority both effectively conceded an extant claim, and avoided the legal costs that would otherwise attend such a concession. The cases strike a balance between these two considerations by suggesting that where the mootness arises because a statutory body makes a new decision in the exercise of its legal powers, the court should look at the circumstances giving rise to that new decision in order to decide whether it constitutes a 'unilateral act' for these purposes. If the new decision is caused by a change in the relevant circumstances occurring between the time of the first decision, and of the second, the Court might not treat the new decision as a 'unilateral act' and may accordingly make no order as to costs. If, however, there has been no such change in circumstances so that the body has simply changed its mind, costs may be awarded against it. If the respondent wishes to contend that there has been a change in circumstances it is a matter for it to place before the court sufficient evidence to allow the Court to assess whether and if so to what extent it can fairly be said that this is so. This requires the respondent to establish that there was a change in the underlying circumstances sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a change in external circumstances. In conducting this analysis, the Court should not embark upon a determination of the merits of the underlying case."

 

21.  Later, at paragraphs 39 and 40 of the Court's judgment, Murray J. observed that:

 

"(39) In seeking first to resolve these issues on the basis of Cunningham, the approach suggested by that case requires the Court to answer four questions:

(i) What was the specific event that resulted in the action becoming moot?

(ii) Was that event the result of an occurrence outside the control of either party?

(iii) Was that event caused by the unilateral actions of one of the parties?

(iv) If the answer to (iii) is in the affirmative, has the person responsible for the mootness established that their actions were not undertaken in response to the proceedings?

(40) Subject to the general intervention of the Court's discretion to which I have referred earlier, if the answer to (ii) is in the affirmative, the default position is that no order for costs should be made. If the answer to (iii) is in the affirmative and to (iv) is in the negative, the default position is that costs should be awarded against the party whose action caused the mootness. But all of this depends on characterising the event that gives rise to the action becoming moot in the first place."

 

22.  Section 13(2) of the 2019 Act inter alia provides that for the purposes of considering an application for parole, the variation of a condition attaching to, or the date of release specified in, a parole order, or the revocation of a parole order, the Parole Board has the power to direct that a report in writing in respect of the relevant person be prepared and furnished to it. Section 13(4) of the 2019 Act inter alia provides that where the Board directs the preparation of such a report, the person or body referred to in the direction shall, insofar as is possible, prepare such a report and furnish it to the Board as soon as practicable.

 

23.  Both counsel for the Applicant and for the Parole Board agree that these provisions provide a mandatory obligation to prepare a report once so directed.

 

24.  Section 30 provides for the refusal of an application for parole and section 30(2) of the 2019 Act states that "[w]here the Board refuses an application for parole, the Board may, where it considers it appropriate, specify in its decision so refusing measures in respect of the management of the sentence of the person to whom the decision relates which the Board is of the opinion would assist the person in making a future successful application for parole under this Act."

 

25.  Both counsel for the Applicant and for the Parole Board agree that these provisions are discretionary in nature.

 

26.  At the ex parte hearing on 10th February 2025 before the High Court, the error of the Parole Board –  in the decision of 19th September 2024 - in treating as discretionary the mandatory obligation to prepare a report once it had decided to direct a report, was outlined to the court which directed that the Applicant write to the Parole Board pointing this out and the ex parte application was adjourned. The Applicant's solicitor did so on the same date and inter alia stated that "[i]t appears to us that the Board, as a statutory body, is functus officio and should consider consenting to certiorari."

 

27.  In its responding letter dated 26th March 2025, the solicitors on behalf of the Parole Board stated that "[i]n the event your client makes an application for parole we confirm our instructions that the Parole Board will, as soon as an application for parole is received, issue a direction pursuant to section 13 of the Act for a detailed advance release plan as was previously recommended in the decision impugned. It appears to us that in the event that such an application is received and the foregoing direction issues, that this resolves any issue for your client in the judicial review. Please confirm by return whether it is your client's intention to make such an application for parole and so the direction can issue". The Applicant's solicitors responded by letter dated 27th March 2025 and inter alia confirmed "that Mr. Donnan intends to apply for parole, and we request that the direction under section 13 of the Parole Act 2019 for a detailed advance release plan should then issue as per your letter" and added that the Applicant would "apply to the High Court for our costs in this matter on 31st March 2025 and presume that you will have no objection to same".

 

28.  I am satisfied that the confirmation of the Parole Board's approach in the letter dated 26th March 2025 amounted in effect to an acceptance that once a direction issued under section 13 of the 2019 Act, the preparation of the report, i.e., the detailed release plan, was a mandatory consequence.

 

29.  The point is made by Mr. Shortall SC that whilst the Applicant would have been entitled to pursue the remedy of certiorari, he ultimately adopted a practical approach and confined his application, thereafter, to the issue of costs. The communication and confirmation of the Parole Board's approach in the correspondence of 26th March 2025, whilst also commendably pragmatic, constituted the event which rendered the action becoming moot.

 

30.  In so confirming, this was not the result of an occurrence outside the control of the Parole Board but was, rather, the result of the Parole Board's unilateral action in a direct response to the Applicant's judicial review proceedings which had: (i) been issued i.e., made (ii) opened to the court in an ex parte application, and (iii) adjourned to allow the Board to resolve matters (which it did in the terms of the letter dated 26th March 2025 and which terms were accepted on behalf of the Applicant by the letter dated 27th March 2025).

 

31.  In the circumstances, therefore, the default position is that costs should be awarded against the party whose action caused the mootness, and in this case, that is the Parole Board.

 

32.  Accordingly, the Applicant is entitled to the costs of this application for leave to apply for judicial review, including reserved costs (if any), and also the costs of the application for costs. Further, I do not consider that it is appropriate that I reduce those costs; the measurement of the costs is a matter for agreement between the parties and in default of agreement for ruling by the Office of the Legal Costs Adjudicator.

 

PROPOSED ORDER

 

33.  I shall make an Order awarding the Applicant the costs of this application for leave to apply for  judicial review, including reserved costs (if any), and also the costs of the application for costs and all such costs are to be adjudicated upon in default of agreement by the Office of the Legal Costs Adjudicator. I shall also certify for senior counsel and junior counsel in the making of the leave application and for the preparation of Legal Submissions.

 

34.  In the event that the parties wish to address this proposed Order, or reach an agreement as to its variation, they are at liberty to mention the matter on a date which can be arranged through the Registrar.

 

 

Appearances

35.  Derek Shortall SC and John Temple BL appeared for the Applicant instructed by Philip Hannon Solicitors.

 

36.  Brian Gageby BL appeared for the First Named Respondent (the Parole Board) instructed by Fieldfisher Ireland LLP.

 

CONLETH BRADLEY

4th June 2025

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