THE HIGH COURT
JUDICIAL REVIEW
Record No. 2024/292 JR
[2025] IEHC 335
BETWEEN
M. S.
APPLICANT
AND
THE MINISTER FOR JUSTICE
RESPONDENT
RULING of Ms. Justice Siobhán Phelan, delivered on the 4th of June, 2025.
INTRODUCTION
1. These proceedings arose from delays in the determination of the Applicant's application for a certificate of naturalisation. In the ex parte docket filed in the Central Office in February, 2024, the primary relief sought was an Order of Mandamus directing the Respondent (hereinafter "the Minister") to make a decision on the application for a certificate of naturalisation made by the Applicant under the Irish Nationality and Citizenship Act, 1956 (as amended) (hereinafter "the 1956 Act") which had been pending since an unspecified date in 2021. The Applicant also sought declaratory relief in respect of the failure to render a decision within a reasonable time.
2. It is common case that the proceedings were rendered moot prior to the hearing of the leave application by the issue of a positive decision to grant a certificate of naturalisation but the parties have been unable to agree costs.
3. This matter comes before me by way of discovery application. Discovery is sought in circumstances where the Applicant wishes to persuade the Court on a costs application that she is entitled to her costs because the issue of proceedings was instrumental in causing a decision to be made in this case. The difficulty the Applicant is presented with in making this argument is that Affidavit evidence has been provided on behalf of the Minister, at the Applicant's request, which confirms that the application was processed in the ordinary way and that the timing of the decision was entirely unrelated to the fact that papers in support of a leave application had been filed in the Central Office of the High Court.
4. On an application of well-established principles guiding the exercise of the court's discretion with regard to costs in mootness cases as recently summarised in Hughes v. Revenue Commissioners [2021] IECA 5, where the evidence establishes that the application was processed in the ordinary way in discharge of public law duties and the timing of the decision rendering the decision moot was unrelated to the proceedings, this means that mootness may not be considered a unilateral act of the decision maker, thereby avoiding cost penalties. In such circumstances the weight of the jurisprudence favours a position whereby each party should bear their own costs (see also Cunningham v. President of the Circuit Court [2012] IESC 39, [2012] 3 IR 222; Godsil v. Ireland [2015] IESC 103, [2015] 4 IR 535; MKIA (Palestine) v. IPAT [2018] IEHC 134; Muzaffar & Ors. v. Minister for Justice [2025] IEHC 753).
5. The question for me on this application is whether the Applicant is entitled to discovery for the purpose of establishing a causal link between the existence of proceedings and the delivery of a decision on her naturalisation application and thereby demonstrate an entitlement to a costs order in her favour.
BACKGROUND
6. The Applicant is a national of Afghanistan who arrived in the State in October, 2018 and was granted refugee status in July, 2020. In November, 2021, she applied for a certificate of naturalisation. Her application was supported by a statutory fee.
7. She subsequently received correspondence advising her that her application fee had been allowed to expire without being processed. It is indicated in these proceedings that this occurred because of a backlog in the system due to the impact of Covid-19 on processing times. It appears that fresh payment was sought and the Applicant sent the fee a second time. Receipt was acknowledged by letter dated the 8th of August, 2022. She was then advised that it took approximately 23 months for a straightforward application to be processed from the date it is received to the date a decision is made, although it was also pointed out that there will always be a proportion of cases that take longer than the norm to process because sometimes completing the necessary checks can take a considerable period. It is unclear whether the 23 months was intended to run from the date the application was submitted or the date it was acknowledged, in this case a matter of some eight months.
8. She consulted solicitors in respect of delays in the processing of her application. Two letters were written on her behalf on the 27th of October, 2023, some 23 months after the application had been first lodged. The first stated that she had not received a decision and/or an indicative timeframe as to when she might expect a response from the Minister. Accordingly, the letter requested an update regarding the progress of the application. The second was a pre-litigation letter requesting a decision within 10 days. It was indicated in this letter that judicial review proceedings would follow without further notice if a decision were not made. The letter asserted that the Respondent would be liable for the costs of any such proceedings.
9. By way of initial response, the Minister sought a form of authority by letter dated the 1st of November, 2023. This was provided by return.
10. By further letter dated the 7th of November, 2023, the Minister referred to the delay in processing the application and confirmed that the Citizenship Division had engaged in a concentrated effort to process and complete all cases that remain outstanding for a considerable period. It was confirmed that the application was being prepared for submission to the Minister and that the Minister had requested an up-to-date Garda report. It was indicated that a link for a new E-Vetting Digital Process would issue in the following days. It was further confirmed that once the link had been accessed by the applicant and the requested information submitted, then assuming no concerns arising from these final checks, a decision would issue within an estimated time frame of circa 12 weeks for a decision, assuming that there were no concerns arising from the final checks.
11. It appears that the Applicant provided the information required for the up-to-date e-vetting on the 12th of November, 2023 and this kickstarted the 12 week period which would then have expired on the 4th of February, 2024.
12. By way of further letter dated the 19th of December, 2023, the Minister wrote to the Applicant noting that the Applicant had yet to confirm her address, despite an email requesting same several days earlier. The Applicant's solicitor responded to this request with her address.
13. Without any further correspondence papers in respect of an application for leave to proceed by way of judicial review were filed in the Central Office on the 27th day of February, 2024. Notably, it was not confirmed on affidavit filed in support of the application that the Applicant had completed the updated digital e-vetting even though it would normally be necessary in moving a mandamus application to demonstrate that the Applicant had not done impeded the timely making of a decision.
14. As it subsequently transpired, from FOI material recently obtained, Garda vetting was complete by the 12th of December, 2023. It is averred on behalf of the Minister that further unspecified background checks were carried out and these were completed on the 27th of February, 2024, the same day that proceedings were filed. This was 23 days after the indicative 12 week time-frame notified in November, 2023 had expired. No documentary evidence has been exhibited to vouch the completion of background checks on that date, but this fact is evidence by the averment of departmental officials on affidavit. It appears that an undated background check of some kind has resulted in a two page document on the Applicant's file, which has not been released through the FOI/SAR process on grounds of national security.
15. Filed papers in respect of an intended application for leave to proceed by way of judicial review were served on the Minister on the 28th of February, 2024 giving notice that the Applicant intended to move the application for leave to seek an order of mandamus as soon as a date for same was available from the Central Office of the High Court. In the letter serving the proceedings it was stated:
"As you are on notice of this matter, it is Applicant's position to be entitled to their costs".
16. It is apparent from the pleadings that papers were drafted and filed without the benefit of the full file. Indeed, it is confirmed on affidavit that the Applicant had not retained a copy of her application form and supporting documentation. This would normally be necessary to substantiate that the application had been properly presented and to establish the date upon which the application was complete and would typically be exhibited to ground an application for mandamus in similar applications. In an affidavit sworn by the Applicant to ground her proceedings it was stated:
"The Applicant did not retain her file and the proceedings were drafted without the benefit of the full file. However, the Applicant instructed her solicitor to carry out a combined Freedom of Information and Subject Access Request".
17. The third person language used in an affidavit sworn by the Applicant herself is noteworthy. It is also noteworthy that she does not say when she instructed that the request be made nor confirm whether in fact it was made at any time before moving by way of judicial review. The correspondence requesting release of documentation is not exhibited.
18. In March, 2024, a positive decision was made on the application. This was several weeks later than the 12 weeks notified in correspondence in November, 2023, more than 23 months from the making of the application and less than 23 months from acknowledgement of its receipt in August, 2022.
19. On the 22nd of March, 2024, this positive decision was notified to the Applicant. This was six weeks later than the anticipated time-frame advised in November, 2023 had expired.
20. On the 9th of April, 2024, the Chief State Solicitors wrote to the Applicant's solicitors setting out that the decision issued on the 22nd of March, 2024 rendered the proceedings moot and that this decision was issued in the ordinary course, unrelated to these proceedings. It was noted in the letter that the matter was pre-leave, the Minister was not formally on notice, exhibits had not been served and no date had been set for the leave application. The letter proposed that both sides go back-to-back on costs citing Cunningham v. President of the Circuit Court and Godsil v. Ireland. In reliance on these cases, it was contended that the circumstances in which an Applicant can seek his or her costs of a moot case are limited to where the decision or action that renders the proceedings moot can "only reasonably be understood" as a "direct response to the proceedings issued" and as conceding the central point of the case made.
21. On the 25th of April, 2024, the Applicant's solicitor replied confirming that the Applicant would be willing to go back to back on costs provided that the Minister set out "ample evidence" on affidavit regarding the circumstances in which the decision issued which rendered the judicial review proceedings moot. The Applicant's position was that if a decision was the result of litigation, then the Applicant ought to be entitled to her costs to include reserved costs to be adjudicated in default of agreement.
22. On the 13th of May, 2024, the ex parte application for leave came before High Court (Hyland J.) for hearing. It appears that on that occasion counsel for the Applicant indicated that the matter was substantively moot and the case was then listed in the Registrar's list on the 1st of July, 2024 to deal with the question of costs, without leave being granted.
23. In a replying affidavit sworn in September, 2024, it was explained that the processing of the Applicant's application had been impacted by a Covid 19 backlog. It was described how this had resulted in a failure to process her fee in time resulting in a requirement for a fresh payment which was the subject of correspondence in August, 2022. Reference was made to the fact that it had been explained in that letter that it takes approximately 23 months for a straightforward application to be processed from the date it is received.
24. It was confirmed on affidavit on behalf of the Minister that the application took longer to determine than had been estimated in November, 2023. It was stated that the Department of Justice has in place an orderly and rational system for processing citizenship applications and the Applicant took her place in a "queue" of applications and was processed when her turn in the queue came about. It was stated that the application was assessed and determined in the normal course of processing citizenship applications. It was averred by an Assistant Principal Officer in the Citizenship Division that no attempt was made at any stage to interfere with the progression of the application through the ordinary processing system or to influence the decision-making process. It was stated:
"As a matter of common sense, once the application was lodged it was inevitable that it would eventually be reached in the queue system and that a decision would issue at some stage - and that is exactly what happened here".
25. It was further stated:
"it should be noted that the Citizenship Division of the Department cannot allow High Court proceedings to influence the way it conducts its business because the application system would descend into chaos with the queue system breaking down if applications were allowed to effectively skip the queue and become expedited simply because proceedings has been issued."
26. In a letter dated the 17th of December, 2024, correspondence was issued to the Applicant on behalf of the Minister with a view to progressing the costs issue in this case. It was pointed out that in earlier correspondence they had called upon the Applicant to agree to strike out the proceedings with no order as to costs but were still awaiting a response to this request. It was stated:
"at this stage the matter has been adjourned on a number of occasions and we are anxious to progress the case and finalise Orders. In the event that we do not hear back from you by the 14th of January next confirming that the proceedings can be struck out on consent with no order as to costs we will have no option but to seek a costs hearing."
27. By letter dated the 5th of February, 2025, it seems for the first time, a FOI and/or SAR was made pursuant to the General Data Protection Regulations (GDPR)(EU) 2016/679. This letter does not appear to have been exhibited on behalf of the Applicant but the response dated the 27th of March, 2025, was handed up to me and made reference on its face to the request under FOI on the 5th of February, 2025, and GDPR (for the same material) on the 13th of March, 2025.
28. In a separate letter, also dated the 5th of February, 2025, the Applicant's solicitor write to the Chief State Solicitor's office with reference to the Affidavit which had been filed on behalf of the Minister in respect of the processing of the decision and the fact that the decision had not been prompted by the existence of proceedings. It was pointed out, referring to Faherty J. in Mahmood v. Minister for Justice and Equality [2016] IEHC 600, that arguments such as increased workload, lack of resources or a requirement to conduct thorough security checks have been deemed insufficient justification for delay. The contention made on affidavit that the application had been processed in accordance with the "ordinary internal procedure" was questioned in the light of the fact that the application fee had been erroneously allowed to expire. Reference was made to the fact that while the application was said to be processed in the normal way, the application fee had been allowed to expire and the application was not acknowledged until the 8th of August, 2022, having been submitted in November, 2021. It was suggested that it was contradictory to maintain on the one hand that normal processes were followed while on the other hand admitting that the postal order accompanying the application had been allowed to lapse. Clarification was sought in relation to the background checks carried out, specifically the dates of same and the Minister was asked to confirm if any external agencies had been involved in this case.
29. It was pointed out in this correspondence on behalf of the Applicant that the Minister only requested up to date vetting on the 7th of November, 2023 which, it was suggested, was a direct response to the warning letter of the 27th of October, 2023. It was pointed out that the Affidavit filed on behalf of the Minister did not specify what the process followed entailed and no documents were exhibited to describe the process.
30. Documentation was sought whether by voluntary discovery or any other appropriate means in relation to the process with reference to the statement that the decision had issued in "the ordinary course". It was suggested that if any arguments were made against disclosure on the basis that it may jeopardise the Department's relationship with outside or external agencies, then consideration be given to allowing the sitting judge in the Asylum List to inspect the said documents and determine their relevance and whether they may be disclosed.
31. Finally, the letter stated:
"we reserve the right to apply for leave to cross-examine your deponent as may be necessary."
32. In a reply dated the 24th of February, 2025, the Minister stated that the information sought amounted to a "fishing expedition". The Minister stated that it was neither necessary nor appropriate to reply to the queries raised. Public interest privilege was claimed over the internal processes followed by the Minister and the information sought in this regard.
33. By further letter dated the 26th of February, 2025, the Applicant's solicitor asked if the State would be willing for the documents requested in correspondence to be made available before the sitting judge of the Asylum List.
34. By way of FOI decision dated the 4th of March, 2025, the Minister made a decision providing a schedule of documents being disclosed and refused. Only one document, identified as "Background Checks" was withheld. This appears to be a two-page document and is to be contrasted with another document similarly described as "Background checks" which was released. Disclosure of the withheld document was refused in reliance on s. 33(1)(a) of the FOI Act which permits refusal of a record which could reasonably be expected to affect adversely the security of the State. There is no evidence before me of an appeal against this decision.
35. In a further letter dated the 10th of March, 2025, the Chief State Solicitor wrote on behalf of the Minister with further reference to the letter of the 26th of February, 2025, requesting inspection of documents by the Judge in the Asylum List. It was indicated that if this request was being pursued that it should be done by formal application, which application would be resisted.
36. By way of letter dated the 13th of March, 2025, the Applicant's solicitors wrote to the Minister noting that the FOI decision:
"does not provide any, or any adequate, reasons as to how the security of the State would be jeopardised by the disclosure of this information. It is difficult to see how simply providing the dates on which background checks were carried out could pose such a risk. At the very least, the relevant dates could be disclosed with appropriate redactions".
37. As noted above, a subject access request was made on the 13th of March, 2025, for the same documentation already requested under FOI.
38. By further letter dated the 14th of March, 2025, the Applicant's solicitor wrote to the Minister requesting that an affidavit be sworn listing the documents over which public interest privilege was being asserted, seeking confirmation that the documentation would be made available to the asylum list judge and advising that if necessary a formal application would be pursued. It was pointed out that the Garda Vetting Disclosure record which had been released confirmed that the Applicant had no criminal record and stated that checks were conducted on the 4th of December, 2023 and received by the Minister on the 12th of December, 2023. It was pointed out that it was unclear why the remaining background check documents had not been disclosed.
39. On the 14th of March, 2025, the Court directed that if discovery was being pursued, then application should be made in the normal way on foot of a voluntary discovery letter.
40. By letter dated the 18th of March, 2024, the Applicant's solicitor dispatched a voluntary discovery letter in the following terms:
"Category A
All documentation relating to background checks in respect of the applicant particularly document No. 5 (background checks), which was noted in the schedule of documents in the decision letter dated 4th of March 2025
Reason
Your deponent's affidavit sets out at paragraph 9 : "Garda vetting and final background checks were completed on 27th February 2024". Further, at paragraph 21, it states that this case took longer to determine than estimated. This is regrettable but unavoidable due to work pressure within the Department and the need to carry out final background checks, including Garda vetting inquiries at the tail end of the process in late 2023. These checks involved outside agencies and were therefore outside the Department's control to some extent. Further, these checks were not completed until the end of February 2024.
Our office submitted a subject access request under the General Data Protection Regulation (GDPR) (EU) 2016/679 concerning our client's naturalization application. However, in its decision letter dated 4th March 2025, the Respondent may have incorrectly processed this request as a Freedom of Information request under the Freedom of Information Act 2014. In any case, the schedule of documentation provided under FOI request noted that no Findings/Conclusions (Public Interest Considerations) were provided in respect of any disclosed documents. However, Document No. 5 (background checks) was refused under section 33(1)(a) of the Freedom of Information Act 2014 which provides:
"a head may refuse to grant an FOI request in relation to a record (and in particular but without prejudice to the generality otherwise of this subsection, to a record to which subsection 2 applies) if, in the opinion of the head, access to it could reasonably be expected to affect adversely –(a) the security of the state"
This is relevant in circumstances where the CSSO maintains in their letter dated the 24th of February, 2025 that public interest privilege applies to the matters we have queried. However, in the Respondent's decision letter dated 4th March, 2025, it is noted that no Findings/ Conclusions (public interest considerations) exist. The Garda Vetting disclosure that was disclosed as part of the FOI confirms that our client has no criminal record. The report also states that these checks were conducted on the 4th of December, 2023 and received by the Department of Justice on the 12th of December 2023. Discovery of this category is necessary, relevant and proportionate to determine whether it was reasonable for the Applicant to pursue these proceedings and whether the Applicant ought to be entitled to her costs. The Applicant notes that according to the FOI decision dated 4th March 2025 that Document No.5 (background checks) amounts to a mere 2 pages and as a result is not overly burdensome for the respondent to make discoverable. Discovery of the above category of documents is reasonable and necessary for the fair determination of the costs of the proceedings.
Category B
All documentation relating to the ordinary internal procedure for processing citizenship applications and/or the rational system in place to deal with naturalization applications that was in place during the course of the Applicant's application for naturalization.
Reason
The Applicant does not propose to repeat the facts set out in Category A. In his affidavit sworn on the 4th of September 2024, Raymond Murray states at paragraph six of the department was dealing ".... with a backlog in the system due to the impact of COVID-19 on processing times." Further, at paragraph 18, Mr. Murray reiterates, "... as already outlined above the application in this case was also affected by the backlog created due to COVID-19...".
Moreover, at paragraph 6, you state: "as a result of the backlog the posture order relating to the application fee which was attached to the application, was erroneously allowed to expire before the department made arrangements to cashes in." We note that the application was submitted on the 17th of November 2021, yet, it was only on the 8th of August 2022 that an acknowledgement of the receipt of the application fee was issued. Further, at paragraph 20, you state: "the ordinary internal procedure for processing citizenship applications was implemented".
This appears to contradict the earlier assertion that the application followed the ordinary process, given that, simultaneously, the application fee was erroneously allowed to expire. This suggests that allowing a postal order to expire forms "part of the ordinary internal procedure". The Respondent delayed action for approximately 9 months before beginning to even process the Applicant's application. There is an obligation upon a public authority, which is a respondent to judicial review proceedings to lay it's cards face up on the table. As per Simon's J. in A.J.A. v. Minister for Justice [2022] IEHC 624, the failure of the respondent in the present case to take the basic step of identifying the precise documents which had been submitted to the ultimate decision maker is regrettable.
Without prejudice to the foregoing, the Applicant submit that in circumstances where these categories of documents are referred to in the Affidavit sworn on behalf of the Respondent, the Applicants are entitled to seek production of such documentation. The Applicants hereby call upon the Respondent to produce the above category of documents referred to.
Discovery of the said categories of documents is reasonable and necessary for the issue of the costs of the proceedings herein such discovery is proportionate to this objective in all the circumstances."
41. By letter dated the 27th of March, 2025, correspondence issued in respect of a subject access request made on the 13th of March, 2025. It was confirmed that there was no further personal data for release to that already released under FOI. The letter advised:
"where you are dissatisfied with this Department's response to your request, you have the right to make a complaint to the Data Protection Commission (DPC)."
42. No appeal has been brought to the Data Protection Commissioner. It is maintained on behalf of the Applicant that the decision was made to instead proceed by way of discovery in these proceedings. Seemingly for similar reasons, remedies available under the FOI process have not been pursued.
43. By letter dated the 28th of March, 2025, the Chief State Solicitor replied to the request for voluntary discovery contained in the letter of the 18th of March, 2025, refusing the voluntary discovery sought and setting out 10 reasons why the decision to refuse same was made. The reasons included that:
a. The proceedings became moot before leave to apply for judicial review was granted.
b. It is an inefficient and disproportionate use of time and resources to seek to oblige the Minister to provide the material sought in a case that is moot save us to costs
c. The default order in cases that have become moot such as this one is no order for costs - Cunningham v. President of the Circuit Court.
d. The default order should be made in this case because the decision-making process was already in train when the judicial review proceedings were issued and para. 23 of the Affidavit of Raymond Murray states that the judicial review proceedings had "no bearing whatsoever" on the timing of the delivery of the positive citizenship decision in this case.
e. The Applicant is seeking to go behind the Affidavit of Raymond Murray without identifying any prima facie reason to doubt the truthfulness of the averments made by Raymond Murray to the effect that a positive decision issued in the ordinary course on relation to the judicial review proceedings.
f. The request for discovery is impermissibly broad and far reaching all documentation relating to background checks" is sought and "all documentation" relating to the internal procedure or system in place for processing citizenship applications is sought,
g. The Applicant has failed to clearly identify how discovery will demonstrate that the real trigger for the positive decision in the Applicant's case was these judicial review proceedings such that she is entitled to costs.
h. The Applicant has availed of an alternative process in the form of a subject access request/FOI request to seek the documentation sought in this discovery request. Documentation has been furnished on foot of that request. One document was not provided on the basis of the security of the state.
i. In reality, the voluntary discovery request amounts to a fishing expedition or trawl through the internal procedures in place within the department for the determination of citizenship applications.
j. The Minister enjoys absolute discretion in granting citizenship applications and the internal procedures in place for the determination of such applications must be protected. Voluntary discovery cannot be made and public interest privilege must be claimed over the material sought.
44. Finally, it was asserted that any application for discovery would be resisted and in the event that an order for costs was made, public interest privilege would be claimed in respect of same.
45. By affidavit filed on the 11th of April, 2025, the Minister responded to the request for discovery on affidavit, notwithstanding that the application had not yet been properly formalised by affidavit grounding the discovery application on behalf of the Applicant. On affidavit the position is maintained on behalf of the Minister that the information sought is not necessary or relevant for the determination of costs in this case. Public interest privilege was claimed over the information sought in the Applicant's correspondence dated the 5th of February, 2025.
46. An affidavit grounding an application for discovery was only sworn by the Applicant's solicitor on the 23rd of May, 2025, less than a week before the hearing date assigned for this matter. This affidavit exhibited partial correspondence in relation to the FOI request and SAR requests. Although the FOI response dated the 4th of March, 2025, is exhibited, the schedule of documents granted and showing the document withheld is not part of the exhibit. The letter refers to a right of review of the decision within four weeks. There is no evidence that the Applicant availed of the right of review. The Affidavit also failed to exhibit the response dated the 27th of March, 2025, on behalf of the Minister refusing any further disclosure and pointing out that if dissatisfied with the response, the Applicant had a right to make complaint to the Data Protection Commissioner, which response was handed into court by agreement of the parties during the hearing. Again, there is no evidence that the Applicant availed of his right of appeal.
DISCUSSION AND DECISION
47. There are fundamental difficulties with this application for discovery.
48. These proceedings are at pre-leave stage which means proceedings are not actually in being as permission to commence proceedings has not been granted by a court. In the normal course a respondent should not even yet be on notice of the proceedings as the leave application usually proceeds on an ex parte basis. In this case the Applicant took unilateral action in serving intended proceedings at pre-leave stage immediately upon filing papers in the Central Office. It seems to me that this was done for the sole purpose of asserting an entitlement to costs as clear from the cover letter. It remains the case, however, that these proceedings were never granted leave to proceed and were never properly instituted.
49. The principles governing the ordering of discovery in ease of a leave application were addressed in K.A. v. Minister for Justice [2003] 2 I.R. 93 and it was acknowledged that an applicant who establishes that his or her right of access to the courts in respect of a wrong done has been prejudiced by the failure to make material available as appropriate and necessary to enable him to exercise that right is entitled to apply to the High Court for discovery of documents. Although there have been occasional instances of discovery being granted at pre-leave stage in ease of contested leave applications, it is very rare. In known cases where this has this has occurred discovery was required to support the application for a contested leave application (see, for example, G.S. v. Minister for Justice [2004] IEHC 120).
50. I fail to see how the Applicant can bring herself within the category of pre-leave cases in which discovery is acknowledged to be properly available, however, when it is accepted that the proceedings are moot and it is not intended to move a leave application. Discovery is not required to substantiate the complaint made in proceedings for which leave to proceed is sought and the Applicant no longer seeks to access the Court to secure a remedy in respect of delay in the processing of her application for a certificate.
51. Furthermore, the Applicant had access to all necessary documentation to move her leave application through the FOI/SAR process, but did not apply in advance of moving to seek leave. Discovery could not be considered necessary to ensuring access to the courts in such circumstances.
52. As observed in Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (3rd ed., 2019) (at p. 480), there is no judicial guidance as to whether and in what circumstances discovery may be available in applications for leave that are made ex parte. Despite specific request, I was not referred to any precedent for discovery being ordered purely for the purpose of pursuing costs in a pre-leave case where the proceedings had been rendered moot.
53. Of course, the fact that I can find no example of discovery being ordered at pre-leave stage in ease of a costs application does not mean that such an order cannot be made. It seems to me, however, that the circumstances in which such an order would be justified must be exceptionally rare indeed. If for no other reason, this is because it involves the use of resources and the incurring of expense in respect of the costs of proceedings which have not gotten off the ground at all and will not be pursued and could rarely be justified as proportionate.
54. Moreover, to be entitled to discovery even in the ordinary course, the Applicant must demonstrate not only that it is relevant and necessary for the fair determination of an issue in the proceedings but also that it is proportionate. The only live issue in these proceedings is the issue of costs. As noted by Cregan J. in Muzaffar & Ors. v. Minister for Justice [2025] IEHC 753, the default order in relation to proceedings which have become moot is to make no order as to costs, but the court retains a discretion to depart from this rule in certain circumstances most notably when there is a causal connection between the bringing of proceedings and the resolution of the issue such that it may be concluded that an entitlement to costs should follow.
55. In refusing to depart from the default order, Cregan J. applied the four-part test pronounced by Murray J. in Hughes v. Revenue Commissioners [2021] IECA 5, finding that while the event which rendered the proceedings moot was caused by the unilateral actions of the respondent, it had been established that actions resulting in the event were not undertaken in response to the proceedings. He noted in his judgment that there had been no notice to cross-examine the deponent and therefore the evidence on behalf of the Minister was not controverted.
56. While it is equally true that there has been no notice to cross-examine in this case, leave of the court is required to cross-examine in proceedings commenced by way of judicial review. The requirement for cross-examination to resolve a contested issue of fact is one which must normally be demonstrated on affidavit in grounding a formal application for leave to serve a notice to cross-examine, unless there is consent.
57. In the instant case, the Applicant may hope to secure documentation on discovery upon which to build a dispute of fact which might warrant cross-examination but if this is so, then it follows that the Applicant is pursuing discovery to generate or create a dispute of fact to the effect that the decision to grant citizenship was prompted not because the Applicant's place in the queue had been reached but because of the existence of proceedings. As found in McEvoy v. An Garda Siochana Ombudsman Commission [2015] IEHC 203, an applicant is not entitled to go behind an affidavit by seeking discovery to undermine its correctness unless there is some material outside that contained in the affidavit to suggest that in some material respect the affidavit is inaccurate.
58. It cannot be said that there is a clear factual dispute on affidavit in these proceedings. The Applicant has not offered anything on affidavit to gainsay the averments on behalf of the Minister that the fact that proceedings had been filed in the Central Office had no bearing on the timing of the decision and a dispute in this regard is not yet established on the evidence in the case. On an application of the principles developed in McEvoy, it is inappropriate to allow discovery the only purpose of which is to act as a challenge to the accuracy of an affidavit.
59. Discovery may only be sought on this application on the basis that it is relevant to the issue of whether there is a causal connection between the existence of proceedings (which in fact have not and will not be properly instituted because leave to proceed is not being pursued) and the decision to grant a certificate shortly after proceedings were filed. Quite apart from the difficulty that the decision was made before leave was granted and therefore before proceedings were properly instituted, there is the added difficulty that the Applicant can point to nothing which entitles her to doubt the veracity of the statement made on affidavit by two officials of the Department of Justice to the effect that background checks were completed before the Minister became aware that proceedings were filed and it was the fact that background checks were completed which enabled the Minister to progress to make a decision wholly independently of the existence of proceedings.
60. To be entitled to discovery, the Applicant must raise a factual issue of sufficient substance, such that the application cannot fairly be resolved without discovery. It seems to me that on a costs' application grounded in the way the application has been grounded in this case and in pre-leave proceedings, it cannot be concluded that the Applicant has raised a factual issue of sufficient substance to warrant discovery.
61. Furthermore, a party may not seek discovery in order to determine whether a document may be relevant and a general trawl of documents is not permitted. I note that in N.K. v. Minister for Justice [2021] IEHC 161, Burns J. refused to order discovery on the basis that the discovery application in that case in effect sought to establish that there was other information before the respondent when making her decision which was considered by the respondent but not notified to the applicant, despite averments to the contrary on behalf of the Minister. Burns J. found that the suspicion was based on mere speculation on the part of the Applicant making it a classic fishing expedition. I am driven to reach the same conclusion in this case.
62. In this case the suspicion in the mind of the Applicant is justified only by reason of the proximity in time between the notification of proceedings and the communication of the positive decision. Counsel for the Minister rejects the legitimacy of this suspicion pointing to the fact that in response to the pre-litigation letter of the 27th of October, 2023, an indicative time-frame had been given. It was pointed out on behalf of the Minister that it was clear from this that, presuming nothing negative emerged on background checks, a decision could be expected within a time-frame of some twelve weeks which ended early February.
63. Against this factual background, it is not surprising, still less suspicious, that a decision would issue shortly thereafter. An early decision was to be expected in light of the terms of the correspondence from the Minister in November and December, 2023. Accordingly, a suspicion based on the timing of the decision is speculative and an insufficient basis to ground an application for discovery for the sole purpose of interrogating the Minister's denial of a causal link between the notification of proceedings and the making of a decision on the naturalisation application.
64. The correspondence which has issued on behalf of the Applicant is clearly directed to interrogating the denial on behalf of the Minister that the service of proceedings had any impact on the timing of the decision. Even if discovery could be ordered in support of a costs' application in respect of proceedings which remain at pre-leave stage which remains an open question, it seems to me that a good platform to make this argument is not laid in these proceedings based on the status of the proceedings when the decision was made.
65. As noted above, the proceedings in this case were filed without the normal documents required to support an application. Neither the initial application nor subsequent correspondence from the Minister in respect of the application is put in evidence and there was no reference to the indicative time-frame of 23 months which had been given and nothing to say whether Garda checks had yet occurred in the documents filed to ground a leave application. Even if she had not retained correspondence in relation to the processing of her application and the fact that the application fee was permitted to lapse and required to be re-submitted, it is unclear why instructions were not given by the Applicant outlining the relevant factual history to her application for the purpose of grounding an application for leave. The absence of the file does not fully explain or adequately address this shortcoming in the giving and taking of instructions and the obligations of candour on an applicant moving an ex parte leave application.
66. Although it must have been clear to her solicitors from October, 2023, that the Applicant had not retained the file and it is averred that she instructed a FOI/SAR request, there is, in fact, no evidence before me that any request was made for documentation until a letter of the 5th of February, 2025, a year after papers were filed in the Central Office. Frankly, it is difficult to comprehend a rush to Court to file papers in support of judicial review mandamus application without making appropriate and timely requests to get this basic documentation. No explanation is given for proceeding to file papers in the Central Office without any attempt to address these essential matters.
67. Even where the Applicant did not retain documentation as is averred, had the FOI/SAR request been made when the Applicant presented with her solicitors in October, 2023, one would expect the material to be available by the end of February, 2024, when papers were filed. Insofar as it is averred that an instruction had been given at some time before proceedings were filed to seek the file through the FOI/SAR process, I can only deduce from the lack of any documents in this regard that this basic step was not taken.
68. All of this means, in my view, that the application for leave was filed prematurely and the papers were not in order. Had the application come before the Court, I expect that leave would not have been granted without these fundamental issues being addressed. Indeed, it strikes me that had an FOI/SAR request been made in October, 2023, or shortly thereafter, the Applicant might now be better placed to establish when the withheld background checks were carried out. If they had not yet been carried out, there would be nothing to disclose and no record of a document withheld. If they had been carried out, it might be possible to infer from this that ongoing delay was not related to these checks and checks were in fact prompted by the institution of proceedings.
69. It is also notable that the Applicant made no enquiry about progress on her file until October, 2023. She progressed immediately from correspondence on the 27th of October, 2023, to litigation without any further enquiry and notwithstanding that she did not have the papers to ground her application and, it appears, had not actually applied to get them.
70. I am driven to conclude that these proceedings were commenced with undue haste and prematurely, without securing the necessary file documentation. The only explanation for this unseemly haste that I can infer is the perceived benefit of initiating proceedings before the decision was made to secure a costs order against the State. This conclusion is supported by the Applicant's unilateral actions in notifying the proceedings before leave was granted under cover of a letter which asserted an entitlement to costs arising, it appears, from the mere fact that the Minister was then "on notice". It seems to me that this was done as a concerted and ill-concealed effort to avoid a situation where the decision on the application might be made before leave was granted and proceedings were properly served. Were this to happen and a decision were made before the Minister was on notice of the proceedings, it could scarcely be contended that the proceedings had any impact on the decision-making process, as the Minister would not have known about them. In such a scenario the Applicant would have no basis to contend for costs. This begs the question as to what the difference is in these proceedings.
71. I am satisfied that the Applicant should not be in any better position to seek costs by reason only of having notified intended proceedings before leave to proceed was granted, particularly where the court had not directed such notification and notification at that stage was not a necessary incident of maintaining the proceedings. Indeed, it seems to me that entertaining a discovery application in these circumstances risks discovery being used in abuse of court process to generate a basis for securing costs in proceedings which issued prematurely notwithstanding that papers were not in order, as in my view occurred in this case.
72. It seems to me that the extent to which discovery may be available in support of a costs application in otherwise moot pre-leave proceedings remains an open question but this is not a case in which it is appropriate to seek to establish new principles. I now routinely see applications for leave to proceed to seek relief by way of mandamus in the ex parte list on a Monday. Were an application to come before me in the ordinary way on the papers filed in this case, I would be unlikely to grant leave for the following reasons:
I. No documentation in relation to the application is exhibited in the grounding affidavit;
II. The Applicant gives no detail in relation to the date of the application or any correspondence prior to October, 2023 in relation to her application;
III. The grounding affidavit is unsatisfactory in that the Applicant deposes to facts affecting herself personally in the third person;
IV. The Applicant refers to an instruction that a SAR and FOI request be made because she does not have the file, but does not exhibit the correspondence in this regard;
V. The Applicant does not explain why she proceeds to move her application without first obtaining a copy of her file;
VI. The Applicant does not aver to having completed the e-vetting form in November, 2023, a necessary step in the process.
73. The Applicant has failed to satisfy me that discovery is necessary or relevant to a determination of a dispute in relation to costs in these moot, pre-leave proceedings. This is not a case in which it is appropriate to determine whether discovery could ever be available pre-leave for the purpose of pursuing costs when the proceedings are rendered moot because proceedings were so clearly premature and precipitous as at the date of filing in the Central Office and the position had not changed by the date of the decision on the naturalisation application. If papers were not adequate to ground a leave application, as I consider they were not, then it is difficult to see how the Applicant could be entitled to costs whether a causal link between the filing of the proceedings and the making of the decision were established or not.
CONCLUSION
74. For the reasons set out above, I refuse this application for discovery. I will hear the parties in respect of any consequential matters.