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Cite as: [2013] IESC 41
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Judgment Title: HO [and infant suing by her mother and next friend AAO) v Minister for Justice, Equality and Law Reform and anor Neutral Citation: [2013] IESC 41 Supreme Court Record Number: 360/12 High Court Record Number: 877 2010 Date of Delivery: 23/10/2013 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Clarke J. Judgment by: Denham C.J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||
THE SUPREME COURT Appeal No: 360/12 Denham C.J. Murray J. Clarke J.
HO (an infant suing by her mother and next friend AAO) Applicant/Respondent and The Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner Respondents/Appellants Judgment delivered on the 23rd October, 2013 by Denham C.J. 1. This is an appeal by the Minister for Justice, Equality and Law Reform and the Refugee Applications Commissioner the respondents/appellants, referred to as “the appellants” against the judgment of the High Court (Hogan J.) delivered on the 13th June, 2012, and the order made on the 20th June, 2012, and perfected on the 4th July, 2012. 2. HO (an infant suing by her mother and next friend AAO) is the applicant/respondent in this appeal, and is referred to as “the respondent”. 3. At issue is the learned trial judge’s decision not to award a wasted costs order under Order 99, rule 7 of the Rules of the Superior Courts against the solicitors for the respondent.
Background 5. At the time of the institution of proceedings, the High Court had established in a number of cases the principle that, absent exceptional circumstances, a decision of the ORAC is not amenable to judicial review and that an appeal to the Refugee Appeals Tribunal was the appropriate remedy. This principle had been approved by this Court in an ex tempore judgment delivered by Murray C.J. in Kayode v. The Refugee Applications Commissioner, (Unreported, Supreme Court, Murray CJ, 28th January, 2009). 6. The respondent was given a number of opportunities to withdraw the case, without incurring any costs, but did not do so. When the judicial review came on for hearing at first instance in the High Court, Clark J. indicated that there did not appear to be any issue in the case which had not been decided. Counsel for the respondent sought an adjournment, which was opposed by the appellants, and the High Court refused an adjournment. Counsel for the respondent then withdrew the case. The issue of costs was adjourned. 7. The issue of costs and the wasted costs application was heard in the High Court on the 20th April, 2012, by Hogan J. Judgment was delivered on 13 June, 2012, and this appeal is against the judgment and decision on a wasted costs order. The High Court Judgment 9. In considering the Court’s jurisdiction to make a wasted costs order, the learned trial judge stated:-
12. Reference was made to BNN v. Refugee Applications Commissioner [2009] 1 IR 719, where Hedigan J. held that, absent exceptional circumstances, a decision of the Commissioner was not amenable to judicial review and that the appropriate step was to appeal to the Refugee Appeals Tribunal. 13. There were a further series of cases where the issue was considered and on the 15th June, 2009, it was indicated by the Minister that he would allow applicants who had sought to challenge decisions of the Commissioner by judicial review to strike out their cases with no order as to costs. Litigants who considered that they were entitled to continue their judicial review case were directed to write to the Chief State Solicitor’s office. At that time there were hundreds of cases listed in the judicial review list challenging decisions of the Commissioner. 14. The respondent’s solicitor wrote to the Chief State Solicitor stating that this case could be distinguished from the series of cases, including BNN v. Refugee Applications Commissioner [2009] 1 IR 719. Thus, the respondent continued with the judicial review application. 15. Hogan J. reviewed the case law:-
Hogan J. held:-
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.” 18. The learned High Court judge concluded:-
19. The appellants appealed against the judgment and order of the High Court. The following grounds of appeal were filed:-
(ii) The learned High Court judge erred in his conclusion that the solicitor for the respondent had complied with the direction of the High Court in its letter dated 10th July, 2009, in circumstances where said letter failed to properly set out the grounds on which this case could be continued (in direct contravention of said direction), and where said case was then abruptly withdrawn on the morning of the hearing, 16th October, 2009, with no proper or adequate explanation. (iii) The learned High Court judge failed to properly consider that these proceedings were wastefully continued in circumstances where many opportunities were afforded to the respondent to withdraw, before the appellants had incurred substantial costs. (iv) The learned High Court Judge failed to take into account that this case was one of a category of cases (a challenge to a decision of the Refugee Applications Commissioner), which the High Court and the Supreme Court had ruled could only succeed in very rare circumstances and which case was unduly prolonged, without proper justification for such continuance. (v) The learned High Court Judge failed to consider that the solicitor for the respondent failed to properly comply with the High Court direction that was made to promote the active management of the list in circumstances where the failure to comply with the direction led to the wasting of court time and resources and was a dereliction of the solicitor’s duty to the Court. (vi) Such further and other grounds of appeal as the appellants may with leave of this Honourable Court seek to advance at the hearing of this appeal. 20. Written and oral submissions were given to the Court. Submissions on behalf of the Appellants 22. In written submissions it was stated that the law on challenging ORAC’s decision in judicial review had been well settled and was well known to Burns, Kelly, Corrigan, Solicitors, in April 2009, when these proceedings were issued. It was submitted that the letter written on the 10th July, 2009 was vague and set out no basis for the continuation of the case. It was submitted that the High Court did not adequately consider the vagueness of the letter, which appeared to be a pro forma letter. Criticisms were raised as to the submissions filed on behalf of the respondent. It was pointed out that when Clark J., on the hearing date of the application, stated that she did not see any issue in the case that had not already been determined in other cases, the respondent’s counsel sought an adjournment. It was only when an adjournment was refused that the case was withdrawn and that no explanation was given. Further, it was submitted that the learned High Court judge did not consider the evidence of misconduct or default or negligence that could be inferred from the standard form letters sent by Burns, Kelly, Corrigan, solicitors, to the appellants in a large number of cases, which showed that a failure to obey the rulings of the court in this case was not an isolated incident, and they showed that the said solicitors failed to engage with the relevant case law. It was submitted that the directions by the Asylum Judges had the important purpose to distinguish between those claims that had merit and those which had not, and to free up the lists so that genuine stateable cases could be heard promptly. There was evidence in the High Court that on the 26th June, 2009, Burns, Kelly, Corrigan, solicitors, represented applicants in 282 ORAC cases which were awaiting hearing in the court lists. Only 19 were withdrawn in June and July pursuant to the court direction, although 6 were withdrawn in October, either on the day of the hearing or shortly prior thereto. It was submitted that this evidence was not considered in the High Court judgment. It was also submitted that the respondent had limited means and that there was little or no prospect of ever satisfying an order of costs against her. Also, it was submitted that this Court should consider the fact that the respondent refused to avail of the offer in June to withdraw the case, with no order of costs against her. It was submitted that it was difficult to perceive of any ground on which this litigation was legitimately pursued. It was submitted that the conduct of Burns, Kelly, Corrigan, solicitors, came clearly within the principles set out in O.J v. Refugee Applications Commissioner [2010] 3 IR 637 and Idris v. Legal Aid Board [2009] IEHC 596, in that the litigation was vexatious and wasteful. It was submitted that the litigation had no purpose other than that of prolonging the process and postponing a final determination of the asylum application. It was also submitted that a wasted costs order should be imposed as the conduct complained of falls within the principles of Myers v. Elman [1940] AC 282, as explained by Lord Wright, it was conduct “which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty to aid in promoting in his own sphere the course of justice”. Submissions on behalf of the Respondents 24. In oral submissions counsel stated that the issue of the 282 cases of the solicitors’ firm was not opened in the High Court, and if it had been opened there could have been an answer on the number of cases that had settled or were successfully litigated. 25. In relation to the case before this Court, it was said it was withdrawn with no explanation. Counsel opened the affidavit of Brian Burns, deposed on the 8th December, 2009, where he set out the facts, history, advice of counsel and what happened in the list. 26. Mr. Burns referred to a series of cases and stated that it was not the view of his counsel that the cases, including Kayode v. The Refugee Applications Commissioner, (Unreported, Supreme Court, Murray CJ, 28th January, 2009), were finally decisive in relation to a significant amount of cases his firm initiated in respect of decisions of the Commissioner. He described the process and plans for the listing of cases in the Asylum list. He stated that the main point in contention then was the effect of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) which incorporated into domestic law the provisions of Council Directive 2004/38/E.C. of 29 April, 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, OJ L 158, 30.4.2004. It was decided to list, in 2009, sequentially, a number of cases before Cooke J. Mr. Burns deposed in his affidavit dated the 8th December, 2009:-
that no order for costs would be made. This was a practise so far as I am aware introduced by his Honour Judge Birmingham when he had been previously in charge of the asylum list and continued, to some extent, by Judge Hedigan, the idea being that unless an Applicant had an incentive to withdraw their case there would be no reason to withdraw and time would be taken up unnecessarily. It was in this context that on the morning of the hearing, the 16th October 2009, Mr. Ian Whelan B.L. for the [respondent] applied initially, for the matter to be adjourned and when that application was refused, withdrew the case and the question of costs left over to a later date. No indication was given at that juncture by the opposition that any application would be intended to be made on the basis of Order 99, Rule 7 of the Rules of the Superior Courts. Indeed the first indication of this was contained in the letter of the 6th November 2009 … Several of the other cases listed subsequently were also withdrawn and costs were ordered to be paid with an order for costs in favour of the Respondents. I should say at this juncture that advices had been given (on an informal basis) by Senior Counsel in relation to the consideration of the possibility of applying for a certificate pursuant to Section 51 of the Illegal Immigrants Trafficking Act 2004 to appeal one or more cases to the Supreme Court. In fact a definite decision was later reached to apply for a certificate in relation to two of the cases involved, Igbinoba and Rajib (one of which, my firm was not the Solicitor on record for, namely Igbinoba). A decision had been made to apply for a certificate in relation to these cases but on or about the 6th November 2009 judgement was handed down in the case of Olunloyo by Cooke J. (which had been the first case of the series heard). As a result of further considerations by Junior and Senior Counsel, in the light particularly of the Olunloyo decision, it was decided ultimately not to make any application for a Certificate. This decision was arrived at on Wednesday 18th November 2009, the day Justice Cooke had fixed, at the request of the Applicants, a time for application for a certificate. In the circumstances no application for a certificate was made. Counsel for the [appellants] subsequently indicated that in other cases no order for costs would be sought where the cases were withdrawn on or before the 9th December 2009 and I am currently obtaining instructions from numerous clients in relation to the said offer and anticipate that a substantial number of cases will be withdrawn to take advantage of the offer in the circumstances that have now arisen. The above is the general background to the position that is now current and I set out hereunder my response firstly to the Affidavit of Majella Donoghue filed herein. In relation to Paragraphs 3 and 4 of the Affidavit of Majella Donoghue I say that the facts therein are true and accurate but the interpretation of the law is a matter for legal argument in any particular case. In relation to Paragraph 8 of the said Affidavit under reply I say that Notice of Appeal to the Refugee Appeals Tribunal was lodged ‘without prejudice’ to the application for Judicial Review. I say that reliance was being placed in this case and intended to be placed in all of the other cases against ORAC listed in the current term on the fact that the Statutory Instrument applied to the particular decision and that there was no application of the said regulations applicable in the cases comprising what is described as the ‘Kayode/Nganzunu line of case law’. In relation to Paragraph 9 of the Affidavit under reply I say that my advice from Counsel was that in view of the judgments already given and the cases that had already been heard and the general impression that there were more than enough ‘test cases’, and being conscious of the scarce resources of the Court together with our duty to act responsibly, that it would be well to adjourn some of the cases given that the facts and arguments did not differ significantly. This advice was partly on the basis of the Okoh judgement [sic] handed down that day. My instructions from my client in the light of that advice was to withdraw the case unless an adjournment would be granted. With regard to Paragraph 10 of the Affidavit under reply I say that on the 16th October 2009 the Applicant’s Counsel, Mr. Ian Whelan, indeed agreed that there did not appear to be an issue in the case which had not already been decided by a number of cases. This, I am informed by Counsel, referred, as far as Mr. Whelan was concerned, to cases which had been heard this term i.e. the ‘test cases’. In relation to Paragraph 12 of the Affidavit under reply I say that the so called ‘Kayode principles’ were not applicable to this case, insofar as these cases were distinguishable by virtue of the statutory instrument point. I say that the letter of the 10th July 2009 from my firm to the Chief State Solicitor exhibited in the affidavit under reply does seek to explain why this case fell outside those ‘principles’ in that regard. I say that it is correct to say that in a number of similar cases costs have been awarded to the Respondents but no application has been made to date pursuant to Order 99 Rule 7 of the Rules of the Superior Courts and no indication was given until 6th November 2009 that such application was intended to be made.” 28. Counsel for the respondent referred to the issue of the withdrawal of the case without sufficient explanation and argued that that was not misconduct. He stated that they had answered this in their explanation. He submitted that in a wasted costs case one must identify action or actions of a solicitor that are grossly negligent. He submitted that the reasons a case may be withdrawn may be connected to client privilege. He pointed out that they were not required to give a full explanation when withdrawing the case. He submitted that it was unsatisfactory when a court day is lost, but that what happened here was not misconduct by a solicitor who was acting on the advice of counsel. Decision 30. Having referred to the practice direction, the letter of the 9th July, 2009, from the solicitors for the respondent, stated:-
We refer to the decisions in the High Court cases of Nganzumu, Diallo, Akintunde, Ajoke, Nnauma and the Supreme Court decision in the case of Kayode. As we see it the common factor running through these cases is that there was no finding made that any of the decisions in those cases were reached in breach of fair procedures or natural justice or in breach of any other requirement of the law. In the case of Nganzumu, Mr. Justice Hedigan expressed the view that only in rare and exceptional circumstances should relief be granted by way of Judicial Review, and provided an example of such circumstance, i.e. where (in certain circumstances) no oral hearing was available to an applicant on appeal. It was however not stated in that case, or in the other cases mentioned, that a breach of fair procedures or natural justice of sufficient significance in arriving at a decision could not be a ‘rare and exceptional circumstance’ such as might influence the High Court to exercise it’s discretion and grant leave/review. Furthermore, in the more recent case of Ojuroya, the Honourable Mr. Justice Cooke stated (as per stenographer’s note – approved Judgement not yet available): ‘It is sufficient to say that the court considers that it is now settled law that consistently with the scheme and legislative intention of the 1996 Act, this court should intervene to review a section 13 report and recommendation in advance of a decision on appeal by the RAT only in the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report which is incapable of or unsuitable for rectification by the appeal, which will have continuing adverse consequences for the applicant independently of the appeal, or is such that if sought to be cured by the appeal, will have the effect that the issues or that some wrongly excluded evidence involved will not be reheard but will be examined only for the first time on the appeal’. Furthermore, we are of the view that any comments of the High Court contained in the above cases, which could be interpreted as to mean that Judicial Review should not be granted in cases where there has been a breach of natural justice or fair procedures (and we do not concede that there are any) would be necessarily obiter given the findings that thee were no such breaches. Indeed this was the view taken by the Respondents in their written Submissions in the applications made for a certificate to appeal in the cases of Nganzumu and Nnauma. We are of the view that there will be continuing adverse consequences for the Applicant independent of any appeal in that, should her appeal be unsuccessful, then the Section 13 Report will be relied on by the Minister in any subsequent application for leave to remain on Humanitarian Grounds or Subsidiary Protection, pursuant to S.I. 518 2006. We are of the view that in the instant case there have been breaches of natural justice, fair procedures and lawful obligations (in particular EU (Eligibility for Protection) Regulations) which, in our view, should bring this case within the category of case in which it is open to the High Court to exercise its discretion and grant leave/review. In particular and without prejudice to the generality of the foregoing we respectfully refer you to the Statement Required to Ground application for Judicial Review herein. There are several main grounds for complaint made by our client in the within proceedings inter alia: Breach of Audi Alterem Partem, wrongful reliance on assistance that might be available from NGO’s in Nigeria, failure to assess the effectiveness of any State protection that might be available, disregard of the minimum standards required in assessment of the claim pursuant to S.I. 518/2006 together with the other grounds set out in our client’s Statement of Grounds herein. The applicant’s claim was not properly considered leading inevitably to a situation where, if appealed at this juncture, the Applicant’s claim would effectively be heard only for the first time; We feel that there has been a material illegality in failing to apply the Regulations referred to above which would be incapable or unsuitable to be dealt with on appeal. It is our view that, individually or cumulatively, these complaints, (if upheld), or some of them may take this case into the category of cases where the discretion of the court might be exercised in favour of Judicial Review and we are therefore not in a position to advise our client that it would be in her best interests to accept the offer made that the case be withdrawn with no order as to costs and accordingly, on our client’s instructions, same is rejected.” 32. No issue of wasted costs was raised that day. The misconduct alleged in the application was non compliance with the practice direction, and proceeding with the case until the day set for the hearing. However, it was deposed that the respondent wished to proceed with the case, and that it was believed that the case was distinguishable from recent decisions, and further that the solicitor was acting on the advice of counsel. Consequently, issues of client’s instructions and privilege arise also. 33. In these circumstances the learned High Court judge refused to make an order of wasted costs against the solicitor for the respondent, as detailed previously. 34. Order 99, rule 7 of the Rules of the Superior Courts states:-
37. In this case there are several relevant factors in considering the applicability of an Order 99, rule 7 order. These factors include: the letter of the 9th July, 2009, from the solicitors for the respondent, as set out earlier in this judgment; the description of the factual situation deposed to by Brian Burns in his affidavit of the 8th December, 2009; and the fact that the solicitors for the respondent were acting on the advice of counsel. 38. In addition, there is the fact that this is a discretionary matter. The learned High Court judge has addressed the facts and law in a reserved judgment and has exercised his discretion therein. This Court is slow to interfere with the exercise of discretion by a trial judge. Indeed, if the learned High Court judge has been persuaded that there is no basis for an order under Order 99, r. 7 it is difficult for an appeal court, though not impossible, to find that there has been misconduct by the solicitor. 39. Solicitors must comply with practice directions. Such directions are made to assist the administration of justice. It is thus a duty for court officers to comply with these directions, and a wasted costs order remains an important tool of a judge to enforce such directions. However, in this case there is a factual basis upon which the learned High Court judge could and did find that there was no misconduct. The normal sanction of costs against a losing party applies. However, there was a foundation of facts, a stateable basis, upon which the learned High Court judge could find that there were no grounds for an Order 99, r. 7 order. 40. It is very unfortunate that there has been such delay in this case. The system for addressing asylum cases is constantly being considered by those judges who take the Asylum list in the High Court, and the Minister for Justice has indicated that the whole system is under review. However, the delay in all the circumstances, is not a basis for an order under Order 99, r. 7 Conclusion | ||||||||||||||||