Affidavit Candour and a Two‑Tranche Approach to Costs in Moot Delay Judicial Reviews: M (A Minor) v Minister for Foreign Affairs [2025] IEHC 581

Affidavit Candour and a Two‑Tranche Approach to Costs in Moot Delay Judicial Reviews: M (A Minor) v Minister for Foreign Affairs [2025] IEHC 581

Introduction

This commentary examines the High Court of Ireland’s decision in M (A Minor) v Minister for Foreign Affairs and Trade & Anor [2025] IEHC 581 (Simons J, 3 November 2025). The case arose from judicial review proceedings alleging unreasonable delay in determining an application to register a foreign birth. Shortly after proceedings commenced (and before leave was heard), the Department of Foreign Affairs issued the decision, rendering the case moot. The sole live issue was the incidence of legal costs.

The applicant, a minor suing through his father as next friend, contended that the proceedings had expedited the decision and sought costs. The respondents maintained the decision issued in the ordinary course. The judgment is significant for three reasons:

  • It reaffirms the general framework for costs in moot proceedings and the specific approach in “delay” judicial reviews where action by the public body was always anticipated.
  • It clarifies the evidential burden: where the decision-maker swears that the timing was unaffected by the litigation, an applicant who does not seek cross-examination or discovery cannot invite the court to reject that affidavit.
  • It articulates a practical, two‑tranche analysis of costs (pre‑ and post‑mootness), and signals a duty of candour in respondents’ affidavits: omission of relevant contextual facts (e.g., awareness of proceedings) can influence the allocation of “costs of costs” under section 169 of the Legal Services Regulation Act 2015.

The title of the proceedings was anonymised under section 45 of the Courts (Supplemental Provisions) Act 1961 because the case concerns a minor, with liberty for bona fide media to apply on notice to set aside anonymisation.

Summary of the Judgment

Simons J applied the settled principles governing costs in moot proceedings (Hughes v Revenue Commissioners [2021] IECA 5; [2023] 3 IR 393) and the subset of cases alleging unreasonable administrative delay (Matta v Minister for Justice, Equality and Law Reform [2016] IESC 45; Butler Duignan v Chief Appeals Officer [2024] IECA 188).

Key findings and orders:

  • In delay cases, the central question is whether the judicial review proceedings expedited the decision. If yes, the applicant may be entitled to costs; if not (i.e., decision issued in ordinary course), generally each party bears own costs.
  • The decision-maker swore that the decision issued in the ordinary course and not in response to the litigation. The applicant—while sceptical and relying on DSAR disclosures—ultimately did not seek cross-examination or discovery to challenge this averment.
  • Applying RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 IR 63, the Court held it could not reject sworn testimony absent cross-examination. On the uncontroverted evidence, there was no basis to award applicant’s costs.
  • Costs were analysed in two tranches:
    • Pre‑moot costs (up to the decision approving the foreign birth registration): no order as to costs—each party to bear its own costs, consistent with the ordinary-course finding.
    • Post‑moot “costs of costs” (the costs dispute): no order. The Court criticised the respondents’ affidavit for lacking a comprehensive account (not explicitly disclosing awareness of the JR and having sought legal advice). Having regard to this litigation conduct under section 169 LSRA 2015, the respondents were not entitled to recover their costs of contesting costs; nonetheless, the overall order remained that each party bears own costs.
  • The proceedings were dismissed as moot, with liberty to apply.

Analysis

Precedents Cited and Their Influence

  • Hughes v Revenue Commissioners [2021] IECA 5; [2023] 3 IR 393:
    • Sets out the governing framework for costs where cases become moot:
      • If mootness arises from an external event independent of the parties, the fair outcome is often that each bears own costs.
      • If mootness is caused by one party’s unilateral action connected to the litigation or action that could reasonably have been taken earlier, costs will often follow against that party.
      • For statutory bodies, courts consider whether a new decision is truly responsive to changed circumstances (no costs) or a change of mind (costs may be awarded). The approach is discretionary and flexible (citing P.T. v Wicklow County Council [2019] IECA 346).
    • Simons J adopts this as the general backdrop, emphasising discretion rather than rigid rules.
  • Matta v Minister for Justice, Equality and Law Reform [2016] IESC 45 and Butler Duignan v Chief Appeals Officer [2024] IECA 188:
    • These cases carve out the “delay” subset: in proceedings alleging unreasonable delay, a subsequent decision is not, of itself, a “unilateral act” rendered by the litigation because it was anticipated in any event. The pivotal question is whether the timing was expedited by the proceedings.
    • Simons J applies this expediency test: if the judicial review accelerated the decision, the applicant may recover costs; if the decision followed in ordinary course, costs should not be awarded to the applicant.
  • RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 IR 63:
    • Reiterates that a court cannot reject or discount unchallenged affidavit evidence on credibility or reliability grounds without giving the deponent an opportunity to explain via cross-examination.
    • This principle proved determinative: the applicant’s tactical choice not to cross-examine the decision-maker meant her averment—that the decision issued in ordinary course—stood.
  • Carltona principle:
    • The decision-maker was a higher executive officer acting as the Minister’s alter ego pursuant to Carltona. This legitimised her swearing the core affidavit explaining the administrative decision-making process.
  • Section 169, Legal Services Regulation Act 2015:
    • Empowers the court to consider parties’ litigation conduct when exercising its costs discretion. The judgment deploys this to mark the respondents’ omission of a fully candid affidavit by not allowing them to recover their “costs of costs”.
  • Section 45, Courts (Supplemental Provisions) Act 1961:
    • Basis for anonymising the title where proceedings relate to a minor, with media liberty to apply to lift anonymisation on notice.

Legal Reasoning

The Court begins with the Hughes framework and then turns to the specific lens for delay cases in Matta/Butler Duignan. The crucial inquiry is whether the judicial review expedited the administrative decision. Here, the documentary chronology showed:

  • After substantial earlier delay, the application neared the top of the processing queue by August 2023.
  • It was moved to a “return processing” queue in December 2023 due to a missing original birth certificate; once supplied in early January 2024, the application re-entered a shorter queue for returned files.
  • The judicial review was filed on 26 March 2024; the decision-maker was notified on 18 April 2024; the application was approved on 7 May 2024.

Crucially, the decision-maker swore that the decision would have issued in ordinary course and was not a response to the litigation. Although DSAR disclosures suggested awareness of the judicial review and implied legal advice exchanges, the applicant did not seek cross-examination or targeted discovery. Applying RAS Medical, Simons J held the court could not disbelieve or discount the affidavit on the basis of circumstantial documentary material without allowing the deponent to explain any perceived contradictions. The judge observed that a plausible explanation existed: given the application’s place in the queue and the missing-document episode, a May 2024 outcome might well have occurred in the ordinary course.

Two additional strands of reasoning are notable:

  • Two‑tranche costs analysis. The judge separated costs into (i) pre‑moot costs (up to the date the registration decision issued) and (ii) post‑moot “costs of costs”. On the uncontroverted evidence, the first tranche attracted no order. For the second tranche, the court found both parties bore some responsibility for costs generation, but was critical of the respondents’ affidavit for omitting a fully candid account (e.g., not expressly acknowledging awareness of the proceedings and the seeking of legal advice), a matter relevant to the timing question. Having regard to litigation conduct under section 169 LSRA 2015, the court declined to award the respondents their costs of the costs dispute, ultimately making no order for that tranche either.
  • Proportionality and avoidance of satellite litigation. The applicant’s decision not to escalate to cross-examination or discovery was described as “entirely understandable” given the modest recoverable costs at stake and the risk that litigating costs would exceed the value of the underlying costs. The judgment endorses proportionality and discourages unnecessary satellite disputes in moot judicial review proceedings.

Impact and Significance

This judgment refines the handling of costs where judicial review proceedings alleging delay become moot shortly after commencement:

  • Affidavit candour as a costs factor. While the applicant failed to shift the evidential needle without cross-examination, the Court’s criticism of the respondents’ affidavit is consequential. It signals an expectation that decision-makers’ affidavits should:
    • Explicitly identify that the deponent made the decision;
    • Disclose awareness (if any) of the proceedings at the time of decision;
    • Address whether such awareness affected timing; and
    • Explain any material interactions (e.g., legal advice sought) insofar as such facts, not their privileged content, are relevant to the timing issue.
    Failure to do so may expose public bodies to adverse or neutralised costs outcomes in the “costs of costs” phase, even where applicants ultimately do not recover costs for the underlying, now‑moot proceedings.
  • Re‑affirmation of the evidential burden on applicants. Applicants who seek costs on the basis that litigation expedited a decision carry the burden to produce cogent evidence. Where a respondent swears to ordinary-course processing, applicants will generally need to pursue cross-examination (and, where proportionate, targeted discovery) to dislodge that evidence. DSAR material alone—particularly where it merely proves awareness of litigation or shows that legal advice was sought—will rarely suffice without testing the deponent’s account.
  • Practical two‑tranche costs framework. Partitioning costs into pre‑moot and post‑moot tranches enhances predictability. Practitioners can expect:
    • Pre‑moot: absent proof of expedition caused by litigation, each party bears own costs;
    • Post‑moot “costs of costs”: courts may scrutinise litigation conduct (candour, proportionality) under section 169 LSRA 2015 and, where appropriate, decline to award costs even to a party who might otherwise have been favoured.
  • Policy against costly satellite litigation. The judgment underscores proportionality: where the only issue is costs after early mootness, the court will resist allowing the tail to wag the dog. This should temper incentives for both sides to escalate procedural skirmishes over modest sums.

In short, the decision offers both a caution and an incentive: a caution to applicants that they must be prepared to test affidavits if they wish to prove expedition; and an incentive to public bodies to adopt full and frank affidavits so that courts can fairly assess timing and costs without further procedural combats.

Complex Concepts Simplified

  • Mootness: A case becomes moot when the live controversy is resolved (here, the foreign birth was registered), leaving no substantive issue for the court to decide. Costs may still be argued.
  • Unilateral act (in costs context): An action by one party that causes mootness and is connected to the litigation (e.g., a fresh decision reversing an impugned decision without changed circumstances). In delay cases, the mere making of the decision is not “unilateral” because it was always expected; the focus is on whether litigation expedited the timing.
  • “Costs follow the event” principle: Normally, the losing party pays. In moot cases, there is no “event” in the usual sense, so courts apply flexible principles (Hughes) to reach a fair costs outcome.
  • Leave stage in judicial review: Initial permission the applicant must obtain to proceed with the review. Here, the matter became moot before leave was heard, limiting the scale of recoverable costs.
  • DSAR (Data Subject Access Request): A request under data protection law for personal data held by a controller. DSARs can reveal communications but do not displace legal professional privilege or substitute for testing affidavit evidence.
  • Discovery and cross-examination: Discovery compels disclosure of documents; cross-examination tests a deponent’s credibility and explanations. RAS Medical requires parties to use these tools if they wish to challenge sworn affidavits on factual grounds.
  • Carltona principle: Decisions taken by civil servants are treated as decisions of the Minister; they may swear affidavits explaining the decision-making process.
  • Section 169 LSRA 2015 (litigation conduct): Courts may consider parties’ conduct—such as incomplete or unhelpful affidavits—when exercising their broad costs discretion.
  • Anonymisation under s.45 of the 1961 Act: Court titles may be anonymised to protect minors, with a mechanism for media to seek to set aside anonymisation on notice.

Conclusion

M (A Minor) v Minister for Foreign Affairs crystallises three practical propositions for costs in moot delay judicial reviews:

  • In delay cases, the dispositive question is whether the litigation expedited the administrative decision. Without evidence to that effect—tested, where necessary, by cross-examination—applicants should not expect costs.
  • Courts will adopt a two‑tranche approach: pre‑moot costs (usually each side bears own, absent proof of expedition) and post‑moot “costs of costs” (where litigation conduct and candour under section 169 LSRA 2015 can sway outcomes).
  • Respondents carry a practical duty of candour: affidavits should squarely address awareness of the litigation and its (non-)effect on timing. Failure to do so risks adverse consequences on costs allocation in the costs dispute itself.

The judgment advances clarity and proportionality in an area prone to satellite litigation. It refines the evidential and procedural expectations for both sides: applicants must be ready to test affidavits if they seek costs on an expedition theory, and public bodies must file comprehensive affidavits to facilitate fair and efficient resolution of mootness costs disputes. The overall order—each party bearing its own costs—follows logically from these principles on the facts of the case, while the explicit criticism of incomplete affidavit candour will likely influence how future respondents present their evidence in similar contexts.

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