Costs in Moot Dublin III Judicial Reviews: Injunction-Driven “Event” Justifies Partial (50%) Costs up to Mootness

Case: A.H. v The Minister For Justice (Costs Ruling)
Citation: [2025] IEHC 772
Court: High Court of Ireland
Judge: Ms. Justice Siobhán Phelan
Date: 11 April 2025

1) Introduction

This ruling concerns costs only, following a judicial review that became moot shortly after (i) ex parte leave (11 December 2023) and (ii) a contested interlocutory injunction restraining the applicant’s transfer to Germany under the Dublin III Regulation (Regulation (EU) No. 604/2013), pending determination of the proceedings (20 December 2023).

The applicant (identified by initials) challenged steps towards transfer and relied, at least in part, on a then-live legal controversy about the six-month transfer time limit and its interaction with suspensive effect under Article 27(3), in the shadow of the preliminary reference in A.H.Y. v Minister for Justice [2022] IEHC 198.

The proceedings became moot when the Minister, by email of 9 January 2024, confirmed that the applicant would not be transferred and that his protection claim would be determined in Ireland. The transfer window had, on the court’s understanding, already effectively expired around 27 December 2023—about a week after the injunction.

2) Summary of the Judgment

The High Court held that the applicant was entitled to 50% of his costs (including the leave and injunction applications) up to the date the proceedings became moot (identified as 9 January—context indicates 2024). The reduction reflected that:

  • the applicant secured the practical outcome sought via interlocutory relief and the effluxion of time (a relevant “event” for costs), but
  • a core legal proposition underpinning the litigation was ultimately decided against the applicant by the CJEU in the A.H.Y. reference.

The judge also expressed a preliminary view that the applicant should recover the costs of the costs application itself, subject to further short submissions if sought.

3) Analysis

3.1 Precedents Cited and Their Influence

(a) The CJEU ruling arising from A.H.Y. v Minister for Justice [2022] IEHC 198

The CJEU (18 April 2024) held that the six-month transfer period runs from acceptance of the transfer request, or from the final decision on an appeal with suspensive effect under Article 27(3), and not from the final decision on a challenge to a refusal to exercise Article 17(1) discretion (para. 60 of the CJEU judgment, as summarised).

Critically, Ms. Justice Phelan treated that legal defeat as relevant to discounting costs, but not as eliminating costs where the litigation and injunction delivered the practical benefit before the CJEU ruling and before any full hearing.

(b) Okunade-style interlocutory injunction principles and the “purpose” of the proceedings

The ruling draws illumination (though not direct binding effect) from Hyland J.’s written decisions in:

  • A.C. v. IPAT & Ors. [2024] IEHC 77 (leave and injunction in a Dublin III context), and
  • A.C. v. IPAT & Ors. [2024] IEHC 211 (amendment application post-CJEU decision).

In A.C., Hyland J. characterised proceedings as aimed at prohibiting transfer and noted mootness arose because an injunction restrained transfer until the Dublin III transfer time expired, after which the respondent no longer sought transfer. Ms. Justice Phelan considered that reasoning “equally apposite” here: the injunction (and ensuing effluxion of time) was the practical driver of mootness and outcome.

(c) Mootness costs framework—Hughes v. The Revenue Commissioners & Ors. [2021] IECA 5 and the Supreme Court line

The court relied heavily on the approach to costs in moot proceedings set out in Hughes v. The Revenue Commissioners & Ors. [2021] IECA 5, as summarised in the ruling (paras. 31–33 of Murray J.’s analysis). In broad terms:

  • If mootness is due to an external event independent of parties, each bears own costs is generally fairest.
  • If mootness results from a party’s actions (including unilateral steps that follow because proceedings were issued, or could reasonably have been taken earlier), the responsible party may bear costs.
  • Where a public body makes a new decision, the court examines whether it reflects changed circumstances (less likely to attract costs) or a mere change of mind (more likely).

The court also noted (via the earlier costs decisions) the established mootness authorities: Cunningham v The President of Circuit Court [2012] IESC 39, [2012] 3 IR 222, Godsil v Ireland [2015] IESC 103, [2015] 4 IR 53, Matta v Minister for Justice, Equality and Law Reform [2016] IESC 45, and M.K.I.A. (Palestine) v IPAT [2018] IEHC 134, as well as the more recent Supreme Court decision Little v. Chief Appeals Officer & Ors. [2024] IESC 53.

(d) The “sample cases” costs decision—A.A., M.I., R.O. v. Minister for Justice (O’Higgins J., 30 January 2025)

Ms. Justice Phelan treated O’Higgins J.’s decision as highly persuasive and adopted it by parity of reasoning. In that decision, despite differences with the lead/pathfinder case, O’Higgins J. awarded 50% costs (with a cut-off) because:

  • there was a causative link between issuing proceedings, obtaining an injunction, and securing the sought-after practical benefit (prevention of removal/transfer);
  • the cases did not fit neatly into the existing categories, calling for an “in the round” assessment;
  • it was strongly in the public interest that the proceedings were brought (as O’Higgins J. viewed them).

Ms. Justice Phelan emphasised consistency and judicial comity: absent a principled basis to diverge, similar cases should attract similar cost outcomes.

(e) The Minister’s reliance on F.A. v. IPAT & Ors. [2021] IECA 296 and the lead-case decision N.V.U. v. Refugee Appeals Tribunal [2020] IESC 46

The Minister argued for “no order” and placed weight on F.A. v. IPAT & Ors. [2021] IECA 296, where no costs were awarded in moot cases that were “bound to fail” after a conclusive Supreme Court lead case (N.V.U. v. Refugee Appeals Tribunal [2020] IESC 46).

Ms. Justice Phelan distinguished F.A.: this case did not become moot because the applicant’s claim was doomed by the later legal outcome; it became moot because the injunction prevented transfer until the statutory time limit expired, producing the very benefit sought. The later CJEU ruling was therefore not the operative cause of mootness.

3.2 Legal Reasoning (Why 50% and Why a Cut-off)

The judgment’s central move is to identify the correct “event” for costs purposes. The court found:

  • the Minister’s decision not to transfer was, in substance, driven by the fact that (due to the injunction) the Dublin III transfer time limit could no longer be met;
  • there was an accepted “but for” causation: but for the injunction, transfer likely would have occurred;
  • accordingly, the applicant achieved practical success through interlocutory relief, even though the underlying merits were never finally adjudicated and a key legal plank later failed at EU level.

That mixture justified a discounted costs award. The court’s 50% figure is explicitly a compromise between:

  • the ordinary principle that costs follow success (here, success in obtaining contested interlocutory protection leading to the desired outcome), and
  • the reality that the applicant was not ultimately vindicated on a core legal proposition and never succeeded at a full hearing.

The court also imposed a temporal limit: costs were awarded only up to the date of mootness (9 January). This aligns with the logic that costs should not accrue after the dispute ceased to have practical effect.

3.3 Impact (What This Adds to the Costs-in-Mootness Landscape)

While framed as a discretionary costs ruling, the decision is significant for Dublin III judicial review practice because it:

  • confirms that a contested interlocutory injunction that effectively exhausts the Dublin III transfer window can constitute an “event” warranting costs, even if the applicant later loses (or would likely lose) a related legal proposition;
  • reinforces a pragmatic, fact-sensitive approach where cases do not fit neatly into established mootness categories—especially where mootness is produced by the interaction of court orders and rigid statutory/EU timelines;
  • signals that, in clusters of similar cases, the High Court will value consistency and avoid divergent outcomes absent a principled basis.

Practically, it encourages parties to focus costs argument on: (i) the true cause of mootness; (ii) whether the claimant obtained the concrete benefit sought; and (iii) whether later legal developments should reduce rather than extinguish costs.

4) Complex Concepts Simplified

  • Mootness: A case becomes moot when there is no longer a live dispute requiring a court decision (here, the Minister abandoned transfer and processed the claim in Ireland).
  • Interlocutory injunction (Okunade basis): A temporary order preventing an action (transfer) pending final determination, granted by weighing factors such as risk of injustice and balance of convenience in public law contexts.
  • “Event” for costs: A milestone or outcome that justifies who should pay costs—often the party who achieved practical success, or whose actions caused mootness, depending on context.
  • Dublin III six-month time limit: A strict EU-law timeframe for effecting a transfer; if it expires, responsibility for examining the protection claim may shift to the requesting state.
  • Suspensive effect (Article 27(3)): Certain appeals can suspend transfer, affecting when the transfer clock runs—central to the CJEU reference in A.H.Y..

5) Conclusion

In A.H. v The Minister For Justice [2025] IEHC 772, the High Court held that where Dublin III judicial review proceedings become moot because an interlocutory injunction prevents transfer until the EU-law transfer deadline expires, the injunction constitutes an “event” justifying a costs award. The applicant was awarded 50% of costs up to mootness, reflecting practical success achieved through interlocutory relief, while discounting for the absence of final merits vindication and for the later CJEU rejection of a core underpinning legal proposition. The ruling strengthens a consistent, causation-focused approach to costs in moot public law litigation involving fixed statutory/EU time limits.

Note on the date in the order: The ruling states costs up to “9th of January, 2023” (para. 40), but the surrounding chronology indicates this is almost certainly intended to be 9 January 2024 (the date the Minister communicated the non-transfer decision).