Costs Where Return Order Judicial Review Becomes Moot by Ministerial Non-Execution Within s.51C(2): “Unilateral Inaction” as the Costs-Triggering Event
1) Introduction
In A.I. v The Minister For Justice, Home Affairs and Migration and
A.D. v. The Minister For Justice and Ors [2026] IEHC 489,
the High Court (Barr J) determined costs after both sets of judicial review proceedings became moot.
Each applicant had been served with a statutory Return Order requiring removal from the State to a third country.
Each obtained leave to pursue judicial review challenging the Return Order decision-making.
While the proceedings were pending, the six-month statutory period for giving effect to a Return Order under
s.51C(2) of the International Protection Act 2015 (as amended) expired. The Return Orders therefore lapsed,
rendering the proceedings moot. The State proposed striking out the proceedings with no order as to costs.
The applicants sought their costs up to the dates of mootness, contending the proceedings became moot due to the
Minister’s failure to execute the Return Orders within time.
The central issue was whether mootness occurred by operation of law alone (supporting “no order”),
or whether the Minister’s failure to act within the statutory window should be characterised as a
unilateral act/inaction sufficiently connected to the litigation to justify awarding the applicants their costs.
2) Summary of the Judgment
-
The Court held that the proceedings became moot due to the Minister’s unilateral inaction in not executing
the Return Orders within the s.51C(2) six-month period.
-
Although affidavit evidence described general logistical complexities of removals, the State did not identify
case-specific impediments or explain why these particular Return Orders were not executed.
-
The applicants were awarded their costs up to the date the proceedings became moot (to be adjudicated in default of agreement),
notwithstanding that no injunction had been sought.
-
The Court indicated it would hear the parties separately regarding the costs of the contested costs application.
3) Analysis
3.1 Precedents Cited
Cunningham v The President of the Circuit Court [2012] 3 IR 222
Barr J treated Cunningham as setting the overarching framework: where proceedings become moot,
the court must examine why. Clarke J’s analysis (paras 26–27) draws a key distinction between:
(a) mootness caused by a party’s unilateral change of position (potentially cost-consequential), and
(b) mootness caused by an underlying change of circumstances outside the parties’ control (often leading to “no order”).
Importantly, a statutory body changing stance in response to new circumstances is not automatically “unilateral” for costs purposes.
MKIA v IPAT [2018] IEHC 134
The Court relied on the structured summary in MKIA v IPAT (para 6), which synthesises the “mootness costs” jurisprudence,
including the requirement to identify an “event” (in the Godsil sense) to which the usual rule (costs follow the event) can attach.
The judgment emphasises the causal inquiry: whether mootness is (i) outside both parties’ control, (ii) within one party’s control but not causally linked to the proceedings
(or explained by changed underlying circumstances), or (iii) within one party’s control and causally connected to the proceedings—this last category tending to justify costs against that party.
Hughes supplied a refined appellate articulation (Murray J) balancing two public-law imperatives:
statutory bodies must be able to continue performing statutory functions despite pending litigation,
but cannot use “routine administration” to effectively concede and simultaneously evade costs consequences.
Where a respondent asserts that mootness stems from changed circumstances, Hughes places an evidential burden on the respondent to
furnish sufficient material to let the court assess that contention—without deciding the merits of the underlying challenge.
AA v Minister for Justice (Unreported, High Court, O'Higgins J., 30 January 2025) and AH v Minister for Justice (Unreported, High Court, Phelan J., 11 April 2025)
Barr J reviewed these decisions as instances where mootness arose in an international protection/transfer context and where the
granting of an injunction featured prominently in identifying an “event” and justifying partial costs (50%).
The judgment noted O’Higgins J’s broader policy considerations, including vulnerability of affected persons, public-interest characteristics,
and the deterrent effect of costs outcomes on access to justice.
This case was particularly influential because, as here, no injunction had been obtained.
Mulcahy J nonetheless treated mootness as potentially attributable to the respondent’s “unilateral inaction” and,
absent an adequate explanation disentangling mootness from the existence of proceedings, inferred that the litigation may have contributed
to the applicant obtaining the practical benefit of non-enforcement within time. A 50% costs approach was adopted there (subject to set-off against costs on an unsuccessful injunction motion).
Barr J drew on this reasoning to recognise unilateral inaction as capable of constituting the relevant “event”.
3.2 Legal Reasoning
The Court’s reasoning proceeds in three linked steps.
-
Characterisation of mootness:
Although the Return Orders lapsed by operation of s.51C(2), the Court focused on the factual cause of that legal consequence:
the Minister did not execute the Return Orders within the operative six-month window. The Court treated that as
“unilateral act, or more properly unilateral inaction”.
-
Evidential assessment of the State’s explanation:
The State adduced affidavit evidence describing generic logistical complexity in executing removals and noted late notification of one set of proceedings.
However, the Court found a critical deficiency: no specific, case-based reasons were provided for non-execution, and no impediment was identified.
The Court expressly noted compliance by one applicant with appointments, supporting the inference that execution was not frustrated by the applicant.
-
Costs consequence:
With mootness attributed to unexplained unilateral inaction, the applicants were entitled to costs up to mootness.
The absence of an injunction did not prevent a costs award: the Court treated the key question as causation and responsibility for mootness,
rather than whether interim relief had been sought or obtained.
3.3 Impact
-
Costs exposure where Return Orders lapse during litigation:
The decision strengthens the proposition that, even where mootness arises through a statutory time-limit, the State may bear costs if lapse is the result of
unexplained non-execution within its control.
-
Evidential burden on the respondent:
Consistent with Hughes v Revenue Commissioners [2021] IECA 5, the judgment incentivises respondents to place
case-specific evidence before the court if they wish to argue that mootness was independent of the proceedings or justified by genuine underlying circumstances.
-
No-injunction cases:
The ruling is significant for applicants who do not seek injunctions (whether for strategic, legal aid, evidential, or timing reasons):
a lack of interim relief does not foreclose costs recovery where mootness is attributable to respondent-controlled inaction.
-
Administrative practice:
Operationally, the decision may encourage earlier execution decisions, clearer record-keeping on obstacles, and/or timely engagement with pending proceedings,
because an unexplained lapse may now carry predictable costs consequences.
4) Complex Concepts Simplified
- Mootness
-
A case becomes “moot” when the court can no longer grant practical relief because the issue has ceased to exist (here, the Return Order expired).
- Return Order and s.51C(2) time-limit
-
A Return Order is a statutory direction to remove a person from the State. Section 51C(2) provides a limited window (six months in these cases)
within which it must be given effect; if not executed within that time, it lapses.
- Costs “follow the event” and the “event” problem in moot cases
-
Ordinarily, the winning party gets costs. In moot cases there is often no clear winner. Courts therefore look for an “event”
attributable to the proceedings (for example, a concession or a respondent action that effectively gives the applicant the relief sought),
or else default to “no order” where mootness is truly independent of the parties.
- “Unilateral act” vs “underlying change of circumstances”
-
A unilateral act (or inaction) is something one party does (or fails to do) that makes the case pointless to continue.
An underlying change of circumstances is an external development not fairly attributable to either party.
The distinction matters because unilateral conduct more readily justifies costs being paid by the party responsible.
5) Conclusion
[2026] IEHC 489 establishes a clear costs approach where judicial review of Return Orders becomes moot because the Minister
does not execute the orders within the six-month period mandated by s.51C(2) of the International Protection Act 2015.
Where non-execution is unexplained on the evidence, the lapse is properly characterised as unilateral inaction,
constituting the relevant “event” for costs purposes. The applicants, even without having sought an injunction, were therefore entitled to
recover their costs up to the date of mootness (with the costs of the further contested costs application to be addressed separately).