M.S. v Minister for Justice – Curtailing Discovery in Pre-Leave, Moot Judicial Review Proceedings

1. Introduction

In M.S. v Minister for Justice ([2025] IEHC 335) Ms. Justice Siobhán Phelan delivered a comprehensive ruling that effectively sets a new boundary on the availability of discovery when:

judicial review proceedings have not yet passed the leave stage,
the substantive dispute has become moot, and
the sole live issue concerns costs.

The decision arises from an Afghan refugee’s delay-based mandamus application regarding her naturalisation request, later overtaken by the grant of citizenship. Unable to agree costs, the applicant sought discovery to prove the proceedings “caused” the Minister’s eventual decision. The Court refused, articulating rigorous principles that restrict discovery at this procedural juncture and reiterating the default “no-order-as-to-costs” rule in moot cases.

2. Summary of the Judgment

Discovery refused. The documentation sought was neither necessary, relevant, nor proportionate to the only extant issue (costs) and would amount to a fishing expedition.
Pre-leave status crucial. Because leave had never been granted, the proceedings were “not actually in being”; discovery at that point is exceptionally rare and justified only where access to the courts would otherwise be prejudiced – a circumstance absent here.
Mootness & costs. Applying Hughes v Revenue Commissioners, the Court emphasised that in moot cases each side generally bears its own costs unless proceedings demonstrably triggered the respondent’s action, something not established on the affidavits.
Strategic litigation discouraged. The applicant’s rush to file incomplete papers and to serve them pre-leave (solely to found a costs claim) was criticised as an “unseemly haste” incompatible with public-law litigation duties of candour.

3. Analysis

3.1 Precedents Cited

Hughes v Revenue Commissioners [2021] IECA 5 – Four-part test on costs in moot cases. Phelan J. adopted Murray J.’s framework, emphasising the need for a causal link between litigation and the impugned decision.
Cunningham v President of the Circuit Court [2012] IESC 39 and Godsil v Ireland [2015] IESC 103 – Established the “default no-order-as-to-costs” rule where mootness is not the unilateral act of a respondent in response to proceedings.
Muzaffar & Ors v Minister for Justice [2025] IEHC 753 – Recently reaffirmed Cunningham in the naturalisation context; cited as contemporary authority by Phelan J.
K.A. v Minister for Justice [2003] 2 I.R. 93 & G.S. v Minister for Justice [2004] IEHC 120 – Rare examples of discovery at pre-leave stage, but only to enable a contested leave application, not (as here) to pursue costs.
McEvoy v An Garda Síochána Ombudsman Commission [2015] IEHC 203 – Discovery cannot be used merely to undermine an affidavit without independent grounds.
N.K. v Minister for Justice [2021] IEHC 161 – Discovery refused where suspicion of undisclosed material was speculative.

By synthesising these authorities, the Court fortified a coherent line: discovery is exceptional pre-leave and practically unavailable when the substantive dispute is gone.

3.2 Court’s Legal Reasoning

Procedural Posture. The litigation never advanced beyond the leave phase; accordingly, the Minister should not even have been on notice. Granting discovery at so embryonic a stage would invert the ordinary sequence of judicial review.
Relevance & Necessity Test. Discovery must (a) relate to a live issue and (b) be necessary for its resolution. The applicant’s only live issue was costs. Under Hughes the burden to show a causal nexus rested on her, yet she possessed “nothing to gainsay” departmental affidavits. Seeking documents merely to unearth a dispute was impermissible (McEvoy).
Proportionality. Deploying State resources to compel extensive discovery where no substantive relief is pursued was deemed disproportionate (especially when FOI/SAR routes, later only belatedly used, provided alternative access).
Candidate ‘Fishing Expedition’. Broad categories (“all documentation relating to background checks”; “all documentation relating to the ordinary internal procedure”) lacked specificity. The Court regarded the request as classic trawling.
Litigation Conduct. The applicant’s premature filing, absence of foundational documents, and tactical service of papers (before leave and solely to flag a costs claim) undermined her equity to seek discretionary discovery orders.

3.3 Potential Impact

Practical Bar on Pre-Leave Discovery for Costs-Only Disputes. Practitioners will find it nearly impossible to obtain discovery where (a) leave has not been granted and (b) the substantive matter is resolved.
Emphasis on Proper Preparation. Applicants must gather and exhibit core material (via FOI/SAR) before initiating mandamus claims; failure may prejudice later costs arguments.
Deterrence of Tactical Proceedings. Filing proceedings chiefly to secure costs (rather than genuine relief) now carries heightened risk: not only may costs be denied, but discovery avenues are foreclosed.
State Process Integrity. The ruling supports Government departments’ “queue” systems, warning that High Court proceedings cannot dictate prioritisation absent exceptional circumstances.
Mootness Costs Jurisprudence Stabilised. The decision integrates and reinforces the procedural template set by Hughes, Cunningham, and Muzaffar, bringing further certainty to costs assessments in public-law mootness scenarios.

4. Complex Concepts Simplified

Judicial Review “Leave” Stage: The Irish High Court acts as a gatekeeper; most applications require preliminary permission (leave) before the substantive challenge proceeds. At leave, the respondent normally is not served.
Order of Mandamus: A court command compelling a public body to perform a legal duty (here: deciding a naturalisation application).
Mootness: When events post-filing resolve the live controversy (e.g., the certificate is granted), the case is moot; courts generally refrain from ruling on moot substantive issues.
Discovery: A procedural device obliging a party to produce documents relevant and necessary to determine issues in dispute.
Public Interest Privilege: A doctrine allowing State bodies to withhold documents if disclosure would harm vital interests (e.g., national security).
Fishing Expedition: An impermissible request for documents in the hope of finding something useful, rather than grounded in known relevance.
FOI / SAR: Freedom of Information requests and GDPR Subject Access Requests are statutory mechanisms by which individuals can obtain records relating to them without resorting to court procedures.

5. Conclusion

M.S. v Minister for Justice closes an emerging gap in Irish administrative law procedure. It clarifies that where judicial review proceedings are still at the leave stage and have been rendered moot, discovery will virtually never be ordered solely to buttress a costs claim. Applicants must establish a concrete factual dispute grounded in independent evidence, not speculation, before the Court will contemplate piercing State files—particularly where less intrusive FOI/SAR routes exist.

The ruling strengthens the default position that each side bears its own costs in mootness situations, reinforces the principle that litigation should not distort orderly administrative queues, and sends a clear signal that tactical, premature proceedings may backfire. It is likely to guide both applicants and the State in future disputes concerning delay, discovery, and costs, promoting procedural discipline and conserving judicial resources.