M.S. (Afghanistan) v The Minister for Justice and Equality (Approved)

Factual and Procedural Background

The High Court considered three judicial review applications brought by Applicants from Afghanistan and Georgia against the Minister for Justice and Equality. The central proceedings involved a reference of three questions to the Court of Justice of the European Union (CJEU) concerning international protection law. The CJEU delivered a judgment largely in favour of the State, resulting in agreement that the proceedings would be dismissed. Subsequently, an issue arose regarding the appropriate order for costs in these judicial review proceedings.

Legal Issues Presented

1. Whether section 169 of the Legal Services Regulation Act 2015 applies to the costs regime governing these proceedings, given that the section commenced after the proceedings were instituted.
2. Whether the principle that costs follow the event remains applicable or has been altered by the 2015 Act.
3. Whether the respondent (Minister for Justice and Equality) was entirely successful in the proceedings such as to warrant an award of costs in their favour.
4. Whether any countervailing considerations justify departing from the usual rule on costs.

Arguments of the Parties

Applicants' Arguments

• The applicants sought a portion of their costs despite being the losing parties, likely relying on the provisions of section 169 of the 2015 Act.
• They contended that the tribunal erred in its reasoning, differing from the ultimately established legal position, and asserted correctness on the issue of abuse of rights, although this was not decided by the CJEU.
• They argued the CJEU decision lacked reliance on precedent and was based on unforeseen policy considerations, which they suggested should affect costs.
• They claimed the questions raised were of exceptional public importance and arose outside their control, performing a valuable public service.
• They referenced previous cases where costs of references were awarded to applicants, suggesting these should inform the present costs decision.

Respondent's Arguments

• The respondent submitted that section 169 of the 2015 Act is not retrospective and does not apply to these proceedings commenced prior to its commencement.
• They maintained the fundamental principle that costs follow the event remains applicable and that the respondent was entirely successful on the central issues.
• The respondent emphasized that minor or peripheral issues on which the applicants succeeded were insufficient to detract from overall success.
• The respondent highlighted the applicants' failure to make accurate disclosure of their immigration history, which negatively impacted their position on costs.
• They argued that policy decisions by the State, including opting out of the recast procedures directive, cannot be penalized by an adverse costs order.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by addressing the applicability of section 169 of the Legal Services Regulation Act 2015, concluding that it is substantive law and thus not retrospective. Since the proceedings commenced before the section came into effect, the pre-existing costs regime applies.

The Court reaffirmed the foundational principle that costs follow the event, a principle deeply embedded in Irish law. It noted that although the 2015 Act introduced a detailed list of factors potentially justifying departures from this rule, it was likely not intended to supplant the principle but rather to clarify it. The Court expressed concern that the section’s broad enumeration of factors might encourage unsuccessful parties to seek costs orders contrary to the usual rule.

Regarding whether the respondent was entirely successful, the Court acknowledged minor issues on which the applicants succeeded but found these peripheral and insufficient to negate the respondent's overall success on the central issue. The questions referred to the CJEU were court-formulated to clarify key legal points and did not necessarily reflect the parties' framing of their claims.

The Court also considered the applicants’ conduct, particularly their failure to disclose immigration history accurately, as a reinforcing factor supporting an order for costs in favour of the respondent.

The applicants’ counterarguments regarding tribunal errors, absence of precedent, policy decisions, and the public importance of the issues were examined and found insufficient to displace the usual costs rule.

Ultimately, the Court concluded that the respondent was entitled to costs under the applicable principles, whether or not the 2015 Act applied.

Holding and Implications

The Court’s final decision was to DISMISS the proceedings and award costs to the respondent. This includes reserved costs, costs of the proceedings before the CJEU, and costs of the present costs application.

The direct effect is that the respondent recovers costs in these judicial review cases. The Court did not establish any new precedent altering the established principle that costs follow the event. It also suggested that section 169 of the 2015 Act might benefit from reconsideration to better align with the traditional costs principle and to reduce legal uncertainty and unnecessary applications contesting costs orders.