Chain Wei Wei -v- The Minister for Justice & ors (Approved)

Factual and Procedural Background

This ruling concerns costs following a Supreme Court substantive appeal judgment delivered on 19 December 2024 ([2024] IESC 58). The Supreme Court dismissed the appellants’ appeal from a Court of Appeal decision of 2 June 2023, which had dismissed their appeals from High Court judgments (of Judge [Last Name]) delivered on 23 March 2021. The High Court had refused the appellants’ applications for judicial review of decisions by the immigration authorities refusing them permission to land or be in the State under s.4 of the Immigration Act 2004.

After the substantive judgment, the Supreme Court directed written submissions on costs if agreement could not be reached. The respondents filed submissions dated 30 January 2025 and the appellants filed submissions dated 7 February 2025.

Legal Issues Presented

1. Whether, and to what extent, an unsuccessful appellant should be awarded any portion of their legal costs following dismissal of the appeal.
2. What costs order should be made in respect of: (a) the Supreme Court appeal, and (b) the costs orders previously made in the High Court and Court of Appeal.

Arguments of the Parties

Appellants' Arguments

• They sought orders granting them a portion of their legal costs (potentially limited by percentage and/or jurisdiction), contending the case was one of the rare instances justifying costs to unsuccessful appellants.
• The appeal raised a point certified by the High Court as of exceptional public importance, and was admitted by the Supreme Court as raising significant issues affecting non-EU/EEA travellers and difficult questions of statutory interpretation.
• The concept of “public policy” was said to be difficult to define; they relied on differing High Court interpretations in Ezenwaka and Li and Wang, and argued the appeal resolved uncertainty for the public benefit and the benefit of the State.
• They submitted the outcome appeared to align with a category contemplated in Collins, and pointed to Ononkewagbe as an example of partial costs awarded where a judgment had general application and involved first-time statutory interpretation likely to recur.
• They contended the respondents’ successful argument and/or the Supreme Court’s reasoning differed somewhat from the courts below, and that the appeals clarified the parameters of the noscitur a sociis maxim.

Respondents' Arguments

• They emphasised complete success at all levels and relied on Little v The Chief Appeals Officer & Ors (No.2) [2024] IESC 53 for the governing principles.
• They proposed: (i) no order as to costs in the Supreme Court appeal; and (ii) by consent, setting aside the respondents’ costs orders in the High Court and Court of Appeal and substituting no order as to costs in each.
• They argued the case was not rare/exceptional so as to justify taxpayers paying any part of the appellants’ costs, citing Dunne v The Minister for the Environment [2008] 2 I.R. 775 and the stricter test for awarding costs to unsuccessful public-interest litigants.
• They contended the case fell within none of the categories identified in Collins (as supplemented in Little (No.2)), and instead involved application of well-established principles of statutory interpretation.
• While acknowledging prior divergence in High Court jurisprudence on “public policy” that had now been clarified, they argued that feature alone did not make the case exceptional; they also referenced ss.168–169 of the Legal Services Regulation Act 2015 as supporting a “no order as to costs” outcome.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court treated Little (No. 2) as the principal recent authority on whether costs (or a proportion of costs) may be awarded to an unsuccessful party. It set out the categories, drawn from Collins and supplemented by Little (No. 2), where such awards had been made: (i) fundamental constitutional issues touching sensitive aspects of the human condition; (ii) conspicuously novel constitutional cases, often separation-of-powers issues; (iii) issues of far-reaching importance in an area of law with general application; (iv) decisions clarifying an otherwise obscure or unexplored area; and (v) cases where the claimant loses overall but wins a significant issue on appeal.

The Court then compared the present appeal to the reasoning in Little (No. 2), noting that in that case the Court refused costs to the unsuccessful appellant because the appeal involved applying well-established statutory interpretation principles, did not raise constitutional or European law issues, was not “foundational,” and was pursued in the appellant’s personal interest; and despite general importance, it was not of such significance or strength that taxpayers should bear the appellant’s own costs.

The Court held that similar considerations applied here: the appeal involved applying well-established principles of statutory interpretation to the Immigration Act 2004; it did not directly concern constitutional or European law; it was not “foundational”; it was pursued for the appellants’ personal advantage; and although it involved a matter of general public importance, it did not warrant taxpayers bearing any portion of the appellants’ own costs.

Holding and Implications

ORDERED: The Court made the costs orders proposed by the respondents: (i) no order as to costs in respect of the Supreme Court appeal; and (ii) by consent, the costs orders in favour of the respondents in the High Court and Court of Appeal were to be set aside and replaced with no order as to costs in each court.

The direct effect was that neither side was awarded costs in any of the three courts. The ruling applied existing guidance on costs for unsuccessful parties and did not state that it set any new precedent beyond applying the principles in Little (No. 2) and the categorisation in Collins.