Cosgrove [Practising under the style and title of Aidan T Stapleton Solicitors] v Minister for Justice & Anor (Approved)

Factual and Procedural Background

The Applicant, a practising solicitor and sole partner of the firm known as Company A, sought an interlocutory injunction restraining the Respondent from implementing a decision dated 15 November 2024. The Respondent decided not to deal with the Applicant concerning applications under a visa scheme known as the Immigrant Investor Programme (IIP), pending an investigation into a complaint lodged against the Applicant's firm with the Legal Services Regulatory Authority (LSRA).

The Applicant challenged the legality of this decision on grounds including lack of fair procedures, absence of reasons for the decision, and the Respondent's alleged lack of power to suspend the Applicant's practice in this manner. The Applicant had been involved in the IIP for over ten years and contended that the decision significantly impacted his ability to earn a livelihood.

The IIP was a government visa scheme operational from 2012 until February 2023, allowing high net worth non-EU nationals to obtain visas through approved investments. Approximately 1,500 applications and 400 approved projects remained active when the scheme was closed to new applicants.

A complaint was made by a third party to the LSRA alleging misrepresentation and conflict of interest by a former partner of Company A in relation to an investment project involving Company B. The Applicant denied all allegations. The LSRA deferred consideration pending any Garda investigation. No formal restrictions on the Applicant’s practice had been sought by the LSRA or the Law Society.

On 15 November 2024, the Respondent informed the Applicant by email that all IIP applications handled by Company A would be paused pending investigation. The Applicant sought judicial review and was granted leave to proceed on 17 February 2025. The current interlocutory injunction application aims to maintain the status quo until the judicial review trial.

Legal Issues Presented

1. Whether the Respondent's decision to pause processing of the Applicant’s IIP applications pending investigation was lawful and procedurally fair.
2. Whether the Applicant was entitled to fair procedures, including the opportunity to make representations before the decision was taken.
3. Whether the Respondent had the power to effectively suspend the Applicant’s ability to act as a solicitor in relation to the IIP.
4. The appropriate test and threshold for granting an interlocutory injunction in judicial review proceedings involving ministerial decisions affecting a person’s livelihood.
5. Whether the balance of justice favored granting an interlocutory injunction restraining the Respondent from implementing the decision pending trial.

Arguments of the Parties

Applicant's Arguments

• The Applicant contended he was not afforded any opportunity to make representations before the Respondent’s decision, thereby breaching the right to fair procedures.
• The decision lacked any reasons, contrary to established legal requirements for administrative decisions affecting rights.
• The Respondent’s decision effectively suspended the Applicant from a significant part of his practice without lawful authority.
• The Applicant sought a prohibitory interlocutory injunction to maintain the status quo ante, not a mandatory injunction.
• Case law establishes that decisions materially affecting a person’s right to earn a livelihood and good name engage the right to fair procedures.
• Damages would not be an adequate remedy due to unquantifiable loss of clients, future income, and reputational damage.

Respondent's Arguments

• The Respondent argued the injunction sought was in effect mandatory, requiring the Applicant to show a strong case, which he had not done.
• The Respondent claimed an implied power to regulate the IIP and to take reasonable steps, including pausing applications, pending investigation of serious complaints.
• It was submitted that the right to fair procedures was not engaged in the context of a temporary suspension.
• The Respondent emphasized the importance of maintaining the integrity and transparency of the IIP scheme.
• The Respondent asserted no allegations had been made directly against the Applicant or his firm regarding wrongdoing.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming the established principles for interlocutory injunctions, particularly in judicial review contexts, emphasizing the need to identify an arguable case and assess where the greater risk of injustice lies.

The court accepted that the Applicant had established a fair or serious issue to be tried, as evidenced by the grant of leave to proceed with judicial review. The court held that the injunction sought was prohibitory, restraining the Respondent from implementing the decision pending trial, rather than mandatory.

Even if the injunction were considered mandatory, the court found the Applicant had a strong case, primarily because the Applicant was not afforded any opportunity to make representations before the decision was taken, thus breaching the right to fair procedures. The court relied on recent case law confirming that decisions materially affecting a person’s right to earn a livelihood and reputation engage the right to fair procedures, requiring at least basic fairness and an opportunity to be heard.

The court found that the Respondent acted ultra vires by effectively suspending the Applicant from a significant part of his practice without lawful authority, as the regulation and disciplining of solicitors is not within the Respondent's remit.

The failure to provide reasons for the decision was another significant defect, as reasons must be given contemporaneously with the decision and cannot be supplied retrospectively.

Regarding the balance of justice, the court found that the Applicant would suffer significant, unquantifiable, and irremediable loss, including loss of income, clients, and reputational damage, if the injunction were refused. Damages would not be an adequate remedy due to the competitive nature of the market and the likelihood of permanent loss of clients.

Conversely, the court was not persuaded that the Respondent would suffer any appreciable harm or loss if the injunction were granted. The Respondent did not allege any wrongdoing by the Applicant, and the integrity of the visa scheme was not demonstrably threatened by allowing the Applicant to continue acting for his clients pending trial.

On these grounds, the court concluded that the balance of justice favored granting the interlocutory injunction.

Holding and Implications

The court's final decision was to GRANT the interlocutory injunction sought by the Applicant.

The Respondent is restrained from implementing the decision dated 15 November 2024, which paused processing of the Applicant’s IIP applications, until the trial of the judicial review proceedings. This order is effective immediately.

The direct consequence is that the Applicant may continue to act as a solicitor for clients involved with the IIP pending the judicial review trial, preserving his livelihood and reputation during this period.

No new precedent was established beyond the application of existing principles to the facts. The court reserved costs of the injunction application to the trial of the judicial review and scheduled a mention for further directions.