Donnan v Parole Board (Approved)

Factual and Procedural Background

This opinion concerns a costs application related to an application for leave to apply for judicial review that became moot. The judicial review challenged a decision by the Parole Board dated 19th September 2024, which treated as discretionary the mandatory obligation under section 13 of the Parole Act 2019 to prepare a report once the Board had decided to direct such a report in connection with the Applicant's parole application.

The Parole Board initially refused the Applicant's parole on 19th September 2024, requiring a detailed advance release plan for any future parole application. The Board described this requirement as a recommendation and non-binding, a position contested by the Applicant who argued that the obligation to prepare the report was mandatory once directed under the Act.

The Applicant filed judicial review papers on 18th December 2024. Following an ex parte hearing on 10th February 2025, the court identified the Parole Board's error and directed the Applicant to notify the Board in writing, adjourning the application to allow the Board to respond. Subsequent correspondence between the parties resulted in the Parole Board confirming on 26th March 2025 that upon receipt of the Applicant's parole application, it would issue a direction under section 13 to prepare the detailed release plan, effectively addressing the Applicant's grievance and rendering the judicial review moot.

The Applicant confirmed intention to apply for parole and requested the direction to issue accordingly. The Parole Board acknowledged receipt of this confirmation and indicated ongoing administrative steps to facilitate the application process.

Legal Issues Presented

1. Whether the Parole Board erred in treating as discretionary the mandatory obligation under section 13 of the Parole Act 2019 to prepare a report once directed.
2. Whether the judicial review application had become moot due to the Parole Board's subsequent unilateral action.
3. The appropriate order as to costs in proceedings rendered moot by such unilateral action.

Arguments of the Parties

Applicant's Arguments

• The Parole Board erred by treating the mandatory obligation to prepare a report under section 13 of the Parole Act 2019 as discretionary.
• The Board's decision of 19th September 2024 incorrectly described the preparation of the detailed release plan as a non-binding recommendation rather than a mandatory direction.
• The Applicant challenged this error by way of judicial review and sought to quash the Board's decision.
• Following the Board's acknowledgment of the error and confirmation of intended compliance, the Applicant confined the application to the issue of costs.

Parole Board's Arguments

• The Board initially treated the preparation of the report as discretionary in its decision dated 19th September 2024.
• Upon notification of the judicial review and the Board's error, the Board confirmed that it would issue the mandatory direction under section 13 upon receipt of the Applicant's parole application.
• The Board contested the Applicant's application for costs.
• The Board argued that no application for parole had yet been received and sought confirmation of the Applicant's intention to apply before issuing the direction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the well-established legal framework governing costs in judicial review proceedings rendered moot, principally relying on the authoritative judgment in Hughes v The Revenue Commissioners. The court explained that where mootness arises from an event outside the control of the parties, costs are generally borne by each party. However, if mootness results from the unilateral action of one party, that party is usually liable for costs unless it can demonstrate that the action was not in response to the proceedings.

The court identified the specific event rendering this case moot as the Parole Board's letter dated 26th March 2025, which confirmed that upon receipt of the Applicant's parole application, the Board would issue the mandatory direction under section 13 of the Parole Act 2019 for the preparation of the detailed release plan. This action effectively remedied the alleged error and removed the live controversy.

The court found that this event was a unilateral act by the Parole Board taken in direct response to the judicial review proceedings. The Board's confirmation was not due to an external change in circumstances but was prompted by the litigation itself. Therefore, the court concluded that the Board was responsible for the mootness.

On the substantive legal point, the court accepted the consensus of counsel that section 13 imposes a mandatory obligation to prepare the report once the Board has directed its preparation. Conversely, the Board's recommendations under section 30 are discretionary and non-binding. The Board's incorrect characterization of the section 13 obligation as discretionary was the basis of the Applicant's challenge.

Given the mootness caused by the Board's unilateral remedial action, the court determined that the Applicant was entitled to costs. The court declined to reduce costs and left the quantification to agreement or adjudication by the Office of the Legal Costs Adjudicator.

Holding and Implications

The court's final decision was to award the Applicant the costs of the application for leave to apply for judicial review, including reserved costs and the costs of the costs application itself. The court certified senior and junior counsel fees for the leave application and preparation of legal submissions.

This decision directly affects the parties by requiring the Parole Board to bear the costs of the moot judicial review proceedings. No new legal precedent was established; rather, the court applied established principles regarding mootness and costs, emphasizing the responsibility of statutory bodies for costs when their unilateral actions render proceedings moot in response to litigation.