M.S. v Minister for Justice (Approved)

Factual and Procedural Background

These proceedings arose from delays in the determination of the Applicant's application for a certificate of naturalisation under the Irish Nationality and Citizenship Act, 1956. The application had been pending since 2021. The Applicant initiated judicial review proceedings seeking an Order of Mandamus to compel the Respondent, the Minister for Justice, to decide on the application. Prior to the hearing of the leave application, a positive decision granting the certificate was issued, rendering the proceedings moot. The parties, however, could not agree on costs, leading to a discovery application focused on whether the Applicant was entitled to costs on the basis that the proceedings influenced the timing of the decision.

The Applicant is a national of Afghanistan who arrived in the State in October 2018 and was granted refugee status in July 2020. She applied for naturalisation in November 2021, but her application fee was allowed to expire due to a processing backlog related to Covid-19, requiring re-submission and acknowledgment only in August 2022. Correspondence from the Minister indicated that processing a straightforward application typically took approximately 23 months. The Applicant's solicitors sent letters in October 2023 requesting updates and warning of judicial review if no decision was made.

The Minister responded in November 2023, indicating the application was nearing completion, pending an up-to-date Garda vetting and background checks. The Applicant completed the e-vetting process in November 2023. Background checks were completed by late February 2024, coinciding with the filing of judicial review papers. The positive decision was made in March 2024 and notified to the Applicant later that month, exceeding the initially indicated 12-week timeframe for final decision-making.

Following the mootness of the proceedings, the parties disputed costs. The Minister contended that the decision was made in the ordinary course and unrelated to the proceedings. The Applicant sought discovery of documents to establish a causal link between the initiation of proceedings and the timing of the decision, aiming to justify an entitlement to costs.

Legal Issues Presented

1. Whether the Applicant is entitled to discovery of documents to establish a causal connection between the initiation of judicial review proceedings and the timing of the decision on the naturalisation application for the purpose of a costs application.
2. Whether the Applicant is entitled to costs in moot judicial review proceedings where a positive decision was issued prior to the granting of leave to proceed.
3. The scope and appropriateness of discovery in pre-leave judicial review proceedings, particularly in relation to costs applications.

Arguments of the Parties

Applicant's Arguments

• The judicial review proceedings were instrumental in prompting the positive decision on the naturalisation application, entitling the Applicant to costs.
• Discovery is necessary to establish a causal link between the proceedings and the decision, particularly regarding background checks and internal processing procedures.
• The Minister's affidavit assertions that the application was processed in the ordinary course are contradicted by facts such as the expiration of the application fee and delays in acknowledgement.
• Requests for discovery are reasonable, proportionate, and necessary for the fair determination of costs.
• The Applicant reserved the right to cross-examine the Minister's deponent if necessary.

Respondent's Arguments

• The positive decision was made in the ordinary course, unrelated to the judicial review proceedings.
• The Applicant's request for discovery is a fishing expedition, overly broad and disproportionate, seeking wide-ranging internal documents.
• The proceedings were moot before leave was granted; thus, the Minister was not formally on notice, and the proceedings were never properly instituted.
• The Minister enjoys absolute discretion in citizenship decisions, and internal procedures are protected by public interest privilege.
• The default rule in moot cases is no order as to costs, as established in relevant case law.
• Discovery is not necessary or relevant for the determination of costs, and the Applicant has not identified any prima facie reason to doubt the Minister's affidavit.
• The Applicant had alternative means (FOI/SAR requests) to obtain documentation but did not pursue them effectively before initiating proceedings.
• Any application for discovery would be resisted, and public interest privilege would be asserted over sensitive material.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hughes v. Revenue Commissioners [2021] IECA 5	Principles guiding costs in moot cases, particularly the requirement of a causal link between proceedings and decision.	The court applied the four-part test from Hughes to assess whether the decision was a unilateral act unrelated to proceedings, favoring no order as to costs.
Cunningham v. President of the Circuit Court [2012] IESC 39	Default rule of no order as to costs in moot cases unless a causal connection is established.	Supported the position that costs should generally be borne by each party in mootness cases absent a causal link.
Godsil v. Ireland [2015] IESC 103	Limits on awarding costs in moot judicial review proceedings.	Referenced in support of the principle that costs are limited to cases where the decision was a direct response to proceedings.
MKIA (Palestine) v. IPAT [2018] IEHC 134	Considerations on costs and mootness in judicial review.	Used to illustrate established jurisprudence on costs in moot cases.
Muzaffar & Ors. v. Minister for Justice [2025] IEHC 753	Discretion to depart from no costs rule where causal connection is shown.	Applied to confirm the default position and the circumstances in which costs might be awarded.
K.A. v. Minister for Justice [2003] 2 I.R. 93	Principles governing discovery at pre-leave stage in judicial review.	Guided the court’s analysis on the rarity and exceptional nature of discovery in pre-leave proceedings.
G.S. v. Minister for Justice [2004] IEHC 120	Example of discovery granted in contested leave applications.	Referenced to illustrate the exceptional circumstances under which pre-leave discovery may be granted.
Mahmood v. Minister for Justice and Equality [2016] IEHC 600	Insufficiency of workload or security checks as justification for delay.	Invoked by the Applicant to challenge Minister’s affidavit assertions on processing delays.
McEvoy v. An Garda Siochana Ombudsman Commission [2015] IEHC 203	Limits on discovery to challenge affidavit evidence without prima facie material.	Applied to reject discovery sought solely to undermine affidavit truthfulness absent supporting material.
N.K. v. Minister for Justice [2021] IEHC 161	Discovery refusal where application amounts to fishing expedition.	Supported refusal of broad discovery requests lacking specific relevance or necessity.
A.J.A. v. Minister for Justice [2022] IEHC 624	Obligation of candour on applicants in ex parte leave applications.	Referenced to highlight deficiencies in the Applicant’s grounding affidavit and instructions.

Court's Reasoning and Analysis

The court identified fundamental difficulties with the discovery application, primarily because the proceedings were at a pre-leave stage, meaning they were not properly instituted or on notice. The Applicant had unilaterally served intended proceedings before leave was granted, apparently to assert a costs entitlement prematurely.

The court noted the rarity and exceptional nature of discovery at pre-leave stage, especially in moot cases where the Applicant no longer seeks substantive relief. The Applicant had access to relevant documentation through FOI and subject access requests but failed to timely pursue these before initiating proceedings.

The court applied established principles from relevant case law, including the four-part test in Hughes v. Revenue Commissioners, concluding that the positive decision was made in the ordinary course and was unrelated to the judicial review proceedings. There was no evidence to dispute the Minister’s affidavit that background checks and processing were completed independently of the proceedings.

The court emphasized that discovery is not available to challenge the accuracy of uncontroverted affidavit evidence without prima facie material suggesting inaccuracy. The Applicant’s suspicion based on the timing of the decision was speculative and insufficient to justify discovery.

Furthermore, the court found the Applicant’s grounding affidavit deficient, lacking necessary documentation and factual detail, and noted that the proceedings were premature and precipitous. The unilateral notification of proceedings with an asserted entitlement to costs before leave was granted was viewed as an abuse of process aimed at securing costs without proper foundation.

Accordingly, the court refused discovery, finding it neither necessary, relevant, nor proportionate for determining costs in these moot, pre-leave proceedings.

Holding and Implications

The court REFUSED the Applicant's application for discovery.

The direct effect of this decision is that the Applicant will not be permitted to obtain discovery of documents to support a causal link between the judicial review proceedings and the timing of the naturalisation decision for the purpose of a costs application. The ruling reinforces the principle that in moot, pre-leave judicial review proceedings, discovery is rarely appropriate, particularly where proceedings were prematurely and precipitously initiated without proper documentation or pursuit of alternative information avenues. No new precedent was established; the court applied and affirmed established legal principles regarding costs, mootness, discovery, and procedural propriety.