Summary of Judicial Review Opinion

Factual and Procedural Background

These proceedings concerned an application for entry of the Applicant's birth on the register of foreign births. The Applicant is a minor suing by his father as next friend. The gravamen of the judicial review was that processing and determination of the foreign birth registration application were unreasonably delayed and the Applicant sought mandatory relief.

The application to Company A (the Department responsible for foreign births) was submitted online on 18 January 2019. Documentation was requested and ultimately provided on 5 October 2022; further processing events occurred, including transfer to a "return processing" queue because of a missing original birth certificate on 20 December 2023, and submission of the original birth certificate on 2 January 2024. Judicial review proceedings were filed on 26 March 2024. The decision approving entry on the foreign births register was made on 7 May 2024, i.e. after the proceedings had been commenced but before a leave hearing.

The parties agreed that the substantive challenge was rendered moot by that determination and the remaining live issue before the court was the incidence of legal costs. The decision was delivered by Judge Simons on 3 November 2025.

Legal Issues Presented

1. What principles govern the incidence of legal costs in judicial review proceedings that have become moot?
2. Whether, on the facts, the decision that rendered the proceedings moot was made in the ordinary course (external event) or was a unilateral act or was expedited in response to the judicial review proceedings (such that costs should follow against the party whose action caused mootness)?
3. How should the court allocate costs where the parties generated further costs in contesting the appropriate costs order and where one party's affidavit omissions contributed to additional costs?

Arguments of the Parties

Applicant's Arguments

• The processing and determination of the foreign birth registration application were unreasonably delayed and the commencement of judicial review proceedings produced a practical benefit by expediting the determination.
• Evidence disclosed following a Data Subject Access Request suggested the decision-maker had been aware of the judicial review proceedings prior to making the determination and had sought legal advice, which they said tended to show the decision was made in response to the proceedings.
• The Applicant sought affidavit evidence from the decision-maker and confirmation of whether the timing of the determination had been affected by the judicial review proceedings; ultimately the Applicant did not pursue cross-examination or discovery for pragmatic cost reasons.

Respondents' Arguments

• The respondents maintained that the decision approving entry on the foreign births register "issued in the ordinary course and not in response to the threat (or advancement) of legal proceedings".
• The respondents filed an affidavit from the official who made the determination (the "decision-maker") averring that the determination followed ordinary processes and was not in response to the judicial review proceedings.
• The respondents relied on that affidavit evidence to contend that the proceedings had become moot due to an external event (ordinary administrative progression) rather than as a unilateral act prompted by the proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hughes v. Revenue Commissioners [2021] IECA 5; [2023] 3 IR 393	Sets out a framework for costs where proceedings become moot: (1) if mootness arises from events independent of the parties, parties generally bear their own costs; (2) if mootness arises from unilateral action by a party, costs may follow against that party; (3) special considerations apply for statutory bodies and new administrative decisions where the court should assess whether there was a change in circumstances or a mere change of mind.	The court used Hughes as the primary guide to assess whether the determination that rendered the proceedings moot was an external event or a unilateral act, and to frame the discretionary approach to costs allocation.
P.T. v. Wicklow County Council [2019] IECA 346 (cited in Hughes)	Support for Hughes' statement that the three propositions are a general framework rather than rigid rules; emphasises court's overriding discretion on costs.	Cited (via Hughes) to underscore that the principles are a guide for the exercise of discretion and not inflexible rules.
Matta v. Minister for Justice, Equality and Law Reform [2016] IESC 45	Principles governing cases where there is an allegation of unreasonable delay in administrative decision-making, particularly focusing on whether the timing of a decision was affected (expedited) by judicial review proceedings.	Applied to identify that, in delay cases, the key question is whether the judicial review expedited the decision — if so, costs may follow; if not, then no basis for awarding costs to the applicant.
Butler Duignan v. Chief Appeals Officer [2024] IECA 188	Reiterates that incidence of costs in delay cases is informed by whether timing was affected by proceedings; an expedited decision in response to proceedings can justify costs in favour of the applicant.	Used alongside Matta to frame the specific legal approach to administrative delay cases and to assess whether the decision was made in ordinary course or expedited by the JR.
RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4; [2019] 1 IR 63	Establishes that a court should not be invited to reject sworn affidavit evidence without first giving the deponent an opportunity to explain under cross-examination where credibility or reliability is in issue; the burden lies on the party challenging such evidence to use appropriate procedural measures.	The court relied on RAS Medical to explain that the Applicant could not properly ask the court to disbelieve the decision-maker's affidavit without having first sought cross-examination; because the Applicant declined to pursue cross-examination, the affidavit stood uncontroverted.

Court's Reasoning and Analysis

The court began by identifying the established legal framework for costs where proceedings have become moot, principally as articulated in Hughes. That framework distinguishes between mootness caused by events independent of the parties, mootness caused by unilateral action of a party (including decision-makers), and the special position of statutory bodies making new administrative decisions. The court emphasised that these are guiding propositions and that an overriding discretion remains with the court.

The court then treated cases alleging unreasonable delay in administrative decision-making as a subset in which the decisive question is whether the timing of the administrative decision was affected by the existence of the judicial review proceedings. The Supreme Court's decision in Matta and the Court of Appeal in Butler Duignan were invoked to support this approach: if the proceedings expedited the decision-making, the applicant may have achieved a practical benefit entitling recovery of costs; if the decision was taken in the ordinary course, there is no obvious basis for awarding costs.

Turning to the evidence, the respondents filed an affidavit from the official who made the determination (the "decision-maker"), averring that the decision followed ordinary processes and was not made in response to the judicial review proceedings. The Applicant sought to challenge that factual position, relying in part on material obtained through a Data Subject Access Request which showed the decision-maker had been notified of the proceedings and had sought legal advice. However, the Applicant did not pursue cross-examination of the decision-maker nor a motion for discovery, choosing not to incur additional legal costs which the Applicant considered disproportionate to potential recoverable amounts.

The court applied RAS Medical to hold that it is not permissible to ask a court to reject or discount sworn affidavit evidence without first giving the deponent an opportunity to explain apparent contradictions under cross-examination. Because the Applicant declined to cross-examine, the decision-maker's affidavit stood uncontroverted.

The court also noted that the disclosed documentary record was not, on its face, inconsistent with the decision-maker's averment. Circumstantial evidence indicated that the application had been nearing determination by the end of December 2023 and that it had been delayed by the absence of an essential document; once the missing document was provided in early January 2024, it was plausible the application would have been processed by May 2024 in the ordinary course.

The court broke the costs into two tranches. For the first tranche (costs incurred up to the date the proceedings became moot), the court concluded — applying the established authorities — that because the determination occurred in ordinary course (an external event) and not in response to the proceedings, each party should bear its own costs. For the second tranche (additional costs incurred in litigating the appropriate costs order), the court found that both parties contributed to the generation of those costs: the Applicant had insisted on affidavit evidence and pursued a DSAR, and the respondents had filed an affidavit that omitted certain relevant disclosures (specifically, explicit acknowledgment of prior notification of the proceedings and of seeking legal advice). The court considered the respondents' litigation conduct under section 169 of the Legal Services Regulation Act 2015 and concluded that the respondents should not be permitted to recover the costs they incurred in contesting the costs issue. Consequently, no costs order was made in respect of that additional tranche.

Holding and Implications

Final Ruling: The court directed that each party bear their own costs of the proceedings and ordered that the proceedings be dismissed as moot. The court granted the parties liberty to apply.

Implications:

• Direct effect: Each party must bear their own costs up to the date the proceedings became moot; no party recovers costs in relation to the subsequent contest about costs.
• The respondents will not recover the costs they incurred in contesting the appropriate costs order, having regard to their affidavit omissions and the court's consideration under section 169 of the Legal Services Regulation Act 2015.
• No broader or novel legal principle was established by the judgment; the court applied existing authorities (Hughes, Matta, Butler Duignan, RAS Medical) and exercised its discretion in accordance with those precedents.

Additional Procedural and Administrative Notes

The title of the proceedings was anonymised pursuant to section 45 of the Courts (Supplemental Provisions) Act 1961 because the matter concerned personal information about a minor. The court noted that bona fide media may apply to set aside anonymisation on ten days' notice.

The court also observed that the decision-maker's affidavit could have been more detailed by expressly stating that she made the decision, that she had been aware of the proceedings, and that such awareness did not affect timing. The absence of such explicit statements contributed to the additional procedural dispute about costs.

Appearances (Anonymized)

Attorney Sotoodeh for the Applicant instructed by Company A.
Attorney Keyes for the Respondents instructed by Company B.