E v The International Protection Appeals Tribunal & ors FOM v The Minister for Justice & Ors (Approved), Supreme Court of Ireland, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

See more information ...

Click here to read the full judgment

E v The International Protection Appeals Tribunal & ors FOM v. The Minister for Justice & Ors (Approved)

Smart Summary

Factual and Procedural Background

These proceedings concerned challenges by two applicants (Applicant 1 and Applicant 2) to decisions connected with international protection, including admissibility, non-refoulement, and a return decision involving transfer to a designated “safe third country” (Third Country X). The High Court granted orders of certiorari and declaratory relief, finding that the State was in breach of European Union law requirements relating to the mechanism used to transfer international protection applicants to a “safe third country”.

After the High Court judgment, legislative changes were enacted, and the instrument designating Third Country X as a safe third country was revoked. In the Court of Appeal, the State parties’ appeals were treated as moot on the basis of those developments, and the applicants withdrew their cross-appeal. The Supreme Court later reversed the Court of Appeal’s mootness determination (referenced in the opinion as [2026] IESC 8). This ruling addressed the remaining issue of costs.

Legal Issues Presented

How costs should be allocated following the Supreme Court’s determination that the State parties’ appeals were not moot.
Whether the applicants should receive any costs protection/partial costs on a public-interest basis by reference to the principles in Little v Chief Appeals Officer [2024] IESC 53.
Whether any costs issues should be reserved to be determined later in the substantive appeals.

Arguments of the Parties

State Parties’ Arguments

They contended they were entirely successful on the mootness issue.
They sought: (i) the costs of the Supreme Court appeal; and (ii) the costs of the mootness hearing in the Court of Appeal, including costs associated with a costs application there.
They submitted that the costs of filing the appeals and cross-appeals should be reserved.

Applicants’ Arguments

They sought an award of part of their costs in the Supreme Court appeal under the principles in Little v Chief Appeals Officer [2024] IESC 53.
Alternatively, they argued costs should be reserved for determination by the Court of Appeal after the substantive appeal.
In the further alternative, they argued no costs order should be made against them because the cases were public interest/test (“pathfinder”) litigation.
They relied on passages (as described in the opinion) characterising the issues as important, including in constitutional terms concerning the imposition and source of EU-law obligations on the State.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2026] IESC 8	The Supreme Court’s prior determination (in the same overall litigation context) reversing the Court of Appeal’s mootness conclusion.	Used to establish the procedural posture: mootness had been rejected, leaving costs as the remaining issue.
[2025] IECA 43	The Court of Appeal decision holding the State parties’ appeals moot (with costs orders at that stage).	Provided the background to the costs dispute, including the fact that only mootness was argued in the Court of Appeal.
Little v Chief Appeals Officer [2024] IESC 53	Principles relevant to costs in public interest litigation, including when an unsuccessful public interest litigant might nonetheless obtain costs (limited to cases of real substance with clear, significant public interest and related features).	The Court concluded the instant appeal did not fall within the categories described in Little, because the only appellate issue argued was mootness and the Court was not asked to revisit or develop mootness doctrine.
[2024] IEHC 183	Referenced in connection with the High Court’s rulings and the questions on which leave to cross-appeal was granted.	Not applied in the costs determination as a governing authority; cited as part of the procedural history and issues for the (future) substantive appeal.

Court's Reasoning and Analysis

The Court accepted that the underlying issues in the proceedings were of significant importance. However, it emphasised that, due to the Court of Appeal’s mootness decision, those underlying issues had not yet been debated and determined on appeal, and they were not the subject of the Court of Appeal judgment or the Supreme Court’s judgments to date.

The Court identified that the sole issue argued at appellate level was mootness. It noted there was no dispute about the applicable principles of mootness and that the Court was not asked to revisit authorities or develop a new analysis of the mootness doctrine; instead, mootness was determined by reference to case-specific features.

Against that background, the Court held that the appeal could not be treated as falling within the categories described in Little for awarding costs to an unsuccessful public interest litigant. The Court also considered that the cases were “pathfinder” matters selected from a list of similar cases, but it concluded that the absence of costs exposure for applicants in other cases did not “entirely dissipate” the consequences of these applicants having chosen to argue mootness.

Holding and Implications

ORDER ON COSTS: The Court awarded the State parties their full costs in the Court of Appeal and 50% of their costs in the Supreme Court.

The High Court costs were not finally determined in this ruling and were stated to remain for determination in the substantive appeal. The decision was confined to costs consequences following the mootness litigation; it did not determine the substantive EU-law issues, and it did not state that any new precedent was set.