Summary of Judgment

Factual and Procedural Background

Two separate judicial review proceedings were brought by two plaintiffs challenging Return Orders directing their removal from the State to a third country. In each matter the plaintiff obtained leave to challenge the Return Order. Each Return Order had a six-month operative validity under s.51C(2) of the International Protection Act 2015; the six-month period expired during the currency of the judicial review proceedings and the proceedings thereby became moot. The Chief State Solicitor suggested striking out the proceedings with no order as to costs; the plaintiffs opposed that suggestion and sought costs from the defendants for the period up to mootness.

Key dates (as stated in the opinion):

• Plaintiff 1: Return Order dated 30 April 2025; leave granted 2 September 2025; proceedings became moot 8 November 2025; respondents notified 12 September 2025.
• Plaintiff 2: Return Order dated 28 May 2025; leave granted 15 September 2025; proceedings became moot 5 December 2025.

Legal Issues Presented

1. Whether plaintiffs are entitled to an order for costs where judicial review proceedings became moot because the Return Orders lapsed on expiry of the six-month period in s.51C(2).
2. Whether the lapse of the Return Orders constituted a "unilateral act" or "unilateral inaction" by the defendant such that costs should follow the plaintiffs (i.e. the effect of the causal nexus between the proceedings and the mootness).
3. How established principles on costs in moot judicial review proceedings (including the treatment of statutory bodies) apply to these facts.

Arguments of the Parties

Plaintiffs' Arguments

• The proceedings became moot because the defendant failed to execute the Return Orders within the statutory six-month period (a unilateral act/inaction by the defendant), and accordingly the plaintiffs are entitled to an order for payment of costs incurred up to the dates on which the proceedings became moot.

Defendants' Arguments

• The mootness resulted from operation of law—the expiry of the statutory six-month validity of each Return Order—and was not a unilateral act by the defendant; therefore the appropriate costs order is no order as to costs.
• The defendant relied on affidavit evidence explaining logistical and operational complexities in giving effect to Return Orders and on the fact that the defendant became aware of the proceedings part-way through the six-month period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cunningham v The President of the Circuit Court [2012] 3 IR 222	Framework for assessing whether mootness arises from a unilateral act or from a change in underlying circumstances; importance of distinguishing those causes when deciding costs.	Used to emphasise that mere change of position by a statutory body does not automatically mean a unilateral act; required analysis of cause of mootness for costs decision.
MKIA v IPAT [2018] IEHC 134	Summarised multi-step approach to costs in moot actions (including whether there existed an "event" to which costs-follow-the-event applies).	Adopted the MKIA articulation (points (i)–(vi)) as the applicable summary of law on costs in moot international protection cases.
Hughes v Revenue Commissioners [2021] IECA 5	Principles: if mootness independent of parties, default is no order; if mootness due to actions of a party causally connected to proceedings, costs may follow; statutory bodies' obligations require careful analysis.	Relied upon for the proposition that mootness arising from actions/inactions of a party connected to the proceedings can justify ordering that party to pay costs; guided the court's analysis of statutory body behaviour.
Little The Chief Appeals Officer & ORS [2024] IESC 53	Referenced for the definition/character of "public interest proceedings."	Cited in discussion of relevant factors (from AA) concerning public-interest aspects that may influence costs considerations.
AA v Minister for Justice (Unreported, High Court, O'Higgins J., 30 January 2025)	Factors to consider in costs applications where proceedings become moot in international protection/transfer contexts; importance of injunctions and public-interest considerations; awarded 50% of costs in that case.	Used as comparative authority showing how injunctions and public-interest factors weighed in favour of partial costs awards; informed court's reasoning on appropriate remedy in absence of injunctions.
AH v Minister for Justice (Unreported, High Court, Phelan J., 11 April 2025)	Adopted AA approach; awarded 50% of costs where relevant.	Used as supportive precedent for how courts had treated similar situations involving moot transfer/return proceedings.
A.B.D.I v Minister for Justice and Others (ex tempore judgment of Mulcahy J., 1 December 2025)	Considered costs where proceedings became moot without an injunction; concluded proceedings may have indirectly contributed to non-execution and awarded 50% of costs (netted off other costs orders).	Cited as a directly comparable decision; Mulcahy J.'s reasoning influenced the balancing exercise and was noted by the court when assessing whether the existence of proceedings contributed to non-execution.
Godsil	Referenced as authority on the concept of an "event" to which costs-follow-the-event applies.	Invoked (via MKIA) to frame whether an event occurred that would justify a costs order for plaintiffs.
Matta	Referenced for the proposition that an event must normally be caused by the applicant's proceedings.	Used as part of the MKIA synthesis to evaluate causation between proceedings and mootness.

Court's Reasoning and Analysis

Judge Barr reviewed the authorities (Cunningham, MKIA, Hughes and subsequent High Court decisions) establishing the analytical framework: determine whether mootness arose from an event causally connected to the proceedings (an "event" in the Godsil sense) or from circumstances outside the parties' control. The court considered the defendants' affidavit evidence (Attorney Gallagher) explaining operational and logistical complexities in giving effect to Return Orders and noting the department became aware of proceedings part-way through the six-month period.

The court examined the factual record for each case: no injunctions had been sought; the plaintiffs had attended GNIB appointments; no specific administrative or logistical impediment was identified in respect of either plaintiff; the defendant did not explain why the Return Orders were not executed. The court concluded that, on the facts before it, the Return Orders lapsed because the defendant had not executed them during the operative six-month period and that there was no external impediment shown that would disentitle the plaintiffs from a costs award.

Applying the precedents, the court treated the lapse as arising from the defendant's unilateral inaction causally connected with the proceedings (or at least not shown to be independent of the proceedings) and therefore of the kind that can constitute an "event" warranting an award of costs to the plaintiffs.

Holding and Implications

Core Ruling: The court held that each plaintiff is entitled to an order for payment of their costs incurred in the judicial review proceedings up to the date on which those proceedings became moot.

Direct consequences:

• Defendants must pay the plaintiffs' costs up to 8 November 2025 (Plaintiff 1) and up to 5 December 2025 (Plaintiff 2).
• Those costs are to be adjudicated in default of agreement between the parties.
• The court will hear the parties on what precise costs order should be made in respect of the contested application.

No broader or novel legal precedent was announced; the decision applied and developed established principles on costs in moot judicial review proceedings to the facts presented.

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Judgment delivered by Judge Barr (ex tempore) on 17 July 2026.