The High Court refused an application by the Minister for Justice and the Refugee Applications Commissioner for a wasted costs order against solicitors who represented a child asylum seeker. The court said her judicial review challenge was tenable and was not so plainly pointless that continuing it amounted to wasteful or vexatious litigation.
The proceedings concerned a Nigerian child, identified in the judgment as HO, who challenged the Refugee Applications Commissioner’s finding that she had not established a well-founded fear of persecution. Through her mother and next friend, she said she was at risk of female genital mutilation in Nigeria and alleged that the Commissioner had breached fair procedures by relying on material about state protection that had not been disclosed to her mother.
The judicial review was set down for hearing in October 2009. On the hearing date, the judge indicated that the issues appeared to have been decided already. The child’s counsel sought an adjournment; the request was refused, and counsel withdrew the case. The underlying challenge was therefore not decided at that hearing.
The State later sought a wasted costs order against the child’s solicitors, Burns Kelly Corrigan, for costs incurred from the case being set down through its scheduled hearing. The High Court first noted that the respondents were entitled to their costs of the proceedings against the applicant. The separate question was whether the solicitors’ conduct met the high threshold for an exceptional order under Order 99, rule 7.
The judge reviewed earlier decisions on asylum appeals and judicial review. He said the availability of an appeal to the Refugee Appeals Tribunal did not create an absolute bar to judicial review. In some cases, including where fair procedures or legal requirements were breached, the High Court could intervene even though an appeal was available. The question depended on the circumstances of each case.
The applicant’s solicitors had argued in correspondence that her complaints could bring the case within those exceptional circumstances. The judge rejected the State’s claim that their response had failed to address the relevant case law. He described it as a tenable and reasoned explanation of why the challenge might warrant judicial review. Although the prospects of success were not great, he concluded they were not so hopeless that continuing the proceedings was plainly wasteful or vexatious.
The court accordingly refused the wasted costs application against the solicitors. It ordered that the respondents receive their costs of the proceedings against the applicant.