The High Court awarded the applicant 30% of the taxed costs of her judicial review proceedings, with the respondents entitled to 70%, after she succeeded on one issue and lost another.
In an ex tempore costs judgment delivered on 16 November 2015, Mr Justice Colm Mac Eochaidh treated the case as involving two separate “events” for costs purposes. The applicant had challenged the lawfulness of statutory instruments establishing a new subsidiary protection regime and, separately, a regulation’s definition of torture.
The court said the applicant had a personal interest in the torture definition because the facts underlying her subsidiary protection claim could have been excluded from consideration under the original definition. She succeeded in arguing that the definition in the regulations was unlawful and did not properly transpose the relevant directive. The judge said she was entitled to costs for that issue.
She lost her challenge to the transfer of first-instance decision-making on subsidiary protection applications from the Minister for Justice and Equality to the Refugee Applications Commissioner. That challenge also disputed the use of the European Communities Act 1972 to make the instrument transferring the function. The judge said the State had succeeded on this issue, which was more detailed and took significantly more time than the torture issue.
The applicant argued that the case’s public interest, complexity, novelty and importance justified a more favourable costs order. The judge considered an earlier case concerning the direct provision system, where costs had been awarded to an applicant who had lost most of the points pursued but had obtained a significant privacy-rights finding. He concluded that this case did not have sufficient public-interest qualities for the same approach: the applicant pursued a personal objective and did not represent a class making the same complaint.
The court therefore awarded the applicant 30% of the taxed costs and the respondents 70%. The judgment did not specify a monetary amount.