The Court of Appeal allowed an appeal by Sukhpreet Singh Punn over the refusal to award him the costs of applying for leave to seek judicial review of a decision to revoke his residence permission. The court set aside the relevant parts of the High Court’s costs order and awarded him the leave application costs and the High Court costs incurred after 8 October 2019.
The dispute arose after a 8 July 2019 High Court order required Punn to serve the notice of motion within seven days and other documents by Friday, 12 July. The order said his leave application costs would not be recoverable if those documents were served late. His solicitors’ Dublin town agents served all the papers together on Monday, 15 July.
The evidence before the courts was that the town agents had understood that serving the papers together within seven days would be acceptable. Punn’s solicitor said he became aware of the service issue at the end of July. The respondent disputed the account that its office had indicated that papers should be delivered together. The Court of Appeal noted that no sworn evidence had been filed to contradict the solicitor’s affidavit and that he had not been cross-examined.
Before an injunction application could proceed, the respondent undertook to grant Punn conditional six-month immigration permission pending the outcome of a review, with an extension if the review took longer. That undertaking effectively made the proceedings moot. The parties then disputed the costs of the leave application.
The High Court struck out the proceedings, awarded Punn other costs, but excluded the leave costs and awarded the respondent costs incurred after 8 October 2019. It treated the leave costs as already determined by the July order and considered the late service a breach of that order.
The Court of Appeal held that the High Court retained power under Order 122, rule 7 of the Rules of the Superior Courts to extend a deadline fixed by its order, even after it had expired. It also found that the substance of Punn’s request to resolve the costs dispute amounted to an application to vary the deadline, and that a formal motion was not required for that procedural application under the relevant Practice Direction.
The appeal court said the High Court should have assessed the request on its merits. It pointed to the minimal delay, its inadvertent cause, efforts to resolve the issue once discovered, the substantial loss of costs and the absence of demonstrated prejudice to the respondent. It allowed the appeal without remitting the issue to the High Court. The appeal costs were presumptively awarded to Punn, subject to the respondent applying for a further hearing within 14 days.