The Court of Appeal has allowed an appeal over costs in a judicial review case that became moot after a family received suitable housing. It ordered South Dublin County Council to pay the applicants’ High Court costs, finding the council had not provided evidence to support its argument that external circumstances justified departing from the usual approach to costs in such cases.
The applicants had sought judicial review relief, including an order to quash what they said was the council’s decision to withdraw their emergency accommodation at the Abberley Court Hotel on 22 December 2016. The council denied making such a decision. It said hotel management had removed the family following alleged misconduct by the first applicant, an account the applicants disputed. The appeal court did not decide that factual dispute or assess the merits of the underlying judicial review.
By the hearing before the High Court in October 2017, the applicants had been housed in a suitable three-bedroom home, making the proceedings moot. The High Court made no order as to costs. The applicants appealed that costs decision.
The council argued that the accommodation had been provided through its ongoing work to meet the family’s housing needs and a change in government policy that brought additional resources. It said the house would have been allocated in any event. The appeal court noted, however, that no evidence had been put before the High Court to establish the claimed external change or its effect. The Minister for Housing, Community and Local Government had also submitted that the Minister had no power to allocate a home to a specific household.
Applying the principles in the Supreme Court’s decision in *Cunningham v. The President of the Circuit Court and the DPP*, the Court of Appeal said the council’s provision of accommodation was the proximate cause of the proceedings becoming moot. It held that the council bore the onus of providing evidence if it wanted the court to depart from the general rule that costs should be awarded against a party whose unilateral act makes proceedings moot.
The court stressed that this conclusion did not amount to a finding of blameworthiness. It allowed the appeal and ordered the council to pay the applicants’ costs in the High Court. It did not remit the costs question for reconsideration.