The High Court made no order as to costs after an Article 40 detention application by Bao Feng Nian became moot when he was released from Cloverhill Prison. The court said the release had no connection to the proceedings and found no sufficient reason to depart from the usual approach to costs in moot cases.
In a judgment delivered on 17 February 2020, Mr Justice Richard Humphreys said an earlier judgment had struck out the proceedings, leaving costs as the only issue. Nian sought his costs; the Governor of Cloverhill Prison sought no order as to costs.
The court recounted that Nian had been arrested on 4 February on foot of a deportation order and brought to Cloverhill Prison the following day. On 7 February, an official in the repatriation division of the Irish Naturalisation and Immigration Service told Gardaí that there was no realistic prospect at that point of removing Chinese nationals, while the position would remain under review. A Garda inspector then decided to instruct Nian’s release, along with that of another Chinese national in custody.
At about 3.30pm that day, Nian applied under Article 40 of the Constitution for an inquiry into the legality of his detention. The application alleged that he had not knowingly failed to comply with presentation conditions. The court said the grounds did not concern the coronavirus outbreak. An inquiry was directed for 10 February.
The release order had been sent to the prison shortly before the Gardaí were notified of the Article 40 order. Nian was released at about 5.39pm and given a new presentation letter. The judge accepted affidavit evidence that the release decision had already been made before the application was brought, and said the reason for release was not a ground advanced by Nian. The other Chinese national was released for the same reasons.
The judge applied Supreme Court guidance on costs where proceedings become moot. He said the proceedings became moot through the respondent’s unilateral act of releasing Nian, but that act was not connected to the application. He also said it was not clear that the detention had been unlawful. The allegation that Nian had not been notified of the deportation order had not been tested because the court had not heard the respondent’s case.
Addressing the delay of a couple of hours between the release decision and Nian leaving the prison, the judge said the time needed for documentation and practical arrangements did not make the detention unlawful. He therefore ordered no order as to costs.