The Court of Appeal has dismissed an appeal by the Minister for Justice, Ireland and the Attorney General against an order requiring them to pay the costs of an application for leave to bring judicial review proceedings by Nacer Benloulou, an Algerian national.
The appeal concerned costs alone. The judicial review application was not pursued after the Minister agreed to assist Mr Benloulou in obtaining a temporary travel document. The Court of Appeal upheld the High Court’s decision to award the costs of the leave application, but expressly left open whether the Minister had any legal obligation to help him return to France.
Mr Benloulou had been living in France before coming to Ireland. He was returned to Ireland by French authorities under a European Arrest Warrant on 19 February 2014, and remained in custody until 17 July 2015, when he was acquitted of all charges and released. The judgment said he then lacked support and travel documents needed to return to France.
After an attempt to leave Ireland by air was refused because he had no travel documents, his solicitors asked the Minister to arrange his return and temporary accommodation. They sought leave to bring judicial review proceedings the following day. The Minister later offered to issue a temporary travel document if Mr Benloulou supplied accurate information on an application form. The court noted that the Minister exercised discretion to offer the document even though Mr Benloulou was not considered lawfully resident in Ireland.
He obtained the document and returned to France, at his own expense. The application for leave was not proceeded with; claims for living expenses and damages were also not pursued. The High Court subsequently awarded the costs of the leave application.
In dismissing the State’s appeal, the Court of Appeal applied the Supreme Court’s approach in Godsil v Ireland and the Attorney General. It held that the Minister’s step, which made the proceedings moot, could count as an “event” for the purpose of deciding costs because it could reasonably be understood as a direct response to the leave application. The court said the State could not ask it to treat the underlying claim as moot while also asking it to reject costs on the ground that the claim had no legal basis, since that would require deciding the issues rendered moot.
The appeal court found no basis to reduce the full costs of the leave application because some claims had not been pursued. It did not decide whether the Minister was legally required to assist Mr Benloulou’s return to France, stating that the issue remained for another day if it became the subject of an application.