The High Court has granted the State respondents leave to appeal a costs order made in an earlier asylum judicial review case, finding that the appeal is desirable in the public interest.
The judgment, delivered by Mr Justice Richard Humphreys on 21 November 2016, concerns the third application in proceedings brought by anonymised applicant R.A. against the Refugee Appeals Tribunal, the Minister for Justice and Equality, the Attorney General and Ireland.
In November 2015, the court refused R.A.’s application for judicial review of the Tribunal’s decision rejecting his asylum claim. In December 2015, the court granted R.A. leave to appeal and certified that the decision involved a point of law of exceptional public importance. It also awarded him costs, citing the circumstances of the case.
The respondents applied in October 2016 for leave to cross-appeal the costs order. Their counsel argued that the costs decision itself raised a point of exceptional public importance. The judge said the respondents had not identified a precise legal question about costs and had not shown real doubt about the applicable principles. He described the law as allowing a court to depart from the general rule that costs follow the event where there is sufficient reason, and said public importance could be one relevant circumstance.
The judge nevertheless concluded that the respondents did not need to establish a separate exceptional-public-importance point about costs. Because costs are closely bound up with the substantive decision, the point already certified in R.A.’s appeal could also support a cross-appeal on costs. Leave remained subject to a separate finding that the cross-appeal was in the public interest.
R.A.’s counsel opposed leave, including on grounds of delay. The judge found that the respondents had explained the delay and had earlier attempted to cross-appeal in their notice to the Court of Appeal. He said a costs appeal in a case already under appeal would normally be presumed to serve the public interest, absent a special countervailing feature. He found the respondents’ conduct appropriate and helpful and identified no such feature.
The court therefore granted the respondents leave under section 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended, to appeal the costs determination to the Court of Appeal. It certified that the decision involved the exceptional-importance point identified in the December 2015 order and that an appeal by the respondents was desirable in the public interest. The order grants leave only on the costs issue; it does not decide that appeal or change the earlier costs award.