The High Court made no order for the respondents’ costs in an Article 40 detention case and awarded the applicants half their costs, including any reserved costs. The first respondent must pay those costs once they are taxed and ascertained.
Mr Justice Bernard J. Barton delivered the costs judgment on 7 April 2017. The applicants, Peps Ononkewagbe and her minor daughter, Grazia Edokhamen, had challenged the lawfulness of their detention after a deportation attempt in July 2016. In a separate judgment delivered on 10 August 2016, the court found their detention lawful. The present judgment dealt with costs only.
The respondents argued that the ordinary rule should apply: costs follow the event. They also said the applicants had not applied at the start of the case for assistance under the Custody Issues Scheme, which they were likely to qualify for given the nature of the proceedings and their limited means. The applicants accepted that this was a factor the court could consider, but argued it did not determine the costs issue.
The applicants said the case raised legal questions of wider public importance and qualified as a test case. The court considered questions about statutory powers to enter a dwelling to make an immigration arrest and provisions of the Childcare Act 1991. In the earlier judgment, the court had held that an arresting Garda or immigration officer could be accompanied by other officers when entering a dwelling to make an arrest under the Immigration Act 1999.
Justice Barton said the statutory issues had been considered for the first time and could arise again at ports or airports during deportations. He rejected the respondents’ characterisation of the applicants’ arguments about childcare legislation as “utterly baseless”, while noting that those issues had been resolved in the respondents’ favour.
The judge concluded that the proceedings met the test-case category and that this justified departing from the usual costs rule. He made no order as to the respondents’ costs and allowed the applicants half their costs, including reserved costs, payable by the first respondent after taxation and ascertainment.