The High Court made no order for costs after a residence card issued to the first applicant rendered his judicial review proceedings moot.
In a judgment delivered on 27 February 2018, Mr Justice Richard Humphreys said the card followed a residency application based on the applicant’s marriage to the second applicant, an EU national. The Minister accepted that application on 15 January 2018. The judge said it was separate from the judicial review proceedings.
The first applicant had applied for asylum in Ireland on 25 September 2016. A decision to transfer his application to another EU state was affirmed on appeal by the International Protection Appeals Tribunal on 9 August 2017. He applied for residency on 28 July 2017. The judicial review proceedings were instituted on 2 October 2017, while that residency application was still pending.
The court considered how costs should be decided when proceedings become moot. Justice Humphreys said the primary guidance came from three Supreme Court decisions: Cunningham v. President of the Circuit Court, Godsil v. Ireland and Matta v. Minister for Justice and Equality.
He said the key question was whether there had been an “event” to which the general rule that costs follow the event could apply. Where a party’s action makes proceedings moot and is causally connected to the proceedings, costs would generally be due to the other party. But where mootness results from a change unconnected to the proceedings, the default position is no order as to costs.
Applying that approach, the judge found the residence card resulted from the first applicant’s separate application, which was not related to the judicial review. He concluded there was no “event” for costs purposes. Although the applicants’ barrister had put forward secondary grounds for departing from the default position, the judge found them insufficient.
The order was that there be no order as to costs. The judgment records no decision on the merits of the judicial review challenge.