The High Court awarded costs to an anonymised asylum applicant after ruling on the costs of a judicial review in which an earlier decision by the Refugee Applications Commissioner (ORAC) had been quashed and remitted for reconsideration.
The costs judgment, delivered by Mr Justice Mac Eochaidh on 12 March 2015, followed a substantive judgment delivered on 20 February. The court had rejected the applicant’s original argument that ORAC acted unlawfully by failing to decide whether he was gay. It had, however, accepted that he had alleged a fear of prosecution because of his sexuality and that ORAC had not assessed that claim. The court described this as a significant jurisdictional defect and held that a simple appeal would not be an adequate response, although it might have provided a remedy. The decision was quashed and the matter sent back to ORAC.
The costs judgment records that the applicant’s argument about the failure to assess his fear of prosecution was raised for the first time at the hearing, rather than in his written submissions. The respondents argued that the point had not been pleaded and that the applicant’s case concerned alleged persecution by his family. The judge said the successful argument developed through exchanges between the parties and the court, without putting the respondents at a disadvantage.
The court rejected the respondents’ request for no costs order, finding that would be unfair to the applicant. It awarded costs on the basis of a one-day case, although the matter occupied a day and a half at the resumed hearing and about an hour on the aborted hearing date.
The earlier wasted-costs order was set off against the second day of the resumed hearing in full satisfaction. No costs were allowed for the applicant’s original written submissions. The applicant was awarded 50 per cent of the costs of supplemental submissions, and the solicitor’s instructions fee and counsel’s brief fees were reduced by 25 per cent. The judge said the reductions reflected that the preparation had not addressed the fear-of-prosecution issue on which the applicant ultimately succeeded.