Court of Appeal: Refusal of costs over one-day-late documents overturned
The Court of Appeal has vacated an Order of the High Court refusing an award of costs in an immigration case where certain documents were delivered one day after a deadline had expired.
About this case:
Citation: IECA 343
Court:Court of Appeal
Judge:Ms Justice Ann Power
Sukhpreet Singh Punn sought review of the Minister for Justice’s decision revoking his permission to reside in Ireland. At an early stage in the proceedings, the Minister gave an undertaking to Mr Singh Punn which rendered the proceedings effectively moot. Mr Justice Richard Humphreys refused to award Mr Singh Punn the costs of the JR leave application.
Whereas Ord.84 r.22(3) RSC provides that a notice of motion must be served within seven days after perfection of the order granting leave, High Court Practice Direction HC81- Asylum, immigration and citizenship list imposes an additional obligation on applicants to serve the Statement of Grounds, affidavits and submissions by the Friday of the week in which leave has been granted. The judge noted that this had not been complied with, as it had been delivered on the next Monday.
Mr Singh Punn appealed, contending that the judge erred and misdirected himself in law. He contended that the judge erred by concluding that he did not have jurisdiction, and that he had erroneously treated the matter as res judicata or ‘in some way closed’ because the order in question had been made and perfected ‘months ago’.
Court of Appeal
In exercising its discretion on costs, the court must do so “in a reasoned way” (Cork County Council v Shackleton  1 IR 443). A judge is not ‘at large’ when considering such applications and must exercise their discretion within criteria established by law (CFA v OA  2 IR 718).
Mr Singh Punn contended that neither the judge nor the Minister could point to any specific prejudice that had been suffered by the delivery of the post-leave documents just one working day after the deadline imposed by the order had expired and argued the trial judge was not not ‘at large’ when exercising discretionary costs powers. The court was referred to Grimes v Punchestown Developments Company Ltd  4 IR 515 and Fyffes Plc v DCC Plc, S & L Investments Ltd, James Flavin and Lotus Green Ltd  IEHC 32 in support of the proposition that “the burden of displacing the general rule [on costs] rests with the party who asserts it should be displaced”.
The Minister argued that the question to be determined was whether it was open to the judge to make such a finding. The Practice Direction, reflected in the order, had put Mr Singh Punn on notice of the relevant deadline for delivery of documents. Citing Marcan Shipping (London) Limited v Kefalas  1 WLR 1864, it was argued that the onus is on the person against whom the sanction operates to seek relief.
The trial judge’s judgment said that he would have been “more than willing” to entertain an application to vary the terms of the order but that no such application was made. If it had been so made, he said that it would have received “individualised judicial consideration”.
Ms Justice Ann Power found that while there had been no formal application to amend the order, no formal application was required because the Practice Direction explicitly provides that it is not necessary “to serve a formal notice of motion” when making an interim or procedural application.
She said that no serious criticism could be levied against Mr Singh Punn for not having sought to vary the order any sooner than he did. Yet, it was precisely such criticism that underpinned the trial judge’s approach. The judges found that nowhere in Mr Justice Humphreys’ judgment did he give any consideration or indication of what would have constituted a reasonable time for the bringing of such an application.
Ord.122 r.7 RSC confers upon a court the power to extend or abridge time limits imposed by the Rules or fixed by court orders. A court has jurisdiction to exercise its discretion to grant or refuse an extension of time to an ‘unless’ order, including in circumstances where a party has already failed to comply with time limits specified in such an order.
Ms Justice Power referred to Samuels v Linzi Dresses Ltd  QB 115, where Lord Justice Eustace Roskill noted that courts should use this power “cautiously and with due regard to the necessity for maintaining the principle that orders are made to be complied with”. Samuels was applied in Ireland in Brennan v Kelly  ILRM 306. In Brennan, a critical factor in the court’s decision was the determination that no prejudice to the defendant would result from permitting the extension of time.
There was a “notable absence” in the trial judge’s judgment of any actual prejudice suffered by the Minister. In approaching the matter in the manner in which he did, the trial judge “considered himself deprived of any discretion”. A proper analysis would have revealed that the delay was minimal, inadvertent, that immediate efforts were made to resolve the error, and that the prejudice to the Minister was non-existent against the fact that there had been a delay in complying with the order. Had such “a balancing exercise been conducted by way of individualised judicial consideration of the merits of the case, the trial judge would have been in a position to focus on where the balance of justice was to be found.”
While an appellate court affords a trial judge’s views great weight, “the ultimate decision is that of the appellate court, untrammelled by any a priori rule…” (Collins v Minister for Justice  IECA 27, citing Lismore Builders Ltd (in Receivership) v Bank of Ireland Finance Ltd & Ors  IESC 6).
Mr Justice Humphreys fell into error in failing to exercise his discretion by approaching the issue before him as if it were res judicata. Thereafter, he did not consider discretionary issues in a manner that was fair or proportionate.
In Chubb European Group SE v Health Insurance Authority  IECA 183, Mr Justice Brian Murray spoke of the new costs regime which, while largely consistent with the previous costs rules, no longer contains the earlier language that ‘costs follow the event’ but requires that a party be ‘entirely successful’ in order to be ‘entitled’ to costs.
Mr Singh Punn was ‘entirely successful’ in his claim because the institution of proceedings led to the Minister’s undertaking which rendered the proceedings moot. The appeal was allowed, the order of the High Court vacated, and the costs awarded to Mr Singh Punn.