JUDGMENT of Mr. Justice Garrett Simons delivered on 3 November 2025
Introduction
This judgment addresses the incidence of the legal costs of these judicial review proceedings. The gravamen of the proceedings had been that the processing and determination of an application for the registration of a foreign birth was being unreasonably delayed. The applicant sought mandatory relief. In the event, the awaited determination was issued shortly after the proceedings had commenced but prior to the application for leave being heard. The parties are agreed that the proceedings are now moot and that the only live issue remaining is the incidence of legal costs.
The applicant is a minor, i.e. a child under the age of eighteen years, and his father is directing the proceedings on his behalf as his " next friend ". For ease of exposition, the term " the applicant " will be used as shorthand to describe the moving party in the proceedings rather than the more cumbersome term " the applicant's next friend ".
Anonymisation of title of proceedings
The title of the proceedings has been anonymised having regard to the fact that the proceedings concern personal matters relating to a minor. This has been done pursuant to section 45 of the Courts (Supplemental Provisions) Act 1961. Any bona fide member of the press or broadcast media may apply to this court to set aside this anonymisation. Any such application should be made on ten days' notice to the parties to these proceedings.
Legal test for costs of moot proceedings
The principles governing the incidence of legal costs in proceedings which have been rendered moot are well established. One of the primary matters to be considered is whether the proceedings were rendered moot as the result of unilateral action by one of the parties, or, alternatively, as the result of external events.
An authoritative statement of the principles is to be found in the judgment of the Court of Appeal in Hughes v. Revenue Commissioners [2021] IECA 5, [2023] 3 IR 393 (at paragraphs 31 to 34):
"First, where the mootness arises as a result of an event that is entirely independent of the actions of the parties to the proceedings, the fairest outcome will generally be that the parties should bear the costs themselves. Neither is responsible for the mootness, and neither should have to pay for costs rendered unnecessary by an event for which they bear no responsibility.
Second, however, where the mootness arises because of the actions of one of the parties alone and where those actions (a) can be said to follow from the fact of the proceedings so that but for the proceedings they would not have been undertaken, or (b) are properly characterised as "unilateral" or — perhaps — (c) are such that they could reasonably have been taken before the proceedings, or before all of the costs ultimately incurred in the proceedings were suffered, the costs should often be borne by the party whose actions have resulted in the case becoming moot. In the first of these situations, it can be fairly said that there was an event which costs can and should follow in accordance with conventional principle. In the second, it will frequently be proper that the party who is responsible for the unilateral action which results in the mootness should bear the costs. In the third, it might be said that where a party who could reasonably have acted so as to prevent the other party from incurring costs failed to do so, it is proper that they should have to discharge those costs.
The third general proposition addresses the particular position of statutory bodies. Agencies with obligations in public law cannot be expected to suspend the discharge of their statutory functions simply because there are extant legal proceedings relating to the prior exercise of their powers. They must be free to continue to exercise those powers in accordance with their legal obligations. At the same time, it would be wrong if under the guise of exercising their powers in the normal way, the statutory authority both effectively conceded an extant claim, and avoided the legal costs that would otherwise attend such a concession. The cases strike a balance between these two considerations by suggesting that where the mootness arises because a statutory body makes a new decision in the exercise of its legal powers, the court should look at the circumstances giving rise to that new decision in order to decide whether it constitutes a "unilateral act" for these purposes. If the new decision is caused by a change in the relevant circumstances occurring between the time of the first decision, and of the second, the court might not treat the new decision as a "unilateral act" and may accordingly make no order as to costs. If, however, there has been no such change in circumstances so that the body has simply changed its mind, costs may be awarded against it. If the respondent wishes to contend that there has been a change in circumstances it is a matter for it to place before the court sufficient evidence to allow the court to assess whether and if so to what extent it can fairly be said that this is so. This requires the respondent to establish that there was a change in the underlying circumstances sufficient to justify, in whole or in part, it being appropriate to characterise the proceedings as having become moot by reason of a change in external circumstances. In conducting this analysis, the court should not embark upon a determination of the merits of the underlying case.
Each of these three propositions — it must be stressed — present a general approach rather than a set of fixed, rigid rules. The starting point is that the court has an overriding discretion in relation to the awarding of costs, and the decisions to which I have referred are intended to guide the exercise of that discretion. They are thus properly viewed as presenting a framework for the application of the court's discretion in the allocation of costs in a particular context and should not be applied inflexibly or in an excessively prescriptive manner ( P.T. v. Wicklow County Council [2019] IECA 346 at paras. 18–19)."
Cases which involve an allegation that there has been an unreasonable delay in making an administrative decision represent a subset of moot proceedings. The peculiar feature of such cases from a costs' perspective is that an action, i.e. the making of the administrative decision pursuant to a pending application for same, was always anticipated from the respondent and would occur, at some point, even if the judicial review proceedings had never been taken. Accordingly, it cannot be said that the making of the decision per se represents a unilateral act. Rather, the dispute will centre, instead, on whether the timing of the decision-making process has been influenced by the existence of the judicial review proceedings.
The principles governing such cases have been stated by the Supreme Court in Matta v. Minister for Justice, Equality and Law Reform [2016] IESC 45 and, more recently, by the Court of Appeal in Butler Duignan v. Chief Appeals Officer [2024] IECA 188. In brief, the incidence of costs will be informed, primarily, by whether the timing of the administrative decision has been affected by the judicial review proceedings, i.e. whether the decision-making has been expedited in response to the proceedings. If so, then an applicant would have grounds for saying that the judicial review proceedings had achieved a practical benefit for them and that they should, accordingly, be entitled to recover their legal costs against the decision-maker. If, conversely, the administrative decision had been made in ordinary course, unprompted by the judicial review proceedings, then there is no obvious basis upon which an applicant would be entitled to recover their legal costs.
Procedural history
These judicial review proceedings have their origin in an application to enter the applicant's birth on the register of foreign births. The application process took a lengthy period of time, with various requests being made throughout the process for the submission of further documentation. For present purposes, the focus is on the interaction between the decision-making process and the judicial review proceedings.
The unchallenged affidavit and documentary evidence before the court establishes the following sequence of events:
January 2019 Application to Department of Foreign Affairs submitted online (no physical documentation)
October 2022 Requested documentation submitted to Department of Foreign Affairs
August 2023 Applicant informed by email that his application was nearing the top of the processing queue
December 2023 Application transferred to the " return processing " queue because of a missing document (original birth certificate)
January 2024 Original birth certificate submitted
March 2024 Judicial review proceedings filed in the Central Office of the High Court
April 2024 Courtesy copy of pleadings sent to CSSO
April 2024 Decision-maker notified of existence of JR proceedings
May 2024 Determination made approving the entry on the foreign births register
June 2024 Leave application (adjourned)
December 2024 Affidavit sworn on behalf of the respondents
December 2024 Data Subject Access Request (" DSAR ")
April 2025 Decision-letter in response to DSAR
May 2025 Applicant requests voluntary discovery
October 2025 Hearing of costs application
The position adopted in correspondence on behalf of the respondents is that the decision on the application to register a foreign birth had " issued in the ordinary course and not in response to the threat (or advancement) of legal proceedings ".
The applicant had sought, initially, to challenge the factual premise for the respondents' position. The applicant insisted, through his solicitor, that the respondents set out their position on affidavit. An affidavit was duly sworn by the higher executive officer within the Department of Foreign Affairs who had made the determination on the application as the alter ego of the Minister in accordance with the Carltona principle. For ease of exposition, this official will be referred to as " the decision-maker ". The decision-maker averred that the decision was not in any way a response to the issuing of the judicial review proceedings.
The applicant next made a data subject access request and then sought to rely on the response to same to undermine the decision-maker's affidavit. It is said that the content of certain emails, which have been disclosed, indicates that the decision-maker had been fully aware of the existence of the judicial review proceedings prior to making her decision and had sought legal advice in relation to same. (There are a series of emails on 18 April 2024 which notify the decision-maker of the judicial review proceedings). Emphasis is placed on the fact that certain other records have been withheld from disclosure on the grounds that same were being processed as part of an ongoing legal matter or for the purpose of seeking legal advice. The implication being that the decision-maker had sought and obtained legal advice in relation to the judicial review proceedings.
The applicant came close to inviting the court to find that the decision-maker's key averment, i.e. that the decision on the application to register a foreign birth had issued in the ordinary course and was not in any way a response to the issuing of the judicial review proceedings, was not correct.
In the end, however, the applicant did not follow through with his challenge to the accuracy of the decision-maker's affidavit. To do so, the applicant would have to have sought leave to cross-examine the decision-maker, and to put it to her that the processing of the application to register a foreign birth had been expedited in response to the judicial review proceedings. The applicant sought neither to cross-examine the deponent nor to pursue a motion for the discovery of documents. Having unsheathed a procedural sword, the applicant was ultimately unwilling to wield it.
Counsel for the applicant explained that neither cross-examination nor a motion for discovery were ultimately pursued by reason of the fact that the additional legal costs which would be incurred by doing so would be disproportionate to the scale of the existing legal costs sought to be recovered. It will be recalled that the judicial review proceedings had become moot prior to any hearing of the leave application. It follows that the legal costs recoverable would not include a brief fee on a leave application but would be confined, instead, to the costs involved in drafting and filing the pleadings and affidavit. The fees involved would be modest and likely to fall short of the additional fees entailed in cross-examination and a motion for discovery.
Discussion and ruling on costs
It is difficult not to have some sympathy for the dilemma which the applicant perceives himself to be in. The applicant is convinced that the judicial review proceedings did, indeed, produce a practical benefit in expediting the determination of the application for the registration of a foreign birth. However, the applicant is unwilling to expose himself to the risk of further costs by pursuing this conviction.
This court can only act on the evidence before it. The officer who made the decision, as the alter ego of the Minister in accordance with the Carltona principle, has sworn an affidavit stating that the decision on the application for entry on the foreign births register followed from the ordinary processes and was not in any way a response to the issuing of the judicial review proceedings.
The applicant has, for pragmatic reasons, elected not to challenge this affidavit evidence by way of cross-examination. This approach is entirely understandable: there is a real risk that the cost of litigating the incidence of the legal costs may well exceed the actual value of the legal costs incurred in the substantive proceedings prior to their becoming moot. Judicial review proceedings which become moot should not, in principle and where avoidable, give rise to incidental disputation which is more costly than the underlying proceedings.
The applicant's pragmatic approach has the consequence that the decision-maker's averment stands uncontroverted. The Supreme Court has held that it is not permissible to invite a court to reject sworn testimony without first giving the witness concerned an opportunity, under cross-examination, to explain, if that be possible, any matters which might go to credibility or reliability. See RAS Medical Ltd v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63 (at paragraphs 92 to 93):
"But it is frankly not appropriate for parties to enter into controversy as to the facts contained either in affidavit evidence or in documents which are admitted before the court without successful challenge, without exploring the necessity for at least some oral evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of which there is potentially conflicting evidence to be found in such affidavits or documentation, then it is incumbent on the party who bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the potentially conflicting evidence is challenged. Where, for example, two individuals have given conflicting affidavit evidence and where it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then there has to be cross-examination and the onus in that regard rests on the party on whom the onus of proof lay to establish the contested fact.
A similar principle applies where it is suggested that there is documentary evidence, properly before the court, which might cast doubt on the reliability of sworn testimony. It is not permissible to invite a court to reject sworn testimony either on the basis that there is sworn testimony to the contrary or that the testimony might be said to be either lacking in credibility or unreliable (on the basis of, for example, a documentary record) without giving the witness concerned an opportunity, under cross-examination, to explain, if that be possible, any matters which might go to credibility or reliability."
The imperative of allowing a deponent an opportunity to explain seeming contradictions has a particular resonance in the present case. This is because it is likely that a cogent explanation would have been provided as to why the disclosed records do not contradict the key averment. The fact, if fact it be, that the decision-maker had been informed of the existence of the judicial review proceedings, of and in itself, does not give rise to an irresistible inference that the processing of the registration application had been expedited in response. The prior correspondence indicates that, as of the end of December 2023, the registration application had been about to be reached in the processing queue. The determination had been delayed owing to the absence of an essential document. The registration application was moved to the " return processing " queue: this has been described as a separate (and considerably shorter) queue for applications in respect of which a request for new or further documentation has been made. Once the missing birth certificate had been supplied in early January 2024, it is entirely plausible that the registration application would have been determined by May 2024 in ordinary course. Certainly, the circumstantial documentary evidence is not so clear-cut to allow the court even to consider discounting the affidavit evidence in the absence of cross-examination.
Having said that, it would have been preferable had the decision-maker filed a more detailed affidavit. The decision-maker should have stated in explicit terms that she had been the person who made the determination on the application to register the foreign birth and should have disclosed that she had been aware of the existence of the judicial review proceedings. She should have confirmed that this awareness did not affect the timing of the determination. It was apparent from the correspondence, prior to the filing of the affidavit, that the applicant's side were seeking clarity as to the interaction, if any, between the timing of the determination and the commencement of the judicial review proceedings. These matters should have been addressed on affidavit by the respondents.
The costs fall to be analysed in two tranches. The first tranche comprises the costs incurred prior to the date upon which the proceedings became moot in consequence of the belated determination of the application to register a foreign birth. In accordance with the established case law, there should be no costs order in relation to this first tranche of costs. This is because the event, which has rendered the proceedings moot, has not occurred in response to the proceedings. Rather, the uncontroverted evidence is that the determination occurred in ordinary course. In accordance with the principles identified in Matta v. Minister for Justice, Equality and Law Reform and Butler Duignan v. Chief Appeals Officer , each party should bear their own costs.
The second tranche of costs comprises the additional costs incurred in contesting the question of the appropriate costs order. Both parties share some responsibility for generating this tranche of costs. Whereas it had been the applicant who initially pursued the issue and insisted on an affidavit being filed (which will have entailed additional costs), the respondents' conduct exacerbated matters. The decision-maker should have disclosed, in her affidavit, that she had been notified of the existence of the judicial review proceedings prior to making the administrative decision and had sought legal advice. These were clearly relevant matters.
The applicant was, understandably, concerned by this omission from the affidavit which only came to light following the data subject access request. This concern prompted the threat of further procedural skirmishes, but the applicant ultimately retreated for reasons of pragmatism.
The respondents' litigation conduct, in filing an affidavit which did not provide a comprehensive account, is a matter to which this court is entitled to have regard under section 169 of the Legal Services Regulation Act 2015. By reason of this litigation conduct, the respondents are not entitled to recover the costs incurred by them in contesting the question of the appropriate costs order.
Conclusion and form of order
This case became moot at an early stage in circumstances which did not involve a unilateral act by either party. This factor alone near decides the incidence of legal costs. The decision-maker's averment that the administrative decision was made in ordinary course stands uncontested in circumstances where the applicant ultimately chose not to challenge the respondents' evidence through discovery or cross-examination. It follows, therefore, that each party should bear its own costs up to the date of the event which rendered the proceedings moot. As to the additional costs incurred thereafter in contesting the question of the appropriate costs order, no order will be made for the reasons explained at paragraphs 21 to 25 above.
Accordingly, this court, in the exercise of its discretion under section 169 of the Legal Services Regulation Act 2015, directs that each party bear their own costs of the proceedings. An order will be made dismissing the proceedings as moot. The parties have liberty to apply.
Appearances
Keivon Sotoodeh for the applicant instructed by Abbott Solicitors LLP
Finn Keyes for the respondents instructed by the Office of the Chief State Solicitor