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2025 IESC 31

AN CHÚIRT UACHTARACH THE SUPREME COURT S:AP:IE:2023:000096 [2026] IESC 31 O’Donnell C.J. Woulfe J. Hogan J. Murray J. Donnelly J. Between/ LK APPLICANT/RESPONDENT AND INTERNATIONAL PROTECTION APPEALS TRIBUNAL, MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL (No.3) RESPONDENTS/APPELLANTS RULING of the Court on costs delivered this 3rd day of June 2026 2

  1. The applicant, Mr. K., is a Georgian national who originally sought international protection in this State, but who has now been given permission to remain in the State by the Minister for Justice pursuant to s. 49 of the International Protection Act
  2. These proceedings concerned an earlier decision of the International Protection Appeals Tribunal (“IPAT”) given in March 2021, refusing him permission to work in the State pending the determination of that international protection application. Specifically, the question is whether the applicant was responsible for the delay in processing his original application for international protection.
  3. The background to these proceedings is set out in the judgment of the Court delivered on 16th April 2026: see LK v. International Protection Appeals Tribunal [2026] IESC
  4. For conciseness the Court proposes to use the same references as in that judgment.
  5. The fundamental questions in this appeal were, first, whether the delay in the issuing of the first instance decision in respect of his international protection application during the period between September 2019 and August 2020 is, in fact, attributable to the applicant and, second, whether the 2018 Regulations had in fact correctly transposed the provisions of Article 15 of the 2013 Directive. In its decision dated 3rd of March 2021, the IPAT concluded in accordance with Article 21

(5)of the 2018 Regulations that permission should be refused on the ground that the delay in issuing the first instance decision in respect of the international protection application was attributable to that of the applicant. The Designated Member concluded that Mr. K. had not co-operated in the processing of his application for international protection.
  1. The applicant, however, challenged the validity of that decision in the present proceedings. He prevailed on this issue before Heslin J. in the High Court: see LK v. International Protection Appeals Tribunal (No.1) [2022] IEHC
  2. In the second judgment, Heslin J. 3 further held that the applicant was entitled to obtain Francovich damages because of this breach of EU law: see LK v. International Protection Appeals Tribunal (No.2) [2023] IEHC
  4. The respondent State authorities were granted leave to appeal directly to this Court pursuant to Article 34.5.4⁰ of the Constitution by a determination dated 31st October 2023: see [2023] IESCDET
  5. In a judgment delivered by Dunne J. on 9th October 2024, this Court subsequently referred certain questions to the Court of Justice of the European Union pursuant to Article 267
(3)TFEU concerning the interpretation of Article 15
(1)of the 2013 Directive together with the issue of whether the 2018 Regulations had properly transposed those very provisions: see LK v. International Protection Appeals Tribunal [2024] IESC
  2. The Court of Justice gave judgment on 15th January 2026: see Case C-742/24 Havvitt EU:C:2026:
  3. (This was the fictitious name attributed by that Court to Mr. K.).While it is accepted that in that judgment the Court of Justice rejected the argument that the 2018 Regulations had not properly transposed the requirements of Article 15
(1)of the 2013 Directive, that Court also explained that the issue of delay could not be determined on a purely binary, all or nothing basis. The Court accordingly concluded (at paragraph 43) that Article 15
(1)governed not only the delay or part of the delay that was attributable to that applicant, but it also ruled that responsibility for delay had to be apportioned where the delay was caused by multiple factors.
  1. When the matter returned to this Court we held that while aspects of the ruling of the Tribunal could no longer be stood over, Mr. K. had not in fact established that the entirety of the more than nine-month delay in processing his application for international protection was not attributable to him: see LK v. International Protection Appeals Tribunal (No.2) 4 [2026] IESC
  2. It was on this basis that the Court allowed the appeal from the decision of the High Court since no breach of EU law had in fact been established. It also followed that the Francovich damages claim must necessarily fail.
  3. In this present ruling the Court is now called upon to determine the issue of costs. The background facts and the legal issues are well known to the parties and are, in any event, set out in the two judgments of this Court. The State parties have been entirely successful in defending these proceedings, so the starting point is that they are presumptively entitled to their costs: see s. 169
(1)of the Legal Services Regulation Act
  1. This sub-section does not, however, preclude the Court from taking other considerations into account, including the extent to which it was “reasonable” to litigate a particular point.
  2. The Court considers that it was reasonable for Mr. K. to commence proceedings in view of the fact that the reasoning of the IPAT can no longer be stood over in the light of the judgment of the CJEU and, indeed, our own judgment in LK (No.2). The 2018 Regulations also contained wording which did not exactly match the language of the 2013 Directive, and this raised an issue of transposition which ultimately could only have been resolved (as it was) by the Court of Justice. The State obtained a clear benefit from the resolution of this important question which brought clarity to a key aspect of the labour market access regime. The Court is also conscious of the fact that this was (of necessity) complex and protracted litigation. Conclusions
  3. In these circumstances the Court considers that it is not prepared to make an award of costs in favour of the State parties. It will instead award Mr. K. 50% of his costs in respect of the first High Court hearing, such costs to be adjudicated in default of agreement. The Court will make no order for costs in respect of either the second set of High Court 5 proceedings or either of the two hearings before this Court or the costs of the Article 267 reference to the Court of Justice.

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