[2026] IESC 29

AN CHÚIRT UACHTARACH THE SUPREME COURT [2026] IESC 29 Supreme Court Record No.: S:AP:IE:2025:000091 High Court Record No.: 2025/689JR O’Donnell CJ. Woulfe J. Murray J. Donnelly J. Between/ AB Appellant AND THE CHIEF INTERNATIONAL PROTECTION OFFICER AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE Respondents RULING of the Court on costs dated the 12th May 2026

1. On 25 March 2026, this Court dismissed the appellant’s appeal against the refusal of the High Court to grant leave to apply for judicial review of a decision of the International Protection Officer (“the IPO”) on the grounds of lack of fair procedures. This Court held that the appellant had an effective remedy before the International Protection Appeals Tribunal (“the Tribunal”). In doing so, this Court confirmed that the dicta in Stefan v Minister for Justice [2001] 4 IR 203, [2001] IESC 92 (“Stefan”) that “‘[t]he applicant is entitled to a primary decision in accordance with fair procedures and an appeal from that 1 decision … A fair appeal does not cure an unfair hearing’ taken in isolation, did not and does not represent the position at law.” This Court said that reliance on such dicta is apt to mislead. Instead, it is only in the exceptional and rare cases where there has been a fundamental denial of justice that judicial review will lie in respect of a first instance decision. Those occasions would be objectively identifiable situations where the initial ‘hearing’ may not have amounted to a hearing at all, or where a fundamental requirement has been ignored.
2. The appellant now seeks his costs or a proportion of his costs. The appellant submitted that this appeal was a public interest appeal in the sense envisaged in Little v The Chief Appeals Officer & Ors (No 2) [2024] IESC 53 (“Little (No 2)”) and that this was a test case where costs may be awarded in his favour even where he was unsuccessful, e.g. Dunne v Minister for the Environment [2008] 2 IR 775, [2007] IESC 60, Lee v The Revenue Commissioners [2021] IECA 114 and Rahman v Commissioner of An Garda Síochána [2022] IEHC
4. The appellant submitted that the appeal resulted in an authoritative clarification of when a judicial review of an IPO decision is available pending statutory appeal to the Tribunal and that the judgment provides a clear and more certain organising test for future cases, which is the “fundamental denial of justice” threshold. The appellant submitted that the judgment clarified the dicta in Stefan which “had generated conflicting, and indeed contrary approaches in the case law.” It also clarified by reference to EU law why the Tribunal appeal was an effective remedy and how that fits within the national-law discretion to refuse judicial review for failure to exhaust alternative remedies. Given the “correct[ion]” of the statement of law made by this Court in Stefan, the appellant submitted that he could not reasonably have taken any other course in the circumstances than to bring 2 the matter to the Court and in doing so had participated in clarifying the law for future similarly placed litigants.
5. The appellant also pointed to his specific circumstances as an asylum seeker and that this Court said that the breaches complained of were “concerning”. The appellant also pointed out that the respondents were not participants in the High Court and were invited into the proceedings by the Supreme Court.
6. The respondents accepted that the present proceedings were public interest proceedings in the sense meant by Murray J. at paragraphs [34] and [35] of his judgment in Little (No 2). They also accepted that the State will benefit from the clarity of the judgment. This, however, they submitted, justified the making of no order for costs but did not justify an order for costs against the State.
7. The respondents submitted that this case did not have the additional features required by Little (No 2) to justify an award of costs. They relied upon this Court’s ruling in Chain Wen Wei v Minister for Justice & Anor (No 2) [2025] IESC 9 at paragraph [12]: “This appeal again involved the application to the 2004 Act of well-established principles of statutory interpretation. It did not directly concern an issue of constitutional or European law; it did not involve an issue that could be described as ‘foundational’; it was a case pursued by the appellants for their own personal advantage; and while involving a matter of general public importance, as almost all appeals to this Court must do, it did not present a legal question of such significance (or an argument of such strength) that the taxpayer should fairly bear any of the appellants’ own costs.”
8. It is correct, as the respondents accepted, that the substantive judgment is significant in that it clarifies that the default position that an alternative remedy must be exhausted before an application for judicial review is to be made applies to the situation where the decision at first instance is said to have involved a breach of fair procedures. That fact on 3 its own is insufficient. Most cases now heard by this Court are cases of general public importance. That fact alone does not guarantee that an unsuccessful litigant in a public law case will be entitled to their costs. Something more is required. Where a person has been unsuccessful in public interest proceedings and “the making of an award of costs in favour of such a party is proposed, the Court should do so only in cases of real substance, in which there is a clear and significant public interest on a matter of fundamental importance served by the clarification brought to the law by the suit” (per Murray J in Little (No 2)).
9. This case was not one of foundational importance, or a case of constitutional ‘conspicuous novelty’, it was not an obscure or unexplored area and while it was a case which was one of general public importance in the area of judicial review, it was not one that could be said to have the type of far reaching importance that would warrant the payment by the State of the unsuccessful appellant’s costs or a portion thereof.
10. Separately, but not decisive to the resolution of his application, the appellant took this case for his own advantage. It was not a test case in the true sense of that phrase, and the appellant always had an adequate remedy available to him. He chose to persist in his appeal to this Court despite the High Court having exercised its discretion to refuse leave and to apply the default position as he had an adequate alternative remedy open to him.
11. In the circumstances, this Court will make no order for costs. 4