This judgment addresses the allocation of the costs of the within judicial review proceedings.  The principal judgment in this matter was delivered on the 11th of November 2021 and bears the neutral citation [2021] IEHC 667.  As appears, the judicial review proceedings were dismissed in their entirety.  Please see link to legal island case review of the principal judgment here: https://www.legal-island.ie/articles/ire/case-law/2021/november/ammi-burke-v.-an-adjudication-officer-and-the-workplace-relations-commission-and-arthur-cox-llp-2021/.

Following delivery of the principal judgment, the respective parties exchanged written legal submissions on costs.  These were supplemented by oral submissions at three short hearings. The court is entitled to have regard to conduct both before and after the commencement of proceedings.  In many instances, there will be a causal link between the litigation conduct complained of and the incurring of additional unnecessary costs by the other side.  In such a scenario, there is a logic to censuring the litigation conduct by way of a costs order against the offending party.  In this case, both the Workplace Relations Commission and the notice party employer were critical of the manner in which the Applicant conducted the judicial review proceedings.  Specifically, the WRC and the notice party employer highlighted the fact that the Applicant chose to make serious and unfounded allegations against the adjudication officer assigned to determine the claim for unfair dismissal.  These allegations were ultimately withdrawn on the second day of the hearing; the Applicant having been afforded time to consider the transcript of the first day’s hearing.

The Applicant sought to contend at the costs hearings that she had not, in fact, made any allegations of impropriety. However, it had been expressly pleaded in the statement of grounds that the adjudication officer had “blatantly favoured Arthur Cox” and that the only possible explanation for the adjudication officer’s refusal to direct the disclosure of documents had been “a desire to protect the interests and position of Arthur Cox”. The Applicant further alleged that the adjudication officer’s subsequent decision to recuse herself and to direct that the claim for unfair dismissal be heard by a different adjudication officer “was proof that she was more concerned about the other party and the interests of the other party”.

The default position under the Legal Services Regulation Act 2015 is that a party who has been entirely successful in legal proceedings is entitled to recover their costs against the unsuccessful party.  This reflects the longstanding principle that the interests of justice will usually require that a party who has successfully pursued, or has successfully defended, a claim should not be out of pocket.  The court stated that it would be contrary to this rationale to carve out a non-statutory exception in the case of impecunious litigants.  The pursuit of unsuccessful litigation puts the other parties to the cost and expense of defending same.  It would be unfair to such parties were a person to have a free run at litigation merely on the basis that they were of limited means.    This is especially so in the context of a claim for unfair dismissal.  The Oireachtas has put in place a dedicated statutory regime whereby such claims can be pursued without the risk of an adverse costs order.  The parties to such claims each bear their own costs.  It is only because the Applicant in this particular case chose to break out from the statutory regime and brought the matter before the High Court by way of an application for judicial review, that she has incurred an exposure to legal costs.  Put otherwise, it had been open to the Applicant to pursue her claim for unfair dismissal to completion in a “no costs” environment.  Having chosen instead to pursue judicial review proceedings, and having failed, she cannot now assert her impecuniosity to avoid a costs order.

The Courts can depart from the general rule that costs follow the event where the proceedings raise issues of general public importance.  The ‘public interest’ cases in which the court absolves the losing party from the cost consequences that usually follow the failure of their litigation may cover a wide terrain.  In their purest form, they will involve significant issues of Constitutional or European law of general importance that have been pursued by the claimant to advance a public concern rather than to obtain a private and personal advantage.  In some such cases the public interest in the underlying issue has been such as to justify the grant to the unsuccessful claimant of orders for the payment by the successful respondent of a proportion, or all, of their costs.

The court was satisfied that these proceedings, in part, presented an issue of general public importance.   The Applicant was not a disinterested party and she sought to achieve a personal benefit from the outcome of the proceedings.  More specifically, the Applicant is of the view that some unarticulated procedural advantage would be conferred upon her former employer were the hearing of the claim for unfair dismissal to be recommenced before a fresh adjudication officer.  The case law indicates, however, that the existence of a personal interest is not necessarily fatal to a claim that litigation raises issues of general public importance.

It is also relevant to the allocation of costs to note that the WRC does not normally participate in judicial review proceedings.  The Workplace Relations Commission’s approach in this regard is informed by its view that the position of an adjudication officer is analogous to that of a judge of the District Court or the Circuit Court in respect of whose decisions judicial review proceedings have been taken.

It would be inappropriate—and likely have a deterrent effect for others—to impose what would, in effect, be an additional liability for costs on a litigant who had raised a point of law of general public importance.  The Workplace Relations Commission does not normally participate in judicial review proceedings, and to make a costs order in its favour in a case where it participated to respond to important issues which transcended the facts of the case would be inappropriate.  Such an approach would, in many instances, result in the unsuccessful litigant having to pay two sets of costs, i.e. those of the Workplace Relations Commission and those of the other party to the claim for unfair dismissal.

In the circumstances, it is appropriate to make a partial costs order against the Applicant.  The Applicant is directed to pay the Workplace Relations Commission one-third of its measured costs.  Ordinarily, the Commission, having been entirely successful in the proceedings, would have been entitled to recover the full of its measured costs.  The discount is intended to reflect the fact that there was a general public interest in one of the issues raised in the proceedings, and that most of the costs incurred by the Commission will have been in relation to that issue.  When considering the costs for the Notice Party, the court highlighted that if a notice party could safely have left the defence of the proceedings to the respondent, then the appropriate order may be that the notice party must bear its own costs, rather than visiting two sets of costs upon an unsuccessful applicant. Therefore, the court ordered that the Applicant pay two-thirds of the notice party employer’s measured costs.  It was the notice party, not the Commission, who acted as legitimus contradictor to most of the arguments advanced on behalf of the Applicant.  In particular, the notice party was left to defend the various procedural rulings made by the adjudication officer. The discount of one-third was made to reflect the fact that there was some duplication in the submissions made by the WRC and the notice party.

Key points to note

If a party to proceedings has, by its behaviour, caused the other side to incur additional unnecessary costs, then it may be in the interests of justice to seek to reconcile the balance by requiring the reimbursement of those costs.  This is so even where the offending party has been successful in the overall outcome of the proceedings.

One of the factors to be considered in the allocation of costs is the subject-matter of the litigation.  In particular, it is necessary to consider whether the risk of having to pay the other side’s costs is likely to have a significant deterrent effect on the category of persons affected by the legal issues.  This deterrent effect might have the undesirable consequence that important points of law remain unresolved for the lack of a party with the financial backing behind it to pursue the action before the Courts.

A party is entitled, in principle, to break out of the statutory framework and to bring the matter before the High Court by way of an application for judicial review.  This may, however, result in the decision-maker and the other party to the claim for unfair dismissal incurring additional costs.  If the judicial review proceedings prove to be unfounded, then it is not unreasonable for the successful parties to seek to recover their costs against the unsuccessful applicant.  A balance needs to be struck between ensuring that a fear of costs exposure does not deter proceedings which would clarify points of law of general public importance, while at the same time ensuring that the rights of the other parties are not prejudiced by the pursuit of unmeritorious and costly litigation.
https://www.courts.ie/view/judgments/59f00d43-71ab-4156-9932-f0a8507e7824/b503e6df-0a27-40e9-8e2d-e4d14a0043cc/2022_IEHC_45.pdf/pdf