THE SUPREME COURT
Appeal No. 261/2009
Denham C.J.
O’Donnell J.
Clarke J.
Laffoy J.
Stephen Miley,
Devil’s Glen Equestrian Centre Ltd,
and Devil’s Glen Partnership
Applicants/Respondents
v.
Employment Appeals Tribunal
Respondent/Appellant
Notice Party
Notice Party
Judgment delivered on the 10th May, 2016 by Denham C.J.
1. This is an appeal by the Employment Appeals Tribunal, the respondent/appellant, referred to as “the EAT”, against that part of the order of the High Court (Hedigan J.) of the 18th May, 2009, which concerned costs. Stephen Miley, Devil’s Glen Equestrian Centre Ltd., and Devil’s Glen Partnership, are the applicants/respondents, and are referred to as “the respondents”. Paul Bourke, the first named notice party, is referred to as “the first named notice party”. The Attorney General is the second named notice party, and is referred to as “the Attorney General”.
2. On the 18th May, 2009, the High Court (Hedigan J.) made an order of certiorari quashing the determination of the EAT in the matter entitled Paul Burke v. Stephen Miley, Stephen Miley and Devil’s Glen Equestrian Centre Ltd., and Devil’s Glen Partnership UD 926/2007, remitted the matter to the EAT for a fresh determination, and awarded costs of the judicial review proceedings to the respondents against the EAT.
3. The EAT has appealed the decision of the High Court insofar as it awarded costs against the EAT.
Background Facts
4. In October, 2007, the first named notice party made a claim to the EAT regarding the termination of his employment by the respondents. The EAT heard the claim over three days, and, on the 12th November, 2008, the EAT issued a determination holding that the first named notice party had been unfairly dismissed by the respondents. A sum of €7,095 was awarded to the first named respondent by the EAT under the Unfair Dismissals Act, 1977 to 2001, and €275 was awarded in respect of his claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001.
5. On the 13th February, 2009, the respondents were granted leave to apply by way of an application for judicial review for, inter alia, an order of certiorari quashing the decision of the EAT.
6. Neither the first named notice party nor the EAT filed opposition papers.
7. On the 18th May, 2009, the matter came on for hearing before Hedigan J., who noted that no opposition papers had been filed.
8. The High Court made an order of certiorari in respect of the decision of the EAT, and remitted the matter back to the EAT to be determined in accordance with law.
9. Counsel for the respondents applied for costs against the EAT and the first named notice party.
10. The High Court heard submissions on this matter. The respondents, the EAT and the first named notice party, were legally represented and had the benefit of counsel. The High Court ordered that the respondents recover the costs of the proceedings, to include all and any reserved costs, when taxed and ascertained, against the EAT. No order was made against the first named notice party.
11. The EAT has appealed the costs order to this Court.
12. As already noted, the EAT did not file papers in opposition to the application for judicial review.
13. The Chief State Solicitor had written a letter to the respondents’ solicitors on the 31st March, 2009, setting out the position in relation to the application for judicial review. It was stated:-
“We write to you in relation to the above Judicial Review on behalf of the Respondent, the Employment Appeals Tribunal.
Having considered the papers our client does not propose to take any part in the proceedings. Please note that this is the policy normally followed by the Employment Appeals Tribunal in relation to Judicial Review challenges of this sort.
The determination of the EAT under challenge was made having heard detailed oral and written legal submissions from the legal representatives of both parties before the EAT.
The legitimus contradictor to the Applicant's Judicial Review proceedings is the Notice Party.
Our client is in the entirely analogous position of a District Judge or indeed the Labour Court, a statutory quasi judicial body whose decisions can be the subject of Judicial Review challenges.
Please note that it is the considered position of our client that it is appropriate for it to take this stance. Its decision not to challenge these proceedings should not be taken as a concession in any way as to the correctness of the Applicant’s position.
Please Take Notice that no application should be made for costs against the EAT by either the Applicant or the Notice Party at the conclusion of these Judicial Review proceedings irrespective of their outcome on the following grounds:
The EAT, like the Labour Court, is in the position analogous to a District or Circuit Judge whose decision is the subject of a judicial review challenge, see Supreme Court' decision in Noonan Services Limited and Others –v- The Labour Court and Another, 14th May, 2004 where McGuinness J. states at p.8:
‘The Labour Court as the Respondent was in the position of a Tribunal which corresponded to the position of a District Judge in many Judicial Review proceedings. The Labour Court was not a legitimate contradictor. The notice party was represented in the Labour Court and represented a large number of workers who would be affected by the orders or by the ruling that the orders were void and therefore I consider that SIPTU was an appropriate party. As such I think they should have been granted their costs.’
It is clear from the aforementioned Supreme Court decision and the jurisprudence of the courts that in circumstances where our client decides not to contest or oppose the proceedings that the appropriate legitimus contradictor is the Notice Party and that any issue of costs arising at the conclusion of the case are matters between the Applicant and the Notice Party and not the EAT.
Please Take Further Notice that in the event that either the Applicant or the Notice Party disagrees with our view of the legal position in relation to costs and if, when the High Court has made its decision in relation to these Judicial Review proceedings, either the Applicant or the Notice Party intends to apply for costs against the EAT we ask you to put us on notice so that we can make submissions to the Court in relation to the issue of costs.
In the event that this becomes necessary we put you on notice that we will apply for the costs of appearing as against whichever party seeks to fix the EAT with the costs of these Judicial Review proceedings.”
Submissions
14. The EAT submitted that costs should not be awarded against the EAT unless there was proof that the body acted with mala fides and/or improperly.
15. The respondents submitted that the rule in McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343, and the public policy providing that costs in a judicial review should be awarded against judges only if they acted mala fides or improperly, should not be extended to administrative tribunals. In the alternative, it was submitted, if the said rule applied to the EAT, it was contended that the learned High Court judge did not err in the exercise of his discretion in arriving at the conclusion that the hearing of Paul Bourke v Stephen Miley, Stephen Miley and Devil’s Glen Equestrian Centre Limited and Devil’s Glen Partnership, by the EAT, was conducted in a manner such that the conduct of the hearing crossed the line as provided for in the established authorities, i.e., was conducted in a manner perversely or in some disregard to the elementary principles which every court ought to obey. Thus, the respondents sought an order dismissing the appeal.
Attorney General
16. The Attorney General supported the EAT position that quasi-judicial bodies enjoy a similar immunity to that of members of the judiciary. In the alternative, the Attorney General submitted that the High Court erred in concluding that the conduct of the EAT was of such a degree as to have brought itself outside that immunity.
Decision
17. When this case was remitted to the EAT a settlement was reached. The only matter before this Court is that of costs. The appeal raises two issues:-
Does the Rule of immunity apply to the EAT?
18. Thus, the first question is whether the rule of immunity applies to the EAT.
19. On the 18th May, 2009, Hedigan J., in granting the order of certiorari quashing the EAT’s determination stated:-
“This is an application for Judicial Review of a determination of the Employment Appeals Tribunal dated 9 December 2008. Leave to apply for Judicial Review was granted by Mr. Justice MacMenamin on 13 February 2009.
The Applicant seeks inter alia an Order of Certiorari quashing the determination of the Employment Appeals Tribunal. Neither the Employment Appeals Tribunal nor the Notice Party have filed opposition papers in this matter. The Applicants also seek the costs of these proceedings. The Respondent is opposing the application for costs.
I accept the legal principles as set out by O’Neill J. in F. v Judge Hugh O’Donnell & ors (Unapproved judgment of O’Neill J. delivered on 27 March 2009) and in the English cases of R v Hastings Licensing Justices, exparte John Lovibond and Sons Ltd and Others [1968] 2 All ER 270, R v Liverpool Justices, exparte Roberts [1960] 2 All ER 384 where it has been stated that it is not the practice to grant costs against magistrates or tribunals merely because they have made a mistake of law but only if they have acted improperly, that is to say, perversely or some disregard to the elementary principles which every court ought to obey, and even then only if it was a flagrant instance.
In this case there was an entirely unsatisfactory hearing. While there is uncontradicted evidence of an extraordinary hearing before the [EAT] I understand the wish of the [EAT] not to become involved. If such serious allegations against the fairness of the hearing are made, the [EAT] would have to swear an Affidavit countering these allegations or agree to pay the costs.
On the basis of the facts as sworn in the Affidavits of the Applicant, it is clear that the proceedings were not properly conducted, and were not conducted in the manner which the [EAT] could expect it to be conducted. Therefore, in my view, the conduct of the hearing in the present case crossed the line, as set out in the English cases cited above, and on this basis I will award costs including reserved costs to the [respondents], as against the [EAT]. I will also make an Order of Certiorari in terms of paragraph (a) of the Notice of Motion, quashing the determination of the [EAT].
I will therefore remit the matter to the [EAT] for a fresh determination.
I will make no order in respect of the costs of the Notice Party.”
Statement of Grounds
20. In the statement grounding the application for judicial review the respondents cited a number of grounds, including:-
“d. The determination of the [EAT] cannot be executed and is unenforceable as it does not specify which of the many [respondents] named by the Notice Party has breached the legislation and is thus liable to pay the amount awarded. The decision of the [EAT] is thereby a nullity, incapable of execution and unenforceable.
e. The [EAT] has acted outside its jurisdiction, in breach of its statutory obligations under the Unfair Dismissals Acts 1977 – 2005, and contrary to fair procedures and natural justice in failing to make a decision on a matter referred to it, namely who is the employer of the Notice Party, notwithstanding the fact that it was made clear at the outset of the hearing that the identity of the correct employer was an issue before the Tribunal.
f. The [EAT] failed to give reasons for its determination, nor as to how it arrived at the sum awarded, as required by the Unfair Dismissals Acts. By failing to set out which [respondent] and in what respect its case had failed, the [EAT] rendered ineffectual the [respondent’s] statutory right of Appeal.
g. The [EAT] failed to make a determination on a matter before it, namely whether the Notice Party had failed to mitigate his loss as an employee is required to do under the Unfair Dismissals Acts. The [EAT] thereby acted outside its jurisdiction, in breach of its statutory obligations under the Unfair Dismissals Acts.
h. The [EAT] has acted outside its jurisdiction, in breach of its statutory obligations under the Unfair Dismissals Acts 1977 – 2005 by requiring the [respondents] Applicants to provide discovery of documents to the Notice Party, in circumstances where it has no statutory powers to order discovery, and in the hostile, angry and irrational manner in which it dealt with the Notice to Produce filed by the Notice Party.
i. The determination of the [EAT] is irrational and unreasonable and flies in the fact of logic and common sense as it is based on findings of fact for which no evidence whatsoever was adduced to support them. The blatant inaccuracies evident on the face of the record make it impossible for the [EAT] to have had regard to the correct facts when arriving at its determination. In particular the [EAT] made a finding of fact that following the redundancy of the Notice Party ‘in subsequent months others were hired’, when no evidence in any shape or form had been given either by the [respondents] to the charge of unfair dismissal resulted in the determination of the [EAT] being unreasonable and irrational on the basis that it was made relying on facts for which no evidence to support such a finding had been adduced to the [EAT].
j. The [EAT] acted outside its jurisdiction in making its determination in failing to have regard to matters in relation to which it is statutorily required to have regard and having regard to matters to which it should not have regard, namely by failing to allow the Notice Party be questioned fully on his efforts to mitigate his loss, by failing to have regard to the central defence of the [respondents] which was that the Notice Party had been made redundant, by failing to have regard in the amount of compensation ultimately awarded by it to the Notice Party’s failure to mitigate his loss and by having regard to medical reports which were hearsay.
k. The [EAT] failed to afford the [respondents] a proper hearing, fair procedures and natural justice, by failing to conduct the hearing in a judicial manner due to the piecemeal, haphazard and unfair manner of allowing witnesses to give evidence, by evincing hostility and anger towards the [respondents] and their legal representative on a number of occasions.
l. The determination arrived at is a nullity in having been made unreasonably, irrationally, outside the jurisdiction of the [EAT] and in breach of its statutory obligations under the Unfair Dismissals Acts 1971 – 2005.
m. The [respondents] was (sic) wrongly, invalidly and unlawfully and in breach of the Unfair Dismissals Acts 1977 – 2005 denied any adequate or proper opportunity to make representations and/or submissions in their defence as a result of the unfair manner of the conduct of the hearing.
n. An appeal to the Circuit Court is not an adequate remedy for the reason that the [respondents] do not know which of them has been adjudged liable, have been denied their statutory right to have a fair hearing at first instance and then to appeal that hearing. The [respondents] are also deprived of the opportunity to make an effective appeal as they does (sic) not know in what regard their case has failed, or which of the named [respondents] is liable.”
Affidavit
21. The application for judicial review was supported by an affidavit of Emily Gleeson, deposed on the 4th February, 2009. She describes that the first named notice party submitted a complaint against the respondents to the EAT. There was an issue as to which legal entity was the employer. The complaint was heard by the EAT on the 10th April, 2008, 24th June, 2008, and 25th September, 2008. A determination issued on the 12th November, 2008.
22. In her affidavit Ms. Gleeson made the following key points:-
(i) The EAT failed to make any finding as to who was the employer.
(ii) It was deposed that the EAT commenced the hearing with anger and hostility displayed at the onset (in relation to the issue of a notice to produce) and this coloured its treatment of the respondents from then on.
(iii) The process allowed by the EAT included that Mr. Danny Miley was not offered the opportunity to respond to and object to the totality of the allegations of the first named notice party.
(iv) The piecemeal manner in which the evidence was taken was wholly unsatisfactory.
(v) It was deposed that during the hearing when the first named notice party was giving evidence the Chairman of the EAT turned to counsel for the respondents and asked: “Do you have a contract of employment”? Counsel was taken by surprise. Counsel asked “Do you mean me personally”? The Chair of the EAT then stated to counsel that she was being deliberately disrespectful to the EAT and purposely so. It was deposed that in the face of such irrational and unreasonable behaviour that the respondents were not afforded fair procedures, or a fair hearing.
(vi) Further, that medical reports were put in evidence by the notice party despite the fact that they were neither agreed nor were any professionals being called to give evidence.
(vii) No reasons were given by the EAT for its decision.
(viii) That no regard was taken of the respondents’ claim that the first named notice party was made redundant as there was no longer any requirement for the part time position held.
(ix) Further, that there were inaccuracies, confusion, misconceptions and statements of facts for which no evidence had been adduced.
(x) It was submitted that the EAT had acted outside its jurisdiction, was in breach of statutory obligations, and acted contrary to fair procedures and natural justice.
Law
23. It is well settled law that members of the judiciary have immunity from orders as to costs. However, that immunity is not absolute.
24. There is no necessity to consider law from another jurisdiction, in this case, as the law as to the immunity of the judiciary, is well established in Irish jurisprudence.
25. In McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343, Finlay C.J. stated, at pp. 345-346:-
“With regard to the first issue which arose, namely, the propriety of the order, on the facts of this case, awarding to the applicant costs of the motion for judicial review against the first respondent, there can be no doubt whatsoever that this order was quite contrary to the legal principles which are applicable in a case of this description. The learned Circuit Court judge had made an order which was in excess of the jurisdiction vested in him by the applicable statutory provisions in an error occasioned by the application made on behalf of the second respondent Gilroy Automation Limited and, one must presume, upon the submissions made on its behalf that he had power to make such an order. When the motion for judicial review was served upon him he did not seek to justify or defend the making of that order nor did he seek to oppose the remedies being sought by the applicant. There can be no conceivable question of his having acted with any impropriety or that the error into which he fell was other than an error due to a mistake in regard to the law applicable. In these circumstances, for the High Court, upon the applicant and his employer settling the issue between them and the applicant no longer seeking any relief or remedy by way of judicial review, to award to him, the applicant, his costs against the first respondent was entirely incorrect. This issue came before the former Supreme Court in The State (Prendergast) v. District Justice Rochford and Judge Durcan (Unreported, 1st July, 1952). Maguire C.J. in the course of his judgment with which the other members of the Court on this issue all agreed, stated as follows:¬
‘I am satisfied that where as in this case the District Justice or the Circuit Court judge have been guilty of no impropriety and have not shown cause that the principles stated by Palles C.B. still apply and that there is no basis for the suggestion that a change has taken place in the practice.’
The principles stated by Palles C.B. are identified by the former Chief Justice as follows:¬
‘As regards magistrates Palles C.B. in Rex (John Conn King) v. Justices of Londonderry (1912) 46 I.L.T.R. 105 stated the principles which govern the Court as follows:¬
“According to the principles that the Courts have been acting upon for years, as a rule magistrates ought not to be obliged to pay costs unless they were acting in some way that was not bona fide, or unless they took it upon themselves to put forward and support a case that was wrong in point of law.”’
I am quite satisfied that the principle shortly enunciated by the former Chief Justice in this case is the appropriate principle and that under no circumstances should the High Court upon application for judicial review with regard to either a decision of a District Justice or of a Circuit Court judge award costs to a successful applicant in a case where there is no question of impropriety or mala fides on the part of the judge concerned and where he has not sought to defend an order which apparently is invalid. For that reason, I am satisfied that the practice which I understood to have been usual in the High Court of adding as a further respondent in judicial review proceedings the other contesting party, so as to create a legitimus contradictor for any issue that may arise in the event that the Circuit Court judge or District Justice concerned does not seek to defend the order, should be universally followed. I have, therefore, no doubt that the appeal of the first respondent against the order on the 6th July, 1987, should succeed and that that order in so far as it makes an order for costs against him should be set aside.”
25. An aspect of reasons for such an order were described by O’Neill J. in O.F. v. Judge Hugh O’Donnell, Ireland and ors, [2012] 3 I.R. 483 at p.495 :-
“[27] On this question there was no dispute between the parties. Counsel for the applicants acknowledged that the judgments of the Supreme Court in the cases of McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343 and O’Connor v. Carroll [1999] 2 I.R. 160 and the judgments of Kelly J. in Curtis v. Kenny [2001] 2 I.R. 96 and McKechnie J. in Stephens v. Connellan [2002] 4 I.R. 321 and of Macken J. in McCoppin v. Kennedy [2005] IEHC 194, [2005] 4 I.R. 66, all make it clear that where there is no allegation of mala fides or impropriety and where the judge does not defend the impugned order, there cannot be an order for costs against him or her. Without such a rule, judges could be sued and orders for costs made against them where they had merely fallen into error without any impropriety or mala fides on their part. Bearing in mind the range of error that may be the subject matter of judicial review, in my opinion, without a full indemnity from the State, which for the reasons discussed below cannot exist, it would not be possible because of the risk to personal fortune, to retain judges let alone independent judges in the District or Circuit Courts”
26. The question is whether such immunity should apply to the EAT. There have been some relevant judicial references to this issue.
27. As cited in the letter of the Chief State Solicitor of the 31st March, 2009, which is set out fully earlier in this judgment, McGuinness J. made such a reference in Noonan Services Limited & Ors v. The Labour Court and Another, ex-tempore, (Unreported, Supreme Court, 14th May, 2004), with which Geoghegan J. and McCracken J. agreed:-
“With regard to the cross-appeal on costs I think quite briefly in my view the notice party was an appropriate party to be brought into the case. The Labour Court as the respondent was in the position of a tribunal which corresponded to the position of a District Judge in many judicial review proceedings. The Labour Court was not a legitimate contradictor. The notice party was represented in the Labour Court and represented a large number of the workers who would be affected by the orders or by the ruling that the orders were void and therefore I consider that S.I.P.T.U. was an appropriate party. As such I think they should have been granted their costs. I would allow the cross-appeal.”
28. In this case the EAT did not act as a legitimate contradictor. It was a tribunal which acted in a manner analogous to the position of a District judge in many judicial review proceedings - where no opposition to the review was filed.
29. In Casey v. Private Security Appeals Board and Anor [2009] IEHC 547, Dunne J. addressed a similar issue. Having granted the applicant relief, the applicant then applied for costs against the Private Security Appeals Board, the respondent, and Private Security Authority, the notice party. The notice party conceded that costs follow the event and that the applicant was entitled to costs against the notice party. However, the respondent opposed the costs application and argued that no costs order should be made against it as it had not taken part in the proceedings. In advance of the hearing in the High Court, the Chief State Solicitor had written to the solicitor for the Authority saying that it proposed to take no part in the proceedings and stating that the Appeals Board was in a position similar to the Labour Court and analogous to a District or Circuit Court judge whose decision is subject to judicial review. There was no allegation of mala fides or impropriety by the Appeals Board. Nor had the Appeals Board participated in the judicial proceedings. Reference was made by Dunne J. to Cullen v. Employment Appeals Tribunal, Respondent and Connaught Gold Limited, Notice Party, ex-tempore, (Unreported, High Court, O’Neill J., 14th April, 2008), where it was stated:-
“When a statutory body like the EAT makes a decision which is challenged and then decides not to participate in the proceedings. The EAT must act judicially. They are a quasi judicial body. It did not take a partisan position in relation to the matter and that is appropriate. They decided to leave it to the contesting parties to contest the issues. That is the approach and adopted by lower courts and statutory quasi judicial bodies when the decisions are challenged and that is an appropriate approach. That is what happened here. It is submitted that in the absence of mala fides that no order should be made against the respondent and I accept that is the general legal policy adopted by the courts in relation to these matters and I will follow the approach and accordingly I make no order for costs as against the respondent.”
Dunne J. also referred to in O.F. v. Judge Hugh O’Donnell, Ireland and ors, [2012] 3 I.R. 483, which has been referred to above.
Dunne J. held:-
“In considering the nature of the Private Security Appeals Board it is interesting to contrast the provisions of s. 6 of the Act which deals with the establishment of the Private Security Authority and it goes on in s. 7 to deal with its membership. The position of the Appeals Board is somewhat different. It is established under the Act in s. 40 as set out previously and the manner in which the body is appointed is different to that of the Authority. The details in relation to its constitution are set out in the second schedule of the Act. Its membership consists of a chairperson and such and so many other members as the Minister with the consent of the Minister for Finance considers necessary. The chairperson and other members of the Appeal Board are appointed by the Government on such terms and conditions as the Government determines. I do not think it is necessary to go further than setting out those brief details. The representation of the authority is somewhat different and its members are appointed by the Minister who designates one as the chairperson. Bearing in mind the nature of the Appeals Board, methods of its appointment and its statutory remit, it clearly is a quasi judicial body. It is in a similar and analogous position to that of a judge. For the proper functioning of the Board, it seems to me that it is appropriate that it should generally have immunity from costs in circumstances where it has acted without mala fides and without impropriety. One cannot say that the Board must always be immune from an order for costs. There may be occasions when a complete immunity might be unjust but in the circumstances of this case I think it is appropriate to make no order for costs against the Board in this case.”
30. The cases cited are of assistance in the analysis of the issues raised.
Decision
31. However, the issues raised are net in that they relate to the EAT.
32. The EAT was a statutory tribunal established under s.39 of the Redundancy Payments Act 1967 and, up to 1977, was known as the Redundancy Appeals Tribunal. In 1977, under s.18 of the Unfair Dismissals Act 1977, the name of the Tribunal was changed to the Employment Appeals Tribunal. The Tribunal was originally set up to adjudicate in disputes about redundancy between employees and employers and between employees or employers and the Minister for Labour or a Deciding Officer.
The scope of the Tribunal was extended over the years and, in addition to disputes under the Redundancy Payments Acts 1967 to 2007, it also dealt with disputes under other legislation, including the Minimum Notice and Terms of Employment Acts 1973 to 2005; and the Unfair Dismissals Acts 1977 to 2007.
33. Under Part 6 of the Workplace Relations Act, 2015, the EAT was dissolved and its functions transferred to the Labour Court.
34. Following the establishment of the new Workplace Relations Commission on the 1st October 2015, the Tribunal no longer accepts direct claims or appeals. All complaints and disputes under employment, equality and equal status legislation presented after the 30th September 2015 are dealt with by the Workplace Relations Commission and all appeals presented after this date fall to be heard by the Labour Court. The Tribunal will remain in place to deal with legacy complaints and appeals, on completion of which it will be dissolved.
35. It is apparent that the EAT was a tribunal which had a function of decision making on a conflict.
36. In this case the EAT did not file opposition papers to the application for leave to appeal by way of judicial review. In circumstances such as arose in this case, the EAT was not the legitimus contradictor. It did not take part in the proceedings in the High Court, until the costs application was made. A letter (as set out previously) had been written by the Chief State Solicitor to the parties, in advance of the High Court hearing, setting out that in the circumstances the EAT should not be liable for costs as the EAT was a statutory body, with decision making powers, which decided not to participate in the judicial review proceedings.
EAT not primarily liable for costs
37. As a matter of public policy, and arising from its function, the EAT should not primarily be liable for an order of costs in judicial review proceedings when it has not participated in such proceedings, and has indicated such a position initially in the judicial review proceedings. A rule similar to that stated in McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343, should apply.
38. This means that while the EAT would not in the first instance be liable for costs, that immunity would be lost if the EAT acted with mala fides or with impropriety.
39. Thus, I would determine first that the EAT is entitled prima facie to immunity from costs.
Mala fides or impropriety
40. The next question is whether the EAT lost that immunity by reason of mala fides or impropriety?
41. The learned High Court judge (Hedigan J.) held on the 18th May, 2009:-
42. In all the circumstances, the issue as to whether the EAT has lost the immunity by reason of mala fides or impropriety falls to be decided on the facts as set out in the affidavits filed in the High Court.
Mala fides
43. The jurisprudence to be applied is that stated in the Irish cases, some of which have been cited earlier in this judgment.
44. It is clear from a review of the facts that, whatever happened in the EAT, it was not a decision reached with mala fides.
Impropriety
45. Thus, the next issue is whether the actions of the EAT amounted to impropriety.
46. The Court was referred to De Smith’s Judicial Review Sixth edition, paragraph 5-079, which considered the designation of a purpose as “improper”, stating:-
“However, the designation of a purpose as ‘improper’ is distinct because of its connotation of moral impropriety. In most cases where the term ‘improper’ has been employed the decision-maker either knowingly pursues a purpose that is different from the one that is ostensibly being pursued, or the motive behind the decision is illicit (based for example on personal factors such as financial gain, revenge or prejudice). Because, therefore, of its adverse moral importation, the notion of improper purposes is more akin to bad faith,…”
47. However, the appropriate word in our jurisprudence on the issue is not “improper” but “impropriety”. And while it is of interest to consider the word “improper” it is not entirely on point. The term “moral” does not dominate the analysis of the term “impropriety”, in that it would seem that in “improper” there will be an improper motive. Such may not necessarily be part of an “impropriety”.
48. The term “impropriety” is defined in the Concise Oxford Dictionary, 8th Edition, as:-
The term “impropriety” is defined in the Concise Oxford Dictionary, 10th Edition, as:
“improper behaviour or character".
49. This gives some guidance. As the term “mala fides” is part of the test, and goes to intent and motive, the concept of “impropriety” appears to address a different aspect of conduct, such as wholly unfit proceedings.
50. Errors of law or of fact are matters to be dealt with on appeal, and not matters of impropriety.
51. On a review of the facts, as set out earlier in this judgment, it is clear that the standard of the hearing was wanting. It is not the type of behaviour to which the EAT would aspire. It is important that the Tribunal, by its behaviour, enhance confidence in the system. While the process was anticipated to be informal, that is no reason to depart from important legal values and standards.
52. It is clear that the conduct of the EAT was not what the EAT or any body with adjudicative function would aspire to in this day and age nor was it conduct which participants in proceedings should be required to accept. For that reason the proceeding were properly quashed. However, it was not “impropriety”.
European Convention on Human Rights
53. The issue of the European Convention on Human Rights, “the ECHR”, was raised before the Court. The respondents argued that having succeeded in their application for judicial review, they were entitled to their costs, as in general would apply. They submitted that the effect of the rule of immunity was to deny them an effective remedy, in a situation where the EAT had acted in a manner which was procedurally flawed.
54. The costs in issue were those of applying ex parte to the High Court for leave to proceed by way of judicial review. As the application was not opposed there was no necessity for any further hearing, until the appellants sought their costs.
55. As to whether there is a right under the ECHR to recover costs in all cases was considered in the High Court by O’Neill J. in F. & Ors -v- Judge O'Donnell & Ors [2009] IEHC 142, where he stated:-
“From the above it is clear that the Convention does not require in all cases that there be provision in law for the recovery of costs by a successful party from the defeated party. Recovery of costs per se is not an essential feature of the right of access to Courts or tribunals (Article 6) or of an effective remedy (Article 13). The costs issue only engages the Convention and invariably Article 6, rather than Article 13, at the point where the lack of a provision in law for the recovery of costs acts as an impediment to access to the courts. Thus the jurisprudence of the European Court of Human Rights requires that, firstly, there be a consideration of whether the particular litigation costs, having regard to the particular circumstances of the case, constitute an obstacle to the applicant’s right of access to the courts resulting potentially in a breach of Art 6.1, and if the answer to this question is in the affirmative, secondly, does the prohibition on making a costs order satisfy the proportionality test?”
56. The European Court of Human Rights considered the issue of costs and Article 6 in the case of Stankiewicz v. Poland (2007) 44 E.H.R.R. 47. In that case the applicants complained that the decision of the respondent state to refuse to reimburse them the costs of civil proceedings which the prosecuting authorities had unsuccessfully brought against them was in breach of their rights under Article 6 of the ECHR. Under Polish domestic law, the party losing a civil case was normally obliged to reimburse the litigation costs to the successful party, however, that principle was not applicable when a public prosecutor participated in civil proceedings in his or her capacity of guardian of legal order.
The Strasbourg Court noted that the prosecuting authorities enjoyed a privileged position with respect to the costs of civil proceedings and it was accepted that such a privilege might be justified for the protection of the legal order. However, the Court held that the principle was not applicable in that case as it would put the applicants at an unfair disadvantage, thus the Court found there had been an infringement of Article 6.
57. The UK Court of Appeal considered Strasbourg jurisprudence on the issues of costs and Article 6 in Eastenders Cash and Carry Plc & anor v. The Commissioners of Her Majesty’s Revenue and Customs [2012] EWCA Civ 689., Lord Justice Elias stated:-
“As to article 6 point, I accept that Stankiewicz supports the submission that there will be situations where differential rules on costs may engage the requirements of article 6, although I confess that I have difficulty in understanding from the decision precisely when that will be the case. I can understand an argument that the denial of costs might in some cases inhibit access to the courts in a similar way to the denial of legal aid or the imposition of court fees, so that something akin to the principles applied in Airey v Ireland (1979) 2 EHRR 305 and Kreuz v Poland (2001) 11 BHRC 456 could be engaged. However, the Court in Stankiewicz said in terms in paragraph 60 that these were not the relevant principles in play:
‘The Court is well aware that in the circumstances of the present case neither the court fee nor the applicants’ access to the court is concerned’.
In any event the Claimants in this case were not in fact denied access. So if article 6 is engaged, it must be for some other reason. Paragraph 60 of Stankiewicz goes on to recognise that there may be such situations:
‘…There may also be situations in which the issues linked to the determination of litigation costs can be of relevance to the assessment whether the proceedings in a civil case seen as whole have complied with the requirements of Article 6(1) of the Convention’.
The Court noted that the prosecution in that case had a privileged position with respect to costs. That of itself would not, however, necessarily involve a breach of article 6 because the privilege might be justified (para 69):
‘It is true that such a privilege may be justified for the protection of the legal order. However, it should not be applied to put a party to civil proceedings to unfair disadvantage vis a vis the prosecuting authorities.’
The court concluded that article 6 was infringed by the particular application of the rule in that case. As Mummery LJ has pointed out, the facts in Stankiewicz were unusual and very different from those arising here. In particular, the successful litigant was taken to court by the prosecutor in what was found to be a complex matter warranting legal representation. He did not choose to engage in the litigation.
It is difficult to avoid the conclusion that the ECrHR found article 6 to be engaged because the costs orders operated in what the court considered was a manifestly unfair and disproportionate way. How that creates an ‘unfair disadvantage’ in relation to the trial process is more difficult to discern but we must assume that there are exceptional cases, of which Stankiewicz itself is one, where it does so and involves a breach of article 6.”
57. Lord Justice Elias held that even assuming that there may be exceptional situations where article 6 is infringed by unfair discrimination in costs’ rules, that the case before them was not such a case.
58. I would echo that approach, so that even assuming that there may be exceptional situations where article 6 is infringed by unfair discrimination in costs’ rules, this is not such a case. I would also observe that risk of costs which cannot be recovered under the approach in Mc Ilwraith v Fawsitt is by definition very limited. If a decision making body defends judicial review proceedings then it may be liable for costs if it loses. If it does not take part in the proceedings, then it is still open for the party who benefitted from the challenged ruling to defend the proceedings, in which case it will be responsible for costs if the claim succeeds. It is only if neither party seeks to stand over the conduct or ruling, that the applicant will succeed in the judicial review but not recover the costs of so doing. Those costs can only amount to the drafting of the application and the ex parte application for leave, and the uncontested application for judicial review. These costs are necessarily limited. There are other features of the legal system where parties can be successful but fail to recover some or all of the costs they incurred, often more substantial than the costs involved here.
Conclusion
59. In conclusion, I am satisfied that the EAT should not primarily be liable for costs in judicial review proceedings, when it has not participated in those proceedings. A rule similar to that stated in McIlwraith v. His Honour Judge Fawsitt [1990] 1 I.R. 343 should apply. Thus, while the EAT would in the first instance not be liable for costs, that immunity would be lost if the EAT acted with mala fides or with impropriety. I am satisfied that the EAT did not act either with mala fides or with impropriety in this case. Consequently, I would allow the appeal.