Ammi Burke v an Adjudication Officer the Workplace Relations Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 04 February 2022
• Neutral Citation: [2022] IEHC 45
• Court: High Court
• Docket Number: 2021 No. 671 JR

Between

Ammi Burke

Applicant

and

An Adjudication Officer the Workplace Relations Commission

Respondents

Arthur Cox LLP

Notice Party

[2022] IEHC 45

2021 No. 671 JR

THE HIGH COURT

JUDICIAL REVIEW

Costs – Unfair dismissal – Judicial review – Parties seeking costs – Whether the proceedings presented an issue of general public importance

Facts: The applicant, Ms Burke, applied to the High Court seeking to challenge the manner in which a claim for unfair dismissal had been dealt with. On 11 November 2021, Simons J dismissed the application for judicial review in its entirety: [2021] IEHC 667. Following delivery of the principal judgment, the parties exchanged written legal submissions on costs, supplemented by oral submissions. Both the second respondent, the Workplace Relations Commission, and the notice party employer, Arthur Cox LLP, were critical of the manner in which the applicant conducted the judicial review proceedings.

Held by Simons J that the proceedings, in part, presented an issue of general public importance; in particular, the proceedings required consideration of the practical consequences of the landmark decision of the Supreme Court in Zalewski v An Adjudication Officer [2021] IESC 24. Simons J held that the proceedings were directed, in part, to an earlier procedural ruling said to have been made by the first respondent, the adjudication officer, which was entirely unrelated to the Supreme Court’s decision in Zalewski; that aspect of the proceedings did not give rise to any point of law of general public importance. Simons J held that it is inappropriate to seek judicial review of interim procedural rulings made by an adjudication officer in the context of a claim for unfair dismissal. Simons J held that the applicant chose to make very serious allegations against both the individual adjudication officer and the Workplace Relations Commission generally. Simons J held that all of this added to the length of the hearing and to the costs incurred by the other parties in having to address those issues by way of affidavit, written submission and oral submission. Simons J held that the burden of defending the judicial review proceedings fell largely on the notice party in circumstances where the Workplace Relations Commission elected to participate in the proceedings to a limited extent only. Simons J held that the Commission’s role was confined chiefly to standing over the correctness of the guidance published on its website. Simons J held that 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.

Simons J held that an order would be made, pursuant to s. 169 of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts, directing that the applicant was to pay one-third of the Workplace Relations Commission’s measured costs, and two-thirds of Arthur Cox LLP’s measured costs. Simons J held that the costs were to include all reserved costs; the costs of the written legal submissions; and the costs of two counsel for each party. Simons J held that the costs were also to include the stenography fees; given the shifting sands of the applicant’s case, it was reasonable and appropriate to arrange for a transcript of the hearing. Simons J held that the costs were to be adjudicated on the basis of a one day hearing on 20 October 2021. Simons J held that the costs of the short hearing on the morning of 26 October 2021 were not included. Insofar as the costs of the costs hearings were concerned, Simons J held that the applicant had been unsuccessful in resisting an order for costs. Simons J held that the applicant must therefore pay the costs incurred in that regard by the Workplace Relations Commission and Arthur Cox LLP, respectively. Simons J held that the costs were confined to the costs of the first hearing on 16 December 2021. Simons J held that the necessity for a second and third hearing on costs was largely as the result of circumstances outside the applicant’s control. Simons J held that the costs were to include the costs of the separate written legal submissions on costs. Simons J held that, unless otherwise directed, all costs were to be adjudicated by the Office of the Chief Legal Costs Adjudicator in default of agreement between the parties.

Partial costs award made against applicant.

Appearances

The Applicant represented herself

Catherine Donnelly, SC and Sharon Dillon-Lyons for the respondents instructed by the Workplace Relations Commission

Peter Ward, SC and Mairead McKenna for the notice party instructed by Daniel Spring & Co.

JUDGMENT of Mr. Justice Garrett Simons delivered on 4 February 2022

INTRODUCTION

1 This judgment addresses the allocation of the costs of the within judicial review proceedings. The principal judgment was delivered on 11 November 2021, and bears the neutral citation [2021] IEHC 667. As appears, the judicial review proceedings were dismissed in their entirety.

2 Following delivery of the principal judgment, the parties exchanged written legal submissions on costs. These were supplemented by oral submissions at three short hearings on 16 December 2021, 19 January 2022 and 26 January 2022. (A second hearing had been necessary in circumstances where the first costs hearing had to be adjourned because of technical difficulties; and a third hearing had been arranged to allow the Applicant time to address a specific issue).

CONDUCT OF THE LITIGATION

3 Section 169 of the Legal Services Regulation Act 2015 indicates that one of the factors to be considered in the exercise of the court's discretion in respect of costs is the manner in which proceedings were conducted. 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. Put otherwise, if a party, by its behaviour, has 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.

4 Both the Workplace Relations Commission and the notice party employer have been critical of the manner in which the Applicant conducted these judicial review proceedings. Specifically, attention is drawn to 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.

5 The Applicant sought to contend at the costs hearings that she had not, in fact, made any allegations of impropriety. The Applicant stated that she wanted to stress that she did not formally plead either bias or impropriety in these proceedings, i.e. in her statement of grounds or her legal submissions (Transcript, 26 January 2022, page 4).

6 With respect, the Applicant's attempted characterisation of her case is not accurate. In truth, the Applicant's case was predicated on allegations to the effect that the adjudication officer had made a number of procedural rulings in order to facilitate and favour the other side in the unfair dismissal claim. It had been expressly pleaded in the statement of grounds that the adjudication officer had “ blatantly favoured Arthur Cox” (ground E. 40); 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” (ground E. 45); and that the respondents “ operated in a manner entirely to the benefit of Arthur Cox by aborting the WRC proceedings and refusing to direct disclosure of the emails” (ground E. 47).

7 It is contrived for the Applicant to seek to rely on the fact that the word “ bias” is not used in the statement of grounds to suggest that no impropriety had been alleged against the adjudication officer. It is readily apparent from the foregoing pleas that the adjudication officer was being accused of acting in favour of the Applicant's former employer, in breach of her obligations of independence and impartiality. In short, the adjudication officer was being accused of a particular species of bias.

8 The Applicant doubled-down on these allegations at the hearing of the application for judicial review on 20 October 2021. The following extracts from the transcript of the hearing on that date provide a flavour of her approach.

9 The Applicant, at the outset of her oral submission, had summarised her case as follows:

“ And, fundamentally, these judicial review proceedings arose because, during a hearing at the WRC, Mr. Kevin Lynch, an equity partner at Arthur Cox and a chief witness for the employer, gave false testimony. And, by doing so, he put the employer into deep water as regards successfully defending the dismissal. The Adjudication Officer understood this and the difficulties it raised for the Notice Party, Arthur Cox, and so she refused to direct disclosure of crucial e-mails which would establish the facts regarding the matter that Mr. Lynch had testified about. And unwilling to direct disclosure, the Adjudication Officer wrongly interpreted, [in] my case, a recent Supreme Court judgment to give her the opportunity to recuse herself, thus allowing Arthur Cox an opportunity simply...