Bondarenko v The Employment Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 29 July 2020 |
| Neutral Citation | [2020] IECA 208 |
| Date | 29 July 2020 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 2019/496 |
[2020] IECA 208
Costello J.
Haughton J.
Collins J.
Court of Appeal Record No. 2019/496
High Court Record No. 2017/307JR
THE COURT OF APPEAL
Costs – Judicial review – Abuse of process – Notice party seeking costs – Whether the applicant had engaged in an abuse of process
Facts: The High Court (Binchy J), on 31 May 2019, refused an order of judicial review quashing a decision of the respondent, the Employment Appeals Tribunal (EAT), dated 20 March 2017 ([2019] IEHC 578). On 8 October 2019, he ordered the notice party, Keegan Quarries Ltd, to pay the sum of €2,000 as a contribution to the costs of the applicant, Mr Bondarenko. The notice party appealed the order for costs and sought the costs of the High Court and the appeal. Counsel for the notice party submitted that, in addition to the normal rule that costs follow the event, there was a public policy reason why the notice party should be awarded its costs; the applicant had engaged in an abuse of process and it was important that the court should discourage litigation of this kind. Counsel for the notice party submitted that, in the circumstances, the trial judge gave undue weight to irrelevant matters and failed to give due weight to the central issue in the case.
Held by the Court of Appeal (Costello J) that the entire proceedings constituted an abuse of process. Costello J held that it was not appropriate that the applicant should have received any award of costs, and it was not just that the notice party should be put to the expense of defending the proceedings in those circumstances and yet be denied an order for its costs when the relief sought is refused on the basis that to grant it would facilitate unjust enrichment at its expense. In Costello J’s judgment, the trial judge failed to give appropriate weight to the abuse of process in this case when he made his order on costs. Costello J held that it was not appropriate to make a Veolia Water U.K. plc v Fingal Country Council (No. 2) [2007] 2 I.R. 81 type assessment in this case as the proceedings ought never to have been brought, even if the court were in a position so to do. Costello J held that the trial judge erred in the exercise of his discretion when he, in effect, ordered the notice party to contribute to the costs of the applicant to make up for the fact that the EAT failed to direct the implementation of the recommendation of the Rights Commissioner, that the notice party pay €2,000 to the applicant in respect of breaches of the provisions of the Terms of Employment (Information) Act 1994.
Costello J held that she would allow the appeal, vacate the decision of the trial judge on costs and award the notice party the cost of the High Court against the applicant.
Appeal allowed.
On 31 May 2019, the High Court (Binchy J.) refused an order of judicial review quashing a decision of the respondent (“EAT”) dated 20 March 2017 ([2019] IEHC 578). On 8 October 2019, he ordered the notice party to pay the sum of €2,000 as a contribution to the costs of the applicant. The notice party appealed the order for costs and seeks the costs of the High Court and the appeal.
In order to consider the decision of the trial judge on costs it is necessary to explain the complicated procedural background to the judicial review proceedings. In 2015, the applicant brought a series of claims to the Rights Commissioner against Keegan Precast Limited (“Precast”) and a related company, Keegan Quarries Limited (“Quarries”), the notice party in these proceedings. They were identical claims arising out of the same cause of action. He sued both Precast and Quarries as he was unsure which of the two related companies was in fact his employer.
Precast and Quarries maintain that Precast was the employer of the applicant at the relevant time, though this was not clarified for some time. Precast instructed its solicitors to appear before the Rights Commissioner on its behalf to defend the claims. Quarries did not instinct its solicitors to act on its behalf as it was not the applicant's employer. Neither Precast nor its solicitors were able to attend before the Rights Commissioner due to prior commitments in the High Court. They sought an adjournment of the hearing, but that was refused. Thus, neither Precast nor Quarries were represented at the hearings before the Rights Commissioner. The solicitors for Precast sent a trainee solicitor to attend the hearing as a note taker on behalf of Precast.
The Rights Commissioner did not decide which of the two companies was the applicant's employer. The Rights Commissioner clearly ought to have made a determination as to the identity of the employer and issued a recommendation directed to that company. Instead, on 30 September 2015, the Rights Commissioner made identical sets of recommendations against both Precast and Quarries in favour of the applicant. That was not appropriate. The Rights Commissioner sent the recommendations against Precast to its solicitors and sent the recommendations against Quarries directly to Quarries, there being no representation in respect of Quarries. Thus, the solicitors for Precast, who were also the solicitors for Quarries, were unaware of the fact that two minor image recommendations had been made by the Rights Commissioner as, due to inadvertence, Quarries did not forward the recommendations against it to its solicitors.
Precast appealed the recommendation of the Rights Commissioner to the Labour Court. It described itself as the employer. The Labour Court proceeded on that basis. Quarries maintain that due to the confusion created by the Rights Commissioner, only the recommendations which had been sent to the solicitors on record for Precast were appealed to the Labour Court and by implication, that if the recommendations in relation to Quarries had likewise been furnished to the solicitors, they too would have been appealed to the Labour Court.
The Labour Court heard Precast's appeals on 11 April 2016. The applicant gave evidence. The Labour Court delivered its determinations on 3 May 2016. The Labour Court varied the Rights Commissioner's recommendation under the Unfair Dismissals Act 1997, setting aside the Rights Commissioner's award of reinstatement with full arrears of wages and substituting a fixed monetary award of €42,000. In addition, the Labour Court refused to award any compensation in respect of a claimed breach of the Terms of Employment (Information) Act 1994 in respect of which the Rights Commissioner had awarded the applicant €2,000. The orders made by the Labour Court were clearly premised on the applicant having been employed by Precast. Otherwise, the Labour Court would not have had jurisdiction to make such orders.
A notable - and disquieting - feature of the hearing before the Labour Court was the fact that neither the applicant nor his representative referred to the minor recommendations of the Rights Commissioner against Quarries, awarding the applicant reinstatement and €2.000 in respect of breach of the Terms of Employment (Information) Act 1994. 8. Following the determination by the Labour Court, the applicant sought to enforce the recommendations of the Rights Commissioner against Quarries (reinstatement and ancillary damages) and the award of the Labour Court against Precast (€42.000). On 31 May 2016, his solicitors wrote to the Employment Appeals Tribunal (EAT) enclosing a notice of claim for implementation in respect of the decision against Quarries, and on 1 June 2016 they wrote to the solicitors for Precast seeking the discharge of the €42,000 ordered by the Labour Court to be paid under the Unfair Dismissals Act. together with the sum of €1.450 under the Organisation of Working Time Act 1997 and the sum of €2,056 under the Payment of Wages Act 1991. The letter stated:-
“Please be advised that we are now proceeding to issue Motions once the time limit for payment elapses. In the event that it is necessary for us to issue the said Motions we will rely upon this letter for any cost relating to the applications to the Circuit Court and/or the District Court.
Please also be advised if it is necessary to proceed further for implementation up to and including liquidation of the company we will rely upon this letter for any costs relating thereto.
We will be obliged if you would confirm that you have authority to accept service of any proceedings failing which we will have no alternative but to serve them directly upon your Client.”
Quarries received notification from the EAT of a hearing fixed for 23 September 2016. Its solicitors wrote to the applicant's solicitors on 9 September 2016 concerned that confusion had arisen between the claims against Precast and Quarries. They requested confirmation that all applications referable to Quarries would be withdrawn and asked that the applicant's solicitors simply summarise the overall position and “confirm that no further proceedings will be taken against [Quarries]”. By letter dated 12 September 2016, the applicant's solicitors made it clear that they took the view that the EAT was obliged by statute to implement the recommendations of the Rights Commissioner against Quarries and that the applicant was not foregoing his claims against Quarries. On 22 September 2016, the solicitors for Precast and Quarries protested that the applicant was now seeking to be doubly compensated and that this could not be viewed as anything “other than an abuse of process”. They said that the application to the EAT in the case of Quarries will be vigorously defended.
On 23 November, 2016 they wrote again in an effort to resolve the impasse:-
“[Precast] is anxious to...
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