Joseph Hughes v The Revenue Commissioners and the Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 15 January 2021
• Neutral Citation: [2021] IECA 5
• Date: 15 January 2021
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/153

Between:

Joseph Hughes

Plaintiff/Appellant

and

The Revenue Commissioners and The Minister for Public Expenditure and Reform

Defendants/Respondents

[2021] IECA 5

Costello J.

Murray J.

Pilkington J.

Court of Appeal Record No. 2019/153

High Court Record No. 2017/502 J.R.

THE COURT OF APPEAL

CIVIL

Costs – Judicial review – Mootness – Applicant seeking costs – Whether the applicant obtained a benefit that was provided in response to the proceedings

Facts: The first respondent, the Revenue Commissioners, shortly before the judicial review action came on for hearing, determined to take steps the effect of which was to both grant the applicant, Mr Hughes, part of the relief he sought in the proceedings and at the same time to dissolve the legal basis on which he had sought that relief. It was necessary for the applicant to agree to this course of action before it could be implemented. The applicant did so agree. In that way, the specific concern that motivated him to bring the case was addressed to his satisfaction and the parties each adopted the position that the proceedings had thus been rendered moot. The parties could not agree how the costs would be borne. The applicant applied to the High Court for his costs, and that application was resisted by the respondents. In a reserved judgment delivered on 8 March 2019 ([2019] IEHC 147), Allen J determined that in the circumstances no order for costs should be made. The applicant appealed to the Court of Appeal against that decision. The respondents said they never conceded the validity of the applicant’s claim, the creation of the single Assistant Principal Legal Executive Officer post was not a unilateral act of the respondents and the creation of that post was not caused or in response to the applicant’s proceedings. Therefore, on the basis of the Cunningham case law (Cunningham v President of the Circuit Court [2012] IESC 39), the respondents said the applicant had no entitlement to costs.

Held by Murray J that because the applicant obtained from the respondent’s proposals a benefit that, on the evidence, was provided in response to the proceedings it would be wrong if no order for costs were made in his favour. Insofar as the applicant did not obtain all, or even most, of the relief he claimed in the action, Murray J held that it would not be appropriate to order that he obtain all of his costs. While, in a crude sense, the benefit the applicant did obtain was but a quarter of that sought, Murray J held that to frame costs on a mathematical basis that reflected this would ignore the fact that the applicant had to incur the costs of the entire action to obtain that benefit and would also pay insufficient regard to the fact that the respondents had failed to advance any evidence that would allow the Court to conclude that this offer could not have been made sooner, thereby avoiding the costs.

Murray J held that the applicant should be awarded 50% of the costs of his proceedings, to include the hearing before Allen J in respect of costs.

Appeal allowed. 50% of costs awarded to applicant.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 15 ^th day of January 2021

1 . Over the past decade the Supreme Court has in a number of decisions addressed the appropriate approach to the allocation of the costs of proceedings that have become moot. These have produced a framework within which many such cases can be resolved. This appeal presents a variant on the issues addressed in those decisions, and raises the question as to how the principles identified in those cases should be applied where proceedings become moot not as a result of either the ‘ external events’ or ‘ unilateral action’ identified in the relevant judgments, but instead where the parties effectively compromise the case as between themselves but do not make provision for costs in that agreement.

2 . Specifically, shortly before this Judicial Review action came on for hearing, the first named respondent determined to take steps the effect of which was to both grant the applicant part of the relief he sought in the proceedings and at the same time to dissolve the legal basis on which he had sought that relief. For reasons more fully explained later, it was necessary for the applicant to agree to this course of action before it could be implemented. The applicant did so agree. In that way, the specific concern that motivated him to bring this case was addressed to his satisfaction and the parties have each adopted the position that the proceedings have thus been rendered moot. However, the parties could not agree how the costs would be borne. The applicant applied to the High Court for his costs, and that application was resisted by the respondents. In a reserved judgment delivered on March 8 2019 ( [2019] IEHC 147) Allen J. determined that in the circumstances no order for costs should be made. The applicant now appeals against that decision.

3 . The proceedings had their origin in a collective agreement known as the Legal Technical Agreement (‘LTA’) negotiated in November 2004 between the IMPACT trade union and the Corporate Services Division of the first named respondent. The LTA was intended to address staffing issues in the Revenue Solicitors' Office (‘RSO’). The applicant was employed as part of the technical staff of that office. The LTA provided for the reclassification of existing grades of technical staff employed in RSO into four levels – Legal Executive Officers, Higher Legal Executive Officers, Assistant Principal Legal Officers and a Revenue Principal Legal Executive Officer. It specified the number of persons within each such grade (one, four, six and seven, respectively).

4 . The LTA was finalised and implemented in 2007, being backdated to 2004. The applicant was designated in accordance with the LTA as a Legal Executive Officer (‘LEO’) and in March 2008 was promoted to the position of Higher Legal Executive Officer (‘HLEO’). The next grade up from HLEO was the Assistant Principal Legal Executive Officer (‘APLEO’). While the LTA specified that there would be four APLEO positions, between 2008 and 2010 all of those positions became vacant and none were filled. This, according to the first respondent's evidence, was a consequence of the recruitment and promotion moratorium implemented by the Government in 2009 during the economic and fiscal crises of that time.

5 . Following a meeting between representatives of the IMPACT trade union and the first respondent in November 2015, and in the light of the relaxation of the recruitment and promotion moratorium that had by then occurred, it was agreed that there would be a review of the staffing requirements of RSO. That review was carried out in 2016 and a report was delivered in March 2017. The review was undertaken by a body called Manpower Advisory Services (‘MAS’). This is a unit within the first named respondent established in 2002 for the purpose (according to its evidence) of ensuring the optimal development of staff resources and evaluating the skills and competencies needed to ensure Revenue's effectiveness. The review concluded that the legal resource allocation recommended in the LTA was no longer viable and that ‘ at present’ it should ‘ retain the existing legal technical staff allocation with no proposed increase’. After delivery of the report, there was continued liaison between IMPACT and the Corporate Services Division, with correspondence being exchanged between the parties in March 2017 and a meeting taking place between them on 13 April 2017.

6 . The applicant adopted the position that this review was deficient in a number of respects. He felt it was not conducted in a sufficiently comprehensive fashion. He believed that the review was conducted in a biased manner, that it was compiled under a misapprehension as to the allocation of work within the first named respondent and that it failed to take account of the complexities of work undertaken by members of the Legal Technical Stream. He said that its findings were not properly considered and were prejudged, that they were contaminated by a lack of fair procedures, and that the MAS failed to take account of the lack of promotional opportunities being made available to members of the Legal Technical Stream.

7 . The applicant recorded his complaints in the first instance in correspondence from his solicitor to the first named respondent of May 12, and (that letter not being replied to) thereafter in these proceedings which he commenced five weeks later. While he sought sixteen separate reliefs in the action, the core remedy he claimed was an order of mandamus compelling the first respondent to maintain four APLEO positions within the relevant stream. The essential legal basis for that relief was the contention that the failure to maintain these positions was in breach of the LTA, although the applicant also agitated in the action the range of criticisms of the MAS review to which I have referred.

8 . The respondents' opposition papers were delivered in December 2017 and robustly defended their position. Ms. Janice Dempsey of MAS swore an affidavit in which she emphatically rejected the applicant's allegations that there were shortcomings in the MAS review and the conclusions thereof. Mr. Paul Dempsey (an Assistant Secretary of the Corporate Services Division of the first named respondent) explained the context to the recruitment moratorium in the public service and the fact that it precluded the filling of posts in the first named respondent. The essential point made by him was that for the duration of that moratorium the APLEO positions which had become vacant were not regarded as critical and that, after the lifting of the moratorium there had been such changes in the RSO that the legal resource allocation in the LTA was no longer viable. He emphasised both the terms of the LTA and the...