Joyce and Others v Madden

 
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[2003] IEHC 11

THE HIGH COURT

271 SP/2002
JOYCE & ORS v. MADDEN
IN THE MATTER OF THE EQUAL STATUS ACT 2000

BETWEEN

BRIDGET ANN JOYCE, MARY MARGARET JOYCE, MARGARET MONGAN AND PATRICK McDONAGH
APPELLANTS

AND

JOHN MADDEN
RESPONDENT

Citations:

EQUAL STATUS ACT 2000 S28

CCR 2001 O.66 r1

INSPECTOR OF TAXES V ARIDA LTD 1995 2 IR 230

EQUAL STATUS ACT 2000 S31

EQUAL STATUS ACT 2000 S31(6)

EQUAL STATUS ACT 2000 S28(2)

PAYMENT OF WAGES ACT 1991

ADOPTIVE LEAVE ACT 1995

ORGANISATION OF WORKING TIMES AXT 1997

PARENTAL LEAVE ACT 1998

INCOME TAX ACT 1967 S429(2)

CCR 2001 O.58 r1

EQUAL STATUS ACT 2000 S31(4)(B)

Synopsis:

EMPLOYMENT LAW

Costs

Whether on appeal from decision of Director of Equality Investigations the Circuit Court had power to award costs of appeal - Equal Status Act, 2000 section 28 (2002/271SP - Kearns J - 28/5/2003)

Joyce v Madden - [2004] 1 ILRM 277

This was an appeal on a point of law brought under s. 28 of the Equal Status Act 2000 arising from a decision of the Circuit Court made on appeal from a decision of the Office of the Director of Equality Investigations. The issue was whether on an appeal from the decision of the Director, the Circuit Court had power to award the costs of the appeal.

Held by Kearns J. in concluding that the Circuit Court did have jurisdiction to award costs in cases coming before it under s. 28 of the Equal Status Act, 2000 that the fact that other sections of the Act expressly provided for costs did not mean that the legislature intended that the Circuit Court should have no jurisdiction under s. 28. A refusal to award costs would be unfair.

1

JUDGMENT of Mr. Justice Kearns delivered the 28th day of May, 2003.

2

This is an appeal on a point of law brought under Section 28 of the Equal Status Act 2000arising from a decision of the Circuit Court made by his Honour Judge Desmond Hogan sitting at the Circuit Court at Kilrush, Co. Clare on the 22 nd June 2002.

3

The matter had come the Circuit Court by way of appeal from a decision of the Office of the Director of Equality Investigations pursuant to the provisions of the Equal Status Act 2000and in respect of a decision made by Mr. Anthony Cummins, Equality Officer, on the 18 th day of October, 2001.

4

The events which gave rise to the proceedings before the Office of the Director of Equality Investigations occurred on 8 th January 2001. On the afternoon of 8 th January 2001, the four Appellants entered the bar of the Temple Gate Hotel, Ennis, Co. Clare and ordered tea for four. While they were being attended to, an Assistant Manager in the hotel, Mr. Brian Crowe, approached the Appellants and asked them to leave. The Appellants left the hotel under protest as they felt that the only reason they were asked to leave was because they were members of the traveller community and accordingly felt that they had been the subject of discrimination on that basis.

5

Thereafter the Appellants complained to the Respondent, as licensee of the said premises, setting out details of their complaint and of their intention of referring the matter to the Director of Equality Investigations, a course of action which they subsequently pursued when they failed, as they perceived it, to receive a satisfactory response to the complaint from the Respondent.

6

The matter was then investigated in a manner set out in the Equal Status Act, 2000by the Office of the Director of Equality Investigations and on the 1 st May 2001, a hearing took place before Mr. Anthony Cummins, Equality Officer, at which each side was represented by a firm of solicitors and Mr. Cummins heard evidence from both sides.

7

By his decision dated 18 th October 2001, the Equality Officer concluded that the Respondent had discriminated against the Appellants when they were refused service in the Respondent's hotel on the 8 th January 2001 on the basis of their membership of the traveller community and directed that the Respondents pay £1,000 to each of the complainants by way of compensation for the embarrassment, stress and loss of amenity which they suffered.

8

By notice of appeal dated the 26 th October 2001, the Respondent herein, pursuant to Section 28 of the Equal Status Act, appealed to the Circuit Court against the aforesaid decision dated 18 th October 2001.

9

Section 28 of the Equal Status Act, 2000provides:-

10

2 "(1) Not later than 42 days from the date of a decision of the Director under Section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.

11

(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

12

(3) No further appeal lies, other than an appeal to the High Court on a point of law."

13

The aforesaid appeal to the Circuit Court was listed for hearing and was specially fixed for that purpose before the Circuit Court sitting at Kilrush, Co. Clare, on the 26 th June 2002. On the evening of 25 th June, 2002, the Appellants solicitor was informed by a facsimile transmission that the Respondent intended to withdraw his appeal. When the matter was called on for hearing the following day, counsel for the Respondent informed the learned Circuit Court judge that the appeal was being withdrawn whereupon counsel for the Appellants applied for costs. Having heard legal argument from both sides, the learned Circuit Court judge decided he had no jurisdiction to award costs on the grounds that he was fettered by the provisions of the Equal Status Act 2000as the lower tribunal, in this instance the Director, had no power to award costs.

14

Section 27 of the Equal Status Act, 2000provides:-

15

2 "(1) Subject to this section, the types of redress for which a decision of the Director under Section 25 may provide are either or both of the following as may be appropriate in the circumstances:-

16

(a) an order for compensation for the effects of discrimination or

17

(b) an order that a person or persons specified in the order take a course of action which is so specified

18

(2) The maximum amount which may be ordered by the Director by way of compensation under subsection (l)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract."

19

The issue which arises therefore is whether on an appeal from the decision of the Director of Equality Investigations, the Circuit Court has power to award the costs of the appeal.

20

Order 66 Rule 1 of the Rules of the Circuit Court, 2001 provides as follows:-

"Save as otherwise provided by statute, or by these rules the granting or withholding of the costs of any party to any proceedings in the court shall be in the discretion of the judge or the County Registrar as the case may be."

21

Both parties before this court accept that the appeal brought by the Respondent in the instant case constitutes a "proceeding" within the meaning of the Circuit Court Rules.

22

On behalf of the Appellants, Mr. Kelly S.C. argued that the jurisdiction of the Circuit Court to award costs in a proceeding of this nature has been clearly established in Inspector of Taxes v. Arida Limited [1995] 21.R. 230.

23

He submitted that that case was a clear authority for the proposition that where additional jurisdiction is conferred upon the Circuit Court by legislation other than the Courts Acts, it would be necessary for any such legislation to expressly provide that the Circuit Court Rules did not apply before the Circuit Court was stripped of its jurisdiction to award costs. The instant case, it was submitted, was essentially on all fours with the decision in Arida.

24

Mr. Kelly further submitted that it would be incongruous and illogical that a complainant who had won an award in circumstances such as the instant case could be effectively deprived of that award by the bringing of an appeal by a Respondent who could at the last moment drop the appeal thereby exposing the complainant to legal costs for which he could not be indemnified.

25

Finally, he submitted that Section 31 of the Equal Status Act, 2000, which relates to enforcement procedures, contains a reference to costs which clearly suggests that the legislature envisaged that the Circuit Court should enjoy jurisdiction to award same.

26

Section 31 provides :-

"(1) If a person who is bound by the terms of a decision of the Director under this part fails to comply with those terms, then on an application under this Section, the Circuit Court shall, subject to Section 32, make an Order directing the person affected to carry out the decision in accordance with its terms."

27

(4) An application under this Section may be made -

28

(a) by the complainant, or

29

(b) where the Authority is not the complainant and it considers that the decision or settlement is unlikely to be implemented without its intervention, by the Authority with...

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