Olumide Smith v The Office of the Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 05 May 2021
• Neutral Citation: [2021] IEHC 285
• Docket Number: 2019 No. 183 CA
• Court: High Court
• Date: 05 May 2021

In the Matter of an Appeal Pursuant to Section 28(3) of the Equal Status Act 2000

Between

Olumide Smith

Appellant

and

The Office of the Ombudsman

Adam Kearney

Bernard Traynor

Peter Tyndall

Respondents

[2021] IEHC 285

2019 No. 183 CA

THE HIGH COURT

CIRCUIT APPEALS

Racial discrimination – Legal aid certificate – Findings of fact – Appellant seeking to set aside the findings of fact of the Circuit Court – Whether the findings of fact made by the Circuit Court were unsupported by evidence, unreasonable or based on an incorrect interpretation of documents

Facts: The Legal Aid Board decided to refuse a legal aid certificate to the appellant, Mr Smith. That decision gave rise to a series of complaints on the part of Mr Smith. An initial complaint was made to the first respondent, the Office of the Ombudsman. That complaint was dismissed. The Office of the Ombudsman found that the Legal Aid Board had not acted unfairly in refusing the legal aid certificate. Mr Smith next made a complaint against the Office of the Ombudsman to the Workplace Relations Commission. Mr Smith alleged that the Office of the Ombudsman had discriminated against him on the grounds of his race. This complaint was dismissed, at first instance, by the Workplace Relations Commission, and subsequently dismissed on appeal by the Circuit Court. Mr Smith appealed to the High Court from the Circuit Court pursuant to s. 28(3) of the Equal Status Act 2000. The principal judgment in the proceedings was delivered on 11 February 2020 ([2020] IEHC 51). The appellant was unsuccessful in his appeal. A supplementary judgment addressed the allocation of the costs of the proceedings.

Held by Simons J that, having noted that Mr Smith, as was his right, intended to appeal the principal judgment to the Court of Appeal, in the premises, the proposal put forward on behalf of the respondents that a modified costs order be made falls away. Simons J noted that the respondents had been entirely successful in opposing Mr Smith’s appeal to the High Court and the general rule is that a party who has been entirely successful in proceedings is normally entitled to recover their costs against the losing party. Simons J held that Mr Smith had not put forward any reason as to why the court should exercise its discretion to depart from the general rule.

Simons J held that an order would be made directing Mr Smith to pay the costs incurred by the respondents in respect of the appeal to the High Court and in respect of the costs of the court below, costs to include all reserved costs and the costs of one set of written legal submissions. Simons J held that such costs were to be adjudicated in default of agreement by the Office of the Chief Legal Costs Adjudicator in accordance with Part 10 of the Legal Services Regulation Act 2015. A stay was placed on the adjudication and execution of the costs order pending the hearing and determination of the intended appeal to the Court of Appeal, and any application for leave to appeal to the Supreme Court, such stay to lapse in the event that an appeal was not filed within twenty-eight days of the date of the perfection of this order.

Costs awarded against appellant.

JUDGMENT of Mr. Justice Garrett Simons delivered on 5 May 2021

INTRODUCTION

1 The principal judgment in these proceedings was delivered on 11 February 2020 and bears the neutral citation [2020] IEHC 51. This supplementary judgment addresses the allocation of the costs of the proceedings.

2 The within proceedings take the form of an appeal from the Circuit Court pursuant to section 28(3) of the Equal Status Act 2000. As appears from the principal judgment, the appellant, Mr. Smith, has been unsuccessful in his appeal.

DISCUSSION

3 The general rule is that a party who has been entirely successful in proceedings is normally entitled to recover their costs against the losing party. This rule is now embodied in section 169 of the Legal Services Regulation Act 2015, and had previously been reflected in the pre- December 2019 version of Order 99 of the Rules of the Superior Courts. A court retains a discretion to depart from the general rule for stated reasons.

4 The principal judgment was delivered on 11 February 2020. Thereafter, the proceedings were adjourned for a period of two weeks to allow the parties to consider the judgment. On the adjourned date (25 February 2020), the respondents to the appeal applied for an order directing that Mr. Smith, as the unsuccessful party, should have to...