Ray O'Sullivan v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 May 2021
• Neutral Citation: [2021] IEHC 365
• Docket Number: [Record No. 2020/154 JR]
• Court: High Court
• Date: 20 May 2021

Between

Ray O'Sullivan

Applicant

and

Health Service Executive

Respondent

[2021] IEHC 365

[Record No. 2020/154 JR]

THE HIGH COURT

Administrative leave – Costs – Stay – Applicant seeking no order as to costs – Whether costs should follow the event

Facts: The applicant, Mr O’Sullivan, challenged the decision made on 6th August, 2019 to place him on administrative leave, the decision made on 23rd December, 2019 to make a recommendation that he be dismissed from his position of employment as a consultant gynaecologist with the respondent, the Health Service Executive, and the decision made by the CEO of the respondent on 31st January, 2020 to the effect that he would make a recommendation that the applicant should be dismissed. In a written judgment delivered on 27th of April, 2021, the High Court refused all of the reliefs sought by the applicant against the respondent: [2021] IEHC 282. The respondent submitted that as it was entirely successful on all grounds put forward by the applicant, it was entitled to an order that its costs should be paid by the applicant. The applicant submitted that the court should make no order as to costs because: (i) it could not be said that the respondent had been entirely successful on the administrative leave issue; (ii) the case involved the resolution of an issue of considerable importance being the issue on prematurity. The applicant sought the continuance of the stay on the further progression of the investigation, which had been put in place by Meenan J when granting the applicant leave to proceed by way of judicial review in February 2020. The applicant submitted that that stay should continue in the event that a notice of appeal was lodged, and if lodged, should then continue until the final determination of the matter by the Court of Appeal. The applicant also sought a stay on any order for costs that may be made against him, in the event that an appeal was lodged by the applicant against the judgment and the costs order. The respondent submitted that there was no legal or rational basis for either of the stays sought by the applicant.

Held by Barr J that the fact that the court made certain obiter dicta statements in relation to the possibility of the applicant making a further request to the CEO to review the decision to place him on administrative leave, in light of certain further opinion evidence that had come to hand since the original decision was made, did not constitute a valid reason to depart from the general rule that the party who was entirely successful was entitled to its costs. Barr J held that there were no points of law of exceptional public importance, or of exceptional constitutional importance involved in the case; nor was there any novel issue in the case. Barr J was of the view that it was better for all concerned that the stay on the investigation should be lifted; this would enable the matter to be brought to a conclusion, which was in the best interests of the applicant, the respondent and the general public.

Barr J refused all the reliefs sought by the applicant in his notice of motion. Barr J awarded the costs of the proceedings to the respondent, to include all reserved costs, such costs to be adjudicated upon by the legal costs adjudicator in default of agreement. Barr J lifted the stay imposed by Meenan J on the further investigation of the applicant’s conduct on 4th and 5th September, 2018. Barr J held that there should be a stay on the order for costs for a period of 28 days, and if a notice of appeal was lodged within that period, the stay was to continue until the final determination of the matter before the Court of Appeal. Barr J held that each of the parties was to lodge a copy of their written legal submissions in the proceedings to date, with the Central Office of the High Court within four weeks, pursuant to Practice Direction HC 101.

Costs awarded to respondent.

RULING ON COSTS of Mr. Justice Barr delivered electronically on the 20th day of May, 2021

1 In a written judgment delivered on 27th of April, 2021, the court refused all of the reliefs sought by the applicant against the respondent. That judgment is reported at [2021] IEHC 282. This ruling deals with the terms of the final order; the issue of costs and the question of a stay on both the continuation of the investigation into the applicant's conduct on 4th and 5th September, 2018 and whether there should be a stay on the judgment of the court in the event of an appeal.

2 The respondent has submitted that as it was entirely successful on all grounds put forward by the applicant, it is entitled to an order that its costs should be paid by the applicant.

3 The respondent accepts that even where a party has been entirely successful in an action, there can be circumstances where a court in its discretion can decline to award the successful party some or all of its costs: see s. 169 of the Legal Services Regulation Act, 2015; Chubb European Group SE v. The Health Insurance Authority [2020] IECA 183 and Higgins v. Irish Aviation Authority [2020] IECA 277. The respondent submits that none of these countervailing circumstances apply in this case so as to deprive it of some or all of its costs.

4 The applicant submitted that the court should make no order as to costs. That submission was put forward on two grounds: (i) because the court left open the possibility of the applicant making a further stand-alone application to the HSE to reconsider the decision to place him on administrative leave in light of further information that had come to hand; to wit the report furnished by Dr. O'Hare in December 2019; it could not be said that the respondent had been entirely successful on the administrative leave issue; (ii) the case involved the resolution of an issue of considerable importance being the issue on prematurity, where the court...