Shardha Sobhy v The Chief Appeals Officer, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,MacMenamin J.,Dunne J.,O'Malley J.,Baker J.
• Judgment Date: 04 March 2022
• Neutral Citation: [2022] IESC 16
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000025

Shardha Sobhy

Respondent/Applicant

and

The Chief Appeals Officer, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General

Appellants/Respondents

and

Irish Human Rights and Equality Commission

Notice Party

[2022] IESC 16

O'Donnell C.J.

MacMenamin J.

Dunne J.

O'Malley J.

Baker J.

S:AP:IE:2021:000025

High Court Record No. 2020/353 JR

THE SUPREME COURT

Costs – Matter of systemic importance – Employment contract – Appellants seeking an order setting aside the order of the High Court granting costs to the respondent – Whether the award of costs made to the respondent ought to be reversed

Facts: The Supreme Court, by its judgment delivered on 16 December 2021 ([2021] IESC 81), allowed the appeal against the judgment and order of the High Court ([2021] IEHC 93), and concluded that an employment contract entered into by a person who did not have a work permit or permission to be in the State could not be regarded as a “contract of service” for the purposes of the contribution requirements in the Social Welfare Code. As the appellants, the Chief Appeals Officer, Minister for Employment Affairs and Social Protection, Ireland and the Attorney General, had been entirely successful in their appeal, they had a presumptive entitlement, pursuant to the provisions of s. 169(1) of the Legal Services Act 2015, to be awarded their costs against the respondent, Ms Sobhy. It was submitted on behalf of the appellants that no circumstances existed to displace that presumption or for the Court to exercise its discretion to depart from the normal rule as to costs, either to make no order as to costs or to award the respondent a contribution towards her costs. Without prejudice to that general proposition, the appellants were in the circumstances not seeking to be awarded the costs of the appeal to the Court, nor did they seek the costs of the High Court against the respondent, but sought to vary the order of the High Court accordingly. They submitted that the following orders in respect of costs would meet the justice of the case: (i) no order in respect of the costs of the appeal; (ii) an order setting aside the order of the High Court dated 10 March 2021 granting costs to the respondent and ordering that there be no order in respect of the costs of the High Court. It was submitted by the respondent that a contribution to her costs was an appropriate means by which the Court would exercise its discretion.

Held by the Court that the appeal clarified a matter of systemic importance and, notwithstanding that the respondent lost the appeal, and that the litigation was not public interest litigation as explained in the authorities, this was a reason to justify not awarding the costs of the appeal against the respondent. The Court held that the justice of the case would be adequately met by an order that there be no order as to the costs of the appeal or of the High Court; this result would have the effect that the respondent would gain some benefit albeit she unsuccessfully pursued litigation which, while the result was likely to have a direct consequence for her, was of systemic importance in regard to legislation which had, or was likely to have, an impact on a large number of persons.

The Court held that there would be no order as to the costs of the appeal, the order of the High Court regarding costs would be set aside, and there would be no order as to the costs of the High Court.

No order as to costs.

COSTS RULING of the Court delivered on the 4 ^th of March, 2022

1 . By its judgment delivered on 16 December 2021 [2021] IESC 81, the Court allowed the appeal against the judgment and order of the High Court [2021] IEHC 93, and concluded that an employment contract entered into by a person who did not have a work permit or permission to be in the State could not be regarded as a “contract of service” for the purposes of the contribution requirements in the Social Welfare Code.

2 . This ruling concerns the costs of that appeal, and a consideration of whether the award of costs made to the respondent by the order of the High Court dated 10 March 2021 ought to be reversed.

3 . Section 169(1) of the of the Legal Services Act 2015 (“the 2015 Act”), provides that a party who is entirely successful in civil proceedings is entitled to an award of costs against the unsuccessful party...