Zalewski v The Workplace Relations Commission
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] IEHC 226 |
| Docket Number | 2017 No. 146 J.R. |
| Court | High Court |
| Date | 21 May 2020 |
AND
[2020] IEHC 226
Garrett Simons J.
2017 No. 146 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Unfair dismissal – Costs – Applicant seeking costs – Whether the proceedings should be characterised as a form of public interest litigation
Facts: The applicant, Mr Zalewski, challenged the constitutional validity of aspects of the Workplace Relations Act 2015. The challenge was dismissed in its entirety for the reasons set out in a reserved judgment delivered on 21 April 2020, [2020] IEHC 178 (the principal judgment). The parties exchanged written legal submissions on the issue of costs. Each party maintained that its costs should be paid by the other side. The disagreement in respect of costs centred largely on whether or not the proceedings should be characterised as a form of “public interest litigation” with the consequence that the default position, namely that the successful party is entitled to an order for costs in its favour, should be displaced.
Held by Simons J that the proceedings raised fundamental issues of constitutional law touching on the separation of powers, and it had been in the public interest that these issues be resolved by the courts.
Simons J held that the proportionate outcome was that the applicant should be allowed to recover one half of his costs from the third and fourth respondents, Ireland and the Attorney General.
Costs awarded to applicant.
This judgment determines the appropriate costs order to be made in respect of a challenge to the constitutional validity of aspects of the Workplace Relations Act 2015. The challenge has been dismissed in its entirety for the reasons set out in a reserved judgment delivered on 21 April 2020, Zalewski v. Workplace Relations Commission [2020] IEHC 178 (“ the principal judgment ”).
In accordance with the protocol of 24 March 2020 on the delivery of judgments electronically, the parties have exchanged written legal submissions on the issue of costs. Each party maintains that its costs should be paid by the other side. The disagreement in respect of costs centres largely on whether or not the proceedings should be characterised as a form of “public interest litigation” with the consequence that the default position, namely that the successful party is entitled to an order for costs in its favour, should be displaced.
In exercising my discretion in respect of costs. I must seek to reconcile (i) the objective of ensuring that individuals are not deterred by the risk of exposure to legal costs from pursuing litigation of a type which—although ultimately unsuccessful—nevertheless serves a public interest, with (ii) the objective of ensuring that unmeritorious litigation is not inadvertently encouraged by an overly generous costs regime.
For the reasons which follow, I have concluded that the proportionate outcome is that the Applicant should be allowed to recover one half of his costs from Ireland and the Attorney General. The proceedings raised fundamental issues of constitutional law touching on the separation of powers, and it had been in the public interest that these issues be resolved—one way or another—by the courts.
Traditionally, the default position has been that the successful party in litigation is entitled to recover their costs from the unsuccessful party. This default position is embodied in the, somewhat quaintly worded, rule that “costs follow the event”. Crucially, however, the courts have always retained a discretion to make a different type of costs order where justified by the special circumstances of the case. A court is required to explain its reasons for departing from the default position.
The costs jurisdiction has now been placed on a formal statutory footing by Part 11 of the Legal Services Regulation Act 2015. (The relevant provisions were commenced in October 2019). Section 169, insofar as germane, reads as follows.
169.(1) A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—
(a) conduct before and during the proceedings,
(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings,
(c) the manner in which the parties conducted all or any part of their cases,
(d) whether a successful party exaggerated his or her claim,
(e) whether a party made a payment into court and the date of that payment,
(f) whether a party made an offer to settle the matter the subject of the proceedings, and if so, the date, terms and circumstances of that offer, and
(g) where the parties were invited by the court to settle the claim (whether by mediation or otherwise) and the court considers that one or more than one of the parties was or were unreasonable in refusing to engage in the settlement discussions or in mediation.
(2) Where the court orders that a party who is entirely successful in civil proceedings is not entitled to an award of costs against a party who is not successful in those proceedings, it shall give reasons for that order.
As appears, there are two broad categories of considerations which a court may take into account in determining costs: (i) the particular nature and circumstances of the case, and (ii) the conduct of the proceedings by the parties. The criteria enumerated at subparagraphs (a) to (g) appear to be directed principally to the second of the two categories, that is, the conduct of the proceedings. The criteria provide examples of what might be described as litigation misconduct, such as, for example, the unreasonable pursuit of issues in the proceedings. The use of the introductory words “including” indicates that the criteria enumerated at subparagraphs (a) to (g) are not intended to be exhaustive; rather, they are illustrative.
There is no reference in the legislative provisions to “public interest litigation”. This is to be contrasted with other provisions governing costs, such as those applicable to certain categories of environmental litigation under section 50B of the Planning and Development Act 2000, and Part 2 of the Environment (Miscellaneous) Provisions Act 2011. In each of these instances, the relevant costs rules are expressly stated not to affect the court's entitlement to award costs in favour of a party in a matter of exceptional public importance.
There is nothing in the statutory language of the Legal Services Regulation Act 2015 which suggests that the discretion previously enjoyed by the courts under the pre- 2019 version of Order 99 of the Rules of the Superior Courts has been removed. Rather, it seems to me that the type of considerations identified in the case law discussed under the next heading below—such as, for example, whether the proceedings raise issues of general importance which transcend the facts of the case and which are novel—continue to inform the exercise of the costs jurisdiction. These considerations come within the rubric of the “particular nature and circumstances of the case” as per section 169(1) of the Legal Services Regulation Act 2015.
The parties were in broad agreement as to the principles governing an application for costs in circumstances where the moving party asserts that their proceedings had advanced a public interest. Both parties referenced the judgment of the Supreme Court in Dunne v. Minister for the Environment (No. 2) [2008] 2 I.R. 775 (“ Dunne ”), as follows.
“26. The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party, has an obvious equitable basis. As a counterpoint to that general rule of law, the court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.
27. Where a court considers that it should exercise a discretion to depart from the normal rule as to costs, it is not completely at large but must do so on a reasoned basis, indicating the factors which, in the circumstances of the case, warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of factors in the context of the individual case which determine the issue.”
As appears from the foregoing, there is no predetermined category of cases which falls outside the general rule that costs follow the event. Dunne had been decided prior to the enactment of the Legal Services Regulation Act 2015. As discussed under the previous heading, the legal position remains the same in that there is still no reference in the relevant legislative...
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