The Court of Appeal has set aside an order requiring Keegan Quarries Limited to pay €2,000 towards the costs of a judicial review, and ordered the applicant to pay the company’s High Court costs. The appeal concerned costs only; the High Court had already refused to quash the Employment Appeals Tribunal’s decision.
The judgment, delivered by Ms Justice Costello on 29 July 2020, recounts how the applicant brought employment claims against both Keegan Precast Limited and Keegan Quarries Limited because he was unsure which company employed him. A Rights Commissioner issued matching recommendations against both companies in September 2015. The Labour Court later dealt with Precast’s appeal, awarding the applicant €42,000 for unfair dismissal and refusing a separate €2,000 award under employment information legislation.
The applicant continued to seek implementation of the Rights Commissioner’s recommendations against Quarries while also pursuing the Labour Court award against Precast. The Employment Appeals Tribunal ruled in March 2017 that the recommendation against Quarries could not be enforced, finding that the Rights Commissioner lacked power to make a second determination on the same claim after determining it against Precast.
The applicant sought judicial review. The High Court found that the tribunal had acted outside its powers but refused to quash its decision, concluding that doing so would facilitate double recovery for one dismissal. In October 2019, the High Court made no general costs order but directed Quarries to contribute €2,000 towards the applicant’s costs, referring to the tribunal’s failure to address the separate employment information award.
Quarries appealed that costs order. The Court of Appeal said the High Court had given insufficient weight to its finding that the judicial review proceedings were an abuse of process and had wrongly equated the companies’ earlier failure to clarify which was the employer with the applicant’s later conduct. It rejected the applicant’s request for costs to be apportioned based on issues on which Quarries had been unsuccessful, saying there was insufficient information to assess how those arguments affected the litigation costs.
The Court of Appeal allowed the appeal, vacated the High Court’s costs decision and awarded Quarries its High Court costs against the applicant. It also held that the €2,000 contribution should not have been ordered because that award was outside the judicial review and had been addressed by the Labour Court. The court’s provisional view was that appeal costs should follow the event, but allowed either party to make written submissions within 28 days if seeking a different order, with 21 days for a reply.