The Supreme Court has ordered that there be no costs order for an appeal by Seamus Mallon, who challenged the mandatory retirement regime for sheriffs. The appeal was unsuccessful. The order concerns only the appeal; an earlier High Court order made no order for costs, and no party asked the Supreme Court to change it.
The State respondents—the Minister for Justice, Ireland and the Attorney General—did not seek their own costs. They proposed that each side bear its own costs. Mr Mallon argued that he should receive his costs because he succeeded on a procedural issue concerning his ability to bring declaratory proceedings in court rather than make a complaint to the Workplace Relations Commission (WRC). He also argued that the appeal raised issues of public importance warranting an exceptional costs award for an unsuccessful party.
The Court said the appeal concerned issues of general importance about mandatory retirement in the public sector, but they were not “foundational” issues. In its view, the appeal applied established principles of EU law. It also considered that the proceedings had been brought to advance Mr Mallon’s personal interests, including possible restoration to the office of sheriff or a claim for compensation if he had succeeded.
The Court rejected the argument that the State respondents’ benefit from clarification of the law justified making them pay Mr Mallon’s costs. It noted that the statutory retirement age for sheriffs had been prescribed for almost 80 years and that the respondents were already agreeing to bear their own costs.
On the WRC issue, the Court said there had been no dispute that the WRC could not set aside an Act of the Oireachtas. The question was whether the High Court was right to determine Mr Mallon’s claim despite the alternative remedy of a WRC complaint. Although the Supreme Court upheld the High Court’s decision on that point, it said the issue was not significant to the appeal and did not justify awarding costs to Mr Mallon.
The Court concluded that the factors raised might have supported departing from the usual costs position if the State respondents had sought their costs. They did not justify ordering the successful respondents to pay any part of Mr Mallon’s costs. The final order was no order for costs in the appeal.