The High Court made no order for costs after rejecting Andrew Conway’s appeal against a Labour Court decision under the Protected Disclosures Act 2014.
In a costs judgment dated 16 February 2021, Ms Justice Niamh Hyland said the appeal had been rejected on all grounds in a judgment delivered on 14 December 2020. The Department of Agriculture, Food and the Marine sought its costs as the successful respondent. Conway argued that special circumstances justified an order requiring the Department to pay his costs, an order for part of his costs, or no order for costs.
The judge said the case did not warrant departing from the usual rule that the successful party is entitled to costs. She described it as neither a public interest challenge nor a test case, and said Conway had a private interest in its outcome. The fact that the statutory provision had not previously been considered by the High Court was not, by itself, a reason to depart from the normal approach.
However, the judgment considered Order 105 of the Rules of the Superior Courts, which governs appeals and references from the Labour Court. An amendment that took effect on 7 August 2020 provides that costs in proceedings under the Order are not allowed unless the court makes a special order. The judge accepted the Department’s submission that the amended rule did not apply to Conway’s proceedings because they had begun before that date.
She nevertheless said the change reflected an intention that, going forward, the default in Labour Court appeals would be that no costs are allowed without a special order. She considered that approach appropriate in this case too, given the special nature of Labour Court appeals and the Labour Court’s lack of power to award legal costs. The court therefore made no order for costs.