The High Court made no order as to costs after a judicial review about vacant legal executive posts in the Revenue Solicitor’s Division became moot. Mr Justice Allen said the proceedings were probably not moot when they could have been heard, but were moot by the time the costs argument came before him.
Joseph Hughes, a legal executive in the division, sought an order requiring the Revenue Commissioners to maintain four assistant principal legal executive officer positions. He also sought declarations concerning a collective agreement on staffing and a Revenue review of the division’s staffing requirements.
The agreement, made in 2004 between the IMPACT union and Revenue’s Corporate Services Division, set out a proposed structure for legal technical staff, including four assistant principal posts. Those posts became vacant between 2008 and 2010 and were not filled during a public service recruitment and promotion moratorium. A 2017 review by Revenue’s Manpower Advisory Services unit concluded that the earlier staffing allocation was no longer viable and recommended no increase to the existing allocation.
Revenue opposed the judicial review, disputing Hughes’s criticisms of the review and arguing that he should have used the Civil Service Conciliation and Arbitration Scheme. The case was listed for hearing in March 2018.
Before the hearing, Revenue proposed to Fórsa, which had formed through the amalgamation of IMPACT and other unions, that one assistant principal post be created and filled. Fórsa accepted the proposal in May 2018. The resulting agreement provided for one post to be filled by competition and said future posts would be filled on the basis of critical business needs. Hughes had agreed to take the case out of the hearing list if the post was created and filled. It was filled later.
Hughes argued that the post had been created in direct response to his proceedings and that Revenue should pay his costs. Justice Allen rejected that account. He found the post resulted from an agreed industrial relations solution between Revenue and Fórsa, to which Hughes concurred, and that Revenue had maintained its position that four posts, or any additional post, were not warranted. The court did not decide the underlying staffing claim; the judgment addressed the costs of proceedings that had become moot.
Justice Allen said the cause of mootness was not strictly the unilateral act of one party or an external change of circumstances, though a factor outside the parties’ control had acted as a catalyst. He concluded that justice would best be served by making no order as to costs.