The High Court has limited Tomasz Zalewski’s costs in a judicial review to the period ending 4 April 2017, when the respondents conceded that a Workplace Relations Commission decision should be quashed.
In a judgment delivered on 13 March 2018, Mr Justice Meenan refused the applicant’s request for the costs of the entire proceedings. The respondents did not seek costs against him and consented to an order covering his costs up to the date of their letter.
The dispute concerned a decision made on 16 December 2016 by adjudication officer Rosaleen Glackin. The respondents had conceded that the decision should be quashed by certiorari. In an earlier judgment delivered on 8 February 2018, the court found that Zalewski lacked standing to continue his constitutional challenge to the legislation. The costs judgment records that the respondents succeeded on that issue.
The judge said the respondents had explained the decision as an “administrative error”, but described that explanation as lacking credibility and unacceptable given the decision’s importance to those involved. He said that awarding costs on this basis would effectively penalise the respondents, and concluded that the circumstances did not warrant such an order.
The court also considered principles for awarding costs to unsuccessful parties in constitutional cases. The judge accepted that the applicant’s asserted constitutional right to fair procedures was important. But he found that the failures leading to the decision arose from the first and second respondents’ failure to follow their own guidelines, rather than a flaw in the legislation. He said that, had the guidelines been followed, the applicant would have had an opportunity to present evidence and challenge the notice party’s evidence.
The order was for the applicant’s costs up to 4 April 2017. The court did not award him costs for the remainder of the proceedings.