The High Court has declined to order the Private Security Appeals Board to pay the applicant’s costs after his successful judicial review, finding that the Board was in a position analogous to a judge and should generally have immunity from costs where it acted without bad faith or impropriety.
The judgment, delivered by Ms Justice Dunne on 11 December 2009, concerned the costs of Robert Casey’s challenge to the Board’s decision affirming the Private Security Authority’s refusal to issue him licences under the Private Security Services Act 2004. The court had already granted Casey the relief he sought, quashing the Board’s decision of 1 October 2008 and the Authority’s underlying decision of 31 March 2008.
The Authority accepted that costs followed the event and that Casey was entitled to costs against it. The remaining dispute was whether the Appeals Board should also pay. The Board had taken no part in the judicial review hearing, and there was no allegation of bad faith or impropriety against it. It argued that a costs order was inappropriate in those circumstances.
Casey’s counsel argued that the Board was not a judge and should not receive equivalent protection from costs. The Authority also opposed immunity, saying the Board was not in the same position as the Labour Court or Employment Appeals Tribunal, which hear parties and consider evidence. It argued that denying costs against the Board could leave a successful judicial review applicant with a costly remedy.
Dunne J considered authorities concerning judges and quasi-judicial bodies. She found that the Appeals Board’s statutory role, remit and appointment arrangements made it a quasi-judicial body in a position analogous to a judge. For the Board to function properly, she said, it should generally have immunity from costs where it had acted without bad faith or impropriety.
The judge did not find that the Board must always be immune from a costs order, noting that complete immunity could be unjust in some circumstances. In this case, however, she made no order for costs against the Board. The judgment’s costs ruling left the Authority’s accepted liability for Casey’s costs in place.