The Supreme Court has allowed an appeal by the Employment Appeals Tribunal (EAT) against a High Court order requiring it to pay the costs of a judicial review brought by Stephen Miley, Devil’s Glen Equestrian Centre Ltd and Devil’s Glen Partnership.
The appeal concerned costs only. The High Court had quashed an EAT determination and remitted the employment dispute for a fresh determination. The EAT’s determination had found Paul Bourke was unfairly dismissed and awarded him €7,095 under unfair dismissal legislation and €275 under minimum notice legislation. A settlement was reached after the matter was remitted, the Supreme Court said.
The judicial review applicants had raised multiple grounds against the EAT determination, including that it did not identify which respondent was the employer, failed to give reasons, and did not provide a fair hearing. These were grounds advanced by the applicants. The Supreme Court’s judgment does not make fresh findings on the employment claim itself.
The EAT did not oppose the judicial review. Before the High Court hearing, the Chief State Solicitor wrote that the Tribunal would take no part, consistent with its usual policy, and argued it should not be liable for costs. The High Court nevertheless ordered the applicants’ costs, including reserved costs, against the EAT, making no costs order against Bourke.
The Supreme Court held that a rule similar to the immunity enjoyed by judges should apply to the EAT when it has not participated in judicial review proceedings. The Tribunal was therefore prima facie immune from costs, but could lose that immunity if it acted with mala fides or impropriety.
The Court found no mala fides. It said the standard of the EAT hearing was wanting and that its conduct was not what an adjudicative body should aspire to. It also said the proceedings had been properly quashed. But it concluded that the conduct did not amount to “impropriety” for the purpose of removing the EAT’s immunity from costs.
The Court also rejected the applicants’ argument that applying the immunity rule breached their rights under the European Convention on Human Rights. It held that even if exceptional cases could involve a breach through unfair costs rules, this was not such a case.
The Supreme Court allowed the EAT’s appeal, overturning the High Court costs order against it. The appeal did not reopen the quashing of the original determination or the remittal for a fresh determination.