The Supreme Court has ordered that neither side receive costs for an appeal over maternity benefits after allowing the State’s appeal in December 2021. It also set aside the High Court order that had awarded costs to Shardha Sobhy.
In a costs ruling delivered on 4 March 2022, the Court said the appeal had clarified a matter of systemic importance. It concluded that this justified making no costs order against Ms Sobhy, despite her having lost the appeal.
The substantive appeal concerned whether an employment contract entered into by a person without a work permit or permission to be in the State could count as a “contract of service” for social welfare contribution requirements. In its December 2021 judgment, the Supreme Court held that it could not. The costs ruling says the appeal ultimately sought to overturn a decision that Ms Sobhy was not entitled to maternity benefits.
The State appellants accepted they would not seek their appeal costs or the High Court costs from Ms Sobhy. They asked the Court to set aside the High Court’s 10 March 2021 costs order and make no order for costs at either level.
Ms Sobhy argued that a contribution to her costs was appropriate. Her submissions pointed to the legal issue’s general application, its relevance to a Government regularisation decision concerning undocumented people, and the case’s connection to State support for pregnant women and new mothers. She also argued that her baby would benefit from the relief sought.
The State argued that the case sought a personal social welfare benefit and did not qualify as public interest litigation. The Court agreed that the appeal was not public interest litigation under the relevant authorities. It said any benefit for the child would also benefit Ms Sobhy, and that the case did not fall within categories involving sensitive aspects of the human condition identified in earlier case law.
The Court also addressed its earlier observation that undocumented employment could be advantageous to unscrupulous employers. It said both employer and employee in this case had made all social welfare contributions, and no exploitative consequence was apparent on those circumstances. Its earlier comment concerned the wider problem of undocumented people working outside the State’s contribution system.
The final order was no order as to the costs of the Supreme Court appeal, setting aside the High Court costs order, and no order as to the costs of the High Court proceedings.