The High Court has ordered the Health Service Executive to pay Maurice Power’s reasonable legal costs after he succeeded in an appeal concerning the Protection of Employees (Fixed-Term Work) Act 2003. The costs ruling was made in a supplementary judgment on 23 July 2021, following the court’s principal judgment on 15 June.
Mr Justice Garrett Simons said the appeal raised a point of law of general public importance: whether an existing employee who temporarily performs a more senior role is protected by the Act. The Labour Court had held that the Act applied only where an employee’s relationship with their employer lasted only as long as the fixed-term contract. It therefore considered that an employee who returned to their substantive grade after a temporary assignment did not receive the Act’s protection.
In the principal judgment, the High Court held that the Labour Court had erred in law. The judge said that decision corrected a longstanding error and could affect other employment disputes. The formal order would set aside the Labour Court’s determination of 5 August 2020 and remit the matter to it for reconsideration in light of the principal judgment. The supplementary judgment addressed costs; it did not determine the amount of costs payable.
Under Order 105, rule 7 of the Rules of the Superior Courts, costs are not normally allowed in statutory appeals from the Labour Court unless the High Court makes a special order. The judge said the rule generally meant each side bore its own appeal costs, partly to avoid deterring employees and small employers from pursuing or defending appeals. The parties estimated their appeal costs at about €80,000 for Mr Power and €45,000 for the HSE.
The judge found that the public importance of the legal issue, the potential deterrent effect of appeal costs and the wider litigation history between the parties justified an exception. Separate plenary proceedings arose from the same employment relationship. In those proceedings, the costs of Mr Power’s unsuccessful injunction application had been changed by the Court of Appeal to “costs in the cause”. The judge said it would be anomalous for costs to be recoverable in one part of the dispute but not the other.
The HSE’s reasonable costs are to be measured under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree. The order includes costs for senior and junior counsel, two sets of written submissions, the costs application and all reserved costs. Execution of the costs order is stayed pending the HSE’s intended application for leave to appeal to the Supreme Court. If leave is granted, the stay continues until that appeal is heard and determined. A similar stay applies to the order setting aside and remitting the Labour Court determination.