The High Court has ordered the Minister for Justice and Equality to pay the costs of Peter Onyeneikeihia’s successful appeal under the Employment Equality Act 1998, with the amount to be adjudicated if the parties cannot agree.
In a costs judgment delivered on 18 January 2024, Ms Justice O’Regan rejected the Minister’s argument that no costs order should be made because the errors identified in the appeal concerned how the Labour Court handled the case.
The costs decision followed a principal judgment in which the High Court allowed the appeal from the Labour Court’s 22 July 2022 decision. The appeal succeeded because that decision was irrational, did not give adequate reasons and failed to address the claim of indirect race discrimination. The costs judgment did not determine the underlying discrimination claim.
The Minister relied on a rule introduced in 2020 that requires a special order before costs may be allowed in proceedings under Order 105 of the Rules of the Superior Courts. The judge found that rule did not apply to this appeal, which was brought under section 90(1) of the 1998 Act and falls under Order 106.
She noted that the 2020 instrument sets out separate provisions for Orders 105 and 106, and does not impose the same special-order restriction on costs under Order 106. A restriction on costs in this type of appeal had been removed in 2005 and was not restored in the 2020 rules.
The Minister also referred to decisions in other Labour Court appeals and to the fact that the appellant was represented by the Irish Human Rights and Equality Commission. The judge concluded that the Commission’s resources did not deprive an otherwise successful litigant of costs. She found the proceedings justified by the result of the principal judgment and noted they had been fully defended.
Applying section 169(1) of the Legal Services Regulation Act 2015, the judge said no relevant factor had been argued to displace the usual outcome that costs follow success. The order is for the appellant’s costs against the Minister, with adjudication to determine them if agreement is not reached.