The High Court has ordered Ammi Burke to pay part of the costs incurred by the Workplace Relations Commission and Arthur Cox LLP after her judicial review was dismissed in its entirety. The costs judgment, delivered by Mr Justice Garrett Simons on 4 February 2022, concerned how those costs should be allocated; the judicial review itself had been dismissed in a principal judgment on 11 November 2021.
The court found that part of the judicial review raised an issue of general public importance: the practical effect of the Supreme Court’s decision in *Zalewski v. An Adjudication Officer* on unfair dismissal claims that were already part-heard. The court said its earlier judgment provided guidance relevant to other such claims, and noted that the WRC’s eventual approach to the issue was correct in law.
However, the challenge also addressed an earlier procedural ruling unrelated to *Zalewski*. The court said judicial review was inappropriate for interim procedural rulings by an adjudication officer in an unfair dismissal claim. It also found that Burke had made serious, unfounded allegations that the adjudication officer favoured Arthur Cox and that the WRC had acted to frustrate her claim. Burke withdrew those allegations on the second day of the judicial review hearing, after being given time to consider the matter.
The judge said the allegations prolonged the hearing and required the other parties to address them in affidavits and submissions. Burke had argued that she had limited means, was unemployed apart from giving private tuition for several hours a week, and would struggle to pay a costs order. The court held that financial hardship was not a prescribed factor under the statutory costs criteria and did not displace the usual approach. It also observed that unfair dismissal claims can be pursued within the statutory system without an adverse costs order, while a High Court judicial review carries exposure to costs.
The court ordered Burke to pay one-third of the WRC’s measured costs, reflecting the public importance of one issue and the costs incurred addressing the allegations. It ordered her to pay two-thirds of Arthur Cox’s measured costs, noting that the firm had largely defended the proceedings because the WRC’s participation was limited. The discounts also reflected overlap between the parties’ submissions on *Zalewski*.
The order includes reserved costs, written submissions, two counsel for each party and stenography fees. The main costs are to be assessed on the basis of a one-day hearing on 20 October 2021; costs of the short hearing on 26 October are excluded. Burke must also pay the WRC’s and Arthur Cox’s costs of the first costs hearing, on 16 December 2021, and their written costs submissions. The later costs hearings are excluded because their necessity was largely outside her control. Unless the parties agree, the costs are to be adjudicated, with the aggregate intended to approximate one full set of costs.