Clarifying Costs and Final Remedies in Section 327 Social Welfare Appeals: Order 90 RSC ‘No Costs Unless Special Order’ Applies and the High Court May Restore an Earlier Decision

Introduction

This commentary examines the High Court’s second judgment in Ryanair DAC v Reddy & Ors (No. 2) [2025] IEHC 579, delivered by Bradley J. on 23 October 2025. The decision addresses two issues left over from the principal judgment in Ryanair DAC v Reddy & Ors (No. 1) [2024] IEHC 719: (i) costs, and (ii) the form of the final orders following the successful statutory appeal under section 327 of the Social Welfare Consolidation Act 2005.

The parties were Ryanair DAC (Appellant) and the Appeals Officer, the Chief Appeals Officer, and the Minister for Social Protection (State Respondents). Notice Parties were Paul Clements (a pilot), Redsberry Management Services Ltd, and Contracting Plus Consultants Ltd. The principal judgment held that the Appeals Officer erred in law in finding that Mr. Clements was an employee of Ryanair between 15 February 2010 and 30 April 2014, largely because the inferences drawn from pre-contract contact and agency were not supported by evidence and were ones no reasonable decision-maker could draw. The court further found failure to engage with the regulatory context of operating scheduled flights.

This second judgment determines (a) whether costs should follow the event in light of sections 168–169 of the Legal Services Regulation Act 2015 (LSRA 2015), the re‑cast Order 99 of the Rules of the Superior Courts 1986 (RSC), and Order 90 RSC; and (b) whether the appropriate remedy was to remit for rehearing or to substitute a final order—specifically, whether to restore the Appeals Officer’s 2016 decision which had found Mr. Clements insurable with Redsberry (not Ryanair) as a Class A contributor.

Summary of the Judgment

Bradley J. held:

Costs: No order as to costs. Ryanair was not “entirely successful” for the purposes of section 169(1) LSRA 2015 given that it lost key preliminary points (notably, that Order 84C was the correct procedural route and that the impugned decision was a “revision” rather than a refusal to revise). Further, Order 90, rule 6 RSC—applicable to Social Welfare statutory appeals—sets a default of “no costs unless the Court shall by special order allow such costs.” The court, drawing on analogous Order 105 practice and policy in employment appeals, exercised its discretion to make no order as to costs.
Form of final orders: Substitution rather than remittal. Having identified errors of law consisting of unreasonable inferences by the Appeals Officer, the High Court (following An Bord Banistíochta, Gaelscoil Moshíológ v Department of Education [2024] IESC 38 and Castleisland Cattle Breeding v Minister for Social Welfare [2004] 4 IR 150) set aside the 2021 Appeals Officer decision, made a declaration that Ryanair was not the employer of Mr. Clements for the period in question, and restored the 17 May 2016 Appeals Officer decision that Mr. Clements was in insurable employment with Redsberry as a Class A contributor.
Stay: A stay was placed on the substantive orders pending any appeal to the Court of Appeal to avoid immediate, potentially disruptive consequences of restoring the 2016 decision.

Analysis

Precedents Cited and How They Shaped the Decision

The Revenue Commissioners v Karshan Midlands Ltd t/a Domino’s Pizza [2023] IESC 25. Although central to the principal judgment’s merits analysis of employment status (guiding the approach to implied contracts and multi-factor tests), its role here was contextual—underlining why the Appeals Officer’s inferential errors were material. That foundational finding enabled the court in this second judgment to focus on costs and remedy, confident that the legal error was dispositive and permitted a substitutionary order.
Little v Chief Appeals Officer & Ors [2024] IESC 53 (Murray J.; Hogan J.). The Supreme Court’s criteria for public-interest costs exceptions were set out and applied. The High Court concluded Ryanair’s appeal was not a public-interest case: it neither raised a novel or systemic point of law of general public importance nor fit within the public-interest matrix described in Little. This removed any basis to depart from the ordinary costs framework on public-interest grounds.
Lynch v Minister for Health [2024] IEHC 712 (Simons J.). The court accepted Lynch’s clarification that describing something as a “test case” is a case-management device, not a costs category. Even if the appeal were test-like in effect, that would not convert it into public-interest litigation for costs purposes.
Ryanair v An Taoiseach [2020] IEHC 673 (Simons J.). Applied to the “entire success” threshold in section 169 LSRA 2015. Where a party loses discrete, important issues—even if it ultimately succeeds overall—the party is not “entirely successful” and does not trigger the statutory presumption that costs follow the event. This was decisive: Ryanair lost preliminary procedural points (Order 84C vs Order 90; revise vs refusal to revise), so section 169’s presumption did not arise.
Power v HSE [2021] IEHC 454 (Simons J.). Offered the policy rationale for Order 105’s “no costs unless special order” in statutory employment appeals: parties should not be “on hazard” of adverse costs simply because they invoke a statutory right of appeal (especially where first-instance tribunals lack costs jurisdiction). Bradley J. analogised to Order 90 (Social Welfare appeals) and held the same rationale applies to section 327 appeals: the default is no costs, absent a special order.
Hanley v PBR Restaurants Ltd t/a Fish Shack Café [2025] IEHC 224 (Bolger J.). Cited as a contrast. In Hanley, the party was entirely successful and recovered costs. Bradley J. distinguished the present case because Ryanair was not entirely successful on key gateway issues.
Brightwater Selection (Ireland) Ltd v Minister for Social & Family Affairs [2011] IEHC 510 (Gilligan J.); National Museum of Ireland v Minister for Social Protection [2017] IEHC 198 (Murphy J.). Both authorities recognise the High Court’s power to remit a section 327 appeal for rehearing. The Notice Parties relied on them to urge remittal. Bradley J. accepted the power but distinguished the present case: given the nature of the error (unreasonable inferences), substitution and restoration were appropriate and more efficient than remittal.
Castleisland Cattle Breeding v Minister for Social Welfare [2004] 4 IR 150. A cornerstone for the remedy. The Supreme Court endorsed setting aside the Appeals Officer’s decision and restoring the prior decision of the deciding officer where appropriate. Bradley J. followed this line and restored the 2016 Appeals Officer decision that placed Mr. Clements in insurable employment with Redsberry (Class A), consistent with the principal judgment’s findings about the absence of an implied Ryanair employment relationship.
An Bord Banistíochta, Gaelscoil Moshíológ v Department of Education & Ors [2024] IESC 38. O’Donnell C.J. canvassed the suite of orders available to an appellate court when an error of law is identified, including substitution where the error permits it, as opposed to mandatory remittal. Bradley J. applied this to select substitution/restoration rather than remittal.
Hay v O’Grady [1992] 1 IR 210. Referenced through the Gaelscoil framework to underscore that the appellate remedy depends on the type of error. Here, the irrationality of inferences (error of law) enabled substitution.

Legal Reasoning

1) Costs

The court approached costs in two steps:

Step 1: Does section 169 LSRA 2015’s presumption apply? Section 169(1) creates a default that an “entirely successful” party is entitled to costs unless the court orders otherwise. Relying on Ryanair v An Taoiseach, the court held Ryanair was not “entirely successful” because it lost significant preliminary points: it wrongly invoked Order 84C rather than Order 90 and mischaracterised the Chief Appeals Officer’s decision as a “revision.” As a result, section 169’s presumption did not engage.
Step 2: What does the court’s general discretion (s.168 LSRA and Order 99 RSC) require given Order 90 RSC? Order 90, rule 6 RSC creates a default of “no costs unless the Court shall by special order allow such costs” for Social Welfare appeals. Bradley J. held that section 327 of the 2005 Act is the statutory successor to provisions referenced in Order 90 and that Order 90 governs the present appeal. In line with Power v HSE’s rationale (for Order 105), the court applied the same policy to Order 90: parties invoking a statutory appeal should not usually be exposed to adverse costs. The court also found the litigation was not public-interest under Little, so no “public-interest exception” was in play. Exercising its discretion under sections 168–169 LSRA and Order 99, the court made no order as to costs.

In short, even a party that succeeds overall in a section 327 appeal may receive no costs where it is not entirely successful and where Order 90’s default is engaged.

2) Form of the Final Orders

The parties proposed divergent remedies:

Ryanair sought to set aside the 2021 Appeals Officer decision, secure a declaration that it was not Mr. Clements’s employer for the relevant period, and avoid remittal (with a draft order reflecting those points).
The State Respondents invited the court to restore the 2016 Appeals Officer decision (which found Mr. Clements insurable with Redsberry as a Class A contributor) and to strike out the appeal against the 2022 Chief Appeals Officer refusal to revise, while also seeking a stay pending appeal.
The second and third Notice Parties (Redsberry and Contracting Plus) did not participate at the substantive hearing but urged remittal to a different Appeals Officer, invoking Brightwater, National Museum, and Order 38, rule 9 RSC (general power to make such order “as may seem just”).

Bradley J. accepted the court’s power to remit but, applying Gaelscoil, chose substitution. The principal judgment had already found that the Appeals Officer’s second decision (2021) rested on inferences that no reasonable decision-maker could draw. That type of error justified the High Court itself making final orders rather than remitting. Castleisland provided a clear template for setting aside the later decision and restoring the earlier one.

Accordingly, the court:

struck out the appeal against the Chief Appeals Officer’s 15 December 2022 refusal to revise;
extended time to appeal the 12 July 2021 Appeals Officer decision;
set aside the 12 July 2021 decision that Mr. Clements was an employee of Ryanair for Class A social insurance purposes;
declared that Ryanair was not Mr. Clements’s employer for the period 15 February 2010 to 30 April 2014 for the purposes of the social welfare code; and
restored the 17 May 2016 Appeals Officer decision that Mr. Clements was in insurable employment with Redsberry as a Class A contributor for that period.

A stay was granted on these substantive orders pending any appeal, to avoid the restored decision taking immediate effect during appellate proceedings.

Impact and Significance

A. Costs architecture in section 327 appeals is now settled

Order 90 applies to section 327 appeals. The court expressly aligned section 327 of the 2005 Act with Order 90 RSC (successor to the 1981 Act provisions referenced in Order 90). This cements a no-costs-default regime for these statutory appeals: costs will not ordinarily be awarded unless a special order is justified.
“Entirely successful” is a real threshold. Even a party who wins overall can fail to trigger section 169(1) LSRA if it loses significant preliminary issues. This narrows the pathway to “costs follow the event” and increases the practical importance of procedural correctness.
Public-interest exceptions remain narrow. The judgment reinforces Little: unless a case raises a genuinely novel or systemic point of law of broad importance and meets the multi-factor criteria, the public-interest costs exception will not apply. Labelling an appeal a “test case” is not determinative.

B. Remedies: substitution and restoration over remittal in appropriate cases

High Court will substitute where the legal error permits it. Where an Appeals Officer’s decision is vitiated by irrational inferences, the High Court may set it aside and restore an earlier valid decision rather than remit. This approach promotes finality and efficiency in long-running status disputes.
Castleisland remains a strong guide. The restoration of an earlier decision is not only permissible; it is sometimes the most appropriate order, especially after prolonged procedural history, provided the legal error justifies substitution.
Practical note on stays. Parties should anticipate that, where restoration would have immediate effects, a stay will often be granted pending appeal to preserve the status quo.

C. Procedural alignment and practice points

Use Order 90 for section 327 appeals. The court affirmed that invoking Order 84C was incorrect. Although the court did not dismiss the appeal for this irregularity (relying on Order 124), parties should not assume such indulgence. Correct procedure will directly affect costs exposure and case management.
Notice Parties should engage early. The court did not view late participation as a reason to remit. Where restoration of an earlier decision is a live remedy, notice parties should engage at the substantive hearing to protect their position.

Complex Concepts Simplified

Section 327 statutory appeal: A route to the High Court to challenge decisions on social insurance “insurability” status (e.g., whether a person was in Class A employment). It is not a full rehearing; the court addresses errors of law and may substitute or remit depending on the error.
Order 90 RSC, rule 6 (“no costs unless special order”): A special costs regime for Social Welfare statutory appeals that reverses the usual starting point. The court may still award costs, but only by making a special order; the default is no costs.
Sections 168–169 LSRA 2015: Section 168 gives courts broad discretion over costs. Section 169 creates a presumption that the entirely successful party gets costs, unless the court orders otherwise. If a party is not entirely successful (e.g., loses important preliminary issues), the presumption is not engaged.
Order 99 RSC (re‑cast): The general procedural framework on costs, operating alongside special regimes like Order 90. It does not displace Order 90’s specific default in Social Welfare appeals.
Order 105 RSC (analogy): Governs Labour Court/WRC appeals with a similar no‑costs default. Courts have articulated a policy rationale that parties should not be deterred from invoking statutory appeals by the threat of adverse costs.
Order 124 RSC: Technical irregularities (such as using the wrong originating procedure) will not automatically invalidate proceedings. Courts may correct course if justice requires.
Remittal vs substitution: If the error of law prevents the appellate court from finalising the matter (e.g., credibility disputes or missing factual determinations), remittal is typical. Where the error permits a definitive outcome (e.g., decision based on unreasonable inferences), substitution—including restoration of an earlier decision—is appropriate.
“Insurable employment” and “Class A contributor”: These are social insurance classifications. “Class A” generally corresponds to employments subject to PRSI employee/employer contributions. In this case, the restored 2016 decision placed Mr. Clements in Class A with Redsberry (not Ryanair) as employer.
Implied contract/agency (background from principal judgment): An implied contract of employment may be inferred from conduct in some cases, but only where evidence supports it. The principal judgment found there was no evidential basis to infer that Brookfield acted as Ryanair’s agent to create an implied contract between Ryanair and Mr. Clements.
Stay pending appeal: A temporary suspension of the operation of orders, designed to maintain the status quo and avoid immediate disruptive consequences while an appeal is pending.

Conclusion

Ryanair DAC v Reddy (No. 2) delivers two clear clarifications of enduring importance to Social Welfare appeals under section 327 of the 2005 Act.

Costs: Order 90 RSC’s “no costs unless special order” default applies to section 327 appeals. The “entirely successful” threshold in section 169 LSRA is strictly applied; losing significant preliminary points disables the presumption that costs follow the event. Public-interest exceptions remain narrow and were not engaged here. The upshot is that even a successful appellant may receive no costs in these statutory appeals.
Remedy: Where an Appeals Officer’s decision is vitiated by unreasonable inferences, the High Court may substitute its own orders and restore an earlier valid decision, rather than remit. Castleisland and Gaelscoil provide the template; restoration promotes finality after prolonged procedural histories.

The final orders reflect this analysis: the impugned 2021 decision was set aside; Ryanair was declared not to be Mr. Clements’s employer for the relevant period; the 2016 decision (insurable employment with Redsberry, Class A) was restored; the appeal against the Chief Appeals Officer’s refusal to revise was struck out; there was no order as to costs; and a stay was granted pending any appeal.

Practitioners should note the procedural guidance: bring section 327 appeals under Order 90; do not assume costs will follow the event; and be prepared for substitution/restoration where the legal error permits a final outcome without remittal. Collectively, these rulings advance clarity, consistency, and efficiency in the administration of Social Welfare status appeals.