1. Introduction

This case concerns Mr Pádraic Hanley’s appeal from a Labour Court determination in which he alleged unfair dismissal and penalisation for protected disclosures. The Labour Court had dismissed his claim. On 19 November 2024 the High Court upheld his appeal on a point of law, set aside the Labour Court’s determination and remitted the case for fresh hearing. Following that substantive victory, the parties returned to the High Court to argue who should bear the costs of the appeal.

Two competing cost-setting regimes applied:

• Section 169, Legal Services Regulation Act 2015 – provides a statutory presumption that “costs follow the cause” and that the successful party is entitled to costs unless specified exceptions apply;
• Order 105, Rule 7, Rules of the Superior Courts – establishes that in an appeal from the Labour Court “no costs shall be allowed…unless the Court shall by special order allow such costs.”

The key issue for Ms Justice Bolger was how these two provisions interact, which should prevail, and on what basis a “special order” for costs should be made.

2. Summary of the Judgment

Ms Justice Bolger held:

1. The statutory right under section 169 is the starting point for any costs application in civil proceedings, including appeals from the Labour Court.
2. Order 105, Rule 7 is a subordinate procedural rule that qualifies—but does not override—the statutory default under section 169.
3. A court must first consider whether costs should follow the cause under section 169, then consider whether the special rule should modify that outcome.
4. In this case, having succeeded fully on appeal and raised issues of importance—both personally and for the administration of protected disclosures cases—the appellant was entitled to an award of costs.
5. The High Court therefore made a “special order” under Rule 7 and directed that the respondent pay the appellant’s costs of the appeal, including the costs of the costs application itself.

3. Analysis

3.1 Precedents Cited

• Power v HSE [2021] IEHC 454
  Simons J held that a successful appellant in a Labour Court appeal was entitled to costs either because the statutory rule applied or because the exigencies of the case justified a “special order.” He identified a public interest test when appeals correct longstanding errors of general import.
• Baranya v Rosderoa Irish Meats Group Ltd [2022] IESC 5
  The Supreme Court remitted a Labour Court appeal back for hearing and, in the costs application, made a special order because the appeal raised “an issue of some importance.” This adopted a lower threshold than the public-interest test in Power.
• Conway v Department of Agriculture [2021] IEHC 503
  Hyland J explained that Order 105, Rule 7 was intended to mirror the Labour Court’s no-cost regime and that the Rules Committee consciously departed from the statutory default in section 169 to maintain consistency.
• Buchanan v BHK Credit Union Ltd [2013] IEHC 439
  Hogan J emphasised that Rules of Court are subordinate legislation and cannot override or amend the substantive rights created by Acts of the Oireachtas, citing the principle that procedural rules cannot trammel statutory discretion.

3.2 Legal Reasoning

Bolger J’s reasoning proceeded in three stages:

1. Statutory Primacy: Section 169(1) creates a statutory presumption that the successful party is entitled to costs. Nothing in Order 105, Rule 7 expressly repeals or disapplies section 169.
2. Subordinate-legislation Principle: Rules of Court are made by statutory instrument and cannot indirectly amend or abrogate the law enacted by the Oireachtas. Therefore, Rule 7 can qualify section 169 but cannot displace it entirely.
3. Integrated Approach: Courts must start with section 169, determine whether costs should follow the cause, then apply Rule 7 as a potential qualification requiring a “special order.” Particular facts—such as raising issues of public or considerable importance—can justify a special order and thereby restore the statutory outcome.

3.3 Impact

This judgment clarifies and cements the hierarchy between statute and court-made rules in costs jurisprudence. It establishes that:

• Court-made rules cannot wholly negate a clear statutory entitlement without express legislative sanction;
• Section 169 is the default rule for costs in civil proceedings, including appeals from tribunals that have no costs regime;
• Order 105, Rule 7 remains available as a procedural qualification but only by making a “special order” grounded in the facts and importance of each case;
• Future appellants will have a firmer basis to seek costs by reference first to section 169 and then to the special-order test under Rule 7;
• The decision may encourage appellants to bring meritorious statutory appeals without fear of being left out of pocket, while ensuring that trivial or purely tactical appeals remain subject to close scrutiny.

4. Complex Concepts Simplified

• Section 169, Legal Services Regulation Act 2015: A statutory rule stating that the successful party in civil litigation is generally entitled to recover its legal costs from the unsuccessful party, unless the court orders otherwise for specified reasons.
• Order 105, Rule 7, Rules of the Superior Courts: A procedural rule providing that in Labour Court appeals no party is entitled to costs unless the High Court makes a “special order” allowing costs.
• Special Order: A discretionary costs order made under Rule 7 where the court finds that the circumstances—such as raising issues of public or legal importance—justify departing from the default of “each side bears its own costs.”
• Subordinate Legislation: Rules of Court are statutory instruments made under the Courts of Justice Act and cannot override or amend primary legislation enacted by the Oireachtas.
• Costs Follow the Cause: A legal maxim meaning that the winner in litigation usually recovers its costs from the loser.

5. Conclusion

Hanley v PBR Restaurants Ltd establishes a definitive framework for resolving costs disputes in appeals from the Labour Court:

1. Section 169 of the Legal Services Regulation Act 2015 is the primary source for costs entitlement;
2. Order 105, Rule 7 is a subordinate procedural exception requiring a “special order” to displace the statutory rule;
3. Courts must integrate both provisions, starting with the statutory presumption that costs follow the cause and then applying Rule 7’s qualification based on the case’s particular facts and importance;
4. In practice, appellants who succeed on points of legal significance should expect to recover their costs under this unified approach.

This judgment thus reinforces the rule of law by ensuring that clear legislative rights are not nullified by procedural rules of the courts, promotes access to justice in employment and protected-disclosure cases, and provides guidance for practitioners navigating the interplay of statute and court rules on costs.