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Miley & ors v Employment Appeals Tribunal & ors
Factual and Procedural Background
The Respondents operated an equestrian business. In October 2007 the First Notice Party lodged an unfair-dismissal claim with the Appellant, a statutory tribunal. After three hearing days the Appellant held on 12 November 2008 that the First Notice Party had been unfairly dismissed and awarded compensation.
On 13 February 2009 the High Court granted the Respondents leave to seek judicial review, principally an order of certiorari quashing the tribunal’s determination. Neither the Appellant nor the First Notice Party filed opposition papers. When the matter came before Judge [Hedigan] on 18 May 2009 the High Court:
- Quashed the tribunal’s decision and remitted the dispute for fresh determination, and
- Awarded the costs of the judicial-review proceedings against the Appellant, making no order as to the First Notice Party.
The Appellant now appeals solely against that costs order; the merits of the unfair-dismissal claim have since been settled.
Legal Issues Presented
- Does the common-law rule that shields judges from adverse costs orders—absent mala fides or impropriety—apply to a statutory, quasi-judicial tribunal such as the Appellant?
- If the immunity applies, did the tribunal forfeit it by acting with mala fides or impropriety in the conduct of the original hearing?
Arguments of the Parties
Appellant’s Arguments
- A quasi-judicial body should be treated like a judge for costs purposes; costs may only be awarded against it on proof of mala fides or impropriety.
- No such misconduct was alleged in the High Court proceedings; therefore the costs order was wrong in principle.
Respondents’ Arguments
- The judicial immunity rule set out in McIlwraith v Judge Fawsitt should not be extended to administrative tribunals.
- Even if the rule applies, the tribunal’s hearing was so procedurally deficient that it crossed the line into impropriety, justifying the High Court’s costs order.
Second Notice Party’s Arguments
- Supported the Appellant, contending that quasi-judicial bodies enjoy the same immunity as courts.
- In any event, the High Court erred in finding conduct that displaced that immunity.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| McIlwraith v His Honour Judge Fawsitt [1990] 1 I.R. 343 | Judges are immune from costs orders unless they acted with mala fides or impropriety. | Primary authority used to test whether similar immunity should extend to the tribunal. |
| Noonan Services v Labour Court (Sup. Ct., 2004) | Labour Court is not a legitimate contradictor; costs should lie against the notice party. | Cited as an example of treating a tribunal analogously to a judge for costs purposes. |
| R v Hastings Licensing Justices, ex p Lovibond [1968] 2 All E.R. 270 | Costs against magistrates only where conduct is perverse or flagrantly improper. | Relied on by the High Court; reviewed by the Supreme Court when assessing impropriety. |
| R v Liverpool Justices, ex p Roberts [1960] 2 All E.R. 384 | Same principle as Lovibond. | Provided comparative support for the limited-immunity doctrine. |
| O.F. v Judge O’Donnell [2012] 3 I.R. 483 | Supreme Court synopsis of Irish cases confirming judicial immunity from costs. | Surveyed to reinforce that immunity rests on public-policy considerations. |
| Casey v Private Security Appeals Board [2009] IEHC 547 | Quasi-judicial board enjoys costs immunity absent misconduct. | Used analogically to show that immunity can extend beyond judges. |
| Cullen v Employment Appeals Tribunal (HC, 2008) | High Court declined to award costs against the EAT where it did not participate. | Considered persuasive precedent favouring immunity for the Appellant. |
| Stankiewicz v Poland (2007) 44 E.H.R.R. 47 | Article 6 ECHR may be infringed by discriminatory costs rules. | Discussed; Court found present case did not reach the exceptional unfairness threshold. |
| Eastenders Cash & Carry v HMRC [2012] EWCA Civ 689 | Limits on when differential costs rules engage Article 6. | Adopted to reject the Respondents’ ECHR argument. |
Court's Reasoning and Analysis
Judge [Denham] identified two sequential questions. First, whether the judicial immunity doctrine should apply to the Appellant. The Court held that the tribunal is a statutory body exercising adjudicative functions, ordinarily not a legitimus contradictor in judicial-review proceedings when it elects not to participate. Public-policy considerations that protect judicial independence and encourage tribunals to abstain from partisan defence of their own decisions therefore justify equivalent immunity.
Second, the Court examined whether that immunity was forfeited. It reviewed the affidavits describing an “unsatisfactory” hearing—piecemeal evidence, lack of reasons and apparent hostility—but found no evidence of bad faith, ulterior motive, or conduct rising to the level of “impropriety” as defined in the authorities. The deficiencies were characterised as legal or procedural errors, remediable by certiorari, but not misconduct warranting an adverse costs order.
The Court also considered Article 6 ECHR jurisprudence. Citing Stankiewicz and Eastenders, it held that the limited, unrecovered costs incurred in an uncontested judicial-review application did not constitute a disproportionate or discriminatory barrier to access to justice.
Holding and Implications
Appeal Allowed. The costs order against the Appellant was set aside; the Respondents must bear their own costs of the High Court proceedings.
Implications: The decision confirms that Irish quasi-judicial tribunals enjoy the same qualified immunity from costs orders as judges. Unless a tribunal defends its decision or acts with mala fides or clear impropriety, applicants who succeed in unopposed judicial-review proceedings will generally not recover their costs from the tribunal. The ruling provides guidance for future challenges to decisions of dissolved bodies such as the Employment Appeals Tribunal and their successors.
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