Power v Health Service Executive (Costs) (Approved)

Factual and Procedural Background

This opinion concerns an appeal pursuant to section 46 of the Workplace Relations Act 2015 against a determination of the Labour Court relating to the Protection of Employees (Fixed-Term Work) Act 2003. The appellant challenged the Labour Court’s interpretation that an existing employee temporarily fulfilling a more senior role is excluded from the protection of the legislation. The High Court found in favor of the appellant, ruling that the Labour Court had erred in law. This supplementary judgment addresses the appropriate costs order following the principal judgment delivered on 15 June 2021.

Legal Issues Presented

1. Whether the appellant, having been entirely successful in the statutory appeal, is entitled to recover costs against the respondent despite the general rule under Order 105, rule 7 of the Rules of the Superior Courts that no costs shall be allowed in such appeals except by special order.
2. How to reconcile the costs regime under the Legal Services Regulation Act 2015 with the specific costs provisions applicable to appeals from the Labour Court under Order 105, rule 7.
3. Whether the point of law raised in the appeal concerning the scope of the Protection of Employees (Fixed-Term Work) Act 2003 is of general public importance sufficient to justify a special costs order.
4. The appropriate quantum and procedural handling of costs in light of the ongoing related litigation between the parties.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the general rule that costs follow the event but noted that Order 105, rule 7 establishes a default position of no costs in statutory appeals from the Labour Court, except by special order. The Legal Services Regulation Act 2015 (LSRA 2015) provides a statutory framework for costs, generally entitling a wholly successful party to costs unless the court orders otherwise. The court identified a potential conflict between the LSRA 2015’s default entitlement to costs and Order 105’s default no-costs rule but found it unnecessary to resolve this conflict because the appellant was entitled to costs under either regime.

The court emphasized the public interest in clarifying the correct interpretation of the Protection of Employees (Fixed-Term Work) Act 2003, noting that the appeal raised a point of law of general importance that corrected a longstanding error by the Labour Court. This ruling affects not only the parties but also other employment disputes, thereby engaging the public interest.

The court considered the deterrent effect of the high legal costs associated with appeals to the High Court, particularly on employees who might otherwise be dissuaded from pursuing legitimate statutory appeals. The court drew an analogy with the exceptional jurisdiction recognized in Lee v. Revenue Commissioners, which permits departure from the normal costs rule in cases of public importance. Although the appellant was successful, the court found that the public importance of the legal issues and the deterrent effect of costs justified a special costs order.

The court rejected the respondent’s argument that the appellant’s interest was purely private, clarifying that the public interest arises from the legislative interpretation necessary to resolve the dispute and its broader implications.

Additionally, the court noted ongoing related plenary litigation between the parties where costs orders had been made, and found it just to allow costs recovery in this appeal to avoid anomalous results and to facilitate netting off of costs across proceedings.

Holding and Implications

The court made a special costs order allowing the appellant to recover his reasonable legal costs against the respondent. The quantum of costs is to be adjudicated under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree.

The order includes costs of senior and junior counsel, written legal submissions, the costs application itself, and all reserved costs. Execution of the costs order is stayed pending any application for leave to appeal to the Supreme Court, with the stay continuing if leave is granted until final determination.

The decision directly affects the parties by enabling the appellant to recover costs despite the usual no-costs rule in Labour Court appeals, reflecting the exceptional public importance of the legal issues involved. No new general precedent altering the costs regime for all Labour Court appeals is established; rather, the ruling applies to the particular circumstances of this case.