Nowak v Intesa Sanpaolo Life DAC (Approved)

Factual and Procedural Background

The proceedings concern a statutory claim for unfair dismissal made under the Unfair Dismissals Act 1977, prior to its amendment by the Workplace Relations Act 2015. The claim was initially dismissed by the Employment Appeals Tribunal ("EAT") on jurisdictional grounds in February 2017. Following appeals to the Circuit Court and the High Court, the matter was remitted to the EAT for a second hearing in early 2019, where the claim was rejected on the merits. The plaintiff then appealed to the Circuit Court.

The appeal before the Circuit Court was delayed due to public health restrictions imposed during the Coronavirus pandemic. The appeal was re-entered by the Circuit Court Office in 2022 and listed for hearing on 9 February 2022, but was struck out for non-attendance. It was later acknowledged that the plaintiff had not received proper notice of the hearing. The Circuit Court Office scheduled a motion to reinstate the appeal for 27 July 2022 without requiring the plaintiff’s attendance.

Following the plaintiff's motion to reinstate, the defendant filed a countermotion seeking dismissal of the appeal as frivolous and vexatious, along with other orders including an Isaac Wunder order and security for costs. This motion was based on allegations relating to the plaintiff’s involvement in other litigation. The Circuit Court dismissed the appeal on the grounds that it was frivolous and vexatious on 19 April 2023. The plaintiff appealed this decision to the High Court.

At the High Court hearing on 18 April 2024, counsel for the defendant conceded that the appeal should not have been struck out. The court acknowledged that the plaintiff’s other litigation did not justify dismissal and that delays were attributable to jurisdictional errors and pandemic-related restrictions. The High Court indicated it would allow the appeal and make a costs order in favour of the plaintiff.

Legal Issues Presented

1. Whether the Circuit Court was correct to strike out the plaintiff’s appeal as frivolous and vexatious.
2. Whether the plaintiff’s appeal against the Employment Appeals Tribunal’s decision should be remitted to the Circuit Court for full hearing or heard by the High Court directly.
3. The proper procedural approach to appeals under the Unfair Dismissals Act 1977 prior to the Workplace Relations Act 2015 amendments.

Arguments of the Parties

Appellant's Arguments

• The plaintiff contended that the Circuit Court should not have allowed the defendant to issue the countermotion to dismiss the appeal, as only the plaintiff’s motion to reinstate the appeal was properly before the court.
• The plaintiff argued that the appeal was not frivolous or vexatious and that the delay in proceedings was not attributable to her.

Defendant's Arguments

• The defendant sought dismissal of the appeal on grounds that it was frivolous and vexatious and delayed.
• The defendant also sought an Isaac Wunder order and security for costs, based on the plaintiff’s involvement in other litigation.
• However, at the High Court hearing, the defendant conceded that these complaints did not justify striking out the appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commissioners of Irish Lights v. Sugg [1994] E.L.R. 97	Confirms full right of appeal to the High Court under section 38 of the Courts of Justice Act 1936 for claims made prior to the Workplace Relations Act 2015.	Supported the plaintiff’s entitlement to appeal to the High Court beyond the Circuit Court.
JVC Europe Ltd v. Panisi [2011] IEHC 279	Illustrates procedural rights regarding appeals under the Unfair Dismissals Act pre-2015 amendments.	Referenced to clarify the scope of appellate rights available to the plaintiff.
Bank of Ireland Mortgage Bank v. Cody [2021] IESC 26, [2021] 2 I.R. 381	Establishes that where the Circuit Court has exhausted its jurisdiction, the High Court should hear the matter.	Distinguished from the present case because the Circuit Court’s order was procedural, not a full appellate decision.
Dawson v. Irish Brokers Association [2002] IESC 36, [2002] 2 I.L.R.M. 210	Legal principles governing recovery of costs for litigants in person.	Applied to determine the plaintiff’s entitlement to recover allowable out-of-pocket expenses despite self-representation.

Court's Reasoning and Analysis

The court examined the procedural history and found that the Circuit Court’s order striking out the appeal was based on a procedural motion rather than a substantive hearing of the appeal. The defendant’s allegations that the appeal was frivolous and vexatious were unsubstantiated, particularly given the plaintiff’s unrelated litigation and delays caused by jurisdictional errors and pandemic restrictions. The defendant conceded the appeal should not have been struck out. The court further considered the procedural rights under the Unfair Dismissals Act 1977 as it stood prior to the 2015 amendments, confirming the plaintiff’s right to appeal through the Circuit Court and the High Court.

The court distinguished the present case from precedent where the Circuit Court had exhausted its jurisdiction, noting that here the Circuit Court had not exercised appellate jurisdiction but had acted on a procedural motion. Consequently, the matter was remitted to the Circuit Court for full hearing rather than being heard directly by the High Court.

Regarding costs, the court applied established principles allowing a successful litigant in person to recover allowable expenses, directing that costs be taxed by the County Registrar if not agreed.

Holding and Implications

The High Court SET ASIDE the Circuit Court’s order of 19 April 2023 striking out the plaintiff’s appeal as frivolous and vexatious. In lieu, the court ordered that the plaintiff’s appeal against the Employment Appeals Tribunal’s decision be remitted to the Circuit Court for a full hearing. The separate costs order made by the Circuit Court on the same date was also set aside.

The plaintiff, as a litigant in person, is entitled to recover allowable costs related to both her motion to reinstate the appeal and the defendant’s countermotion to strike out the appeal. The court’s decision restores the plaintiff’s procedural rights and ensures the substantive appeal will proceed on its merits before the Circuit Court. No new precedent was established; the ruling clarifies the proper procedural approach where a Circuit Court dismisses an appeal on procedural grounds rather than on the merits.