Anonymised Summary of High Court Judgment (Costs and Final Orders)
Factual and Procedural Background
This judgment, delivered by Judge Bradley, is a sequel to an earlier
substantive judgment (the "principal judgment") concerning an appeal under section 327
of the Social Welfare Act 2005 about the insurability status of an individual during a
specific period when that individual operated scheduled flights for an airline.
The Appellant appealed decisions of the relevant administrative Appeals Officer
and the Chief Appeals Officer. In the principal judgment the court concluded that the Appeals Officer
erred in law by drawing inferences (including that an implied contract existed between the Appellant
and the individual, with a third party acting as agent) for which there was insufficient evidence.
The original substantive hearing took place over several days in May 2024 and judgment was reserved
and later handed down in November 2024.
This second judgment addresses (a) the question of costs arising from the principal judgment and
(b) the precise form of the final order(s) to be made following the principal judgment. Written
and oral submissions were received from the Appellant and the State respondents, and written and
oral submissions were received from two notice parties (a company and another company) who had
not participated in the substantive hearing.
Legal Issues Presented
- Whether the Appeals Officer erred in law in drawing inferences that led to a finding of employment (including the existence of an implied contract and agency) in respect of the individual for the period in question.
- What costs order (if any) should be made following the principal judgment, having regard to section 168 and section 169 of the Legal Services Regulation Act 2015, Orders of the Rules of the Superior Courts (notably O. 90), and recent authority on public interest and "test case" considerations.
- What is the appropriate form of the final court order(s) following the principal judgment, including whether to set aside the Appeals Officer's decision dated 12 July 2021, to restore an earlier decision dated 17 May 2016, to make declaratory relief regarding employer status, to extend the time for appeal, and whether any such orders should be stayed pending appeal.
Arguments of the Parties
Appellant's Arguments
- The Appellant submitted that, as the successful party on appeal, the usual rule under section 169 LSRA 2015 that costs follow the event applies and that it was entitled to its costs.
- It was argued that the appeal concerned a private commercial dispute rather than a public interest matter, so no reason existed to depart from the normal costs position.
- The Appellant relied on criteria in the high court and supreme court authorities to assert that this case did not qualify as a public interest claim or a test case for the purposes of awarding costs against it.
- On final orders, the Appellant proposed an order striking out the Chief Appeals Officer's decision refusing revision, an extension of time to appeal the Appeals Officer's decision, an order pursuant to section 327 setting aside the Appeals Officer's decision, and a declaration that the Appellant was not the employer of the individual for the relevant period.
State Respondents' Arguments
- The State respondents submitted that the relevant procedural provisions (Order 90 of the Rules of the Superior Courts 1986) prescribe a default position of no order as to costs for proceedings under that Order, and therefore the court should make no order as to costs.
- They relied on section 168(1) and section 169(1) LSRA 2015, stressing that section 169(1) grants costs to a party who is "entirely successful" unless the court orders otherwise, and contended the Appellant was not "entirely successful" given the preliminary issues on which the Appellant did not succeed.
- The State respondents submitted that, even if the Appellant was found to have been procedurally entitled to appeal, the court should exercise its discretion (including under relevant rules and authorities) to make no order as to costs given the statutory appeal context and public interest considerations.
- On final orders, the State respondents proposed restoring the Appeals Officer's initial decision dated 17 May 2016 (which found the individual in insurable employment) and sought a stay of any orders (including any costs order) pending the outcome of any appeal.
Submissions of the Notice Parties (Companies)
- The two notice parties (companies) did not participate in the substantive May 2024 hearing but made submissions on the form of the final order after judgment was delivered.
- They accepted most proposed variants of relief but opposed restoring the initial decision (17 May 2016) and instead argued for remittal to a different Appeals Officer for rehearing, citing the High Court's power to remit in comparable section 327 appeals.
Table of Precedents Cited
| Precedent (Anonymised Parties) |
Rule or Principle Cited For |
Application by the Court |
| Case A: Principal judgment of the same proceedings [2024] IEHC 719 |
The earlier substantive judgment in which the court found error in the Appeals Officer's inferences and determined that there was no evidence to support an implied contract finding. |
The present judgment implements and gives effect to the conclusions reached in the principal judgment by addressing costs and the precise form of final orders consequential on that decision. |
| Case B: Little v Chief Appeals Officer & Ors [2024] IESC 53 (Anonymised) |
Guidance on when a matter constitutes public interest for purposes of costs and the approach to "test case" or public interest exemptions to ordinary costs rules. |
The court applied the criteria identified in Little to conclude that this appeal did not fall within the definition of public interest proceedings warranting departure from the ordinary approach, although those criteria were considered in the broader costs analysis. |
| Case C: The Revenue Commissioners v Karshan Midlands Ltd T/A Domino's Pizza [2023] IESC 25 (Anonymised) |
Guidance on appraisal of inferences and the proper approach to factual inferences by decision-makers. |
The court relied on the approach set out in this authority when concluding that the inferences drawn by the Appeals Officer were ones no reasonable decision-maker could have drawn on the evidence. |
| Case D: Lynch v Minister for Health & Ors [2024] IEHC 712 (Anonymised) |
Observation that the phrase "test case" is primarily a case management tool and does not automatically characterise a matter as public interest for costs purposes. |
The court cited this authority to support the proposition that being labelled a "test case" does not, by itself, justify treating a matter as public interest for costs. |
| Case E: Power v HSE [2021] IEHC 454 (Anonymised) |
Addressed the court's discretion in costs where a party was entirely successful and considered the rationale for limiting costs in certain statutory appeal contexts. |
The court acknowledged and applied the reasoning concerning discretion and statutory appeals, using it as part of the analysis on whether to make an order for costs. |
| Case F: Ryanair v An Taoiseach [2020] IEHC 673 (Anonymised) |
Consideration of the distinction between "partial" and "entire" success for the purposes of costs under section 169 LSRA 2015. |
The court used this authority in considering whether the Appellant was "entirely successful" and concluded that the Appellant was not entirely successful on all preliminary points. |
| Case G: Hanley v PBR Restaurants Ltd t/a Fish Shack Café [2025] IEHC 224 (Anonymised) |
Example where a party was entirely successful and costs followed the event. |
The court distinguished that situation from the present case where the Appellant was not entirely successful. |
| Case H: Brightwater Selection (Ireland) Ltd v Minister for Social & Family Affairs [2011] IEHC 510 (Anonymised) |
Authority addressing the High Court's power to remit matters for rehearing in the context of section 327 appeals. |
Cited by the notice parties in support of remittal for rehearing; the court considered but ultimately declined remittal in favour of substituting a final order. |
| Case I: National Museum of Ireland v Minister for Social Protection [2017] IEHC 198 (Anonymised) |
Authority on remittal to the primary decision-maker in similar statutory appeal contexts. |
Cited in submissions for remittal; the court considered the precedent in deciding whether substitution or remittal was appropriate and concluded substitution was appropriate here. |
| Case J: Castleisland Cattle Breeding v Minister for Social Welfare [2004] 4 IR 150 (Anonymised) |
Confirmation of the High Court's jurisdiction to reinstate an initial deciding officer's decision in certain circumstances. |
The State respondents relied upon this authority to support restoring the initial decision; the court noted the principle but made a substituted order reflecting the errors identified in the Appeals Officer's revised decision. |
| Case K: An Bord Banistíochta, Gaelscoil Moshíológ v The Department of Education & Ors [2024] IESC 38 (Anonymised) |
Guidance on the range of possible orders a court may make when it identifies an error of law on appeal, including when substitution or remittal is appropriate. |
The court applied the framework and reasoning in this authority to conclude that substitution of the Appeals Officer's decision (and consequent final orders) was appropriate in the circumstances. |
| Case L: Hay v O'Grady [1992] 1 I.R. 210 (Anonymised) |
Authoritative statement of principles relevant to appellate substitution and the form of orders following an identified error of law. |
Referenced as part of the legal framework for determining the appropriate form of final orders where an error of law is found. |
Court's Reasoning and Analysis
The court proceeded in two linked strands: (A) the costs question and (B) the form of final orders.
A. Costs
The court began by identifying the statutory framework governing costs: section 168(1) and section 169(1) of the Legal Services Regulation Act 2015 and Order 99 of the Rules of the Superior Courts (RSC 1986), together with the specific rule in O. 90 r.6 RSC 1986 which prescribes a default position of no costs for proceedings under that Order unless a special order is made.
Central to the costs analysis was whether the Appellant was "entirely successful" as that term is used in section 169(1). The court examined the Appellant's success in the context of both the substantive and preliminary issues. It found that although the Appellant succeeded on the substantive conclusion that the Appeals Officer's inferences were unreasonable, the Appellant did not succeed on certain preliminary points (notably its contention about the correct procedural order invoked — O. 84C — and whether the Chief Appeals Officer's step was one of revision rather than refusal to revise). These preliminary matters were characterised as important gateway issues.
The court considered authorities on public interest and "test case" considerations (notably the Supreme Court guidance summarised in Little) and concluded that the appeal did not amount to public interest litigation that would justify an exceptional costs outcome. The court also drew the analogy between statutory appeals under section 327 and other statutory appeal contexts where the rules protect parties from the usual hazard of paying the other side's costs on appeal (illustrated by O. 105 r.7 and O.90 r.6).
Balancing these considerations and exercising the court's discretion under sections 168 and 169 LSRA 2015 and O. 99 RSC 1986, the court concluded that the correct outcome on costs was that there should be no order as to costs in this appeal.
B. Form of Final Orders
Having found that the Appeals Officer's inferences in the revised decision of 12 July 2021 were ones no reasonable decision-maker could draw, and applying the guidance on substitution versus remittal in appellate error cases, the court concluded that substitution was appropriate in this case rather than remittal to the original decision-maker. The court relied on the framework in leading authorities which explain that the appropriate remedial order depends on the nature of the error and whether a court can substitute a decision without unfairness.
The court therefore made (and proposed to make) a series of orders that:
- struck out the Appellant's appeal against the Chief Appeals Officer's decision dated 15 December 2022 refusing to revise the Appeals Officer's decision of 12 July 2021;
- extended time for the Appellant to appeal the Appeals Officer's 12 July 2021 decision;
- pursuant to section 327 of the 2005 Act, set aside the Appeals Officer's 12 July 2021 decision that the individual was an employee of the Appellant for the relevant period;
- declared that the Appellant was not the employer of the individual for the relevant period for social welfare purposes;
- restored the Appeals Officer's earlier decision dated 17 May 2016 that the individual was in insurable employment with the company associated with the individual for the period in question; and
- made no order as to costs in relation to the appeal and the costs application.
The court also ordered that a stay be put on the orders (items i to v) in the event of an appeal to the Court of Appeal, pending the outcome of such appeal (unless the Court of Appeal orders otherwise).
Holding and Implications
Core Ruling: The court allowed the Appellant's challenge to the Appeals Officer's revised decision in part, set aside the 12 July 2021 decision, substituted the outcome described above (including a declaration that the Appellant was not the employer of the individual for the period in question and restoring the earlier decision dated 17 May 2016), and ordered that there should be no order as to costs in respect of the appeal and the costs application. The court also stayed those substantive orders pending any appeal to the Court of Appeal.
Implications:
- Direct effects on the parties: The substituted orders alter the legal position for the Appellant and the individual for the specific period in question and restore the earlier deciding officer's finding regarding the individual's insurability (subject to any further appeal and the stay ordered).
- Costs: Neither party will recover costs from the other in relation to the appeal or the costs application; the court exercised its discretion and made no order as to costs.
- Remittal/Substitution: The court applied settled appellate principles and concluded that substitution rather than remittal was appropriate on the facts; the judgment describes and applies relevant authorities in reaching that conclusion.
- Precedential effect: The judgment applies existing authorities and statutory provisions to the facts of the case. It does not purport to create new law beyond the application of established principles set out in the cited authorities.
If any ancillary or consequential matters arise from this judgment, the parties' solicitors may contact the Court Registrar to arrange a date for those matters to be addressed.
Judge: Judge Bradley
Date: 23 October 2025