[2024]_IESC_49_ — [2024]_IESC_49_ — Ireland courts

AN CHÚIRT UACHTARACH THE SUPREME COURT

S:AP:IE: 2023:000111

O’Donnell C.J. O’Malley J. Hogan J. Murray J. Collins J.

Between/

AN BORD BANISTÍOCHTA, GAELSCOIL MOSHÍOLÓG

Appellant

-and-

THE LABOUR COURT

Respondent

-and-

AODHAGÁN Ó SÚIRD AND THE MINISTER FOR EDUCATION

Notice Parties Ruling on Costs of the Court delivered by Mr. Justice O’Donnell, Chief

Justice, on the 7th day of November 2024.

1. These proceedings have been long and contentious. This Court’s judgment was

delivered on 31 July 2024. The parties were given the opportunity of seeking to

resolve the issue of costs of this appeal, and in the event that no agreement was

forthcoming, to make written submissions on the issue, indicating whether they

also wished to have an oral hearing or not.

2. Perhaps unsurprisingly in the light of the dispute the parties have not been able

to agree on the question of costs, or indeed agree on the outcome of the appeal.

The appellant seeks eighty per cent of its costs of the Supreme Court including

the costs of an initial application in which the respondent sought to contend that

the appellant was not authorised to bring the appeal, and the respondent for his

part seeks fifty per cent of the costs of the appeal on the basis that he contends

that he was largely successful. Both parties agree that an oral hearing in relation

to costs is not necessary.

3. The issue of costs of the Supreme Court appeal comes to be decided against a

particularly complex background of fact in relation to the underlying dispute,

but also some complexity in respect of costs. The parties incurred costs in

relation to the initial disciplinary hearing and the proceedings before the WRC,

which were protracted. None of these costs are recoverable. Under the rules

applicable to an appeal on a point of law from the WRC, costs are not

recoverable without special order of the High Court. It was agreed that the High Court could make such an order, but the High Court also ordered the costs to be

recovered by the respondent, to be costs on a lawyer and own client basis. That

latter order was set aside by this Court on appeal, and the parties do not seek to

contest the entitlement of the respondent Mr Ó Súird, to his costs of the High

Court hearing. Accordingly, the only issue to be determined are the costs of the

Supreme Court appeal.

4. The dispute in this case was lengthy and detailed, but there were a number of

separate components to the Supreme Court appeal in respect of which the parties

make rival contentions. A first and overarching issue was the nature of an appeal

to the High Court on a point of law; a further question was raised by the

appellant in respect of the test to be applied on a claim for unfair dismissals; a

further issue was argued in respect of the remedy of reengagement and

reinstatement, and a related question of the correct date from which any order

of reengagement should date. Finally, there were questions of the practice in

respect of a stay or partial stay pending an application for leave to appeal to this

Court and if granted appeal, and the question of the appropriateness of the costs

order made in the High Court. In addition, as already mentioned, there was a

preliminary dispute about the capacity of the appellant board to initiate and

maintain this appeal. That matter was addressed at case management, and in the

event no formal application was proceeded with by the respondent.

5. In summary, the Court’s conclusions on these issues were, that the appeal on a

point law did not involve the reconsideration by the High Court of the evidence

or the substitution by the High Court of its views for that of the Labour Court; that the test for unfair dismissal was whether, in the circumstances, the dismissal

was within the range of responses open to a reasonable employer, being the test

applied by the Labour Court in this case; that reengagement or reinstatement

required an assessment of the practicality of any such remedy, which had not

occurred in this case, but the order was not set aside on the basis that time had

moved on and that little purpose would be served by directing a further hearing

on that issue; that a stay or partial stay ought to have been granted pending an

appeal, and that costs should not have been awarded on a lawyer and own client

basis. It is fair to say that the latter two issues did not occupy much of the time

involved in resolving the appeal.

6. While it is possible to look at these issues individually, and both parties make

submissions on that basis, it is also necessary to form some overall view of the

appeal and the Court’s judgment. First, the appellant was entitled to appeal and

has succeeded at least in part – and a significant part – in altering the outcome

of the High Court both in terms of the order made, and the overall assessment

of the case. While the respondent argued that he had only sought in the High

Court to maintain the order of the Labour Court, and therefore the significant

reversal of the High Court judgment should not be taken into account in relation

to costs, the fact is that the respondent stood over the High Court judgment in

full on this appeal, and made no concession in relation to it, and seemingly did

not make any offer of compromise pending appeal by way of Calderbank offer

or similar procedure. Taking a broad view of the judgment, the Court does not

consider that there is any basis upon which it can be plausibly said that the

respondent was the successful party in the appeal, and accordingly, there is no basis for awarding to the respondent any portion of its costs of the appeal, in

particular when he has already had the benefit of a full order of costs in the

High Court, even though the outcome of the Supreme Court hearing was to vary

significantly both the order of the High Court and its overall assessment of the

case.

7. The appellant can claim to have been successful in the appeal at least in part.

However, the appellant was very far from being fully successful. In particular,

the argument in relation to the test for unfair dismissal was rejected. An

important consequence of this is that the finding of unfair dismissal was upheld,

and in this Court’s view, the proceedings, and the question of costs, must be

assessed against that backdrop.

8. Furthermore, the Court does not consider it appropriate to separate out the initial

argument in relation to capacity to appeal which did not proceed after a case

management hearing. The respondent should not be penalised for deciding not

to press that issue, and the costs of case management should be treated as costs

of the appeal. Finally, in this regard the Court must have regard to the length of

the proceedings, and the inability of the parties to recoup costs until the High

Court hearing, with the result that the costs order made will represent only a

fraction of the total costs incurred by both sides. The Court must also have

regard to the fact that the respondent is an individual bearing his own costs, who

was found to be unfairly dismissed from his job and who already, as a result of

the order and decision of this Court, will be required to make repayment of a

sum paid to him under the High Court order. 9. The outcome of the case and the merits of this bitter dispute are not clear-cut

and in those circumstances the Court can have regard to the counsel of prudence,

that, if possible, it is desirable not to add further cause for contention to an

already bitter dispute between parties, who must still work together.

10. Accordingly, in all the circumstances of the case, which are particular to it to a

very significant extent, the Court considers that the appropriate order is to make

no order of the costs of the appeal.

Note

11. Both parties have sought to address matters mentioned in the judgment and

clarified them in the light of either further facts or matters which were not

addressed in the submissions or at the hearing. The respondent points out that

the salary found to be overpaid as a result of the Supreme Court was paid by the

Department of Education, and therefore any consequential repayment of salary

would be due to that body. On the other hand, the appellant has informed the

Court that the principal appointed in 2016 did not leave the school entirely, but

rather was given a leave of absence or seconded to another school and has a

right of return in due course. That matter was not the subject of any debate

during the appeal, and the Court merely records the information provided by the

appellant without making any adjudication on it lest the reference in the

judgment of this Court be treated as an accepted or decided fact.