Supreme Court dismisses costs claim in unfair dismissal appeal where respondent was found unfairly dismissed.

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.