Supreme Court awards costs to appellant despite new rule, as he prevailed on a significant preliminary issue.

AN CHÚIRT UACHTARACH THE SUPREME COURT S:AP:IE:2021:000027

O’Donnell C.J. Charleton J. O’Malley J. Woulfe J. Hogan J.

Between/ TIBOR BARANYA Appellant AND

ROSDERRA IRISH MEATS GROUP LIMITED Respondent

RULING of the Court on costs delivered on the 3rd February 2022

1. In its judgment in the substantive appeal delivered on 1st December 2021 this Court allowed an appeal from the High Court: see Baranya v. Rosderra Irish Meats Group Ltd.[2021] IESC 77. The High Court had affirmed on appeal an earlier decision of the Labour Court.

This Court took the view that the oral statement made by Mr. Baranya to his employer on 15th September 2015 was capable of being regarded as a protected disclosure for the purposes of s. 5 of the Protected Disclosure Act 2014. The Court directed that the matter be remitted to the Labour Court for a fresh adjudication on its merits.

2. In the wake of the delivery of that judgment the parties have agreed upon an order which formally allows the appeal and directing the matter be remitted to a different panel of the Labour Court. The only matter which remains outstanding is the issue of costs in respect of which the parties have made concise and helpful brief written submissions.

3. In the High Court O’Regan J made no order as to costs when finding against Mr. Baranya.

Even though the question of whether Mr. Baranya will ultimately prevail on the merits before the Labour Court when the matter returns to that Court remains an open one, he has nonetheless prevailed in this Court on the preliminary issue. In the ordinary way, therefore, the respondent should bear the taxed costs in both the High Court and this Court.

4. There is, however, a complication. A new version of Ord. 105, r. 7 RSC provides that in respect of appeals on a point of law from the Labour Court (which this case was) no costs “shall be allowed” unless the Court “by special order allow such costs.” That Order took effect on 7 August 2020: see Rules of the Superior Courts (Orders 105 and 106) 2020 (SI No. 257 of 2020). (It replaced a similar provision in the old Ord. 105, r. 6 which applied to appeals from the former Employment Appeals Tribunal.) The High Court proceedings were heard and determined in January and February 2020, albeit that the High Court order dismissing the appeal on a point of law from the Labour Court was not perfected until March 2021.

5. The respondent, Rosderra, relies, inter alia, on the provisions of the new Ord. 105, r.7 to argue that there should be no order as to costs. In response, however, Mr. Baranya argues, first, that the terms of this special Rule of the Court cannot prevail in view of the general power to award costs contained in ss. 168 and 169 of the Legal Services Regulation Act 2015 (“the 2015 Act”), so that the general words of the statute must be taken to prevail as against the special words of the statutory instrument (i.e., in this instance Ord. 105, r. 7).

Second, in any event, Mr. Baranya maintains that the new rule does not apply, ratione temporis, to these proceedings which pre-dated the 2020 Order.

6. The Court considers that the latter two issues raise questions of some importance, the resolution of which would itself require yet further argument and a reserved judgment. (The issue of the relationship between ss. 168 and 169 of the 2015 Act and the new version of Ord. 105, r.7 has already been the subject of several judgments in the High Court and Court of Appeal). In the interests of expedition and with a view to minimizing the potential expense to the parties the Court is of the view that, even assuming that the proceedings were in fact governed by Ord. 105, r. 7 (as Rosderra argue), this Court should nonetheless make a “special order” for costs in favour of Mr. Baranya in respect of both the High Court hearing and the Supreme Court appeal in the manner permitted by that rule.

7. We take this view because in these proceedings Mr. Baranya raised an issue of some importance which has been resolved in his favour. There will, accordingly, be an order for

the costs of Mr. Baranya in the High Court and in this Court, such costs to be taxed in default of agreement.