High Court refuses leave for judicial review due to adequate statutory appeal and lack of arguability.

APPROVED [2025] IEHC 416

THE HIGH COURT

JUDICIAL REVIEW

2024 976 JR

BETWEEN:

THOMAS JOHN ARKINS

APPLICANT

AND

LABOUR COURT

RESPONDENT

BY ORDER

ELEMENT PICTURES LIMITED

NOTICE PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 23 July 2025

INTRODUCTION

1. The within proceedings are judicial review proceedings. The application for leave to apply for judicial review was heard inter partes on 5 June 2025. Leave was refused for the reasons outlined in an ex tempore judgment delivered that day.

NO REDACTION REQUIRED

2. The Applicant, Mr. Arkins, articulated his disappointment with the decision to refuse leave. In particular, Mr. Arkins voiced the concern that the judgment meant that no production worker in the film industry has any employment law rights. Having regard to his expressed concern, and to the fact that he is a litigant in person without the benefit of legal representation, this written judgment has since been prepared setting out in more detail the reasons for the refusal of leave to apply for judicial review. It appears that Mr. Arkins may not have fully appreciated that these proceedings have been determined on very narrow grounds nor that the refusal of leave entails no adjudication upon any substantive employment law issues.

3. The drawing up of the formal order refusing leave has been deferred to ensure that Mr. Arkins is afforded a twenty-eight day period, following the receipt of this judgment, to consider whether he wishes to pursue an appeal to the Court of Appeal or an application for leave to appeal to the Supreme Court.

BROADER CONTEXT

4. The specific subject-matter of these judicial review proceedings arises against a backdrop of an ongoing controversy in relation to employment practices in the film industry. Mr. Arkins has expressed a longstanding concern as to the manner in which production workers—to use a neutral term—are treated in the film industry. Two principal points are made as follows. First, it is said that production workers have wrongfully been characterised as independent selfemployed contractors rather than employees. Second, it is said that the use of individual companies for each film project obscures the identity of the actual employer. Mr. Arkins also suggests that certain rules in relation to State funding are being relied upon to the detriment of production workers.

5. Mr. Arkins raised these issues before a hearing of an Oireachtas Committee, the Joint Committee on Culture, Heritage and the Gaeltacht, on 13 February 2018. One of the issues discussed at the committee hearing had been what was described as “bogus self-employment”, i.e. workers being treated as selfemployed contractors in circumstances where their terms and conditions would, in truth, meet the indicia of a contract of employment.

6. As an aside, it should be noted that the distinction between those working relationships governed by contracts of employment, and those in which the worker is providing their services as an independent contractor, has since been clarified by the Supreme Court in Revenue Commissioners v. Karshan (Midlands) Ltd [2023] IESC 24, [2023] 2 ILRM 309.

7. As explained at paragraph 24 below, the scope of the legal proceedings before the High Court is narrow. It does not encompass any of the issues of principle described above.

PROCEDURAL HISTORY

8. On 3 April 2019, Mr. Arkins made two related complaints to the Workplace Relations Commission (“WRC”) arising out of his alleged employment by Element Pictures Ltd (“EPL”). The first complaint consisted of a claim for unfair dismissal; the second complaint consisted of a claim for breach of minimum notice requirements. The WRC delivered a decision in EPL’s favour on 28 May 2020 dismissing both of Mr. Arkins’ complaints.

9. The matter was then appealed by Mr. Arkins and ultimately came before the Labour Court. The Labour Court held an oral hearing on 8 June 2021 and delivered a written determination on 25 June 2021 dismissing both complaints.

10. On 27 July 2021, Mr. Arkins initiated an earlier set of judicial review proceedings in respect of the Labour Court’s determination. Leave to apply for judicial review was granted, following a contested leave hearing, on

12 December 2022. Thereafter, on 21 March 2023, the High Court granted an order of certiorari quashing the Labour Court’s determination and remitted the matter to the Labour Court for reconsideration.

11. A second hearing took place before the Labour Court on 4 April 2024. Element Pictures Ltd opposed the complaints by asserting, inter alia, that Mr. Arkins had never been employed by the company. The Labour Court delivered two decisions on 1 May 2024: one relating to the unfair dismissals claim, and a second in relation to the minimum notice claim. In each instance, the Labour Court dismissed the claim.

12. The key findings of fact are summarised as follows in the unfair dismissal

decision:

“Discussion

The Court afforded the Complainant’s representative time to

take instruction as to whether Element Film Limited* was

the company that he was taking his complaint against. After

a break to take instructions Ms Murray representative for the

Complainant confirmed to the Court that it was their position

that Element Film Ltd was his employer when he had worked

on Ripper Street IV and when he was laid off in 2016.

Mr Mc Dowell BL on behalf of the Respondent stated

categorically that the Complainant had never worked for the

Respondent, was never paid by the Respondent and that the

Respondent was not the Producer Company for Ripper

Street IV. The documents opened to the Court from the CRO

support that position. It was not disputed between the parties

that Kilternan Films Production Ltd was the DAC for Ripper

Street IV. The CRO documents shows that the Producer

company was Element Pictures Productions Limited which

is not the Respondent. The CRO documents in respect of

Element Pictures Productions Limited and Element Film

Limited show they are two separate legal entities albeit with

some crossover in terms of Directors.

Determination

The Complainant has failed to establish that he was at any

time employed by the Respondent in any capacity and

therefore his complaint must fail.

The Complainant’s complaint is not well founded. The

appeal is rejected. The decision of the Adjudication Officer is affirmed.”

* It appears that the references to Element Film Ltd were

intended to refer to the respondent, i.e. Element Pictures Ltd

13. A finding in similar terms was made in respect of the appeal in relation to the minimum notice period:

“The Complainant alleges he was dismissed by the

Respondent without notice when he was not offered a job on

the 1st April 2019. The fact of dismissal is in dispute, so it is for the Complainant in the first instance to establish that a dismissal took place. The Respondent denies the Complainant ever worked for them. This case is linked to UD/23/102. A question arose as to the name of the company that the complaint was against. After taking instruction the Complainants representative confirmed to the Court that the complaint was against Element Pictures Limited. The Court engaged with the parties around the possibility of addressing whether or not Respondent in this case was the correct Respondent as a preliminary issue. However, the representative for the Complainant informed the Court that her client wished to give evidence to the Court and for the full case to be heard. The Court proceeded to hear the full case including all witness evidence.

As the Court has determined in linked case UD/23/102 that

the Complainant was not employed by the Respondent this

complaint must fail.”

14. Crucially, both of the appeals had been dismissed by the Labour Court on the narrowest of grounds, namely that Mr. Arkins had failed to establish that he had at any time been employed by Element Pictures Ltd, i.e. in the sense of having been engaged by the company to do any work whether as an employee or selfemployed contractor. This is a finding of fact. Having determined the appeals on this narrow ground, the Labour Court did not embark upon a consideration of any of the substantive issues. The Labour Court made no wider findings as to the indicia of a contract of employment (as opposed to a contract for services) nor in relation to the use of separate companies for individual film projects.

15. Mr. Arkins then instituted the instant judicial review proceedings on 30 July 2024. The principal relief sought in the statement of grounds is an order of certiorari seeking to quash the decisions of the Labour Court. The leave application initially came before me on 11 November 2024. I directed that Element Pictures Ltd be joined as a notice party. Having regard to the existence of a statutory right of appeal to the High Court, I directed that the leave application be made on notice to the respondent and the notice party. The inter partes leave application came on for hearing on 5 June 2025. Leave was refused for the reasons outlined in an ex tempore judgment delivered that day.

GROUNDS UPON WHICH JUDICIAL REVIEW LEAVE REFUSED

Adequate alternative remedy

16. The principal ground upon which leave to apply for judicial review was refused is that there is an adequate alternative remedy available. More specifically, there is an express statutory right of appeal against a decision of the Labour Court to the High Court on a point of law. In the case of a claim for unfair dismissal, an appeal is provided for under section 10A of the Unfair Dismissals Act 1977 (as amended). In the case of a claim for breach of minimum terms of notice, an appeal is provided for under section 46 of the Workplace Relations Act 2015. Absent some unusual limitation arising from the terms of the statute conferring the right of appeal, the presumption is that an appeal of this kind is intended to both supplant and enlarge the remedies provided for by way of an application for judicial review: Chubb European Group SE v. Health Insurance Authority [2020] IECA 91, [2022] 2 IR 686 (at paragraph 138).

17. It is a general principle of administrative law that judicial review should ordinarily only be availed of where there is no adequate alternative remedy available. A clear statement of this principle is to be found in EMI Records (Ireland) Ltd v. Data Protection Commissioner [2013] IESC 34, [2014] 1 ILRM 225. This principle has been applied in the specific context of employment law in Erdogan v. Workplace Relations Commission [2021] IEHC 348. In Burke v. An Adjudication Officer [2021] IEHC 667, the High Court again emphasised the importance of exhausting statutory appeals prior to initiating judicial review.

18. There is nothing in the circumstances of the present case which would justify going by way of judicial review rather than by way of statutory appeal. The grounds of challenge pleaded in the statement of grounds are all ones which could have been raised in a statutory appeal on a point of law.

No arguable grounds

19. The leave application fails to meet the low threshold of an arguable case. The central issue in contention before the Labour Court had been a factual issue, namely whether Mr. Arkins had ever been engaged by or paid by Element Pictures Ltd. The Labour Court is much better placed than the court of judicial review to determine such a factual issue. The Labour Court had the benefit of observing the witnesses giving their oral testimony and answering questions in cross-examination. Mr. Arkins had a full opportunity to present his case before the Labour Court and it found against him on the facts. The Labour Court concluded that Mr. Arkins had not established that he had been employed, at any time, by the [notice party] in any capacity and therefore decided his complaint must fail.

20. The correct identification of the employer is a jurisdictional fact. The onus of proof lies with the claimant. The statutory presumption that a dismissal has been unfair only arises where it has been established that an employment relationship existed.

21. The only basis upon which the High Court, in the exercise of its supervisory judicial review jurisdiction, could ever intervene to set aside a primary finding of fact is if it is unreasonable or irrational. The standard for irrationality is extremely high. It has to be shown that there was no evidence before the

decision-maker capable of supporting the decision. This is the standard posited in the judgments of the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 and Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701.

22. The leave application in this case comes nowhere close to reaching the standard for intervention. The oral and documentary evidence before the Labour Court was sufficient to allow it to reach a reasonable/rational finding that Mr. Arkins had no financial relationship with Element Pictures Ltd and had not been engaged, in any capacity, to carry out work on behalf of the company.

23. The Labour Court dismissed the case on the threshold issue that the wrong party had been sued and there is nothing in the evidence or material before the High Court that would justify it exercising its exceptional jurisdiction to set aside the primary findings of fact.

24. As discussed earlier, Mr. Arkins makes a wider complaint in relation to employment practices in the film industry, but these are not matters for resolution in these judicial review proceedings. These judicial review proceedings seek to set aside the Labour Court’s rejection of Mr. Arkins’ claim for unfair dismissal. A key element of any claim for unfair dismissal is the correct identification of the party who the claimant says he had been employed by. Here, the Labour Court held that Mr. Arkins had failed to establish that he had ever been engaged by Element Pictures Ltd. The finding was directed to the narrow factual question of whether there had been any work-type relationship between Mr. Arkins and the company. Crucially, the Labour Court did not decide the case on the basis that there had been a work-type relationship, only to go on then to reject the claim on the grounds that the relationship did not constitute a contract of employment. Rather, having decided that there was no work-type relationship, it was unnecessary for the Labour Court to make any finding as to the indicia of an employment contract in the film industry. The High Court, in exercising its supervisory judicial review jurisdiction, cannot embark upon a consideration of issues which were not determined by the Labour Court.

25. The same logic applies equally to the claim in respect of minimum notice.

26. The second ground of judicial review is in relation to the reasons for the Labour Court’s two determinations. I am satisfied that the statement of reasons is entirely adequate in each instance. The determinations meet the test as set out in Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752. The Labour Court’s determinations each recite and deal with the evidence and clearly explain why the particular decision has been reached. The determinations also record that the claimant had been given an opportunity to consider whether he wanted to change the respondent that he was suing.

27. It is apparent why the Labour Court reached its two decisions: the proof of that is that Mr. Arkins has been able to formulate detailed grounds of challenge going to the merits of the two decisions. Therefore, the leave application does not meet the threshold of arguability in relation to the reasons ground.

CONCLUSION AND FORM OF ORDER

28. Leave to apply for judicial review has been refused for two reasons. First, there was an adequate alternative remedy available by way of a statutory appeal on a point of law to the High Court. (Paragraphs 16 to 18 above). Second, the grounds pleaded do not meet the low threshold of an arguable case. (Paragraphs 19 to 27 above).

29. As to legal costs, the default position is that costs follow the event, i.e. the successful party is normally entitled to recover their costs as against the unsuccessful party (LSRA 2015, s. 169). However, the circumstances of the present case are unusual and justify the making of a different order. To elaborate: an application for leave to apply for judicial review is ordinarily heard ex parte. In this case, however, this court had directed, on 11 November 2024, that the leave application be heard on notice. Had the leave application been dismissed on an ex parte basis, then the Applicant would not have been liable for costs because the other side would not have been represented at the hearing, and, accordingly, could not have incurred any recoverable costs. It would not be fair to visit upon the Applicant the consequences of the procedural decision to direct an inter partes hearing. Accordingly, there will be no order as to costs, i.e. each side is to bear its own costs.

30. As explained earlier, the drawing up of the formal order refusing leave to apply for judicial review has been deliberately deferred until after delivery of this written judgment. This is to ensure that Mr. Arkins has the benefit of written reasons before deciding whether to pursue an appeal. The prescribed twentyeight day period, within which an appeal to the Court of Appeal or an application for leave to appeal to the Supreme Court must be filed, will only begin to run post-judgment.

Appearances

The applicant appeared as a litigant in person

Hugh McDowell for the notice party instructed by Phillip Lee LLP