High Court refuses to set aside Labour Court leave, finding statutory appeal inadequate and no arguable case.

APPROVED [2025] IEHC 605

THE HIGH COURT

JUDICIAL REVIEW

2025 307 JR

2025 308 JR

BETWEEN

PAUL JAMES ARKINS

FIRST APPLICANT

JASON ARKINS

SECOND APPLICANT

AND

LABOUR COURT

RESPONDENT

METROPOLITAN FILMS INTERNATIONAL LTD

NOTICE PARTY

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 November 2025

INTRODUCTION

1. This judgment is delivered in respect of two applications to set aside the grant of leave in related judicial review proceedings. In each instance, the judicial review proceedings seek to impugn decisions of the Labour Court. In each instance, the set aside application is advanced on the same two grounds. First, NO REDACTION REQUIRED it is said that an adequate alternative remedy is available by way of a statutory right of appeal to the High Court against the impugned decisions on a point of law. Second, it is said that each of the proceedings fails to meet the threshold of an arguable case.

2. The set aside motions are addressed together in this omnibus judgment in circumstances where the individual applicants share the same legal representation, the legal issues arising on each motion are identical, and the motions were heard together.

PROCEDURAL HISTORY

3. The specific subject matter of the two judicial review proceedings arises against a backdrop of an ongoing controversy in relation to employment practices in the film industry. One aspect of this controversy concerns the use of special purpose vehicles to obtain a form of tax relief known as “the film corporation tax credit”. This is provided for under Section 481 of the Taxes Consolidation Act 1997 (as amended). To avail of the tax credit, it is necessary for a producer company to establish a special purpose vehicle (“the qualifying company”). The special purpose vehicle must be wholly owned by the producer company and exist solely for the purpose of the production of only one qualifying film. The use of a separate subsidiary company for each film may have implications for the reckoning of employment law rights in circumstances where a worker is engaged in making a series of films under the auspices of a single producer company. For the purpose of a leave application, there is an arguable case that an overly narrow interpretation of the concepts of “employer” and “employee” may obscure the true nature of the employment relationship by ignoring the pivotal role of the producer company. This may be significant in establishing employment rights which are contingent on an employee having a minimum period of continuous employment or continuous service.

4. The two applicants for judicial review had each submitted complaints to the Workplace Relations Commission. The complaints were made pursuant to the Terms of Employment (Information) Act 1994 and the Protection of Employees (Fixed-Term Work) Act 2003. In each instance, the two applicants had been successful, at first instance, before an adjudication officer. The matters were then appealed to the Labour Court.

5. One of the principal issues which arose for determination by the Labour Court is whether a production worker, who has worked for a series of qualifying companies under the auspices of the same producer company, can be said to have an employment relationship with the producer company.

6. To avoid unnecessary duplication, it is proposed to summarise the next stage of the procedural history by reference primarily to Mr. Jason Arkins’ case. If and insofar as there are any potentially material differences in Mr. Paul Arkins’ case, these will be noted in context.

7. Mr. Jason Arkins contends that he had been employed as a stagehand pursuant to continuous and successive fixed-term contracts issued in the names of various qualifying companies which had all been incorporated by the same producer company, namely, Metropolitan Films International Ltd. Mr. Arkins further contends that he had moved seamlessly from one qualifying company to another for a period of years. It seems that for at least some of this time, Mr. Arkins had been taxed as an employee pursuant to the “pay as you earn” or “PAYE” system rather than as a freelance worker.

8. Mr. Paul Arkins’ position seems to be different in that, for part of the time at least, he may have nominally been treated as a freelance worker and taxed as a self-employed person. Crucially, however, the adjudication officer found that, on a proper analysis, he had been in continuous employment as an employee over a period of some eighteen years, notwithstanding that he had been laid off from time to time between individual films. The Labour Court has not explained whether and why it disagreed with this finding.

9. Each applicant had put forward various arguments as to why the terms “employer” and “employee” should be interpreted such that his employment relationship was with the producer company rather than the individual subsidiary companies. For example, the applicants highlighted that one of the statutory criteria relevant to the certification of a film as a qualifying film is whether the film will act as an effective stimulus to film making in the State through, among other things, the provision of quality employment. It is said that this implies employment which complies in all material aspects with all applicable laws including but not limited to all obligations in the field of employment law.

10. Both applicants also draw attention to the existence of a definition of “film group” under the Film Regulations 2019 (SI No. 119 of 2019). The term is defined as meaning the producer company, the qualifying company and all businesses that are regarded as partner or linked businesses of either company. The applicants also rely, in the context of their claim under the Protection of Employees (Fixed-Term Work) Act 2003, on the definition of an “associated employer”.

11. The decision of the adjudication officer, at first instance, had been in favour of the respective applicant on the employment relationship point. The adjudication officer held that the applicant had been an employee of Metropolitan Films International Ltd.

12. The Labour Court’s decisions on the various appeals are all dated 11 December 2024. The Labour Court held that there was no evidence of the existence of any contract of employment between either of the two applicants and Metropolitan Films International Ltd. Worryingly, the Labour Court’s decision in respect of Mr. Jason Arkins’ complaint under the Terms of Employment (Information) Act 1994 appears to consist largely of a “cut and paste” from the decision in respect of the complaint under the Protection of Employees (Fixed-Term Work) Act 2003. Indeed, the wrong legislation is quoted.

13. Each applicant filed judicial review proceedings on 7 March 2025. The High Court (Bolger J.) granted leave to apply for judicial review on 28 April 2025. Thereafter, the notice party sought and obtained permission to file a motion seeking to set aside the grant of leave in each case. The respective motions were duly filed on 15 September 2025. The Labour Court confirmed, through the Office of the Chief State Solicitor, that it did not intend to participate in the motions. The motions were heard together on 13 October 2025 and judgment reserved to today’s date.

JURISDICTION TO SET ASIDE THE GRANT OF LEAVE

14. It is well established that the High Court has an inherent power to set aside any order which has been obtained on an ex parte basis. This principle has recently been reaffirmed by the Supreme Court in M.D. v. Board of Management of a Secondary School [2024] IESC 11. Collins J. summarised the position as follows: where an order is made ex parte that immediately and materially affects another party, the affected party is entitled to apply to have the order set aside. Whether the party seeking to set aside bears the onus will depend on the nature and effect of the ex parte order. In the case of an interim injunction, for example, the party that obtained the ex parte order must satisfy the court that the order should continue in force by showing that, if the court was being asked to make that order for the first time, it would be appropriate to do so.

15. Save in certain contexts, an application for leave to apply for judicial review is generally heard ex parte. In principle, therefore, it is open to a respondent or notice party, having been served with papers, to file a motion seeking to set aside leave if they consider that it has been granted improperly. Where a party seeks to set aside leave, they bear the onus of showing that leave should not have been granted. See, generally, Adam v. Minister for Justice [2001] IESC 38, [2001] 3 IR 53 and Gordon v. Director of Public Prosecutions [2002] IESC 47, [2002] 2 IR 369.

16. The case law indicates that the set aside jurisdiction should be exercised sparingly. There is both a principled and pragmatic reason for this.

17. As to principle, the threshold governing an application for leave to apply for judicial review is a modest one, either an arguable case (conventional judicial review) or substantial grounds (statutory judicial review). The fact that leave has been granted merely signifies that this threshold has been met. The assessment of the leave threshold is somewhat subjective in a marginal case: the leave judge is not making a final determination of a legal issue but taking a preliminary view of the merits. Accordingly, it will often be difficult for a respondent to demonstrate that the leave judge erred in law in deciding that the threshold had been met.

18. As to pragmatism, the pursuit of an application to set aside leave would, if commonly adopted, result in systemic delay. It would eventuate in there being, in effect, three hearings in relation to any judicial review proceedings: the ex parte leave application, the contested set aside application, and the substantive hearing. It is usually more expeditious to cut to the chase and to have the proceedings determined on their merits, at the substantive hearing, rather than to reagitate the question of whether the leave threshold has been met at an interlocutory hearing.

19. It follows, therefore, that parties will not ordinarily bring an application to set aside merely because it is said that the leave threshold of an arguable case or substantial grounds, respectively, has not been met. Different considerations may apply where it is said that the judicial review proceedings are misconceived and/or irregular. See, for example, Telstar Investments Ltd v. Dublin City Council [2025] IEHC 386.

DISCUSSION AND DECISION

Is there an adequate alternative remedy?

20. The first ground upon which it is sought to set aside the grant of leave is that there is an adequate alternative remedy available. More specifically, it is submitted that the express statutory right of appeal against a decision of the Labour Court to the High Court on a point of law (which is provided under Section 46 of the Workplace Relations Act 2015) represents an adequate alternative remedy to judicial review.

21. Counsel on behalf of the notice party cites the following passage from Arkins v. Labour Court [2025] IEHC 416 (at paragraphs 16 to 17):

“[…] 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).

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.”

22. The default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings. There will, however, be exceptions where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review. The present proceedings fall within this category of cases. This is because the statement of reasons provided by the Labour Court for each of its decisions is inadequate. It will be recalled that the principal issue to be addressed on the appeals to the Labour Court had been whether the respective applicant, who had worked for a series of qualifying companies all of which were under the auspices of the same producer company, could be said to have an employment relationship with the producer company. The adjudication officer’s decisions at first instance had been that an employment relationship did exist. In brief, the adjudication officer had accepted the applicants’ argument that the concepts of “employee” and “employer” had to be given an interpretation which was consistent with the overall statutory context and, in particular, the statutory requirement that the provision of tax credits stimulate “quality employment” in the film industry.

23. Regrettably, the Labour Court did not engage, in any meaningful way, with these issues. The Labour Court baldly stated that each of the applicants had been employed by a named qualifying company. With respect, this should have been the start of the legal analysis, not the terminus. The Labour Court had been required to consider whether the interrelationship between the producer company and the individual qualifying companies informed the true nature of the employment relationship. A full consideration would have necessitated addressing the arguments as to the proper interpretation to be given to the concepts of “employee” and “employer” having regard to the overall statutory context.

24. The signal failure on the part of the Labour Court to explain the rationale for its decisions, and as to why it had rejected the applicants’ arguments on statutory interpretation, has the practical effect of undermining the effectiveness of the statutory right of appeal to the High Court on a point of law. It is a condition precedent to the High Court being enabled to exercise its appellate jurisdiction that the reasons and rationale for the decision under appeal be disclosed. As explained by the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752, [2018] 2 ILRM 453, one function of the obligation to give reasons is to allow the courts to exercise their supervisory jurisdiction. See paragraph 46 of the reported judgment as follows:

“Therefore, it seems to me that it is possible to identify two

separate but closely related requirements regarding the

adequacy of any reasons given by a decision maker. First,

any person affected by a decision is at least entitled to know

in general terms why the decision was made. This

requirement derives from the obligation to be fair to

individuals affected by binding decisions and also

contributes to transparency. Second, a person is entitled to

have enough information to consider whether they can or

should seek to avail of any appeal or to bring judicial review

of a decision. Closely related to this latter requirement, it

also appears from the case law that the reasons provided must

be such as to allow a court hearing an appeal from or

reviewing a decision to actually engage properly in such an

appeal or review.”

25. It is essential to the effective exercise by the High Court of its appellate jurisdiction that the rationale of the Labour Court be disclosed. Were it otherwise, substantive errors of law would go uncorrected. The Labour Court, by delivering an inscrutable decision, would be able to shield its decision from appeal.

26. Having regard to the paucity of reasoning on the part of the Labour Court, the statutory appeal under Section 46 of the Workplace Relations Act 2015 is not an adequate alternative remedy in the present case.

Has threshold of an arguable case been met?

27. The second ground upon which it is sought to set aside the grant of leave entails a submission that the judicial review proceedings fail to meet the low threshold of an arguable case. It is said that the central issue in contention before the Labour Court had been a factual issue, namely whether the applicants had been employed by Metropolitan Films International Ltd. It is submitted, by reference to Arkins v. Labour Court [2025] IEHC 416 (“Arkins No. 1”), that the Labour Court is much better placed than the court of judicial review to determine such a factual issue. It is further submitted that 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.

28. It is said, therefore, that the threshold of an arguable case has not been satisfied. With respect, this submission cannot be accepted. First, the proper resolution of the appeals before the Labour Court required it to address a question of law, namely, the proper interpretation to be given to the concepts of “employee” and “employer” under the two relevant Acts having regard to the overall statutory context. As discussed under the previous heading, the Labour Court failed to engage meaningfully with these issues. Second, whereas the Labour Court will generally be afforded a significant margin of appreciation in relation to findings of fact, this is contingent on the Labour Court having explained in its decision the basis for its findings of fact. The Labour Court cannot insulate its decision from review by failing to disclose reasons. The “reasonableness” test obliges the court to consider, to a very limited extent, the rationale or justification for the impugned decision. The courts will, of course, show significant deference to the

decision-maker’s expertise in the exercise of a discretion which has been entrusted to them under legislation. The concept of curial deference is dependent on the Labour Court having provided a properly reasoned decision and does not afford a mechanism for compensating where the decision is not so reasoned (see, by analogy, Stanberry Investments Ltd v. Commissioner of Valuation [2020] IECA 33).

29. In the premises, there is an arguable case for saying that the Labour Court’s decisions are vitiated because of a failure to state adequate reasons, a failure to have regard to relevant considerations, and an error of law in the interpretation of the statutory concepts of “employee” and “employer” under the Terms of Employment (Information) Act 1994 and the Protection of Employees (Fixed- Term Work) Act 2003, when interpreted within their overall legislative context.

30. The circumstances of the present cases are distinguishable from those of Arkins No. 1. It appears from the decisions of the Labour Court in that case that the dispute was essentially factual in nature, and the issues which came to the fore in the present proceedings, namely, the proper interpretation of the terms “employee” and “employer” by reference to the overall statutory context, had not been advanced to the same extent or at all. Thus the arguments advanced to the Labour Court in Arkins No. 1 lacked an intermediate step in the logic which underlies the grounds in the present proceedings. Moreover, the two statements of grounds are more comprehensive than, and raise more issues than, the statement of grounds in Arkins No. 1.

CONCLUSION AND PROPOSED FORM OF ORDER

31. There is no proper basis for setting aside the grant of leave to apply for judicial review in either proceedings. Each applicant has an arguable case for contending that the Labour Court erred in law in its determination of his employment status. The statutory right of appeal to the High Court does not represent an adequate alternative remedy. The signal failure on the part of the Labour Court to explain the rationale for its decisions, and as to why it had rejected the applicants’ arguments on statutory interpretation, has the practical effect of undermining the effectiveness of the statutory right of appeal to the High Court on a point of law.

32. Accordingly, the relief sought in the notice party’s motions, which were filed in the respective proceedings on 15 September 2025, is refused.

33. The default position is that costs follow the event, i.e. the successful party will normally be entitled to recover its costs as against the unsuccessful party. Insofar as the costs of substantive proceedings are concerned, this general principle is stated at Section 169 of the Legal Services Regulation Act 2015. The position in relation to a pre-trial or interlocutory motion, such as that the subject matter of this judgment, is governed by Order 99, rule 3 RSC which provides, in relevant part, that the High Court, in considering the awarding of the costs of any step in any proceedings, shall have regard to the matters set out in Section 169(1) of the above Act where applicable. Order 99, rule 3 further provides that the High Court is obliged, upon determining any interlocutory application, to make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application. The type of circumstances in which it might not be possible to adjudicate on the incidence of costs are discussed in ACC Bank plc v. Hanrahan [2014] IESC 40, [2014] 1 IR 1 (at paragraphs 8 to 11 of the reported judgment). Where, as in the present case, the specific issue arising on the pre-trial motion, namely whether leave should be set aside, is self-contained and will not have to be revisited at the trial of the action, it is appropriate for the motion judge to determine the incidence of costs.

34. My provisional view is that each of the applicants is entitled to recover his legal costs of the motion against the notice party, such costs to be adjudicated in default of agreement under Part 10 of the LSRA 2015.

35. If the notice party wishes to contend for a different form of costs order, then it should file and serve written legal submissions within 14 days of this judgment. The applicants will then have 14 days thereafter to file and serve replying submissions.

36. If the notice party does not file written legal submissions by 24 November 2025, an order will be drawn up along the lines provisionally proposed.

Appearances

Roddy McConnell for the applicants instructed by Yeats Vaid & Company Solicitors Des Ryan for the notice party instructed by Phillip Lee LLP The respondent did not participate in the hearing of the motion