The Supreme Court hasprovided clarity as to whether tribunals involved inadministrative decision-making, such as the Employment Appeals Tribunal (EAT),are entitled to immunity for costs for legal challenges made against theirdecisions.
Background
In Paul Burke v Stephen Miley,Stephen Miley and Devil’s Glen Equestrian Centre Ltd., and Devil’s GlenPartnership UD 926/2007, an employee (Mr. Burke) brought a claimagainst a number of respondents following the termination of his employment.The EAT held in favour of Mr. Burke determining that he had been unfairlydismissed and he was awarded compensation. However, the EAT did not make adetermination as to who was Mr. Burke’s employer.
The High Courtdecision
The respondents in the EAT caseapplied to the High Court for judicial review of the EAT’s decision. The HighCourt quashed the EAT’s determination and awarded the respondents the costs ofthe judicial review proceedings. The matter was then remitted back to the EATfor a new hearing. The EAT appealed the decision of the High Courtto the Supreme Court on the basis that costs should not be awarded against itwithout evidence of mala fides or impropriety on itspart.
The Supreme Courtdecision
The Supreme Court considered whethercosts immunity extended to administrative decision-making tribunals anddetermined that the EAT had a function of decision-making in situations ofconflict.
The Court applied the principles thatwere laid down in the case of McIlwraith v His Honour Judge Fawsitt,which set out the position that judicial bodies are immune from costs orders injudicial review proceedings, unless it can be shown that mala fides orimpropriety had occurred on the judge’s part.
It also considered the fact that theEAT did not file opposition papers to the application for judicial review, nordid it participate in the High Court proceedings until the application forcosts was made against it and was therefore not a “legitimuscontradictor“. The Court accepted that the relevantEAT hearing was unsatisfactory and not conducted to the standard that is expectedof such a body. However, it ruled that the conduct did not give rise to”wholly unfit proceedings” which could constitute mala fides orimpropriety in the legal sense.
The respondents contended that wherejudicial review was not opposed by any of the notice parties and where theywere successful in their application, but unsuccessful in an award of costs,they were therefore denied a tangible remedy and fair trial, which was contraryto Article 6 of the European Convention on Human Rights. The Court, however,held that the right to recovery of costs was not an essential feature of theConvention and this would only be breached in exceptionalcircumstances.
Consequently, the Supreme Court heldthat as a matter of public policy, the EAT should have immunity from costorders except in cases where there was clear evidence of mala fides orimpropriety.
Lessons
Following this case, the uncertaintyaround the issue of costs in judicial review proceedings has been clarified.Decision-making tribunals have clear guidelines on their position of immunityand the standard of proof of mala fides or impropriety is extremely high. Thecase demonstrates the measured and careful approach that all parties should taketo any future legal challenges to determinations of an administrativedecision-making body.
Contributed by Catherine O’ Flynn & Aedín Brennan
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