The Irish High Court has issued its costs order in the case of Zalewski v. Workplace Relations Commission. The case challenged the validity of certain provisions of the Workplace Relations Act 2015 as it was argued that the Commission did not have proper authority to issue decisions. The challenge was dismissed in April 2020.
Both parties made submissions on costs and each maintains that its costs should be paid by the other side. The issue at the core of this disagreement was whether the proceedings should be characterised as public interest litigation. If the case was deemed to be such then the general rule that the successful party is entitled to an order for costs in its favour can be set aside.
In coming to a decision, the Court noted that it must reconcile two competing interests: the objective of ensuring that individuals are not deterred by the risk of exposure to legal costs from pursuing litigation in the public interest; and the objective of ensuring that unmeritorious litigation is not encouraged by an overly generous costs regime. Mr Justice Garrett Simons was satisfied that the case at hand was one of the exceptional cases that justifies a departure from the general rule on costs. He outlined a number of reasons for this decision.
Firstly, the amendments introduced by the Workplace Relations Act have the potential to affect a large segment of society and raise difficult constitutional questions on the separation of powers that have not been considered before. Secondly, Judge Simons commented that before departing from the general costs rule, the strength of the case should be examined. The margin by which an unsuccessful litigant lost is relevant. If the grounds raised are weak, there can be no public interest in the litigation. In this case, the Court was of the view that the grounds of challenge were weighty and substantial.
Thirdly, the fact that the monetary value of many of the claims before the Workplace Relations Commission will be relatively modest may have the consequence that legal costs will have a greater deterrent effect on the bringing of constitutional challenges than in other contexts. Were the general rule on costs to be applied here, potential litigants with modest means might not be able to afford to litigate.
Finally, the fact that the applicant has a private interest in the outcome of the proceedings is not fatal to an argument that costs should not follow the event. If it was, an applicant would be in a paradoxical situation where they would have to establish a personal interest in the proceedings which would then prevent them from availing of a relaxation of the costs rule. The Court was of the view that the constitutional issues raised in the case were of such importance that they transcend the facts of the case.
Judge Simons concluded that he was satisfied that the case was brought in the public interest. The fact that the case was resolved in favour of the respondent did not mean that the legislation should not have been tested in court. The applicant should not, therefore, be required to pay the State’s costs.
The Court then discussed whether in these circumstances, the applicant could recover costs from the State. He was of the view that, if one of the objectives of departing from the normal rules of costs was to facilitate the bringing of proceedings which allow constitutional issues of importance to come before the courts, then it would not be enough to shield unsuccessful applicants from an adverse costs order. It may be necessary of them to recover costs as well. The Court then proceeded to make an order allowing the applicant to recover half of his costs from the State.
Click here for the decision.