knowledge 26 May 2016 |

Tribunals’ Immunity from Costs Orders: The Supreme Court Adds its View

In a recent briefing (here), we considered the Court of Appeal’s February 2016 judgment in Walsh v Property Registration Authority¹which concluded that statutory bodies performing adjudicative functions may enjoy costs immunity where the deciding body does not participate in a challenge to the validity of one of its decisions.

However, the Court of Appeal had expressed reservations about the extent of this immunity, saying that “…the case for an institutional immunity in respect of the exercise of quasi-judicial powers is less clear-cut and obvious than in the case of a personal immunity from costs for persons discharging judicial powers”. It had concluded that the Property Registration Authority was not entitled to costs immunity in the case before the court because, while it did not contest the judicial review of the decision it had made, procedural deficiencies in its decision-making process were such that it had not in fact, properly adjudicated between the competing claims before it.

The Supreme Court has more recently addressed the same issue. In Miley v Employment Appeals Tribunal,² a Mr Bourke had made a claim in the Employment Appeals Tribunal ("EAT") against several respondents, arising from the termination of his employment. The EAT issued a determination that Mr Bourke had been unfairly dismissed and awarded him compensation. However, the EAT did not identify which of the respondents it held to be Mr Bourke’s employer. The respondents applied for judicial review and the High Court made orders quashing the EAT’s determination; remitting the matter to the EAT for a fresh determination, and awarding the respondents their costs of the judicial review against the EAT. The EAT appealed the costs award to the Supreme Court,³ mala fides and/or impropriety. The respondents submitted that the rule and policy requiring proof of mala fides and/or impropriety applied only to judges and should not be extended to administrative tribunals.

The Supreme Court reviewed recent authorities which explored whether costs immunity extends to administrative decision-making tribunals.⁴ It concluded that the EAT was a statutory tribunal which had a function of decision-making on a conflict.⁵ The EAT did not file opposition papers to the application for judicial review, was not the legitimus contradictor on the merits and did not participate in the High Court proceedings until the costs application was made against it. Its solicitor had written to the other parties before the High Court hearing setting out that in the circumstances the EAT should not be liable for costs as it was a statutory body, exercising decision-making powers, which was not participating in the judicial review.

The Supreme Court held that “as a matter of public policy, and arising from its function, the EAT should not primarily be liable for an order of costs in judicial review proceedings when it has not participated in such proceedings, and has indicated such a position initially”. A rule similar to which applies to judges⁶ should apply, meaning that while the EAT would not in the first instance be liable for costs, that immunity would be lost if the EAT had acted with mala fides or with impropriety. There was no suggestion of mala fides and while aspects of the EAT hearing were found wanting in compliance with expected standards, this did not amount to impropriety in the legal sense.

The respondents also argued that where the judicial review was not opposed by any of the notice parties, the conferral of costs immunity on the decision-maker left the successful party without a mark for costs, contrary to the fair trial requirements in Article 6 of the European Convention on Human Rights. Having analysed the authorities⁷ considering this issue, the court found that there is no recognised right on the part of a successful litigant to be awarded its costs against someone in every case; the Article 6 right is only infringed in exceptional situations by disproportionate or unfair discrimination in costs rules, and this was not such a case. The costs immunity rule is not discriminatory as the circumstances in which it applies are very limited, and it generally only applies where the case is not contested, which result in the costs foregone being modest.

Decision-making tribunals will be relieved by the articulation of a clear rule specifying when they enjoy immunity from costs in legal challenges to their decisions. Parties considering such challenges will also be able to plan such challenges in greater confidence about who the available marks for costs will or will not be.