Zalewski v The Workplace Relations Commission & ors (Approved)

This judgment determines the appropriate costs order to be made in respect of a challenge to the constitutional validity of aspects of the Workplace Relations Act 2015.� The challenge has been dismissed in its entirety for the reasons set out in a reserved judgment delivered on 21 April 2020, Zalewski v. Workplace Relations Commission [2020] IEHC 178 (� the principal judgment �).

In accordance with the protocol of 24 March 2020 on the delivery of judgments electronically, the parties have exchanged written legal submissions on the issue of costs.� Each party maintains that its costs should be paid by the other side.� The disagreement in respect of costs centres largely on whether or not the proceedings should be characterised as a form of �public interest litigation� with the consequence that the default position, namely that the successful party is entitled to an order for costs in its favour, should be displaced.

In exercising my discretion in respect of costs, I must seek to reconcile (i) the objective of ensuring that individuals are not deterred by the risk of exposure to legal costs from pursuing litigation of a type which�although ultimately unsuccessful�nevertheless serves a public interest, with (ii) the objective of ensuring that unmeritorious litigation is not inadvertently encouraged by an overly generous costs regime.

For the reasons which follow, I have concluded that the proportionate outcome is that the Applicant should be allowed to recover one half of his costs from Ireland and the Attorney General.� The proceedings raised fundamental issues of constitutional law touching on the separation of powers, and it had been in the public interest that these issues be resolved�one way or another�by the courts.

Traditionally, the default position has been that the successful party in litigation is entitled to recover their costs from the unsuccessful party.� This default position is embodied in the, somewhat quaintly worded, rule that �costs follow the event�.� Crucially, however, the courts have always retained a discretion to make a different type of costs order where justified by the special circumstances of the case.� A court is required to explain its reasons for departing from the default position.