The Supreme Court has provided clarity as to whether tribunals involved in administrative decision-making, such as the Employment Appeals Tribunal (EAT), are entitled to immunity for costs for legal challenges made against their decisions.


InPaul Burke v Stephen Miley, Stephen Miley and Devil's Glen Equestrian Centre Ltd., and Devil's Glen Partnership UD 926/2007, an employee (Mr. Burke) brought a claim against a number of respondents following the termination of his employment. The EAT held in favour of Mr. Burke determining that he had been unfairly dismissed and he was awarded compensation. However, the EAT did not make a determination as to who was Mr. Burke's employer.

The High Court decision

The respondents in the EAT case applied to the High Court for judicial review of the EAT's decision. The High Court quashed the EAT's determination and awarded the respondents the costs of the judicial review proceedings. The matter was then remitted back to the EAT for a new hearing. The EAT appealed the decision of the High Court to the Supreme Court on the basis that costs should not be awarded against it without evidence of mala fides or impropriety on its part.

The Supreme Court decision

The Supreme Court considered whether costs immunity extended to administrative decision-making tribunals and determined that the EAT had a function of decision-making in situations of conflict.

The Court applied the principles that were 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 in judicial review proceedings, unless it can be shown that mala fides or impropriety had occurred on the judge's part.

It also considered the fact that the EAT did not file opposition papers to the application for judicial review, nor did it participate in the High Court proceedings until the application for costs was made against it and was therefore not a "legitimus contradictor". The Court accepted that the relevant EAT hearing was unsatisfactoryandnot conducted to the standard that is expected of such a body. However, it ruled that the conduct did not give rise to "wholly unfit proceedings" which could constitute mala fides or impropriety in the legal sense.

The respondents contended that where judicial review was not opposed by any of the notice parties and where they were successful in their application, but unsuccessful in an award of costs, they were therefore denied a tangible remedy and fair trial, which was contrary to 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 the Convention and this would only be breached in exceptional circumstances.

Consequently, the Supreme Court held that as a matter of public policy, the EAT should have immunity from cost orders except in cases where there was clear evidence of mala fides or impropriety.


Following this case, the uncertainty around the issue of costs in judicial review proceedings has been clarified. Decision-making tribunals have clear guidelines on their position of immunity and the standard of proof of mala fides or impropriety is extremely high. The case demonstrates the measured and careful approach that all parties should take to any future legal challenges to determinations of an administrative decision-making body.