The High Court has held that absent an established practice or firm line of jurisprudence precluding a costs award against a regulatory body in respect of a successful statutory appeal, the usual principle that costs follow the event would apply.

In the case before the court,1 there had been a finding of misconduct against two nurses and they were sanctioned by their regulatory body. They brought a successful challenge by way of statutory appeal against the sanction imposed, which was erasure from the register. They were unsuccessful on another issue related to the quorum of the regulatory body when imposing sanction.

The question then for the court was who should bear the costs of the appeal? The relevant legislation stipulated that the High Court “may direct how the costs of the application are to be borne”.

The appellants argued that the court had discretion as to the matter of costs. They had brought their appeal in accordance with the appropriate statutory route, had largely succeeded, and that the costs should therefore follow the “event”. Alternatively, costs should be apportioned and the appellants should be awarded costs in respect of the issues on which they had succeeded which had taken up most court time.

In contrast, the regulator argued that in a case where a body such as An Bord Altranais, tasked with a public interest function in ensuring the highest standards on the part of nurses, was unsuccessful in court proceedings, it should not have any award of costs made against it. It pointed to a line of authority to the effect that, where a statutory regulator had carried out its functions bona fide in the public interest without any impropriety or abuse of process, the courts as a matter of policy had tended not to award costs against it. The purpose of this was to prevent regulators being inhibited in the discharge of their statutory functions. Alternatively, if costs were to be apportioned, it was argued that a considerable amount of effort in this case had gone into dealing with matters upon which the appellants were ultimately unsuccessful.

After reviewing the case law, Ní Raifeartaigh J concluded that while there was authority dealing with the award of costs in the context of a first instance disciplinary hearing, there was no clearly established practice or firm line of jurisprudence to the effect that costs should not be awarded against a regulatory body in respect of court proceedings successfully brought by way of statutory appeal. Further, if the Oireachtas had wanted to circumscribe the court’s discretion to award costs in respect of the appeal before her, this would have been explicitly stated in the legislation. Accordingly, the usual principles concerning the award of costs in court proceedings would apply.

Therefore, the starting point for the costs assessment was the “event” in this case. This was the quashing of the decision imposing the sanction of erasure. This had been vigorously opposed by the regulator. On this basis, the court awarded the appellants 80% of their costs. The final 20% of costs was not awarded as the appellants had failed on the quorum issue raised by them.

Comment

This case is of importance to those exercising administrative decision-making functions or acting in a quasi-judicial capacity. In line with other recent jurisprudence of the High Court,2 it demonstrates that while these bodies may enjoy immunity for costs in certain instances, this will not universally be true.