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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Joyce & Ors v. Madden [2003] IEHC 11 (28 May 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/11.html Cite as: [2004] 1 ILRM 277, [2003] IEHC 11

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THE HIGH COURT

2002/271 SP

IN THE MATTER OF THE EQUAL STATUS ACT 2000

BETWEEN

BRIDGET ANN JOYCE, MARY MARGARET JOYCE MARGARET MONGAN AND PATRICK McDONAGH

APPELLANTS

and JOHN MADDEN

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 28th day of May, 2003.

This is an appeal on a point of law brought under Section 28 of the Equal Status Act 2000 arising from a decision of the Circuit Court made by his Honour Judge Desmond Hogan sitting at the Circuit Court at Kilrush, Co. Clare on the 22nd June 2002.
The matter had come the Circuit Court by way of appeal from a decision of the Office of the Director of Equality Investigations pursuant to the provisions of the Equal Status Act 2000 and in respect of a decision made by Mr. Anthony Cummins, Equality Officer, on the 18th day of October, 2001.
The events which gave rise to the proceedings before the Office of the Director of Equality Investigations occurred on 8th January 2001. On the afternoon of 8th January 2001, the four Appellants entered the bar of the Temple Gate Hotel, Ennis, Co. Clare and ordered tea for four. While they were being attended to, an Assistant Manager in the hotel, Mr. Brian Crowe, approached the Appellants and asked them to leave. The Appellants left the hotel under protest as they felt that the only reason they
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were asked to leave was because they were members of the traveller community and accordingly felt that they had been the subject of discrimination on that basis.

Thereafter the Appellants complained to the Respondent, as licensee of the said premises, setting out details of their complaint and of their intention of referring the matter to the Director of Equality Investigations, a course of action which they subsequently pursued when they failed, as they perceived it, to receive a satisfactory response to the complaint from the Respondent.
The matter was then investigated in a manner set out in the Equal Status Act, 2000 by the Office of the Director of Equality Investigations and on the 1st May 2001, a hearing took place before Mr. Anthony Cummins, Equality Officer, at which each side was represented by a firm of solicitors and Mr. Cummins heard evidence from both sides.
By his decision dated 18th October 2001, the Equality Officer concluded that the Respondent had discriminated against the Appellants when they were refused service in the Respondent's hotel on the 8th January 2001 on the basis of their membership of the traveller community and directed that the Respondents pay £1,000 to each of the complainants by way of compensation for the embarrassment, stress and loss of amenity which they suffered.
By notice of appeal dated the 26th October 2001, the Respondent herein, pursuant to Section 28 of the Equal Status Act, appealed to the Circuit Court against the aforesaid decision dated 18th October 2001.
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Section 28 of the Equal Status Act, 2000 provides:-

"(1) Not later than 42 days from the date of a decision of the Director under Section 25, the complainant or respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.

(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

(3) No further appeal lies, other than an appeal to the High Court on a point of law."

The aforesaid appeal to the Circuit Court was listed for hearing and was specially fixed for that purpose before the Circuit Court sitting at Kilrush, Co. Clare, on the 26th June 2002. On the evening of 25th June, 2002, the Appellants solicitor was informed by a facsimile transmission that the Respondent intended to withdraw his appeal. When the matter was called on for hearing the following day, counsel for the Respondent informed the learned Circuit Court judge that the appeal was being withdrawn whereupon counsel for the Appellants applied for costs. Having heard legal argument from both sides, the learned Circuit Court judge decided he had no jurisdiction to award costs on the grounds that he was fettered by the provisions of the Equal Status Act 2000 as the lower tribunal, in this instance the Director, had no power to award costs.
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Section 27 of the Equal Status Act, 2000 provides:-

"(1) Subject to this section, the types of redress for which a decision of the Director under Section 25 may provide are either or both of the following as may be appropriate in the circumstances:-

(a) an order for compensation for the effects of discrimination or

(b) an order that a person or persons specified in the order take a course of action which is so specified

(2) The maximum amount which may be ordered by the Director by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract."

The issue which arises therefore is whether on an appeal from the decision of the Director of Equality Investigations, the Circuit Court has power to award the costs of the appeal.
Order 66 Rule 1 of the Rules of the Circuit Court, 2001 provides as follows:-

"Save as otherwise provided by statute, or by these rules the granting or withholding of the costs of any party to any proceedings in the court shall be in the discretion of the judge or the County Registrar as the case may be."

Both parties before this court accept that the appeal brought by the Respondent in the instant case constitutes a "proceeding" within the meaning of the Circuit Court Rules.
On behalf of the Appellants, Mr. Kelly S.C. argued that the jurisdiction of the Circuit Court to award costs in a proceeding of this nature has been clearly established in Inspector of Taxes v. Arida Limited [1995] 2 I.R. 230.
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He submitted that that case was a clear authority for the proposition that where additional jurisdiction is conferred upon the Circuit Court by legislation other than the Courts Acts, it would be necessary for any such legislation to expressly provide that the Circuit Court Rules did not apply before the Circuit Court was stripped of its jurisdiction to award costs. The instant case, it was submitted, was essentially on all fours with the decision in Arida.
Mr. Kelly further submitted that it would be incongruous and illogical that a complainant who had won an award in circumstances such as the instant case could be effectively deprived of that award by the bringing of an appeal by a Respondent who could at the last moment drop the appeal thereby exposing the complainant to legal costs for which he could not be indemnified.
Finally, he submitted that Section 31 of the Equal Status Act, 2000, which relates to enforcement procedures, contains a reference to costs which clearly suggests that the legislature envisaged that the Circuit Court should enjoy jurisdiction to award same.
Section 31 provides:-

"(1) If a person who is bound by the terms of a decision of the Director under this part fails to comply with those terms, then on an application under this Section, the Circuit Court shall, subject to Section 32, make an Order directing the person affected to carry out the decision in accordance with its terms.

(4) An application under this Section may be made –

(a) by the complainant, or

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(b) where the Authority is not the complainant and it considers that the decision or settlement is unlikely to be implemented without its intervention, by the Authority with the consent of the complainant.

(5) On an application under this Section, the Circuit Court shall exercise its functions under subsection (1) on being satisfied of-

(a) the existence and terms of the decision ..., and

(b) the failure by the person affected to comply with those terms

(6) Without prejudice to the power of the Circuit Court to make an Order for costs in favour of the complainant or the person affected, where an application is made by the Authority by virtue of subsection (4), the costs of the Authority may be awarded by the Circuit Court."

Mr. Kelly submitted that the words in subsection (6), i.e. "without prejudice to the power of the Circuit Court to make an Order for costs in favour of the complainant" could only be taken as a recognition by the legislature that such residual power was vested in the Circuit Court when and where its jurisdiction was invoked in situations other than those contemplated by Section 31 (6).
For the Respondent, Mr. Gardiner S.C. submitted that the present case was distinguishable from Inspector of Taxes v. Arida because it is possible to identify in the 2000 Act itself an indication to the effect that the Rules are to be disapplied.
There was no doubt but that the appeal to the Circuit Court constituted a "proceeding". Equally, the enforcement procedure under Section 31 of the 2000 Act was also a "proceeding." If the complainant's submission was correct, there would be no requirement under Section 31 that the Circuit Court be given authority to award costs to the Authority because the court would already enjoy such jurisdiction under
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the decision in Inspector of Taxes v. Arida. The fact that the legislature had conferred such jurisdiction under Section 31 could only mean, on construing the statute as a whole, and applying the maxim expressio unius est exclusio alterius, that the legislature did not intend that there would be power under Section 28 (2) to award costs on the determination of an appeal.

Mr. Gardiner further submitted that this view or interpretation found further support in the fact that the Circuit Court Rules had been specifically amended on numerous occasions to provide for costs in relation to appeals or enforcement procedures under other types of legislation which were analogous with the provisions of the Equal Status Act. For example, an appeal to the Circuit Court from a decision of the Employment Appeals Tribunal which is virtually identical in relation to enforcement procedures under Section 31 of the Equal Status Act, led to an amendment of the Circuit Court Rules to provide that the Circuit Court should have jurisdiction to award costs in respect of any proceeding to enforce determinations of the Employment Appeals Tribunal. Similar amendments of the Circuit Court Rules had been effected in respect of enforcement procedures for decisions of administrative tribunals under the Payment of Wages Act, 1991, the Adoptive Leave Act, 1995, the Organisation of Working Time Act, 1997 and the Parental Leave Act, 1998.

DECISION

As is apparent from the submissions of counsel, both sides rely, albeit in different ways, on the decision of the Supreme Court in Inspector of Taxes v. Arida Limited [1995] 2 I.R. 230. 'The issue in that case was whether the Circuit Court had power to award costs to a successful appellant in an appeal to that court from the Appeal Commissioners under the Income Tax Act, 1967. In a provision similar to
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Section 28 (2) of the Equal Status Act, 2000, Section 429 (2) of the Income Tax Act 1967 provides in subsection (2) as follows:-

"The said judge shall, with all convenience speed, re-hear and determine the appeal, and shall have and exercise the same powers and authorities in relation to the assessment appealed against, the determination, and all matters consequent thereto, as the special commissioners might have and exercise ..."

In the High Court, it was submitted on behalf of the Appellant Tax Inspector that the Appeal Commissioners had no power to award costs and that accordingly a judge of the Circuit Court hearing an appeal from the determination of the Appeal Commissioners could have no such power having regard to the provisions of Section 429 (2) of the Income Tax Act 1967.
In the High Court, Murphy J. found, firstly, that an appeal from the Appeal Commissioners to the Circuit Court was a "proceeding" for the purposes of Order 58, R. 1 of the Circuit Court Rules (now Order 66, R. 1) and further held that, if an exception is to be created to the general law by a statutory provision, then the exception, if not expressly stated, must be implied with clarity. He further held that the words "any proceeding" contained in Order 58 R. 1 of the Circuit Court Rules were of wide import and the inclusion of the power to award costs in one statutory provision and its exclusion in another did not warrant an inference, on the basis of the maxim expressio unius, that the legislature intended that the extensive power of the Circuit Court should be curtailed. He accordingly found there was jurisdiction in a Circuit Court judge to award costs in such appeals.
The Supreme Court confirmed this decision on appeal, Egan J., in the course of delivering the judgment of the Court, stating as follows at p. 236:-

"It is inconceivable, in the absence of any indication to the contrary, that the Oireachtas intended that the whole paraphernalia of procedural regulation provided for by the Circuit Court Rules, 1950, should be disapplied merely because a particular jurisdiction is conferred upon the Circuit Court by legislation other than the Courts Acts. Under the rules, there is in existence a clearly defined procedural framework and it would seem anomalous were it to be necessary for express reference to be made to that procedural framework each time an additional jurisdiction is conferred upon the Circuit Court ... it is necessary to identify some contrary intention to the effect that the rules are to be disapplied. In the context of the current proceedings no such indication is to be found. As stated above, Order 58 is sufficiently widely drawn to comprehend the current proceedings. Furthermore, there is nothing in the primary legislation, viz the Courts Act, to suggest that the making of such a rule was ultra vires the rule-making body. Section 27, subsection 1 of the Act of 1961 provides that:-

"The jurisdiction which is by virtue of this Act vested in or exercisable by the Circuit Court ... shall be exercised so far as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of court" ... the wording of this Section does not seem to preclude the possibility of the application of the rules with respect to any jurisdiction conferred on the Circuit Court other than under the Courts Act."

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While the Supreme Court in its judgment focused mainly on the vires of the rule-making body and the extent of the application of Order 58 (now Order 66), Murphy J. addressed more specifically the application of the maxim expressio unius est exclusio alterius. In his submissions to this court, Mr. Gardiner based his case largely on the fact that another section of the Equal Status Act 2000 did specifically, in relation to a proceeding before the Circuit Court in relation to enforcement, provide for the award of costs. To so provide in Section 31 and to omit a similar provision in respect of an appeal to the Circuit Court under S. 28 could only be taken, Mr. Gardiner argues, as meaning that the legislature did not intend that the Circuit Court should have jurisdiction to award costs under Section 28.
However, as Murphy J. made clear in Inspector of Taxes v. Arida [1992] 2 I.R 155, an exception to a power conferred upon the Circuit Court by Order 58 must be, if not expressly stated, implied with clarity. At p. 159 -160 he stated:-

"The provision contained in Section 428, subsection 6 of the Income Tax Act, 1967, that the High Court should have power to award the costs on a case stated may be contrasted with the absence of any provision in the income tax legislation dealing with the awarding of costs either by the Appeals Commissioners or by the Circuit Court judge, but there is, apart from any other consideration, a very real distinction to be drawn between the granting of the power and the recognition of the authority of the High Court to award costs in such cases. It may well be that the inclusion of the express power is, "a superfluous provision" and even if it is not, a distinction would fall to be made between awarding costs on a case stated for the determination of a point of law and awarding costs on a re-hearing of matters of fact and law. Having regard to such distinctions, the inclusion of the power in one case and its

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absence in another would not be of sound reason for concluding that the legislature intended by Section 429 of the Act of 1967 to curtail the extensive powers to award costs expressly conferred upon the Circuit Court by Order 58 R. 1 aforesaid. It seems to me that if an exception is to be created by something "provided by statute" then the exception, if not expressly stated, must be implied with clarity. Unquestionably costs of an appeal from the Appeal Commissioners have not been expressly excluded and in my view the inference (if any) that the legislature intended that they should be so excluded is tenuous in the extreme."

To begin with, I am far from satisfied that the reference to costs in S. 31 (6) and the non-reference in S. 28 of the Equal Status Act, 2000 can properly be seen as an instance to which the latin maxim can be applied.
The subsection provides:-

"Without prejudice to the power of the Circuit Court to make an order for costs in favour of the complainant or the person affected, where an application is made by the Authority by virtue of subsection (4), the costs of the Authority may be awarded by the Circuit Court."

I think Mr. Kelly is correct in his submission when he argues that the first part of this provision can be taken as meaning that the legislation acknowledges explicitly the general power of the Circuit Court to make an order for costs in favour of the complainant or the person affected in cases coming before it. He contends that the additional provision for the costs of the Authority is superfluous or simply for certainty.
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Even if this is a mistaken view, the distinction which Murphy J. identified as falling to be made between different types of proceedings when considering the matter of costs would also fall to be made in the instant case. Section 31 is concerned with enforcement proceedings and situations where an application is made by the Authority to intervene for the purpose of implementing a decision. The Authority may never have been the complainant but may only seek to intervene under Section 31 (4) (b). The inclusion of a provision for the recovery of its costs in such circumstances in express terms is entirely understandable. It may well be, in the words of Murphy J. "a superfluous provision", but is, nonetheless, a recognition that a particular provision for costs in express terms may be necessary in that form of proceeding. In my view, a distinction may clearly be drawn between enforcement procedures under Section 31 and the awarding of costs on a re-hearing of matters of fact and law in the Circuit Court by way of appeal from the Director.
One has only to consider the implications of holding to the contrary. A successful complainant could have his award reduced or altogether wiped out by legal expense which he might incur for the purpose of preparing for an appeal in the Circuit Court which might, at the last moment, as in the instant case, be withdrawn by a Respondent. The legislation could thereby itself become an instrument of discrimination whereby a genuine complainant, whose application and complaint had been upheld, would then suffer the further injustice of losing part or all of his award, surely the precise opposite of what the legislature would have intended. It is interesting to note that in the submissions made to his Honour Judge Frank Martin in the original hearing in the Circuit Court in Arida, counsel for the respondent contended, inter alia, that a refusal to award costs would be unfairly prejudicial to the respondent and would or could prevent access to the courts. Alternatively, it was
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submitted that a failure to award costs would be unfair and would amount to unequal treatment of the respondent before the law and/or would be an unjust attack on his private property rights.

It is difficult to think of a more apposite application of that contention than the facts of the instant case.
For these various reasons, I conclude that the Circuit Court does have jurisdiction to award costs in cases coming before it under Section 28 of the Equal Status Act, 2000. There may be instances where it would be appropriate for this court, having so determined, to remit the matter to the appropriate judge of the Circuit Court so that the actual decision to award or refuse costs could be made by the court in which jurisdiction lies. However, there was no hearing of any sort on the merits in the context of this appeal, which was simply withdrawn at the last moment. It would seem appropriate therefore, in the interests of saving time and expense, that this court should hold that the Complainants were also entitled to be awarded their costs before the Circuit Court having regard to the facts of this particular case.