This is a Costs Decision following a decision on 4 questions referred to the Supreme Court by the Labour Tribunal for determination. The substantive application was somewhat unusual in that it was a Reference from the Tribunal after it had handed down its decision and arose from a compromise made between the Applicant and the Respondent, such that the Applicant received an amount less than the Tribunal award.
As a result, the Respondent engaged in the Referral and seeks its costs against the Tribunal as a result, as Counsel puts it: “… a costs order should be in favour of International, it having succeeded on the issues raised in these proceedings, and there being no proper reason for any other order to be made. Further, and in any event, the Court disagreed with the positions taken by the Labour Tribunal in respect of all the issues raised, buttressing the position that International was the successful party.”
Counsel for the Tribunal resists an order for costs on the basis that costs should not be awarded against a Tribunal acting within its jurisdiction.
Held: The Court makes no order as to costs. The award of costs is at the discretion of the Court. The general rule that costs follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.
I refer to O. 62 r.3(3) of the Rules of the Supreme Court: “(3) If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs. See also Bahamas Maritime Connexion Ltd -v- Calvin Missick SCCivApp & CAIS No. 90 of 2021.
The general rule, therefore, only arises if the Court exercises its discretion to make an order for costs and, in considering whether to exercise such discretion the Court must look at all the circumstances of the case in general (per Woolf LCJ, Excelsior Commercial & Industrial Holdings Ltd -v- Salisbury Hamer Aspden & Johnson (a firm) and another [2002] EWCA Civ 879). In doing so, my decision is, perhaps in the circumstances of this matter, unenthusiastically, to make no order as to costs.
The primary reason is that I would not want to discourage questions of law being referred to the Supreme Court, whether by statutory reference, as in this matter, or by way of case stated under the Rules. I am of the view, given my reasons for the substantive decision, that making an order for costs against the Tribunal would likely weigh heavily on the mind of the Tribunal when considering making any further reference.
The outcome of the Reference has brought clarity to issues on which the Tribunal was unclear, and on that basis, it cannot be said to have been fruitless.
I am also mindful that there is no power in the Employment Ordinance (Cap. 17.08) to award legal costs to a successful party. To move away from that principle emphasises the potential that, to award costs in this matter, could be perceived as penal.