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You are here: BAILII >> Databases >> Irish Court of Appeal >> Atlantic Troy Ltd v O'Reilly & Atlantic Troy Ltd v O'Neill (Unapproved) [2025] IECA 130 (09 June 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA130.html
Cite as: [2025] IECA 130

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UNAPPROVED                                                                     NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

 

 

Neutral Citation Number: [2025] IECA 130

 

Court of Appeal Record Number: 2024/277

 

High Court Record Number: 2022/1138JR

 

Meenan J.

Hyland J.

Collins J.

 

 

BETWEEN/

 

 

ATLANTIC TROY LIMITED

 

 

APPELLANT/DEFENDANT

 

 

- AND –

 

 

 

BRIDGET O'REILLY

 

RESPONDENT/PLAINTIFF

 

 

 

 

Court of Appeal Record Number: 2024/278

 

High Court Record Number: 2022/1140JR

 

 

 

BETWEEN/

 

 

ATLANTIC TROY LIMITED

 

 

APPELLANT/DEFENDANT

 

 

- AND –

 

 

 

DINNY O'NEILL (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND) BRIDGET O'REILLY

 

 

RESPONDENT/PLAINTIFF

 

 

 

JUDGMENT of Mr. Justice Charles Meenan delivered on the 9th day of June 2025

Introduction: -

1.             This is an appeal from the judgment and order of the High Court (17 October 2024) whereby the trial judge (O'Donnell J.) granted the above-named respondents an order of certiorari quashing the order of the Circuit Court (18 October 2022) which allowed the above named appellant's appeal and vacated the decision of the Workplace Relations Commission (WRC) of 16 February 2022.  The hearing in the Circuit Court was an appeal from a decision of the WRC concerning a complaint made by the respondents against the appellant under the provisions of the Equality Act 2000 as amended ("the Act of 2000"). The High Court further ordered that the matter be remitted to the Circuit Court to be heard by a different judge.  As will be referred to later in this judgment the grounds upon which the order of certiorari was granted was that the hearing in the Circuit Court was unfair as a result of excessive interventions by the Circuit Court judge.   

2.             The Act of 2000 provides for an appeal on a point of law to the High Court from a decision of the Circuit Court.  The respondents nonetheless opted to seek a remedy by way of judicial review proceedings.  The appellant contested their entitlement to do so and submitted that the respondents ought to have proceeded by way of statutory appeal.  In this the appellant was unsuccessful in the High Court and so appeals to this court.  However, the appellant does not appeal the finding of the High Court that the hearing in the Circuit Court was unfair and thus not in accordance with law. 

3.             There are four related sets of proceedings arising from the same circumstances with common issues of law.  The High Court gave its judgment in two of them, namely those above-titled proceedings involving Bridget O'Reilly and Dinny O'Neill (a minor). 

Background: -

4.             The respondents are members of the Traveller Community and, in 2018, homeless and in receipt of Homeless Assistance Payment (HAP).  Being homeless the respondents were in need of emergency accommodation.  The respondents, together with a Community Welfare Officer, attended at the Charleville Park Hotel ("the Hotel") in Co. Cork, which is owned and operated by the appellant with a view to obtaining accommodation.  The respondents were refused accommodation.

5.             The basis for refusing accommodation was that it was a mandatory policy of the Hotel that a person checking-in had to produce a credit card in the name of one of the guests.  Only one of the respondents (Ms. Bridget O'Reilly) had a debit card in her name.  Though a credit card from a solicitor instructed by the respondents was proffered to the Hotel it was not accepted in keeping with the aforementioned policy. 

6.             The respondents' solicitor wrote to the Hotel notifying it of a claim pursuant to the Act of 2000 on the ground that her clients had been discriminated on the grounds of their homelessness.  In response, the Hotel wrote a letter which referred to the Hotel not being "a suitable venue for the accommodation of these families."  The letter also referred to difficulties in the past when "these families" were given accommodation. 

7.             Each member of the respondent's family made a complaint, pursuant to the Act of 2000, to the WRC where the matter was heard by an Adjudication Officer (AO).  In the course of the hearing the AO permitted the respondents to enlarge their claim to include discrimination on grounds of being members of the Traveller community. 

8.             The AO directed the Hotel to pay the respondents compensation and to revise its credit card policy so that it did not infringe its obligations under the Act of 2000.  The Hotel appealed that decision to the Circuit Court.

9.             The hearing before the Circuit Court occurred on 18 October 2022 and was heard on oral evidence.  Each party was represented by junior counsel and solicitor.  The Circuit Court gave an ex tempore judgment at the conclusion of the hearing, allowing the appeal, and vacating the order made by the AO.  Following the orders being made by the Circuit Court the respondents commenced two separate sets of proceedings.  Firstly, they exercised their right of an appeal on a point of law pursuant to s. 28(3) of the Act of 2000.  Secondly, they commenced judicial review proceedings.  An application to "stop the clock" in the judicial review proceedings was made on 16 January 2023.  When the leave application was listed in March 2023 the matter was adjourned to enable the respondents to obtain the Digital Audio Recording (DAR) of the hearing in the Circuit Court.  Leave was ultimately granted (Hyland J.) on 3 July 2023. 

10.         The statutory appeal having not been commenced within the time allowed, the respondents made an application for an extension of time which came before the High Court on 29 March 2023.  O'Regan J. made an "unless" type order to the effect that if leave was granted in the judicial review proceedings the statutory appeal would be struck out.  At the hearing of this appeal it was submitted that this was not reflected in the order that was drawn up following the said hearing.  However, the transcript of the hearing before O'Regan J. clearly shows that this was the intention of the court: -

"Judge (O'Regan J.) -- Now then I will adjourn the matter until such time as the issue of leave in the judicial review proceedings has been determined.  In the event that the leave is refused, I give the applicant liberty to apply immediately to progress this matter.  In the event that leave is granted, this matter will stand struck out with no order, save possibly in respect of costs .."

Judicial Review proceedings: -

11.         An amended statement of grounds (11 July 2023) sought, inter alia, the following reliefs: -

"(1)   An order of certiorari quashing the order of the Circuit Court in case reference 2022/354 dated 18 October 2022, which allowed the respondent's appeal and vacated the decision of the WRC of 16 February 2022.

(2)     A declaration that the said order of the Circuit Court was made in breach of the applicants' constitutional right to natural justice and fair procedures."

12.         The grounds upon which the said reliefs were sought included the following: -

"7.    The learned Circuit Court judge acted in breach of natural and constitutional justice and acted ultra vires in making the said orders in:

          (i)      failing to consider relevant matters and considering irrelevant matters;

(ii)     conducting the hearing in an overly interventionist manner thereby preventing the applicant's counsel from making submissions and tendering evidence in support of the claim which had been successful before the WRC;

---

(iv)    refusing to allow the applicant to properly cross-examine the respondent's sole witness..."

Judgment of the High Court: -

13.         The judicial review proceedings came before O'Donnell J. in the High Court.  There were two issues.  Firstly, there was the preliminary issue as to whether, given that the Act of 2000 made provision for a statutory appeal which had been availed of, the court should entertain the judicial review proceedings.  Secondly, whether the hearing in the Circuit Court was conducted in accordance with fair procedures and natural justice in light of the numerous interventions made by the trial judge.

14.         On the preliminary issue the trial judge considered, inter alia, a number of well-established authorities being The State (Abenglen Properties) v. Corporation of Dublin [1984] IR 381; EMI v. Data Protection Commissioner [2013] 2 IR 669 and Koczan v. Financial Services Ombudsman [2010] IEHC 407.  The trial judge concluded: -

"32.  There is no doubt that, where appropriate, pursuing an available statutory appeal should be the default option.  It can also be noted that among the criteria for succeeding in a statutory appeal there is scope to incorporate issues that can arise in judicial review proceedings, such as a significant failure to comply with the requirements of fair procedures or natural justice.  However, I am satisfied that in this case there are very significant issues in relation to the fairness of the procedure before the Circuit Court, which is a matter clearly appropriate to judicial review proceedings .."

15.         The trial judge was somewhat critical of the respondents in pursuing both the statutory appeal and judicial review proceedings.  The trial judge stated: -

"33.  Ultimately, I consider that the confusion over which remedy to pursue - which must be solely attributed to the applicants - is not a sufficient justification to exercise my discretion to refuse relief in these proceedings.  Nevertheless, it was clearly unsatisfactory for the applicants in effect to seek to ride two horses at the same time.  It is more unsatisfactory that having made an ex parte application for leave to apply for judicial review in time, they continued to pursue the application for an extension of time in the statutory appeals .."

16.         The trial judge then considered the manner in which the trial had been conducted in the Circuit Court.  In doing so he carried out a careful and detailed analysis of the Transcript stating: -

"50.  The Transcript of the hearing in this case is of enormous assistance in underlying the concerns expressed by the applicants.  The hearing commenced at 3.45pm, presumably at the end of what could be expected to have been a busy day of hearings.  The hearing itself, including the announcement of the judgment, lasted until 5.45pm.  A number of themes or patterns of concern emerged from a consideration of the Transcript, however for the purposes of this decision it seems to the court that the extent of the interventions by the learned judge were such that it is impossible to conclude that the hearing was fair.  The level of intervention was excessive and went far beyond any need to clarify points or to keep the case on track.  The learned judge excessively intervened in the examination and cross-examination of witnesses to the point that he gave the appearance of having entered the fray to a substantial extent.

51.     The learned judge was informed that there were some four claimants but expressed a preference to hear from just one witness 'to short circuit matters'.  When Ms. O'Reilly was called, it is apparent that the judge initiated and effectively took over her examination in chief.  Of the first 63 questions asked, only six questions were asked by Ms. O'Reilly's counsel.  At one point, despite having conducted the bulk of the questioning - and therefore deciding on the course of the inquiry - the learned judge expressed considerable scepticism that the burden of proof had been discharged ..

52.     The learned judge continued to interrupt counsel and made observations suggesting that he had not heard evidence that Ms. O'Reilly felt discriminated against, despite the fact that he had conducted the preponderance of questioning to that point, and then moved to interrogating the submissions.  The learned judge also effectively ignored the point that counsel was attempting to make to the effect that the Traveller discrimination element in the case emerged as a result of papers filed by the respondent with the WRC. ---

53.     When counsel for the respondent was cross-examining Ms. O'Reilly the Transcript records that approximately 127 questions were asked.  Of those 127 questions, approximately 68 questions were put by the learned judge.  The Transcript makes clear that the learned judge repeatedly interrupted the re-examination of Ms. O'Reilly by her counsel.  Similarly, when Ms. O'Reilly's partner gave evidence, the learned judge conducted the bulk of the questioning, thereby directing the evidence towards the issues that he wished to consider.

55.     In all the circumstances it was clear to this court that even if the learned judge was focused on endeavouring to hear and conclude the WRC appeal expeditiously the objective impression of the hearing was that it was unfair.  That finding in and of itself is sufficient to warrant the court quashing the orders made by the Circuit Court and remitting the matter for a fresh hearing before a different judge."

Notice of Appeal: -

17.         As mentioned earlier there was no appeal against the finding of the High Court that the Circuit Court hearing was not conducted in accordance with law.  The appeal was confined to the preliminary issue as to the availability of judicial review where the relevant statute provided for remedy by way of an appeal. 

The Act of 2000: -

18.         The provisions of the Act of 2000 set out the various steps that can be taken in considering a complaint.  The complaint is considered, firstly by the WRC and a determination given.  That determination may be appealed to the Circuit Court by way of a full re-hearing.  There is an appeal from the Circuit Court to the High Court on a point of law (see s. 28).  Thus, a person making a complaint or against whom a complaint has been made has a statutory entitlement to two hearings and an appeal limited to a point of law.

Consideration of Appeal: -

19.         The starting point is the well-established principle that, where provided, a statutory appeal ought to be pursued rather than an application for judicial review.  If judicial review proceedings are to be permitted the court would have to be satisfied that such would provide a remedy that would not be available were a statutory appeal pursued.  Further, the court would also have to be satisfied that by pursuing a statutory appeal the applicant was not put at a procedural disadvantage.  All this has to be seen in the context of the nature of the appeal permitted by the relevant Statute, in this case an appeal limited to a point of law. 

20.         In the instant case, the respondents were seeking an order of certiorari quashing the decision of the Circuit Court inter alia by reason of a want of fair procedures, together with a consequential order that the matter be remitted to the Circuit Court to be heard by a different judge.

21.         The trial judge referred to the Supreme Court decision in The State (Abenglen Properties) v. Corporation of Dublin [1984] IR 381.  The facts of this case were that Abenglen Properties were granted planning permission by the local authority, Dublin Corporation.  However, the conditions that were attached to the planning permission had the effect of making the development substantially different from that for which permission was sought.  This arose by reason of changes in the City of Dublin Development Plan.  On the date of the application the 1971 Development Plan was in operation but the local authority were about to adopt a new development plan being the City of Dublin Development Plan 1980.  Though Abenglen Properties sought to have their application processed under the 1971 Plan the local authority applied the 1980 Plan.  Thus, Abenglen Properties maintained that the decision to grant planning permission was not properly made by the local authority and thus was a nullity.

22.         The Planning legislation in force at the time provided for an appeal from a decision of the local authority to An Bord Pleanála.  On appeal An Bord Pleanála was empowered to consider the planning application de novo and, significantly, had power to grant permission, unlike the local authority, even though the development materially contravened the development plan.  The Board could also refer a matter of law to the High Court.  Abenglen Properties opted not to exercise its right of appeal but commenced judicial review proceedings seeking an order of certiorari quashing the planning decision.  The High Court granted an order of certiorari against Dublin Corporation who appealed the matter to the Supreme Court. 

23.         The Supreme Court allowed the appeal holding that the broad extent of the statutory appeal provided for would have been capable of addressing the issues raised by Abenglen Properties.  In the course of his judgment O'Higgins CJ considered the history of the remedy of certiorari concluding (at p. 393): -

"The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion.  It is well-established that the existence of such right or remedy ought not to prevent the court from acting.  It seems to me to be a question of justice.  The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant.  If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial.  Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground for refusing relief.  Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question.  In such cases, while retaining always the power to quash, a court should be slow to do so unless it is satisfied that, for some particular reason, the appeal or alternative remedy is not adequate."

24.         Looking at the circumstances of the instant case a number of matters arise.  The respondent's complaint is that the hearing in the Circuit Court was unfair and in breach of natural justice.  This clearly points towards an application for judicial review.  Unlike Abenglen Properties the statutory appeal in this case is limited to a point of law.  Though complaints of an unfair hearing and a failure to apply the rules of natural justice are points of law they also involve the determination of issues of fact.  In this case it was alleged that the Circuit Court judge intervened to the extent that it rendered the hearing unfair and likely gave rise to a well-placed perception of objective bias on his part.  Reaching this conclusion necessarily involved the trial judge in making findings of fact.  As is clear from para. 16 above, the trial judge carefully and methodically analysed the transcript of the Circuit Court hearing, identifying and classifying the numerous judicial interventions. Thus I do not believe it could be safely concluded that the complaints made by the respondent could be addressed in the narrow confines of an appeal on a point of law.

25.         Were the respondents to be successful in an appeal on a point of law it is not at all clear that the High Court would have the jurisdiction to remit the matter back to the Circuit Court for a re-hearing by a different Circuit Court judge.  Such an order is clearly necessary so as to ensure neither party is at a procedural disadvantage.  If the decision of the Circuit Court was simply reversed on a point of law without more it would result in the parties being deprived of a full re-hearing of the complaint in the Circuit Court as is provided for in the Act of 2000.  Presumably, with this in mind the trial judge referred to the following passage from the judgment of Clarke J. (as he then was) in EMI v Data Protection Commissioner [2013] 2 IR 669: -

"(42)   However, there will be cases exceptional to the general rule where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review.  A set of such circumstances is not necessarily closed.  However, the principal areas of exception have been identified.  In some cases an appeal will not permit the person aggrieved to adequately ventilate the basis of their complaint against the initial decision.. That may be so because of constitutional difficulties or other circumstances where the body to whom the statutory appeal lies would not have jurisdiction to deal with all issues.  Likewise, there may be cases where, in all the circumstances, the allegation of the aggrieved party is that they were deprived of the reality of a proper consideration of the issues such that confining them to an appeal would be in truth depriving them of their entitlement to two hearings."

26.         The trial judge was somewhat critical of the respondents pursuing both a statutory appeal and judicial review proceedings at the same time.  I do not share that criticism.  The hearing in the Circuit Court was clearly unsatisfactory, a fact accepted by the appellant.  The respondents had two options each with different time limits within which proceedings had to be commenced.  The gravamen of the judicial review proceedings was a complaint about the Circuit Court judge's  interventions in the hearing of the appeal from the WRC.  This necessarily involved obtaining a transcript of the DAR of the hearing in order to advise the respondents as to the appropriate route to take.  It took a number of months to obtain the DAR and the transcript.  The appellant objected to the release of the DAR on grounds which are not entirely clear.  Ultimately, an order was made by the High Court releasing the DAR on an application for leave for the judicial review proceedings, on 13 March 2023.  On 29 March 2023 when the matter came before O'Regan J. to extend time for the statutory appeal the judge declined to extend time without the DAR. 

27.         It was always clear that the respondents would, at some point, have to decide whether to proceed by way of the statutory appeal or judicial review proceedings.  That point came on the application before O'Regan J. who gave the direction referred to at para. 10 above.  In my view it was appropriate to keep both options alive until the transcript of the DAR could be considered by counsel and the appropriate advice given.  An earlier decision on how to proceed might have been able to have been taken had the appellant not objected to the release of the DAR. 

28.         By reason of the foregoing I am satisfied that the trial judge correctly identified the relevant authorities and the principles to be applied in this application.  In these circumstances I would dismiss the appeal. 

29.         As for costs, the provisional view of the court is that as the respondents have been "entirely successful" in opposing the appeal that they should be granted their costs (to include reserved costs).  Should the appellant wish to dispute this it may do so by way of written submissions (not more than 1,000 words) to be delivered within 14 days of the date of the delivery of this judgment.  The respondents may reply, again by way of written submissions (not more than 1,000 words) within 14 days thereafter.

30.         Since this judgment is delivered electronically, I am authorised by Hyland and Collins JJ. to state that they agree with it and the orders proposed therein.


Result:     Appeal dismissed.

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