High Court of Ireland Decisions

1. By Order of the 27th November, 1995 the several Applicants were given leave to apply for various reliefs, twelve in number, which included various Declarations, Orders for Mandamus and Injunctions but in essence the reliefs which the Applicants claimed can be summarised as follows. The Applicants are thirty-two District Court Clerks assigned to districts outside of the Dublin Metropolitan area and outside of the County Borough of Cork. They claim that on the true construction of the Courts Officers Act, 1926, as amended, they are entitled to be regarded as holding the independent statutory office of District Court Clerk and they seek a Declaration to that effect. They also seek an Order of Mandamus directed to the Minister for Justice that she assign to them the correct statutory status in accordance with Section 48(1) of the Courts Officers, Act, 1926.

2. They seek further Declarations which relate to their remuneration. In this regard they say that the Minister has acted, ultra vires, by attempting to incorporate them into the general Civil Service and to remunerate them accordingly. In particular, they say that by a realignment agreement (Agreed Report No. 20/1979) dated the 11th and 12th December, 1979, the Minister acted, ultra vires, and has infringed the principle of the separation of powers and they say that this agreement is not supported on any statutory basis.

3. The general grounds upon which they seek their reliefs, as expressed in argument and submission of Counsel, can be summarised in the following manner.

4. The Applicants say that they hold their position as District Court Clerks pursuant to the provisions of Part 3 of the Courts Officers Act of 1926 and they submit that Part 3 creates an independent statutory office of District Court Clerk. The relevant parts of Section 46, 47 and 48 are as follows:-

5. It is the Applicants' submission that these sections provide that each District Court Clerk is entitled to be:-

6. It is not disputed by the Respondents that the District Court Clerks hold an office. What is disputed is that this office is an independent office.

7. It is submitted by the Applicants that in the carrying out of their duties there is vested in them the power and obligation to act independently and in support of this argument they point to a number of instances in which the performance of their duties is clearly an independent function including, in particular, the duties which were identified in Judicial Review proceedings Cronin -v- Minister for Justice, (Blayney J., 23rd January, 1990). This case centred around the discretion vested in a District Court Clerk to decide the duties of clerks assigned to his area (subject to the supervision of the Minister) and included a discretion which he must independently exercise in choosing the place in which the District Court books are to be kept when they are not kept in the Courthouse and where the District Judge gives no specific direction.

8. On this issue I am satisfied that while there are certain aspects of a District Court Clerk's duties which require that he exercise an independent judgment and discretion in relation to his functions and in the carrying out of the duties of his office, this is not an independent office in the sense contended for on the Applicants behalf. Section 46(2) makes it clear that a District Court Clerk "holds office at the will of and may be removed by the Minister". Section 48 gives the Minister the power to assign a District Court Clerk to more than one District Court area. Insofar as it is submitted on behalf of the Applicants that the use of the word "the" in the third last line of Section 48 might suggest that there was only to be one District Court Clerk in each area, I do not accept this submission. This is a reference to the appointment of a District Court Clerk pursuant to the District Justices (Temporary Provisions) Act, 1923 which the new group of District Court Clerks were now replacing.

9. Rule 91 of the District Court Rules, 1948 makes reference to the circumstances that might arise "where more than one clerk is assigned to a Court area". This is clear authority for the proposition that there can be more than one clerk in any given area.

10. While I have reached the view on a reading of the relevant sections that a District Court Clerk does not hold an independent statutory office, I do not consider that this is the most crucial point in the case.

11. I accept the Respondents' submissions that Section 60 of the Courts Officers Act, 1926 is of relevance in considering the Applicants' claim. This provides:-

12. The 1924 Act has been replaced by the Civil Service Regulations Act of 1956. Under Section 17 of that Act the Minister is responsible for, inter alia, the remuneration of Civil Servants and is also responsible for "the fixing of (i) the terms and conditions of service of Civil Servants and (ii) conditions governing the promotion of Civil Servants".

13. To my mind it is clear beyond doubt that there is vested in the Minister the power to regulate the remuneration of District Court Clerks and I accept the submission of Counsel for the Respondents that the Applicants are now and have at all times been Civil Servants.

14. The second part of the Applicants' claim is for a Declaration that a productivity agreement (Agreed Report No. 12/1973) was, ultra vires, the power of the First named Respondent and a Declaration that the realignment agreement (Agreed Report No. 29/1979) is, ultra vires, the power of the First named Respondent and these claims are based upon the claim that insofar as the agreements are concerned, they are arbitrary, haphazard and unreasonable at law and have no logical basis and moreover, fail to reflect the true nature of the work and the responsibilities of the District Court Clerks.

15. In more specific terms, the Applicants make the case that the method used in determining their rate of remuneration varies from one district to another and from one District Court Clerk to another and moreover, is based upon an unjust and unreasonable system whereby the workload of each District Court Clerk based on a case count is made and he is remunerated accordingly. It is submitted on behalf of the Applicants that they find themselves, against their will, what they describe as "servicized" by which they mean that they have been, over the years, incorporated into the Civil Service and the Civil Service has infiltrated their group.

16. I am satisfied from the outset that on a correct reading of the Courts Officers Act of 1926 and in particular Section 60 thereof, all District Court Clerks appointed under that Act were appointed as Civil Servants. There is, in my view, no question of their having been "servicized" and I am satisfied that the appointment of District Court Clerks from among the ranks of the Civil Servants is in complete accordance with the scheme of the Act.

17. The Minister, being responsible for fixing the terms and conditions of service of Civil Servants and their remuneration, in my view acted within the scope of her powers in entering into the productivity which resulted in the seven "classes" of District Court Clerks were now regraded into four grades respectively A, B, C and D, each grade being dependent on the number of cases carried by each clerk. This agreement was negotiated over a number of days with full representation on both the official side and the staff side. In my view no case has been made out which would establish that this is other than a freely negotiated agreement.

18. The second agreement which is referred to in paragraph 8 of Mr. Sexton's Affidavit is a "Realignment Agreement" negotiated by the staff and the Department of Justice in 1979. This agreement was brought about as a result of fifteen meetings and the assistance of a mediator on eight different dates. While it is true that the vote in favour of accepting this agreement was not supported by the Applicants (who were in fact opposed to it) nevertheless the agreement was passed and the benefits accruing to the Applicants as a result of that agreement have been accepted by them and in my view are binding upon them.

19. Submissions have been made on behalf of the Applicants that any system of remuneration based on a "case count" is unfair, arbitrary and discriminatory and examples have been suggested where, by reason of one Court being involved in difficult and slow cases, the throughput of such cases might be low in comparison to another Court where the District Judge is dealing with simple and "quick" cases where the throughput would be high. It is suggested that in these circumstances unfair differentials would arise in remuneration. I do not accept this as a valid submission on the basis that the only evidence in support of this is contained in Mr. Sexton's Affidavit (paragraph 19) which cites no more than examples of the way in which a case count criterion might work an imbalance. No evidence has been given on a factual basis that this problem has in fact been encountered. On the contrary I believe that over an extended period of time there will be an evening out between Courts hearing what had been described as "difficult and sensitive cases" with cases which were "quite trivial and would not unduly delay the Court". I believe that if there were any true instances of this fear being a reality then with the large number of Applicants available, specific instances would have been before the Court.

20. I am not satisfied that any case has been made out that the Minister in carrying out her responsibilities to fix the remuneration of the Applicants, she has acted unreasonably or unfairly or in an arbitrary way or that she has acted ultra vires. I find it impossible to believe that the Applicants would have tolerated an oppressive and burdensome regime for upwards of fifteen years without complaint.

21. Accordingly, I do not find that any case has been made which would entitle the Applicants to any of the reliefs claimed and I refuse the application.