High Court of Ireland Decisions

1. The second Plaintiff has in fact withdrawn his claim in these proceedings, and this Judgment is only concerned with the position of the first Plaintiff. Accordingly, I will refer to him simply as "the Plaintiff".

The Plaintiff is a prison officer and has been a member of the Defendant for many years. During the period of his membership he has held a number of positions or offices in the Defendant. On 6 March, 1992 he was elected President of the Defendant in a contested election by the vote of all the members of the Defendant.

Subsequent to his taking up the post, he presided at a meeting of the National Executive Council ("the Council") of the Defendant on 29 July, 1992. Towards the end of the meeting certain matters were raised under "Any Other Business", and the meeting became extremely heated and feelings ran very high. The Plaintiff felt he should not allow the meeting to continue, and purported to close the meeting, and left. The Chair was then taken by the then Vice-Chairman of the Defendant and in fact the meeting continued, and in the course of the meeting, and in the absence of the Plaintiff, what was called "a vote of censure" addressed to the Plaintiff was passed. Following this, certain correspondence took place between the General Secretary of the Defendant and the Plaintiff, and unfortunately a bereavement in the Plaintiff's family prevented him attending the next meeting of the Council.

A meeting of the Council was scheduled for 29 October, 1992, and on 20 October, 1992 a member of the Council, namely, Peadar Tumelty, notified the General Secretary that he intended, under Rule 62 of the Defendant's Constitution, to propose a vote of no confidence in the Plaintiff. The Plaintiff was informed of this on 23 October.

At the meeting on 29 October it was proposed that the agenda be altered so that the vote of no confidence in the Plaintiff would be taken as the first item. The Plaintiff objected to this, and a vote was taken as a result of which it was agreed by fourteen votes to three to alter the normal agenda so that the vote of no confidence took precedence. The general secretary told the meeting that he had taken legal advice as to how to proceed with the vote of no confidence, but when the Plaintiff sought to know what the legal advice was, he was refused this information. The vote of no confidence was then proposed, and the Plaintiff asked for the reasons for the proposal to be supplied to him in writing and that he be given an opportunity to make representations. The proposer said only that the basis of his Motion was the handling of meetings by the Plaintiff as Chairman, and made no further allegations. In spite of the Plaintiffs objections, a vote was then taken and the vote of no confidence was passed.

The affairs of the Defendant are governed by a Constitution which provides for a vote of no confidence, and also provides the consequences thereof. Rule 62(a) reads:-

"If the National Executive Council decides by a two-thirds majority of its members present and entitled to vote to pass a vote of no confidence in any member of the Administrative Council, that member shall cease to be a member of the Administrative Council and of the National Executive Council forthwith and shall not be entitled to attend any subsequent meetings of the Administrative Council or of the National Executive Council."

Nothing is said in the Constitution as to how a meeting at which a vote of no confidence was proposed should be conducted, nor as to the rights of the person in respect of which such vote is proposed.

The Plaintiff was a member of both the Administrative Council and the National Executive Council, and therefore came within Rule 62. While the Rule as quoted above does not expressly state that a member of the Administrative Council in respect of whom a vote of no confidence was passed ceases to hold an office under the Constitution, it was accepted by both parties that the effect of such a vote would be that he automatically ceases to hold the office, and this certainly seems implicit in the scheme of affairs set out in the Constitution.

The Plaintiff complains that the conduct of the meeting and way in which the vote of no confidence was dealt with was unlawful, unconstitutional, unreasonable, without stated reason or just cause and contrary to the principles of natural justice. He claims certain declarations both in relation to the vote of censure on 29 July, 1992 and in relation to the vote of no confidence and further seeks damages. He also sought certain injunctive relief, but the reality is that at the time of the hearing of this action the Plaintiff's term of office would have expired in any event. In fact the Plaintiff stood for the same office at the next election, and was defeated.

The Defendant argues that the rules of natural justice do not apply to a vote of no confidence under Rule 62. It points to the fact that the Constitution contains further rules dealing with misconduct, and imposes penalties for misconduct, and sets out a fairly detailed procedure for dealing with a complaint of misconduct, which certainly would seem to comply with the requirements of natural and constitutional justice, and indeed expressly states that a person against whom a charge of misconduct has been made shall be given a fair and impartial hearing and that the principles of natural and constitutional justice shall be adhered to. The Defendant further argues that the Rule 62 procedure does not require any finding of wrongdoing.

While this is apparently so, there is no doubt that it is an extremely serious matter for the Plaintiff if his colleagues on the National Executive Council say they have lost confidence in him as President of the Defendant. The position of President of what is in fact a trade union for prison officers is a very prestigious one, and one carrying considerable responsibility. I have no doubt that the fact that a vote of no confidence was passed in the Plaintiff has seriously jeopardised any prospect he may have of obtaining another elected post in the Defendant, and it is a somewhat public criticism of his administrative abilities.

I think the law on this matter is governed by the principles set out by the Supreme Court in Glover v BLN Limited [1975] IR 388. That was a case relating to a contract of employment, but it was held that the principles of natural justice applied to a termination of a contract of employment in the same way as they apply to the holder of an office. In my view the same principles apply to the holder of an honorary position such as President of the Defendant, because of the importance of the post and the effect on the office holder if his office is terminated for the reasons I have given above. In Glover v BLN Limited Walsh J said at page 424:-

"In my opinion, this case hinges entirely upon Clause 12(c) of the Service Agreement. The Defendants have relied upon this particular clause to justify their summary dismissal of the Plaintiff. I agree with Mr Justice Kenny when he states that, because of the express provisions of this clause, no implied term is to be read into the contract that the Plaintiff might be summarily dismissed from his conduct."

On the next page he then continues:-

"In my view, it was necessarily an implied term of the contract that this inquiry and determination should be fairly conducted. The arguments and submissions in this Court ranged over a wide field particularly in the field of constitutional justice: see the Judgments of this Court in McDonald v Bord na gCon and East Donegal Co-operative v The Attorney General. The Constitution was relied upon; in particular Article 40, S 3, of the Constitution. This Court in In re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may effect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties. In the present case the provisions of Clause 12(c) do not seek expressly or by implication to exclude the right of any of the parties to a fair procedure.".

As I have said, the Constitution in the present case does not seek to exclude fair procedures in relation to Rule 62, and that Rule undoubtedly sets up machinery for taking decisions which effect the rights of members of the Administrative Council. I have no hesitation in saying that the right of the Plaintiff to participate as President in the affairs of the Defendant is a right which would come within the ambit of the comments made by Walsh J in the Glover case.

It is quite clear that the provisions of natural or constitutional justice were not complied with at the meeting of 29 October, notwithstanding the protests of the Plaintiff. He was given no opportunity to prepare any form of rebuttal, as indeed he did not know what he had to rebut. Accordingly, the Plaintiff is entitled to succeed in these proceedings.

I should also comment briefly on the vote of censure passed at the meeting on 29 July, 1992. That is not a matter provided for in the Constitution, and it had no effect on the Plaintiff's constitutional position within the Defendant. It did not effect the rights of the Plaintiff in any way, and accordingly I do not think the Plaintiff is entitled to any relief in respect of that vote.

Finally, there is the question of damages, which is now the only practical relief available to the Plaintiff. It is accepted by the Defendant in principle that damages may be awarded for breach of constitutional rights, but it is urged that, to obtain damages, the Plaintiff must have to show either negligence or mala fides. I do not think there is any real authority for that approach, and while I would not go so far as to agree with the Plaintiff's Counsel that damages should equate with those which would be awarded in defamation proceedings, there is no doubt that the Plaintiff's reputation has suffered to some degree through the wrongful act of the Defendant, and the Plaintiff has also suffered some considerable mental distress as a result of these events. He will in reality probably find it impossible to stand for office again which, while not causing him any financial loss, is deserving of some compensation. I will award him £10,000 damages.

With regard to the declaratory relief, I accept the Defendant's view that declarations relating to the validity of the resolution ought not to be made at this time, as such declarations would be of no benefit to the Plaintiff, and could cause problems to the Defendant. What I propose to do is simply make a declaration that the Motion of no confidence removing the Plaintiff from office as President of the Defendant passed on 29 October, 1992 by the National Executive Council of the Defendant was passed contrary to the requirements of fair procedures and to the dictates of natural and constitutional justice.