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Cite as: [2010] IEHC 536
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Judgment Title: Patrick McGlinchey -v- Sile Ryan Neutral Citation: [2010] IEHC 536 High Court Record Number: 2009 11576P Date of Delivery: 21/07/2010 Court: High Court Composition of Court: Judgment by: Laffoy J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2010] IEHC 536 THE HIGH COURT [2009 No. 11576P] BETWEEN PATRICK McGLINCHEY PLAINTIFF AND
SILE RYAN DEFENDANT Judgment of Miss Justice Laffoy delivered on the 21st day of July, 2010. 1. Background 1.2 In September 1994 the plaintiff commenced employment as a special needs primary teacher at St. Vincent’s School, Lisnagry, County Limerick (the school). The school, which is owned by the Daughters of Charity and operated by a Board of Management, provides educational facilities for children and young persons of both genders with intellectual and learning disabilities. The defendant is the current chairperson of the Board of Management of the school and she is sued in these proceedings in that capacity. 1.3 On 5th March, 1997 the plaintiff was suspended from his duties as a teacher as a result of an allegation of sexual abuse against him involving a male pupil, J.L., made by the mother of the pupil to the school. The school notified An Garda Síochána about the allegation. Subsequently, the Mid Western Health Board, the predecessor in the area in which the school is located of the Health Service Executive (the relevant body being referred to as “the Health Board” hereafter) instigated an investigation into that complaint and other complaints of sexual abuse involving pupils of the school which were made against the plaintiff. An Garda Síochána also commenced a criminal investigation of those complaints. The plaintiff was arrested on the 19th June, 1997. Subsequently he was charged with criminal offences against two male pupils, D.M. and K.W. The Health Board investigation did not result in any disciplinary process while the criminal proceedings were pending. 1.4 The trial of the plaintiff took place in the Dublin Circuit Criminal Court in November 2002. The trial lasted for seventeen days. At the end of the trial the verdict of the jury acquitted the plaintiff on all counts. 1.5 The plaintiff had remained suspended on full pay from his duties as a teacher throughout the period from 5th March, 1997 to his date of his acquittal on the criminal charges and beyond that date. The Health Board, apparently, resumed its investigation after the plaintiff was acquitted and concluded its investigation in November 2003 when it made findings against the plaintiff to the effect that the allegations that he had sexually abused nine pupils in the school (including J.L., D.M. and K.W.) were credible, while in the case of a tenth pupil the allegations were inconclusive. It also found that he remained a risk to vulnerable children. The position of the school is that thereafter it wished to hold an internal disciplinary inquiry and that it endeavoured, but was unable, to do so. It was not in a position to reinstate the plaintiff while the findings of the Health Board in relation to the complaints remained extant and unchallenged by him. 1.6 The plaintiff remained suspended on full pay until the settlement of the judicial review proceedings to which I have referred at the outset. 2. Judicial review proceedings: terms of settlement 2.2 The Terms of Settlement, in so far as they are relevant for present purposes, provided as follows:
2. The [defendant] will as soon as practicable establish an inquiry in accordance with the terms of reference set out in Annex 1 of this settlement. The [plaintiff] agrees to attend to such an inquiry and to co-operate with same. The [Health Board] agrees to use its best endeavours to ensure that any of its servants or agents or former servants or agents will co-operate with this inquiry. 3. The proceedings will be struck out as against the [defendant] with an order quashing the [plaintiff’s] suspension and an order directing the hearing in private of an independent inquiry in accordance with the terms of reference set out in Annex 1 of this settlement. The proceedings will otherwise be dismissed as against [the defendant and the Health Board]. 4. This settlement is in full and final settlement of all claims (howsoever arising) between the parties.”
(b) an independent inquiry into the suspension of the plaintiff from his post as a teacher in the school be convened and held in private, (c) the plaintiff should not return to work pending the outcome of the said inquiry, (d) the proceedings against the Health Board be dismissed, and (e) the terms of settlement be in full and final settlement of the proceedings.
(b) Both the defendant and the plaintiff should have the right to be heard, to examine and cross-examine witnesses and to make closing submissions. (c) The Health Board would, subject to appropriate confidentiality arrangements, furnish the defendant with all reports or documents (including any assessment or validation) concerning the plaintiff and relevant to the subject matter of the Inquiry for the purposes of the Inquiry and confirm which of the author or authors of the said documents would be available to give evidence. (d) The defendant would furnish the documents received from the Health Board to the Adjudicator and the plaintiff “with such allegations as are in its possession which contain allegations of sexual abuse in respect of current or former pupils [of the school] concerning [the plaintiff]” (para. 7). (e) The defendant should be entitled “to lead all appropriate evidence (including evidence from parents, students, former students and social workers) in support of the said allegations before the Inquiry”. (f) The plaintiff should also be entitled to lead “such appropriate evidence including evidence of teachers whether currently serving or retired of the [school], members of An Garda Síochána, any lay person, psychologist, doctor, psychiatrist or suitably qualified expert”. (g) The reports and documents prepared by the Health Board concerning any child who attended the school, including “any assessment or validation”, should be admissible without proof before the Inquiry, provided that the Adjudicator should disregard any such reports or documents unless the author (or one or other of the authors) should attend and give evidence at the Inquiry and be available for cross-examination in respect of the same. (para. 9).
3. The Inquiry 3.2 On 23rd October, 2009 the defendant’s solicitors furnished the “Book of Complaints” in connection with the Inquiry to the plaintiff’s solicitors. It contained the following documentation:
(b) statements, which were described as “general statements”, which I understand to mean statements of witnesses whose evidence before the Inquiry would relate to general matters rather than to the specific complaints of the pupils; and (c) in relation to the individual complaints of each of the ten pupils, the complaint and other documentation. 3.3 When the Inquiry opened before the Adjudicator on the 7th December, 2009, he was given the Book of Complaints. In the light of the issues which arise in these proceedings, I consider that it is useful to set out at this juncture, by way of example, in relation to the allegations involving J.L. –
(b) the witnesses whom the defendant intended to call to give evidence at the Inquiry, and (c) the other documentation contained in the Book.
3.5 In the case of J.L., the witnesses to be called on behalf of the defendant were identified as: a Senior Clinical Psychologist with the Health Board; the mother of J.L.; and Dr. Alice Swann, who was described as an “independent Medical Specialist”. 3.6 The documents included in the Book in relation to the complaints involving J.L. were the following:
(b) a document headed “Summary Report – Child Sexual Assessment”, which was dated 26th November, 2003, and which was signed by Kevin O’Farrell, who was identified as one of the general witnesses to be called by the defendant, and which contained the findings that the allegations were credible and that the plaintiff represented an ongoing risk to vulnerable children; (c) a report dated 7th January, 2000 of Dr. Alice Swann; and (d) the statement given by the mother of J.L. to Gardaí on 14th June, 1997. 3.8 The fact that the civil proceedings were pending when the Inquiry opened is of some, if limited, relevance in the overall context of these proceedings. The first day of the Inquiry, 7th December, 2009, was taken up by the opening on behalf of the defendant and, in particular, an outline of the evidence which the defendant intended to call, legal submissions by counsel for the defendant in support of the approach which it was proposed to adopt, objections by counsel for the plaintiff to that approach and legal submissions in support of his objections, and an exploration by the Adjudicator as to his role and, in particular, the basis on which he could hear the evidence which was to be proffered by the defendant, including the video tapes of the interviews with the complainants which had been conducted by the Health Board. 3.9 The transcripts of both days of the Inquiry, 7th December and 8th December, 2009, have been put in evidence. On the first day, counsel for the plaintiff raised many objections to the evidence which the defendant proposed to adduce at the Inquiry, which are outlined in paragraphs 98 to 107 of the plaintiff’s statement of claim in these proceedings and addressed by the defendant in paragraphs 98 to 115 of the defence. Ultimately, the plaintiff’s objections to the evidence crystallised into two main objections. 3.10 The first arose out of the fact that, with one possible exception, the pupil complainants would not be available to testify. This was clarified when a letter dated 4th December, 2009 from the solicitor acting for the pupil complainants and their parents in the civil proceedings to the defendant’s solicitors was read into the record of the Inquiry. In that letter, the defendant was informed that “with one possible exception, none of the guardians of the former students will consent to the former students giving evidence and being cross-examined at the Inquiry which the school is conducting”. The letter linked the refusal of the former students to give evidence to the pending civil proceedings in the High Court and the motion which was pending in those proceedings. In addition, the point was made that the former students and parents had already consented to the information held by the Health Board, including the video tapes, being made available to the Inquiry. It was clarified at the Inquiry on 8th December, 2010 that the possible exception was D.M. The position, accordingly, was that the defendant was not in a position to adduce the evidence of the complainants at the Inquiry. Arising out of that, the Adjudicator queried whether he could proceed on the basis of the video tapes of the interviews and the other evidence available to him, namely, the evidence of the Health Board personnel who were involved in conducting the interviews and who made the findings that the allegations of abuse against the plaintiff were credible and that he represented “an ongoing risk to vulnerable children” on the basis of the recorded interviews. Counsel for the plaintiff submitted that he could not. 3.11 The second objection of the plaintiff related to the proposal of the defendant to adduce evidence in relation to the complaints made by D.M. and K.W., on the basis that, the plaintiff having been acquitted by a jury in the Circuit Court on the charges based on the complaints made by those complainants, as a matter of law, those complaints could not be the subject of the Inquiry. As regards D.M., counsel for the plaintiff contended that the objection was valid whether it transpired that D.M. was available to testify at the Inquiry or not. 3.12 The Adjudicator ruled on the issues which had been raised on behalf of the plaintiff on the afternoon of 8th December, 2009. It was a reasoned ruling on the basis of the submissions made to him and the authorities which had been cited by counsel on both sides. 3.13 On the first issue, namely, whether, in the absence of the pupil complainants to give evidence, he could receive evidence in the form of video tapes of the interviews of the complainants and the accompanying expert evidence, the Adjudicator found that he could, subject to the reservations set out in the ruling. In reaching that conclusion, the Adjudicator pointed to the fact that the complainants were not available to the Inquiry through no fault of the school. Having regard to the authorities which had been cited to him, the Adjudicator reached the following conclusions:
(b) He recognised that tribunals exercising quasi-judicial functions are frequently allowed to act informally, to receive unsworn evidence, to act on hearsay and to depart from the rules of evidence. Earlier, the Adjudicator had outlined his terms of reference provided for in Annex 1. An issue which was mooted during the hearing before him had been whether the witnesses would be required to give evidence on oath. As will appear from a quotation from the ruling later, he stated that he had no power to make witnesses take an oath or affirm before giving evidence. (c) The Adjudicator rejected a submission made on behalf of the defendant, in reliance on the decision of the High Court (Barr J.) in M.Q. v. Gleeson [1998] 4 IR 85, that in the Inquiry he could rely upon the Health Board’s opinion, if satisfied that it was reasonably based, unless the plaintiff’s defence established that there was no reasonable justification for it or there were serious reasons for doubting its validity. In relation to that submission, the Adjudicator pointed out:
In this dispute, the core allegations are presented in a format similar to that which arose in the Supreme Court cases considered. No school could responsibly fail to respond to such allegations and it does so by means of this Inquiry. It is not a criminal trial and it does not attract the trappings of one. It is an administrative process requiring appropriate fair procedures.” 3.15 On the second issue, whether the Adjudicator could proceed with an adjudication in respect of the complaints of D.M. and K.W. in the face of an acquittal on the merits of criminal charges based on those complaints following a trial at which both complainants gave evidence and were cross-examined and the plaintiff had given evidence, the Adjudicator treated the complaints in relation to K.W. differently from the complaints in relation to D.M. He noted that K.W., who had been deemed to be a competent witness at the criminal trial, would not be available for cross-examination on behalf of the plaintiff at the Inquiry. He expressed the view that it would be oppressive and unfair to subject the plaintiff to a further hearing with the significant disadvantage of no opportunity to cross-examine K.W. On that basis he decided that it would not be appropriate to proceed any further with the consideration of the allegations in relation to K.W. He considered that different considerations would apply, if D.M. attended as a witness at the Inquiry, and stated:
3.17 Following the ruling and following a brief adjournment, when the hearing resumed, counsel for the plaintiff informed the Adjudicator that the plaintiff was exercising his rights in law “to take the matter elsewhere”. The consequences of that decision were then debated. In response to a question from the Adjudicator, counsel stated that it was “a fair interpretation” of the plaintiff’s position that, effectively, there was a termination of the adjudication because the plaintiff did not wish to proceed further on the basis of the ruling which the Adjudicator had made. On that basis, the Adjudicator stated that the adjudication was at an end, because the plaintiff did not wish to participate in it on the basis of the ruling which he had made. He then stated that the adjudication was complete and that he was declaring himself to be functus officio. 4. Post-Inquiry 4.2 The response of the defendant was contained in letters dated 18th December, 2009 from the defendant’s solicitors to the plaintiff’s solicitors and from the school to the plaintiff, both of which were in the same terms. It was contended that the plaintiff’s withdrawal from the Inquiry and his failure to participate in or co-operate with the Inquiry so that the Adjudicator could make a determination in accordance with the evidence potentially gave rise to gross misconduct within the meaning of Gross Misconduct (Stage 4) of the Revised Procedures for Suspension and Dismissal of Teachers 2009, a copy of which was enclosed, entitling the Board of Management to terminate the plaintiff’s employment. Accordingly, in accordance with those Procedures, the plaintiff would be suspended on full pay from 18th December, 2009 pending the investigation of the matters referred to and the conclusion of any appeal process (if applicable) into “the following very serious allegations, which may give rise to an entitlement on the part of the Board of Management to terminate” the plaintiff’s employment. The following allegations were then outlined:
(b) that the plaintiff had failed to comply with the Inquiry’s legal remit and directions; (c) that the plaintiff had failed to abide by the Terms of Settlement, whereby he had agreed to co-operate with the Inquiry; (d) that the plaintiff had put himself and the school in a situation whereby he had not challenged the very serious findings of the Health Board against him, in circumstances where he alone had locus standi to do so, and had precluded the school from conducting an investigation into the findings, thereby leaving them extant against him; and (e) that by failing to co-operate with the Inquiry, the plaintiff had frustrated his contract of employment, in that he had rendered the investigation of the allegations made against him by the HSE and by or on behalf of the pupils impossible. 4.3 These proceedings were initiated by plenary summons which issued on 18th December, 2009. 5. The pleadings 5.2 In relation to the relief claimed by the plaintiff, he seeks declaratory relief in relation to various stages in the process since May 2009 which it is convenient to set out chronologically. First, he seeks a declaration that there was a failure by the defendant to comply with the order of the High Court made on 15th May, 2009. Secondly, he seeks various declarations in relation to the hearing of the Inquiry: that it was conducted in an unfair and unlawful manner; that it was not conducted in accordance with fair procedures and within accepted rules of evidence; and that “the purported hearing” ruled on the admissibility of hearsay evidence in an unlawful manner. Thirdly, the plaintiff seeks a declaration that the defendant has acted unlawfully and in breach of his contract of employment in failing to reinstate him to his position and he also seeks a declaration that as a teacher “being paid by the State and not suspended from his post” he is entitled to return to work forthwith. He also seeks a declaration that the defendant has acted in breach of the provisions of “The 1997 Management Handbook”, which appears to be what is referred to as “Management Board Members’ Handbook” earlier in the statement of claim. He also seeks injunctive relief in the form of permanent orders directing the defendant to permit him to return to work forthwith and restraining the defendant from terminating his contract of employment. He also seeks an order prohibiting the holding “of any further inquiry”. 5.3 The plaintiff also claims damages, including aggravated damages. However, it was agreed by the parties that the Court should deal with the issue of liability first. 5.4 It is appropriate to record that it is pleaded in the statement of claim that the plaintiff denies the various allegations made against him and says that they are untrue and without foundation or merit. The plaintiff was the only witness to give evidence at the trial of the action. His evidence was that he attended the Inquiry and that he had intended to give evidence to the Inquiry. He was distressed in the witness box. He stated that he had waited for twelve years and he wanted everybody brought in. He was dissatisfied with the ruling of the Adjudicator and angry. His view was that he was not going to get a proper inquiry. 5.5 In the defence it is alleged that the plaintiff has failed to plead adequately the basis of his claim for the reliefs sought. In this connection I note that the hearing of the action went ahead without a notice for particulars delivered by the defendant’s solicitors on 22nd March, 2010 having been complied with. In any event, as a general proposition, in the defence, the defendant put the plaintiff on proof of all matters of fact and traversed all allegations made by the plaintiff. I propose only referring to a number of issues arising out of the defence. An important aspect of the submissions made on behalf of the defendant was that the objections of the plaintiff before the Adjudicator had no bearing on the second category of complaint made in relation to each complainant, which I have quoted above in relation to J.L. In replying to those submissions, counsel for the plaintiff contended that the defendant’s reliance on the second category was not pleaded. I do not accept that as being correct. The defendant pleaded that the plaintiff had failed in a timely manner to challenge the findings made by the Health Board and compromised the judicial review proceedings without obtaining any order quashing or otherwise rendering those findings null and void and thereby leaving them extant against him. There were several other references in the defence to the failure of the plaintiff, despite being afforded an opportunity, to answer or challenge the Health Board findings. Aside from that, I am satisfied, on the basis of the transcript of the hearing before the Adjudicator that, up to the time the Inquiry terminated, the plaintiff had not raised any issue as to the authority of the Adjudicator to adjudicate on the second category of complaint. 5.6 As regards the consequences of the plaintiff’s withdrawal from the Inquiry, the defendant pleaded the following matters:
(b) The defendant acknowledged that it had “re-suspended” the plaintiff and asserted that it acted lawfully in doing so and in proceeding to discipline the plaintiff by reason of his failure to participate in the Inquiry. (c) It was asserted that, by withdrawing from the Inquiry, and by failing to address the allegations made against him, the defendant had acted in a manner that grossly breached the trust required to maintain an employment relationship with the defendant, particularly in the circumstances that the defendant is responsible for the education and welfare of extremely vulnerable children and young persons. (d) The defendant asserted that the plaintiff’s withdrawal from the Inquiry and his failure to address the serious allegations maintained against him constituted gross misconduct on his part. 6.1 Because of the long history of the fractured relationship between the parties, it is important to identify the context in which the issues raised by the parties fall to be determined. 6.2 What precipitated these proceedings was that the plaintiff voluntarily withdrew from the Inquiry, and the defendant responded by “re-suspending” him and embarking on a disciplinary process with a view to terminating his employment. In these proceedings the plaintiff seeks to justify that withdrawal on the basis that the ruling of the Adjudicator on the objections made on his behalf as to the manner in which the defendant intended to adduce evidence at the Inquiry would inevitably result in the Inquiry being conducted in an unfair and an unlawful manner and in a manner which was not in accordance with fair procedures or within the accepted rules of evidence. The justification for the plaintiff’s withdrawal is predicated on the Adjudicator’s ruling as to the two objections made on his behalf, which, in the interests of brevity, I will refer to as the hearsay objection and the acquittal objection, being wrong in law. 6.3 The plaintiff’s withdrawal from the Inquiry being the catalyst for these proceedings, the Inquiry has to be put in context. Its objective was to resolve as between the plaintiff, as employee, and the defendant, as employer, the question whether the allegations of sexual and physical abuse made against the plaintiff were well founded and, specifically, whether the plaintiff posed or poses a threat to children. The objective of the parties was that the finding of the Adjudicator would determine whether the plaintiff would be entitled to resume his employment (or more correctly, resume his teaching duties) in the school or, alternatively, whether he would be obliged to resign from his employment in the school. The overall context, therefore, was a contractual employment relationship between the plaintiff and the defendant and whether that relationship would continue or terminate. 6.4 However, an important facet of that context was that the allegations of abuse against the plaintiff required to be considered against the background that those allegations related to pupils of the school who suffer from intellectual disability. The pupils whom the plaintiff has taught in the past, and would teach in the future, if a finding favourable to him were made by the Adjudicator, are vulnerable children who are especially in need of protection. 6.5 It is well settled, as a matter of constitutional law and of contract law, that an employee who is involved in a disciplinary process in the course of his employment is entitled to be afforded fair procedures, although what constitutes fair procedures may vary from case to case. In this case, the Inquiry was to be governed in accordance with the agreement between the plaintiff and the defendant embodied in the Terms of Settlement and in accordance with Annex 1 thereto. The conduct of the Inquiry was subject to the express terms agreed between the parties and the ruling of the Adjudicator falls to be considered against those terms. 6.6 Whether the Adjudicator was correct or incorrect in his ruling, the plaintiff withdrew without giving him an opportunity to conduct the Inquiry. It was submitted on behalf of the defendant that the plaintiff’s withdrawal from the process at that juncture was not justified and that these proceedings are premature. 6.7 Having regard to the foregoing observations, I consider that the issues to be determined by the Court are the following:
(b) Given the context outlined, whether the Adjudicator was correct in deciding to proceed with the Inquiry into the allegations made by D.M. should he attend and be available for cross-examination at the Inquiry notwithstanding the acquittal objection. (c) Whether the plaintiff was justified in withdrawing from the Inquiry on 8th October, 2009 and whether these proceedings are premature, as contended on behalf of the defendant. (d) Insofar as it is relevant to the proceedings, what are the consequences of the plaintiff having withdrawn from the Inquiry in the light of the findings in relation to the issues at (a), (b) and (c) above? 7. Hearsay objection 7.2 Counsel for the plaintiff submitted that the starting point for the Court should be the observations of Henchy J. delivering judgment in the Supreme Court in Kiely v. Minister for Social Welfare [1977] IR 267, where he stated (at p. 281):
7.4 Southern Health Board v. C.H. [1996] 1 I.R. 219 concerned the question whether evidence comprising a video recording of an interview with a child who was under six years of age at the time, who alleged sexual abuse by her father, conducted by a social worker, as well as the social worker’s opinion as to the validity of the allegations, was admissible in proceedings under s. 58 of the Children Act 1908, which provided for the placing of a child under the age of 15 years in the care of a “fit person” in certain circumstances. The father objected to the admission into evidence of the video tape on the grounds that it was hearsay. The matter came before the High Court by way of consultative case stated from the District Court, which posed the following question:
(b) such discretion could only be exercised when the court was satisfied that it was necessary to do so in the interests of the child, as where (i) the child was too young to give evidence in court, or (ii) the court was satisfied that the child should not be required to undergo the trauma of giving evidence in court; (c) the weight to be given to such evidence was a matter for the court; and (d) when hearsay evidence was contained in a video recording which it was proposed to admit in evidence, (i) it should be given, prior to the hearing, to the person against whom allegations of wrongdoing were made and, (ii), that person should be afforded an opportunity to submit evidence to rebut any conclusions suggested by the hearsay evidence.
(b) it was a matter for the District Judge to accept or reject the evidence having given the respondent every opportunity to engage his own expert testimony in that regard, and (c ) the video recording of the interview with the child was not to be admitted as the independent evidence of the child but rather as a portion of the material on which the expert evidence of the social worker would be based. 7.7 The decision of the Supreme Court in Eastern Health Board v. M.K. [1999] 2 I.R. 99 is the decision referred to in the plaintiff’s statement of claim. Although the judgment of the Supreme Court was delivered on 29th January, 1999, after the Act of 1997 came into operation on 1st January, 1999, the decision of the High Court against which the appeal was brought and the hearing of the appeal both pre-dated the coming into operation of that Act. The case concerned an application to have three children made wards of court. The parents of the children were the respondents on the application. It was alleged that the father had sexually abused one of the children. The evidence relied on in support of the application was:
(b) the evidence of a senior social worker of what the child said and did at an interview, a video of which was put in evidence. 7.8 An appeal to the Supreme Court was successful. The head note sets out the basis on which the Supreme Court allowed the appeal as that –
(b) hearsay evidence was admissible in wardship proceedings, particularly in administrative matters, as the nature of the jurisdiction justified a departure from the normal rules of evidence; (c) hearsay evidence regarding statements of a child alleging sexual abuse by his or her parents could be received in the context of assessing the risks to the welfare of the child, but it did not follow automatically that it was also capable of proving the truth of its contents, Southern Health Board v. C.H. being approved; and (d) the essential test was not whether the alleged abuse had occurred but whether there were unacceptable risks to the welfare of the child if the child was not taken into wardship. 7.10 Keane J. made some observations on video evidence (at p. 138) stating:
7.14 In reaching a conclusion as to whether the Adjudicator’s ruling in relation to the hearsay objection was correct, I consider that I must treat the process in which the parties had agreed to participate, the Inquiry, as being analogous to a lis inter-partes, as opposed to an inquisitorial process, because it is to be inferred from the Terms of Settlement that that is what the parties intended. It was a process the outcome of which would have had serious ramifications for the plaintiff if a finding had been made that he poses a threat to children, because he would have been contractually bound to resign forthwith. It was not merely implicit that he would be afforded fair procedures in the conduct of the Inquiry; it was expressly provided in para. 4 of Annex 1 that recognised principles of fair procedure would apply. Further, it was expressly provided in para. 11 that the Adjudicator would make his determination “in accordance with accepted evidential rules”. That provision must be read in the light of the express provision in para. 9 that documents prepared by the Health Board, including any assessment or validation, would be admissible without proof subject to the proviso that at least one of the authors would be available to give evidence and for cross-examination. 7.15 Because the Inquiry was to be conducted by agreement of the parties and it was to be conducted in accordance with the agreed terms set out in Annex 1, it seems to me that it was sui generis. While the authorities to which I have referred give guidance as to what may or may not constitute fair procedures in a particular context, I have no doubt that, in accepting the video tape evidence and the accompanying expert evidence and in treating it in the manner in which he indicated in his ruling that he intended to treat it, the Adjudicator would have afforded the plaintiff fair procedures and would have approached the adjudication of the issues which the parties had, by agreement, submitted to his adjudication fairly and in accordance with accepted evidential rules. Therefore, as regards the video tape evidence and the accompanying expert evidence, I am satisfied that the manner in which the Adjudicator would have performed his functions under the Terms of Settlement would have fulfilled the plaintiff’s entitlements thereunder for a number of reasons. 7.16 First, in the Terms of Settlement and, in particular, in Annex 1, the defendant and the plaintiff signed up to a process under which neither party was going to be in a position to compel the attendance of a witness at the Inquiry, nor was the Adjudicator. Further, neither party was going to be in a position to compel an assessment of the competence of the pupil complainants, nor was the Adjudicator. In the circumstances, in incorporating the standard of “accepted evidential rules” in Annex 1, the parties cannot have envisaged the application of a standard which required that assessment of the competence of a complainant, or the attendance of him or her as a witness, was a necessary component of that standard. The evidential standard which must have been envisaged by the parties, accordingly, must have been a standard which met the requirements of the authorities to which reference has been made, but without those two elements. In ruling that he would hear the video taped interviews and the accompanying expert evidence as he indicated he would, the Adjudicator made it clear that he would follow the requirements implicit in the decisions of the Supreme Court in Southern Health Board v. C.H. and Eastern Health Board v. M.K. In so indicating, in my view, the Adjudicator made it clear that the Inquiry would be conducted, and his findings made, “in accordance with accepted evidential rules”. In other words, both parties were being assured that the conduct of the Inquiry would be in accordance with the Terms of Settlement. 7.17 As an aside, I would emphasise that that conclusion is based entirely on what I understand to have been the agreement of the parties in relation to the availability of witnesses. It has not been influenced by the authorities in relation to Tribunals of Inquiry under the Tribunal of Inquiries (Evidence) Act 1921 cited by counsel for the parties (Goodman International v. Hamilton (No. 2) [1993] 3 I.R. 307; and O’Brien v. Moriarty (No. 3) [2006] 2 IR 474). 7.18 Secondly, as regards compelling a pupil complainant either to attend or to submit to a competence assessment, both the defendant and the plaintiff are in exactly the same position. To adopt the terminology used by Henchy J. in the Kiely case, it is not a case where “the scales of justice are tilted against one side”. The investigation of the complaints of the pupil complainants in 1997 was conducted by the Health Board, the public body which, at the time, was statutorily charged with responsibility for the welfare of children. The interviews recorded on video tape were conducted by Health Board personnel. The documentation generated in relation to the complainants’ complaints and the reports, including assessments and validations, which were made in relation to the complaints, were produced by Health Board personnel. While it is true that, in the case of nine of the ten complainants, the assessments made by the Health Board personnel are adverse to the plaintiff, in the course of the Inquiry the plaintiff would have been entitled to cross-examine the author of a report admitted in evidence. Further, the plaintiff would have been entitled to lead evidence of experts on every aspect of the material admitted at the Inquiry. In my view, the application of the ruling of the Adjudicator would have afforded the plaintiff an inquiry the conduct of which would have been in accordance with generally recognised principles of fair procedure. 7.19 Thirdly, the reality of the situation in which the school and the plaintiff find themselves is that, in the type of situation which has arisen in this case, where there is an allegation of sexual abuse against a member of staff in a school for intellectually impaired children and an investigation by the Health Board intervenes, the issues which arise on the employment contract between the employer and the employee cannot be determined without regard being had to the outcome of that investigation. That reality is reflected in Annex 1 to the Terms of Settlement in which both parties expressly agreed that the Health Board documentation, including assessments, would be admissible subject only to the proviso that the author attend the Inquiry, with a view to being available for cross-examination. While the video tapes of the interviews of the pupil complainants are not mentioned in Annex 1, the video tapes contain the source material which formed the basis of the assessments and validations carried out by Health Board officials. It must be implicit in the agreement of the parties that they would be admissible. Otherwise, the plaintiff would have had a genuine grievance, because the Health Board personnel would be expressing opinions on available source material which neither the plaintiff nor his witnesses nor the Adjudicator would have seen. 7.20 In reaching the conclusion that the Adjudicator was correct in ruling that he intended to hear the evidence, including the video taped evidence and accompanying expert evidence, subject to the observations he had set out, I have not had regard to the argument made on behalf of the defendant that the second category of complaint against the plaintiff in relation to each complainant would, in any event, be unaffected by the hearsay challenge. The two pronged complaint approach adopted in the Book of Complaints, while it may have been intended to put some structure on the Inquiry, and I am doubtful whether it achieves that end, is unquestionably artificial as regards so much of the second category of complaint as relates to the “findings in the report of the [Health Board]” in respect of each complainant. The first step in the agreed task which the Adjudicator was required to perform, as set out in para. 11 of Annex 1, was to determine whether “the said allegations are well founded”. The reference to “the said allegations” clearly means the allegations referred to earlier in para. 7 – “such allegations as are in [the Health Board’s] possession which contain allegations of sexual abuse in respect of current or former pupils of St. Vincent’s School concerning the [plaintiff]”. The second step in the agreed task of the Adjudicator was to determine specifically whether the plaintiff posed or poses a threat to children. However, that determination was clearly intended to flow from his determination in relation to the allegations which were the subject of the Inquiry. I cannot see anything in the Terms of Settlement which would have entitled the Adjudicator to make a finding adverse to the plaintiff which extended beyond those two steps, which are intrinsically entwined with each other. In other words, any adverse finding of the Adjudicator based on the findings referred to in the second category would have to have been based on the first category complaints. 7.21 I have not overlooked the fact that the second category of complaint goes on to allege professional misconduct on the part of the plaintiff on the ground that he had not moved to set aside the findings of the Health Board. However, I have already alluded in para. 5.4 above to the fact that the vires of the Adjudicator to adjudicate on that part of the second category complaints was not raised at the hearing before the Adjudicator prior to its termination. I am acutely conscious of the fact that the final submission made by counsel for the defendant was that the issue was not raised. In the circumstances, it would be inappropriate to address this aspect of the matter further. 8. Acquittal objection 8.2 In relation to K.W., the Adjudicator stated that the allegations and issues arising were manifestly the same at the Inquiry as at the trial. While, as regards D.M., he did not make any similar statement, I consider that it is reasonable to infer that the allegations and issues which arose in respect of D.M. on the first category of complaint were the same at the Inquiry as at the trial. I am proceeding on that assumption, subject to the qualification expressed later. While, on the first day of the hearing, the Adjudicator asked to be furnished with a copy of the indictment in the criminal proceedings, it would appear that it had not been furnished prior to the termination of the hearing. It is not possible to discern from the transcripts the precise offences with which the plaintiff was charged on the basis of the allegations made by D.M. and K.W. 8.3 The first category complaint in relation to D.M., which the Adjudicator ruled he would hear if D.M. appeared at the hearing, alleges that on divers dates unknown, but since around September 1994 and prior to 4th March, 1997, the plaintiff physically and sexually abused D.M. The particulars given state the locations at which the abuse is alleged to have occurred, being the school and the plaintiff’s house. The particulars of the one allegation of sexual assault allege that the plaintiff, at his house, sexually assaulted D.M. by touching his penis. 8.4 The authorities which were cited in argument before the Adjudicator, which were also cited in this Court, were three decisions of the Supreme Court, namely:
(b) Mooney v. An Post [1998] 4 I.R. 288; and (c) Garvey v. Minister for Justice [2006] 1 IR 548. 8.6 The plaintiff in the Mooney case was a postman employed by An Post. He was acquitted by a jury of criminal charges arising out of complaints in relation to mistreatment of postal packets. The judgment does not disclose the offences with which he had been charged. Following his acquittal, after protracted correspondence between the plaintiff’s solicitors and the solicitors for An Post, the plaintiff was dismissed. An issue which arose in the plenary proceedings in the High Court was whether the plaintiff was entitled to rely upon his acquittal in the criminal case to defeat the civil complaint against him. He was not successful on that point either in the High Court or in the Supreme Court. 8.7 In the Garvey case, the applicant, a prison officer, was acquitted at trial by the jury on charges of offences under the Non-Fatal Offences against the Person Act 1997 relating to an alleged assault on a prisoner by kicking him in the face. Despite the acquittal, his suspension, which had pre-dated the criminal charges, was not lifted. The Governor of the prison pursued an internal disciplinary inquiry into whether he had breached the disciplinary code for prison officers. The particulars of each alleged breach of discipline were identical and consisted of the set of facts alleged on foot of which the applicant had been tried and acquitted. His application for an order of prohibition in relation to the disciplinary proceedings was refused at first instance but was granted on appeal. In the Supreme Court, Geoghegan J., in his judgment, with which the other judges concurred, was faced with the problem of attempting to reconcile the decisions of the Supreme Court in the McGrath case and the Mooney case. Indeed he commented (at para. 13) that it was almost impossible fully to reconcile them. He summarised his view of the decision in the McGrath case as follows (at para. 18): “In summary, my view is that McGrath v. Commissioner of An Garda Síochána … is authority for the proposition that it may, in any given circumstances, be unfair and oppressive to conduct a disciplinary inquiry into the same issues in respect of which there has been an acquittal on the merits at a criminal trial but this will depend on the particular surrounding circumstances and in particular their cumulative effect. There is no necessary preclusion per se of such a double process.” 8.8 In attempting to reconcile the McGrath decision and the Mooney decision, Geoghegan J. stated (at para. 19):
8.9 Certainly, a factor which influenced the manner in which the Supreme Court determined the Garvey case was that there was an internal dispute between prison officers involved. Later (at para. 20) Geoghegan J. stated:
8.10 The approach adopted by the High Court (Ó Caoimh J.) in A.A. v. The Medical Council [2002] 3 I.R. 1, where the inquiry was to be conducted not in an employment context but by an independent statutory body which regulates registration of medical practitioners, is also instructive. The applicant on that application for judicial review was a qualified doctor who had been charged and acquitted on two counts of having sexually assaulted two female patients. He sought to be re-registered with the respondent, as his registration had lapsed through the passage of time. The Fitness to Practise Committee of the respondent determined to conduct an inquiry pursuant to s. 45(3) of the Medical Practitioners Act 1978, in which it proposed to inquire into allegations of professional misconduct, which were particularised as ten allegations, the first two being assault and/or indecent assault and sexual assault. Ó Caoimh J. limited the parameters of the inquiry stating (at p. 33):
8.11 The basis on which the Adjudicator rationalised his decision to proceed to hear the complaints in relation to D.M., but not to hear the complaints in relation to K.W., was that D.M. would probably be available for cross-examination, whereas K.W. would not. That does not, in my view, address the core point, which, in accordance with the jurisprudence of the Supreme Court fell to be considered, which was whether it would have been oppressive and an unfair procedure at the Inquiry to try, to use the terminology used by Geoghegan J. in the Garvey case, “to unravel the verdict of the jury by way of disciplinary inquiry”. On the assumption I have made that the allegations and their factual bases arising in respect of D.M. at the Inquiry were the same as had arisen at the trial, in my view, the Adjudicator was incorrect in ruling that the complaints in relation to D.M. should be inquired into, given that the task of the Adjudicator under Annex 1 was to determine whether the allegations were well founded. In other words, if D.M. appeared at the Inquiry, the Adjudicator was going to determine the very issue which had been determined by the jury in acquitting the plaintiff, albeit by reference to a different standard of proof. On the authorities, to subject the plaintiff to a further civil inquiry, in my view, would have been oppressive and an unfair procedure. 8.12 It is necessary to qualify the assumption on the basis of which I have reached that conclusion. The complaints in the Book of Complaints in relation to K.W. in the first category comprise two separate allegations of sexual assault, the first of which is particularised as including actions which would constitute physical assault and intimidation. In contrast, there are six distinct allegations made in relation to D.M. in the first category of complaints, only one of which, to which I have referred earlier, is in the nature of a sexual assault. Therefore, to the extent that the complaints in relation to D.M. are the same as the allegation or allegations which formed the basis of the charge or charges on which he was acquitted in the Circuit Court, I am satisfied that the ruling of the Adjudicator to proceed with the Inquiry in relation to those complaints was incorrect. 9. Prematurity 9.2 In support of his contention that the plaintiff was wrong in withdrawing from the Inquiry when he did and in seeking to pursue these proceedings, counsel for the defendant referred the Court to the decision of the Supreme Court in Superwood Holding plc. v. Sun Alliance plc. [1999] 4 IR 531, on the basis that the situation which prevails here, proceedings in the High Court to have the Inquiry declared to have been conducted in an unfair and an unlawful manner on the basis that the ruling of the Adjudicator was incorrect, is analogous to a situation in which an appellant appeals from a decision of a High Court Judge to the Supreme Court during the pendency of the High Court proceedings. In the Superwood case, Hamilton C.J. referred to the fact that on many occasions the Supreme Court had indicated its disapproval of appeals to it against orders made by a trial judge during the course of hearing an action. He quoted a passage from the judgment of the Supreme Court in Condon v. Minister for Labour [1981] I.R. 62 in which the “strongest indication of such disapproval is to be found” (p. 538). Later, Hamilton C.J. (at p. 541) reiterated that appeals should not be made to the Supreme Court against orders or rulings made by a trial judge during the course of an action being tried by him or her. 9.3 I do not think that the analogy drawn between the situation which prevails here and an appeal from the High Court to the Supreme Court is a true analogy. While the rationale of the disapproval of the Supreme Court of appeals during the course of the hearing of an action is not set out in either the Superwood case or the Condon case, I assume that it is founded on common sense and a desire to regulate the business of the Superior Courts at both levels in the most time and cost efficient manner. In this case, the involvement of the Adjudicator in the Inquiry is founded on the agreement of the parties to have an issue arising out of their contractual relationship as employer and employee determined. The proceedings in this Court to date have had the semblance of a judicial review on the Adjudicator’s ruling, but that is only because the issues raised on behalf of the defendant are of a type usually encountered in judicial review proceedings. The true position is that the underlying relationship between the defendant and the plaintiff is that of employer and employee and is based on contract, save insofar as the relationship is regulated by statute. In order to resolve the dispute which has arisen out of that relationship the parties agreed, in the Terms of Settlement, to utilise the dispute resolution mechanism embodied in the Terms of Settlement. Accordingly, the consequences of the plaintiff withdrawing from the Inquiry when he did fall to be determined in accordance with the law of contract and its application to the agreement embodied in the Terms of Settlement. 10. Consequences
(b) I consider that the Adjudicator was incorrect in ruling that the complaints in relation to D.M., insofar as they are the same as the allegations which formed the basis of the charges on which he was acquitted, should proceed at the Inquiry. (c) The withdrawal of the plaintiff from the Inquiry and the initiation of these proceedings is not analogous to an appeal from the High Court to the Supreme Court against a decision made by a judge during the course of the hearing of an action and a finding cannot be made that the plaintiff acted prematurely on that basis. The consequences of the plaintiff’s withdrawal from the Inquiry in the light of the findings made at (a) and (b) above fall to be determined in accordance with the law of contract. 10.3 However, I consider that one comment is apposite. During the hearing, the conduct of the plaintiff in withdrawing from the Inquiry was characterised by counsel for the defendant as self-induced or voluntary frustration of the Inquiry. Such conduct, even if it was not justified, would not give rise to what at common law is regarded as frustration of a contract, either frustration of the Terms of Settlement, or of the plaintiff’s underlying contract of employment. 10.4 I will hear both sides as to how the proceedings are to be progressed to conclusion.
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