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Cite as: [2019] IEHC 823

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THE HIGH COURT

[2019] IEHC 823

[2019 No. 95 JR]

BETWEEN

AIMEE SCOTT

APPLICANT

AND

THE DATA PROTECTION COMMISSIONER

RESPONDENT

JUDGMENT of Mr. Justice Barr delivered on the 5th day of December, 2019

Introduction

1. This is an application by the respondent grounded on a notice of motion issued on 13th

August, 2019, seeking to have the applicant’s application in these judicial review

proceedings struck out on the basis that the proceedings are now moot. The respondent

argues that they have become moot in the following circumstances: by an Order of

Noonan J. made on 25th February, 2019, the applicant was given liberty to seek an order

of mandamus by way of judicial review, directing the respondent to issue decisions in

respect of two complaints which had been lodged with it by the applicant. The

respondent submits that those decisions were issued by it on 18th April, 2019, and 20th

May, 2019. Accordingly, it is submitted that as the object of the relief sought by the

applicant in these proceedings, being the issuance of the two decisions by the respondent,

has been obtained, these proceedings are now moot.

2. The applicant resists this application on a number of grounds, which can be summarised

as follows: that by failing to investigate certain matters and by failing to obtain sight of

certain documents held by a third party prior to issuing its decisions, the respondent has

not in fact issued any substantive decision on the issues raised in the complaints lodged

by the applicant and accordingly, it is appropriate for these proceedings to continue.

3. That is an extremely brief summary of the key points made by each of the parties.

Unfortunately, the facts of this case are somewhat more complex and it will be necessary

to refer to these in some detail in the next portion of the judgment.

Background

4. On 5th January, 2016, the applicant commenced employment with her former employer,

Mason Technology Limited (hereinafter referred to as “Mason”). According to a response

furnished by that company to enquiries made by the respondent, the company maintains

that prior to the commencement of the applicant’s employment with them, they had been

made aware that the applicant had a disability. They further stated that upon

commencement of the applicant’s employment with them, she brought to their attention,

via a letter or report which she had submitted from her GP, that she also had a further

condition which required specialist equipment and arrangements in the office. Due to the

Christmas period which preceded the commencement of her employment, the applicant

had not done a pre-employment medical with the company doctor prior to commencing

with the company. The company stated that in order to ensure that the necessary

arrangements were put in place to enable the applicant to carry out her work in safety,

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Mason furnished a copy of the applicant’s GP’s report to a specialist occupational health

firm known as Medmark.

5. For some reason that is unknown to the Court, the applicant was dismissed by Mason on

7th March, 2016.

6. Subsequent to her dismissal, the applicant requested production of certain documents

from Mason, which she alleged constituted her personal data. When certain of the

documents requested were not forthcoming from her former employer, the applicant

lodged complaints with the respondent.

7. On 24th March, 2017, the plaintiff lodged a complaint against Mason with the respondent

to the effect that Mason had “disclosed to Medmark Occupation Healthcare a confidential

medical report from my GP regarding my fitness to work, without my permission to do

so.” It was further alleged that Mason instructed Medmark to contact the applicant’s GP

and discuss the content of that report without her knowledge or permission. This

complaint was given reference number 3/17/849 by the respondent (hereinafter referred

to as “the medical disclosure complaint”).

8. On 12th November, 2017, the applicant lodged a complaint with the respondent in

respect of certain disclosures made by Mason of the plaintiff’s personal data to IBEC and

in particular, she complained about a refusal by Mason to furnish certain documents

based on legal professional privilege. That complaint was given reference number

3/17/662 (hereinafter referred to as the “IBEC communications complaint”).

9. When no decision was forthcoming from the respondent in respect of either of these

complaints, the applicant made an application to Noonan J. on 25th February, 2019,

seeking leave to seek judicial review by way of an order of mandamus directing the

respondent to issue its decisions in respect of these two complaints. In an “amended”

statement of grounds, which was unstamped but was dated 18th February, 2019, the

reliefs sought by the applicant in these judicial review proceedings were stated in the

following terms:

“1. It is submitted that the unjustified delay by the Respondent in dealing with the

Complainant’s data protection complaints (complaints reference 3/17/662 and

3/17/849) by implication amounts or is tantamount to a refusal in its effect. The

complainant treats the delay as refusal and seeks an order of mandamus seeking to

compel the respondent to complete its investigations and enforce compliance with

the ‘Act’ (the Data Protection Act 1988 – 2003) the complainant seeks an order of

mandamus seeking the respondent to accord her complaints with some priority and

complete its investigations within a reasonable timeframe and prior to her

upcoming work place relations’ hearing. Additionally, the complainant seeks an

order of mandamus seeking to compel the respondent to issue a decision in relation

to complaints referenced 3/17/662 and 3/17/849, on completion of said

investigations.”

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10. It is not necessary to set out the remainder of the Statement of Grounds herein. It will

suffice to note that the applicant complained therein of an unjustifiable and unreasonable

delay on the part of the respondent in carrying out its investigations and furnishing its

decisions in respect of her two identified complaints. On the basis of that alleged

unreasonable delay, she sought an order of mandamus directing the respondent to

furnish the two decisions. The application was moved by the applicant in person.

11. By Order dated 25th February, 2019, Noonan J. granted the applicant liberty to apply by

way of application for judicial review for the reliefs set forth at paragraph 1 in her

Statement of Grounds on the grounds set forth at paragraph 2 therein. The Order further

provided that the applicant was to serve an originating notice of motion within seven days

of the perfection of the Order, which was to be returnable for 30th April, 2019.

12. By notice of motion dated 29th February, 2019, the applicant indicated that on 30th April,

2019, she would apply to the Court for an order of mandamus seeking to compel the

respondent to enforce compliance with the Data Protection Acts 1988 – 2003, to accord

her complaints some priority and to complete its investigation within a reasonable

timeframe and in any case prior to her upcoming workplace relations’ hearing. It further

indicated that the applicant was going to apply to the Court for an order of mandamus

seeking to compel the respondent to issue a decision in relation to each of the referred

complaints on completion of the said investigations and in any case prior to her upcoming

workplace relations’ hearing.

13. On 18th April, 2019, the respondent issued her decision in respect of the medical

disclosure complaint (reference 3/17/849). On 20th May, 2019, the respondent issued

her decision in respect of the IBEC communications complaint (reference 3/17/662).

14. The applicant had a number of issues with the decisions given by the respondent. In

relation to the medical disclosure issue (reference 849) the applicant maintained that the

respondent was wrong to have accepted the explanation given by Mason that they had

furnished a copy of the report furnished by her GP to Medmark because the company

doctor was not sufficiently qualified in occupational health matters and for that reason

they needed advice from a specialist firm as to the necessary workplace equipment and

arrangements that should be provided to the applicant to enable her to carry out the

demands of her work in safety.

15. The applicant wishes to make the case that the respondent should not have relied upon

that explanation from Mason, as to the inadequacy of the qualifications or experience of

the company doctor, because on the website of the clinic where the company doctor

practices, it is stated that he holds a Higher Diploma in Occupational Medicine since 1995.

In these circumstances, the applicant makes the case that the respondent was wrong to

have accepted the explanation given by Mason, without checking or further investigating

the qualifications actually held by the company doctor.

16. Insofar as it may be relevant, it is only fair to point out that the respondent replied to

correspondence wherein that complaint was raised by the applicant, by stating that it was

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not the function of the respondent to investigate the qualifications or the suitability of the

qualifications of a medical doctor to furnish an employer with advice in relation to health

and safety matters.

17. The applicant also had a difficulty with the decision reached by the respondent in relation

to the communications which Mason had had with IBEC (reference 662). In this regard,

the applicant had two areas of complaint. Firstly, she stated that the respondent was

incorrect in its decision wherein it found that Mason was justified in withholding certain

documentation on the ground that that documentation was covered by legal professional

privilege. In that regard, Mason had argued that as a member of IBEC, it was entitled to

have access to legal advice from the IBEC in-house lawyer. They stated that insofar as

there were communications from IBEC to them from the in-house lawyer, that was

covered by legal professional privilege. Having carried out a comprehensive review of the

documentation and of the law in relation to legal professional privilege, the respondent

came to the conclusion at paragraph 56 of her decision that certain emails were covered

by legal advice privilege and therefore the personal data contained within those

documents was validly withheld by Mason pursuant to section 5(1)(g) of the Acts.

However, in relation to certain other emails which were authored by the HR Executive of

IBEC and which were only copied to the solicitor, they were held not to be covered by

legal professional privilege and had to be furnished to the applicant. The applicant

maintained that as the solicitor concerned was only an in-house solicitor retained by

IBEC, legal professional privilege did not apply and accordingly she maintained that the

respondent’s decision was incorrect in this regard.

18. Her second area of complaint was in relation to the acceptance by the respondent of the

assertion by Mason that the company had sought advice from IBEC in relation to the

company’s responsibility to provide a safe working environment and that that had been

done by way of a verbal telephone conversation and a face to face meeting with IBEC.

Mason had stated that no data was created on foot of these interactions with IBEC. The

applicant maintained that the respondent was wrong to have accepted that assertion at

face value (see paragraph 27 of the decision).

19. In subsequent affidavits, the applicant made the case that IBEC had admitted to her that

it had documents arising out of its interaction with Mason in the period January – March

2016. The applicant maintained that the respondent ought to have obtained copies of

that documentation before reaching its decision, and further maintained that Mason as

the “Data Controller” would have been in a position to obtain that documentation from

IBEC as it was a “Data Processor” within the meaning of the Acts and therefore Mason

should have obtained it and produced it to her.

20. In each of the decisions issued by the respondent, the applicant was informed that she

had a statutory right of appeal pursuant to section 26 of the Acts, which could be

exercised within 21 days of receipt of the decision.

21. The applicant did lodge an appeal against the decision made by the respondent that

Mason could rely on legal professional privilege in respect of certain of the

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communications from IBEC (reference 662). On 25th November, 2019, the applicant

made an application to the Circuit Court to expand her grounds of appeal so as to include

therein the issue that Mason should obtain those documents held by IBEC and should

produce them to the applicant. The Court was informed that the respondent would not

oppose that application. The Court is not aware of the exact outcome of that application.

22. The applicant has also lodged a separate complaint with the respondent concerning the

refusal by IBEC to release documentation and data to her. The respondent has indicated

that within that complaint, the applicant can seek production of all documents held by

IBEC which concern her.

23. Finally, all of this arises out of the initial request by the applicant made of her former

employer, Mason, for production of documentation, which she alleges is necessary to

enable her to properly put her case before the Workplace Relations’ Commission which is

due to hear her unfair dismissals case against Mason on 12th December, 2019.

The Present Application

24. As already noted, by notice of motion dated 13th August, 2019, the respondent has

brought the present application seeking to have the applicant’s claim against her struck

out on grounds that the applicant’s claim is now moot, having regard to the fact that she

is seeking in these proceedings an order of mandamus directing the respondent to issue

decisions in respect of her two identified complaints and in view of the fact that the

respondent issued those decisions on 18th April, 2019, and 20th May, 2019.

25. Ms. Neil B.L. submitted on behalf of the respondent that having regard to the reliefs set

out by the applicant in her amended statement of grounds and in respect of which she

was given liberty to seek an order of mandamus by way of judicial review, it was very

clear that the relief she was seeking was production of decisions by the respondent on her

two identified complaints. The applicant claimed that she was entitled to such an order

on the basis of unjustifiable delay on the part of the respondent in issuing decisions in

those matters. That was the only relief sought. It was submitted that insofar as the

applicant now seeks to impugn those decisions on various grounds, those could not have

been the grounds on which she was given liberty to seek judicial review for the simple

reason that the decisions in question had not issued at the time that she was granted

leave to seek judicial review on 25th February, 2019.

26. It was further submitted that in view of the fact that the totality of the relief sought by

the applicant in these proceedings, being the issuance of the two decisions by the

respondent, had since come to pass, the proceedings were now entirely moot.

27. Counsel submitted that it was well established in Irish Law that if proceedings became

moot due to intervening events subsequent to the issuance of the proceedings, it was

appropriate for the Court to dismiss the proceedings once they had become moot.

Counsel referred to the judgment of Clarke J. (as he then was) in P.V (a minor) v. The

Courts Service [2009] 4 IR 264, where the learned Judge having reviewed both Irish

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and international case law on the issue of mootness, summarised the position in the

following terms at paragraphs 20 and 21:

“[20] It is clear from the above authorities that the starting point of any consideration of

mootness has to be a determination as to whether the issue sought to be litigated

is still alive in any meaningful sense such that it can not, in the words of Murray

C.J. in O'Brien v. Personal Injuries Assessment Board [2006] IESC 62, [2007] 1

I.R. 328, be "purely hypothetical or academic". In addition there may be

circumstances where it may be appropriate to nonetheless determine issues even

though such issues may, strictly speaking, be moot. For example, the types of

issues with which the Supreme Court was concerned in O'Brien v. Personal Injuries

Assessment Board [2006] IESC 62 stemmed from a situation where the same issue

was likely to arise for the respondent in very many cases, and where the

respondent was faced with an adverse judgment of this court from which it sought

to appeal. While the issue might have become irrelevant to the applicant in that

case (given that his personal injury litigation had gone beyond the stage of the

Personal Injuries Assessment Board), it was still very much alive from the

perspective of the respondent. Likewise there may be cases, such as those

identified in the American jurisprudence, where, in practical terms, it may be

impossible to have a final determination on important legal issues unless the courts

(and in particular appellate courts) are prepared to relax a strict application of a

mootness rule.

[21] However, it is clear that the cases where the court should depart from the general

rule should be limited and the discretion to entertain moot proceedings should be

sparingly exercised having regard, as the Supreme Court of Canada noted in

Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342, to the underlying

rationale of the mootness rule in the first place.”

28. Counsel submitted that while there were occasions where proceedings may be permitted

to be continued notwithstanding that they appeared to have become moot in respect of

the relief sought by the individual plaintiff or applicant, some of which circumstances had

been identified by Clarke J. at paragraph 20 of his judgment, it was submitted that no

such considerations arose in the present case. The decisions here were entirely individual

to this applicant. No purpose would be served by allowing the proceedings to continue in

view of the fact that the decisions sought had in fact issued in the interim.

29. Counsel stated that there was a second ground on which the Court should dismiss the

applicant’s proceedings at this stage. This was due to the fact that there was a statutory

right of appeal provided to the applicant in respect of any decisions issued by the

respondent. This was provided for in section 26 of the Acts. The applicant had been

informed of the existence of this right of appeal in each of the decisions that had issued to

her. Counsel submitted that it was established in Irish Law that a person with a right to a

statutory appeal must pursue that appeal, rather than initiate judicial review proceedings.

Counsel referred to the decision of Clarke J. (as he then was) in EMI Records (Ireland)

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Limited v. Data Protection Commissioner [2013] 2 I.R. 669, wherein at paragraphs 34 et

seq. the learned Judge reviewed the question of whether judicial review proceedings were

maintainable where a statutory right of appeal to a different forum was available. The

current position in Irish Law was summarised by the learned Judge as follows at

paragraphs 41 – 43:

“[41] Thus the overall approach is clear. The default position is that a party

should pursue a statutory appeal rather than initiate judicial review

proceedings. The reason for this approach is, as pointed out by Hogan J. in

Koczan v. Financial Services Ombudsman [2010] IEHC 407, (Unreport-ed, High

Court, Hogan J., 1st November, 2010), that it must be presumed that the

Oireachtas, in establishing a form of statutory appeal, intended that such an appeal

was to be the means by which, ordinarily, those dissatisfied with an initial

decision might be entitled to have the initial decision questioned.

[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. The 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.

As pointed out by Hogan J. in Koczan v. Financial Services Ombudsman

[2010] IEHC 407, (Unreported, High Court, Hogan J., 1st November, 2010), 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 the 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 depriv-ing them of their entitlement to two hearings.

[43] However these and any other examples must be seen as excep-tions to the

general rule. In addition, the conduct of the party seeking to question the

initial decision is a factor although not, as Barron J. pointed out in

McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497, necessarily a decisive

one.”

30. It was submitted by counsel on behalf of the respondent that in this case none of the

exceptions which would justify a departure from the general rule applied in this case.

Accordingly, the Court should dismiss the applicant’s claim herein on the grounds that the

applicant had a statutory right of appeal if she was dissatisfied in any way with the

decisions issued by the respondent. Indeed, she had exercised that right of appeal in

respect of one of the decisions, being the IBEC communications decision (reference 662).

It was submitted that where such remedy existed and where the applicant was aware of

the remedy, it was appropriate for the Court to exercise its discretion to decline the relief

sought by way of judicial review.

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31. In response to the submissions made on behalf of the respondent, the applicant

submitted that the issue had not become moot by reason of the issuance of the decisions

by the respondent in April and May 2019. This was due to the fact that Noonan J. had

directed the respondent to issue those decisions, but the decisions which had in fact

issued from the respondent did not deal with the issues raised in the complaints which

had been lodged by the applicant. In particular, because the respondent had not seen the

documentation held by IBEC, but had instead acted on the word of Mason as set out at

paragraph 27 of the its decision (reference 662), it could not be said to have actually

made a decision on the matter.

32. It was submitted that because the respondent had taken the assertion made by Mason

that no data was created as a result of its interaction with IBEC, she had failed to properly

investigate the matter and therefore had not issued the applicant with a decision on this

issue. Accordingly, it could not be argued that the issue was moot by virtue of the

issuance of the decision in respect of complaint bearing reference number 662.

33. The applicant further submitted that by agreeing to the expansion of her grounds of

appeal in respect of the appeal which she had lodged against the IBEC communications

decision (reference 662) in the Circuit Court, the respondent had only done so because

she had failed to obtain the documents, which she ought to have done. The applicant

further submitted that by failing to obtain the documents from IBEC, the respondent had

not been in a position to properly decide whether the applicant was entitled to have sight

of them. Accordingly, she had not obtained a decision on her entitlement to see the

documentation and data.

34. The applicant stated that she was making the case that the respondent had not

investigated her complaint properly. In this regard she submitted that the respondent

had wrongly accepted the word of Mason as set out at paragraph 27 of the decision and

had not investigated that fact to see if the assertion was correct. In such circumstances,

she had not issued a decision on the matter. The applicant submitted that it was not

sufficient that the respondent had acknowledged that within the complaint that she had

lodged directly against IBEC, the question of whether she was entitled to view all the

documentation held by it, would be decided. The shortcomings in relation to the

respondent’s decision in relation to her complaint concerning the IBEC communications,

could not be rectified by including it in some other complaint lodged by her.

35. The applicant submitted that the respondent had failed to make a valid decision on the

IBEC papers because they had failed to obtain those papers and make a decision based

on sight of the papers as to whether their production to the applicant was warranted;

accordingly, the issue was still live. In these circumstances, it was submitted that the

issues in the case were not moot by virtue of the decisions issued by the respondent.

36. In response to those submissions, Ms. Neil B.L. submitted that the applicant was under a

misapprehension that an Order had been made by Noonan J. on 25th February, 2019,

that the respondent should issue the decisions sought by the applicant. No such Order

had been made by him. All he had done was grant the applicant leave to seek judicial

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review by way of an order of mandamus against the respondent. There had been no

determination made against the respondent one way or the other.

37. Counsel submitted that insofar as the applicant may have complaints or issues with the

decisions issued by the respondent, the appropriate remedy for her was to proceed by

way of an appeal pursuant to section 26 of the Acts. It was not permissible to try to

shoehorn those complaints, which only arose subsequent to the issue of the decisions by

the respondent, when no such grounds were included in her amended statement of

grounds, nor could they have been as the decisions had not issued at the time that that

amended statement of grounds was issued, nor had any application been made to extend

the grounds set out in her amended statement of grounds; nor could any such application

be made at this stage, as she was out of time to challenge the decisions which had

actually issued by the respondent. In summary, counsel submitted that the issues before

the Court in these proceedings were now entirely moot, having regard to the fact that the

respondent had issued her decisions in April and May 2019.

Conclusions

38. The issues before the Court on this application are quite straightforward. The applicant

lodged complaints with the respondent in 2017. When she did not get a decision from the

respondent in respect of two of these complaints, she brought these judicial review

proceedings seeking an order of mandamus to compel the respondent to provide the

decisions in respect of those complaints.

39. The applicant was granted leave by the High Court to seek an order of mandamus by way

of judicial review to have the respondent issue decisions in respect of the two complaints

bearing reference numbers 849 and 662. That was not an Order that the respondent

should do anything. It was an Order giving the applicant liberty to bring judicial review

proceedings against the respondent

40. On 18th April, 2019, and 20th May, 2019, the respondent issued two comprehensive

reasoned decisions, in respect of each complaint. The respondent found for the applicant

on certain aspects in each complaint and against the applicant on other aspects in each

complaint.

41. The applicant was not happy with certain determinations made by the respondent in each

decision. She wishes to have those matters in respect of which she is dissatisfied,

explored in the present proceedings. However, no application has been made to extend

the grounds on which she seeks judicial review as set out in her amended statement of

grounds dated 18th February, 2019. Nor has she been granted leave to seek judicial

review on any such grounds.

42. These proceedings are solely based on the amended statement of grounds dated 18th

February, 2019, wherein the only complaint made by the applicant is in relation to the

delay on the part of the respondent in furnishing her with a decision on each of the

complaints which had been lodged by her with the respondent. The only substantive

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relief sought was an order of mandamus compelling the respondent to provide its decision

on each complaint.

43. That has been done by the respondent by the issuance of the decisions on 18th April,

2019, in respect of complaint bearing reference number 849, and on 20th May, 2019, in

respect of complaint bearing reference number 662. In these circumstances, I am

satisfied that the proceedings are now moot.

44. Having regard to the principles laid down in P.V. (a minor) v. The Courts Service [2009] 4

I.R. 264, the Court is satisfied that as the issues in these proceedings are now entirely

moot, it is appropriate to dismiss the applicant’s claim against the respondent herein.

45. Insofar as the applicant may have criticisms in respect of the decisions issued to her by

the respondent, the appropriate course of action for her was to appeal the decisions

pursuant to section 26 of the Acts. The applicant has done that in respect of the decision

concerning complaint reference number 662. Insofar as she wishes to challenge the

decision in respect of complaint bearing reference number 849, she will have to either

seek an extension of time within which to lodge an appeal pursuant to section 26, or

make a separate application for leave to proceed by way of judicial review against that

decision.

46. In relation to the subsidiary argument put forward on behalf of the respondent, to the

effect that the Court should not grant the remedy sought of an order of mandamus

against the respondent, because the Court should exercise its discretion not to grant such

remedy having regard to the existence of a statutory appeal and having regard to the

principles laid down in the case law as summarised by Clarke J. (as he then was) in EMI

Records (Ireland) Limited v. The Data Protection Commissioner [2013] 2 I.R. 669; the

Court is of the view that it would be inappropriate to make a determination on the matter

for a number of reasons: firstly, no such relief has been sought in the respondent’s notice

of motion; secondly, the Court must be mindful that the applicant is a lay litigant and so it

must be extra vigilant not to have her caught unawares by having to face a submission

for relief which was not mentioned in the notice of motion, nor in the grounding affidavit

sworn by Mr. O’Dwyer, but was only referred to in the submissions of counsel.

47. Thirdly, this is an interlocutory application seeking to strike out the applicant’s claim on

grounds of mootness; the question of whether the Court should decline to exercise its

discretion to grant the remedy of an order of mandamus due to the existence of a

statutory right of appeal, while undoubtedly a significant issue to be determined, the

Court is of the view that in this case it is one that more properly falls to be considered at

the substantive hearing, rather than as an interlocutory matter in advance of the hearing.

The reason for that is that even within the EMI decision, it is recognised that there are

circumstances where it is appropriate to allow a party to pursue judicial review

proceedings, notwithstanding the existence of a statutory right of appeal: see paragraph

42 of the judgment of Clarke J. For these reasons, the Court declines to make any

decision on this subordinate ground.

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48. Accordingly, for the reasons set out herein, the Court dismisses the applicant’s claim

against the respondent, same having become moot.

Result: Applicant's claim against the respondent dismissed