Judgment of Mr. Justice John MacMenamin dated the 13th day of July, 2016
1. The appellant now named in the title herein is the successor-in-title to the County of Louth Vocational Education Committee, the applicant, originally named in the proceedings. On occasion, therefore, this judgment contains references to the appellant as “the V.E.C.”, where context or understanding so requires.
2. On the 24th July, 2009 the High Court, (McGovern J.), delivered judgment, dismissing the appellant’s application for judicial review against the respondent (“the Tribunal”). The appellant appealed that judgment to this Court. It seeks to challenge what it claims was an unlawful decision on jurisdiction in an investigation conducted by Valerie Murtagh, an Equality Officer delegated by the Director of the Tribunal, under the Employment Acts, 1998 to 2004 (“the Acts”).
3. The origins of the application lie in complaints to the respondent by the notice party, Pearse Brannigan (Mr. Brannigan). Mr. Brannigan was formerly employed as a teacher by the appellant. He complained of discrimination based on his sexual orientation. Ms. Murtagh, (“the Officer”) was delegated to carry out an investigation concerning the complaints. She embarked on an investigation into issues raised by Mr. Brannigan concerning his former employment. Mr. Brannigan set out these complaints, first, in an initial ‘EE1’ form submitted to the Tribunal, and, later, in correspondence to that statutory body. The issue before the Court is as to parameters of that inquiry.
4. In the judicial review application, the appellant, among other claims, sought declarations to the effect that the Officer be limited to investigating complaints of discrimination made by Mr. Brannigan which had been lawfully referred to it, that is, matters said to have occurred within a period of 6 months, prior to 4th August, 2006, the date the Officer received Mr. Brannigan’s first complaint. The appellant claimed it had not been accorded fair procedures in the process of the investigation into the complaints. In dismissing the application, McGovern J. held that the Officer had not made a final determination on the issue of the temporal limit of the complaint; and that the procedures which she had adopted were not unfair, or contrary to natural or constitutional justice.
5. The appeal before this Court is confined to the first, temporal limit, or “jurisdictional” issue. No point is now raised on the fair procedures question. The appellant seeks, rather, declarations, either to the effect that the Officer acted ultra vires, in purporting to conduct an investigation falling outside the lawful terms of the original complaint made by Mr. Brannigan, or, alternatively, an order requiring the Officer to confine her investigation to the issues set out in Mr. Brannigan’s original complaint of the 4th August, 2006. The case is made that the time limits set out in the Acts debar her from investigating any other matters said to have occurred much earlier, and which were not described in the EE1 form. The appellant also seeks an injunction by way of judicial review, staying the investigation being conducted into the alleged discriminatory acts, save insofar as the investigation is confined to the two allegations contained in the complaint which Mr. Brannigan made to the Tribunal on the 4th August, 2006.
6. It is a matter of concern and regret that the matters raised in this appeal took place some considerable time ago. Nonetheless, the fact remains that there is still an investigation in being, and the progress of that investigation has remained in suspense pending the outcome of these proceedings. It is necessary now to look at the legal background to this application.
7. This judgment, insofar as it addresses matters before the Officer, addresses matters which are not in controversy. For reasons explained in more detail later, the judgment is not to be interpreted as expressing any view on the factual material to be considered in the investigation, or on the legal issues in controversy.
8. It will also be noted that, now, the Workplace Relations Commission has, among other functions, now superseded the Equality Tribunal (See Workplace Relations Act, 2015, s.83(1)(c)). But, the Acts of 1998 - 2004, relevant to this appeal, must still be seen in their broader purpose and context. The issue of equality in employment has been the subject matter of a number of Directives, inter alia, Council Directive 2000/78/EC of 27th November, 2000, which established a general framework for equal treatment in employment and occupations. Article 9 of that Directive provides as follows:
“Defence of rights
1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.”
9. By its long title, the 1998 Act sought to promote equality between employed persons, and to make provision with respect to discrimination in, and in connection with, employment, vocational training, and membership of certain bodies. The legislation was also intended to make provision in respect of harassment in employment and in the workplace.
10. The 1998 Act pre-dated the E.U. Directive. Nevertheless, the Act, and amendments subsequent to the year 2000, sought to implement these same principles, and are part of a standalone code.
11. Section 79(1) of the 1998 Act, as amended, created a duty on the Director to investigate the case, and, where mediation failed, went on to provide that the Director should “investigate the case and hear all persons appearing … to be interested and desiring to be heard.” Section 79(1) was subsequently substituted by the Civil Law (Miscellaneous Provisions) Act, 2011, s.24; the substituted provision does not now contain the words “and desiring to be heard”.
12. Section 77 of the Act of 1998, as substituted by s.46 of the Act of 2004, and the Schedule thereto, provided:
“(1) A person who claims -
(a) to have been discriminated against or subject to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination, or victimisation,
(c) not to be receiving a remuneration in accordance with an equal remuneration term
(d) not to be receiving a benefit under an equality clause,
may, subject to subsections (3) to (9), seek redress by referring the case to the Director.”
13. A complaint, referred under this section, was to be delegated by the Director of the Tribunal (“the Director”) to an Equality Officer. Such complaint might, thereafter, become either the subject of mediation, investigation, or, ultimately, after investigation, a decision by such officer.
14. It is clear that the process was intended to provide for a single, expeditious, hearing process, into all relevant matters, conducted without undue formality. Section 79(1A) of the 1998 Act, as amended, provided that a complaint of discrimination, made on more than one ground, should be investigated as a single case, and that discrimination claims, amounting to victimisation, might also be investigated in one case. Section 79(2) of the Act provided that such an investigation was to be held in private.
15. Pursuant to s.79(3A), the Acts then provided the Director, or an Equality Officer assigned to the case, might hold a preliminary hearing into specified matters, including:
16. At the time relevant to this judgment, an appeal on a point of law to the High Court from a determination of the Tribunal on preliminary points, including those identified above (see s.79(7) of the Act of 1998, as inserted by s.35(d) of the Equality Act, 2004). Section 79(7) has now been deleted by s.83(1)(f) of the Workplace Relations Act, 2015.
17. The potential effect and impact of the range of orders made by an Equality Officer, under s.82 of the Act of 1998, was by no means insignificant. Consequently, the requirement for effectiveness and informality must be balanced with the principle that any investigations be carried out in a fair manner. Informality and constitutional fairness are not mutually exclusive requirements.
18. The statutory provisions as to time limits applicable to claim lie at the heart of this appeal. These were set out in s.77 of the 1998 Act, as amended by s.32 of the 2004 Act.
19. The relevant provisions were as follows:
“(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. (emphasis added)
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
It is beyond controversy, therefore, that these provisions had the intent that, in general, a complaint was to be made within a time limited, at least by reference, to the most recent occurrence in question.
20. Section 77(6) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, provided for a situation where the time may be extended where there has been a misrepresentation by a respondent. On the facts now presented, that situation does not arise here. However, s.77(6A) is of particular relevance. It provided as follows:
“(6A) For the purposes of this section -
(a) discrimination or victimisation occurs -
(i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
…” (emphasis added)
21. The interpretation of these provisions, taken together, is, undoubtedly, an issue in the investigation. But, the role of the Superior Courts in considering fact and law issues emerging from a tribunal, such as the respondent, has recently been considered by this Court (see Barry v. The Minister for Agriculture [2015] IESC 63). That role is significantly circumscribed. At this stage it is sufficient to emphasise that it is not, generally, the function of the courts to substitute their own views for those of an Equality Officer on questions of fact. Nor should a court, in a judicial review, or an appeal therefrom, seek pre-emptively to exercise a statutory jurisdiction on legal issues which is vested, in the first instance, in an Equality Officer.
22. In the pending investigation, the substantial issues of fact, and law, are yet to be determined. In fact, the true question which arises in this appeal is whether the appellant, in seeking the jurisdictional declarations identified earlier, has established a basis in law for a court to grant such relief. A court does not grant “advisory” opinions, or declarations on a hypothesis. Nor will a court grant a declaration where there is insufficient evidence that a wrong has occurred, or might occur. Simple inference by one party of a potential apprehended denial of rights will seldom be sufficient to ground a declaration, unless it is supported by real evidence upon which a court might safely act.
Chronology
23. In order to make his original complaint, Mr. Brannigan used the “EE1 Form”. Unlike the T10 application form, until recently used in claims to the Employment Appeals Tribunal prior to its dissolution in 2015, the EE1 form, as used in this complaint, was not mandatory. The content or status of the form was not laid down by statute (see by way of distinction the consideration of the Employment Appeals Tribunal T10 form in Bank of Scotland (Ireland Ltd.) v. EAT and Grady [2002] IEHC 119; and IBM v. Feeney [1983] ILRM 50). Judging from its layout, the EE1 form, applicable here, appears to have been intended by the Tribunal, to allow a claimant to give a general account of the basic details of the complaint. But, even its very format did not allow for a full description of a complaint; rather, it simply allowed a claimant to present the claim, often in “box” form, in some instances even carried out by a simple “box ticking” exercise. In the present case, it is said Mr. Brannigan completed the form by himself, and did not then have legal advice or assistance, although it appears that at the time he did have a solicitor acting for him in his dispute with his former employer. His solicitor is, in fact, named in the EE1 form.
Background
24. The following matters appear not to be in dispute. It is accepted the notice party was employed by the appellant. He brought a complaint to the Tribunal on the 4th August, 2006. He claimed that the appellant had engaged in discrimination, harassment and victimisation against him, contrary to s.77 of the 1998 Act, as amended. He contended that this alleged unlawful conduct derived from the fact of his sexual orientation as a gay man.
25. Under the heading “Grounds on which discrimination is claimed”, in the EE1 Form, Mr. Brannigan ticked a box headed “gender”, underlining the word “male” beside that box. He did not tick the box for “marital status”. He underlined the word “single” beside the box, and ticked a box for “sexual orientation”, underlining the word “homosexual” beside it. Under the heading “Description of claim”, Mr. Brannigan ticked the boxes for “promotion/regrading”, “conditions of employment”, “harassment”, and “victimisation”. Under the heading “Details of complaint”, he set out a “date of the first occurrence” of the discriminatory act as being the 16th December, 2005. He set out the “date of the most recent occurrence” of discrimination as being the 10th March, 2006 (see s.77(5)(a) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, quoted earlier). Mr. Brannigan gave a brief account of two events which occurred when he had been employed as a teacher, in a school run by the appellant. It will be noted that a period of 6 months from the latter of the two events, 10th March, 2006, expired on the 10th September, 2006. Thus, this 6 month period elapsed a little more than one month after Mr. Brannigan submitted the EE1 form, on the 4th August, 2006.
26. More than one year elapsed before the next significant event. On the 17th September, 2007, Mr. Brannigan made another submission at the Officer’s request. This also set out allegations of harassment and discrimination. On this occasion, however, rather than simply dealing with the two occurrences referred to earlier, Mr. Brannigan also described further events said to have occurred dating from 1997 up to the date of the end of his working with the V.E.C., apparently, at the end of August, 2006. He complained of alleged mistreatment and discrimination, by more senior teachers, and by other colleagues at the same level of seniority as himself. The complaints related to interactions between various staff members, some said to have been insulting, others more serious, as well as concerns as to how complaints regarding teaching quality, teaching assignments and supervisory duties were dealt with by more senior teachers.
27. The Officer requested the appellant to provide a response to these submissions by the 31st January, 2008. That deadline passed. No response was received. Ms. Murtagh, of her own accord, granted the appellant an extension of time until the 7th November, 2008. In fact, the appellant did not put in its written submissions until the 21st January, 2009. That timing was significant. The submission came in on the day prior to the first scheduled oral hearing of the investigation. This was to commence on the 22nd January, 2009. The appellant’s written responses, which were detailed, addressed all Mr. Brannigan’s submissions. However, it can be safely said that those responses dealt in greater detail with the more recent complaints. For the first time, these responses raised an issue in relation to what might be characterised as the “time issue”.
28. I should mention now that Mr. Brannigan also sought other forms of legal redress concerning his employment. He instituted High Court personal injury proceedings against the appellant. These were dated 4th July, 2007. Those proceedings were brought after his first submission on the 4th August, 2006, but before his second letter to the Tribunal dated 12th September, 2207. The High Court proceedings contained allegations of bullying and harassment causing personal injury, which were said to have undermined Mr. Brannigan’s role as a teacher. The pleadings also described matters allegedly going back to the year 1997. Mr. Brannigan claimed that the effect of this conduct was that he reached a point where he was constrained to cease work at the end of August, 2006.
29. In this judicial review, Mr. Brannigan deposes in his grounding affidavit that his solicitors informed the appellant of his intention to apply for early retirement on grounds of ill-health on the 11th September, 2007. This was confirmed by a formal letter on the following day. A letter from the appellant dated the 11th January, 2008, indicated this application had been granted. Mr. Brannigan deposed that, from the 6th November, 2006, to the 18th February, 2006, he was without any means of income.
30. While counsel for Mr. Brannigan accepted in argument before this Court that there might be some degree of overlap between the two claims, he contended that the High Court case was in the nature of a personal injuries matter, whereas the complaint arising before the Tribunal related to victimisation and discrimination, based on sexual orientation. This is not a matter which requires determination here. The issue of the settlement sum of the High Court proceedings does not arise in this judgment either.
The Investigation Hearing
31. On the initial day of the investigation hearing, 22nd January, 2009, all parties were in attendance before the Equality Officer. Arising from concerns relating to the pending High Court action, the investigation was adjourned, apparently, by consent.
32. Subsequently, on the 9th February, 2009, Mr. Brannigan submitted a further written rejoinder to the V.E.C.’s responses. A resumed hearing of the investigation took place on the 12th February, 2009.
33. At that resumption, junior counsel for the appellant then raised two preliminary concerns. First, she again sought a stay on the investigation pending the outcome of the pending High Court action. The Officer rejected the application on that ground, holding that she was under a statutory duty to carry out the investigation. No challenge has been brought to that decision.
34. The second issue concerned the temporal scope of the issues. Counsel for the V.E.C. submitted to the Officer that Mr. Brannigan was not entitled to give evidence concerning the “historic issues”, (going back to 1997), as set out in his second set of submissions of the 17th September, 2007. She submitted that the Officer had no jurisdiction to deal with any matters prior to the 16th December, 2005, which was the date identified in the EE1 Form as being the first occurrence of the discrimination. She referred to the provisions of the Acts, outlined above, laying emphasis on the alleged date of the “most recent occurrence” of discrimination.
35. As mentioned earlier, s.79(3A) of the 1998 Act, as amended, provided that a party may apply to an Equality Officer to determine certain matters (including time limitations), as preliminary issues. While one might infer that implied subtext to the appellant’s case is the suggestion that the Officer might have directed a preliminary hearing, no such complaint was made in the judicial review proceedings. On the basis of the authority of Aer Lingus Teo v. The Labour Court [1990] ILRM 485, considered later, such an application would have been very unlikely to succeed. The principle is that the Officer should conduct the investigation without interruption. Also, prior to the hearing, the Officer directed that a number of the V.E.C.’s witnesses who were in attendance at the hearing should wait outside. Those witnesses were other teachers, said to have witnessed, or been involved in, the various alleged events over the years. This was within the officer’s powers. The hearing proceeded and Mr. Brannigan set out his case.
36. It must be taken as a given that the investigation can be conducted informally and flexibly. That said, what actually occurred is not entirely easy to follow. By the end of the first hearing-day, Mr. Brannigan had apparently given evidence, and been questioned by the officer, but had not been fully cross-examined. This Court was informed the appellant had, in fact, called one witness, Mr. Ger Rooney, a teacher. Why Mr. Brannigan’s cross-examination had not been completed is unclear. The procedure is, frankly, puzzling.
37. At the end, the Equality Officer endeavoured to identify further potential dates, but then difficulties arose. No resumed hearing ever took place. These judicial review proceedings were brought to the High Court within two weeks after the second hearing day, on the 27th February, 2009. O’Neill J., in the High Court, granted leave to the appellant to seek judicial review. The appellant originally sought a broader range of judicial review remedies, including certiorari.
38. Prior to a consideration of the High Court judgment now under appeal, it is helpful to touch on some of the key matters contained in the affidavits sworn herein. Put at its simplest, the appellant’s case is that the Officer exceeded her jurisdiction by considering Mr. Brannigan’s evidence on the “historical incidents”.
39. Mr. Winters, the appellant’s Acting Chief Executive Officer, set out his concerns in this way:
“23. … the respondent (referring to Ms. Murtagh) indicated that she had heard the submissions made by this applicant (i.e. the County Louth VEC) in respect of the historic nature of many of the complaints, but wanted to get on with hearing the evidence from Mr. B. It became clear that the respondent’s officer was not hearing the evidence for the purpose of considering the issue of whether the Notice Party’s earlier complaints were “statute barred”, rather, she heard evidence from the Notice Party in respect of matters dating as far back as 1997, and then proceeded to ask questions/conduct her investigation into those matters.
24. I say and believe that it is now clear to me, and I believe the Notice Party and his advisors, that the Officer conducting the investigation is of the view that she has jurisdiction to entertain all aspects of the allegations made by the [Notice Party]. She had, in effect, rejected the submissions advanced on behalf of the applicant as to the proper scope of her investigation. She is now conducting a far reaching inquiry into the past twelve years or more, during which the Notice Party was employed by the applicant. Apart from issues of fairness referred to below, I am advised she has no jurisdiction to do so …” (interpolation identify the parties, and emphasis added by myself)
40. It is noteworthy that Mr. Brannigan, as notice party, says squarely in his replying affidavit that there is nothing in the applicable Employment Equality legislation which would preclude the Tribunal from investigating alleged discrimination which occurred more than 6 months prior to the referral of a claim either, for example, as an instance of continuing discrimination, or as contextual evidence relevant to a complaint. Mr. Brannigan deposed that his complaint, in fact, related to what he characterised as continuing discrimination over a long period, culminating in the two identified incidents, said to have occurred in December, 2005, and March, 2006.
41. What is said in the Officer’s affidavit is, however, critical. Ms. Murtagh absolutely refuted Mr. Winters’ inference that the reason she had permitted the historic evidence to be given was that she had already made a decision on the contested issue of her jurisdiction to hear, consider, and determine on these matters. She also refuted any suggestion that she had rejected the V.E.C.’s submissions as to the proper scope of the investigation. She deposed “I say that I have not made any such decision”. She continued:
“14. I did consider that for the sake of expediency that it was best to hear all the evidence together and then make all relevant decisions on facts and law, pursuant to my investigation. This will include a decision on the contested issue raised before me by the Applicant as to the lawful ambit of the investigation …”. (emphasis added)
42. Ms. Murtagh was not cross-examined in the judicial review proceedings before the High Court. This Court is, therefore, faced with a situation where there is a clear denial that any decision on the jurisdictional issue has been made. Instead, the appellant’s concerns are based on inference, or apprehended potential detriment.
The High Court Judgment
43. In the High Court, McGovern J. appears to have held that the EE1 Form was intended only to set out the nature of the complaint in broad outline, and that it was possible to amend a claim, so long as the general nature of the complaint remained the same. The judge considered that Mr. Brannigan, in his second submission, had simply submitted further and better particulars of his claim, albeit in the context of an expanded period of time. He concluded that, under the legislation, complaints made within an expanded period were not time barred, but that any respondent to a claim must be given a reasonable opportunity to deal with the complaints, and observed the procedures adopted in that regard must be fair and reasonable.
44. Applying the principles outlined in the case law cited earlier, insofar as any findings as to time issues, and the effect of the EE1 form, are part of the High Court judgment, I would set aside these parts of the judgment. They are pre-emptive. As yet, questions of fact or law fall to be determined first by the Officer. The relevant facts of the investigation simply have not been elicited or determined. The Equality Officer has not made any legal ruling on the time issue. Without these, it would be inappropriate, and premature, to express views on legal issues which hinge on evidence as yet not ascertained.
The Appellant’s Case
45. In this appeal, in essence, senior counsel for the appellant, Mr. Feichín McDonagh, S.C., submits that, even at this stage, a court should declare it is simply not open to the Equality Officer to investigate, or deal with, any material which is not dealt with in the EE1 Form. Counsel submitted that the officer has no jurisdiction to explore the “historic matters” at all. However, counsel did accept in argument that it might be open to an Officer to allow evidence of matters which occurred outside the statutory time limitation period, as context, but only insofar as those matters might (or might not) be relevant to the specific issues which are complained of in the EE1 Form.
46. Counsel relies on the provisions of s.77(6)(a) of the 1998 Act, as amended. He contends that the Officer may investigate matters which allegedly occurred more than 6 months prior to the date upon which a particular claim was submitted to the Tribunal, but only as background in relation to a complaint lawfully made in respect of those matters. Counsel submits that there may be no investigation of complaints that are not made in accordance with the time-limit provisions of the Act. As a separate point, counsel submits also that the Tribunal cannot, by a process of fact finding, confer upon itself a jurisdiction which it would not otherwise enjoy under its governing statutes. He contends that, following the lodgement of the EE1 claim with the Tribunal, Mr. Brannigan was invited to provide a further written submission to the Tribunal, which he did on the 17th September, 2007. Counsel says this further document was submitted more than 12 months after Mr. Brannigan had ceased to be employed by the appellant, and more than 12 months after the notice party had made his original claim. More fundamentally, senior counsel submits that the additional materials strayed far outside the terms of the complaint being investigated, and are, effectively, time barred, pursuant to s.77 of the 1998 Act, as amended by s.32 of the Equality Act, 2004. In making these submissions, Mr. McDonagh, S.C. refers to the fact that the later submission concerned different allegations of alleged discriminatory acts on the part of the appellant’s employees and staff.
Consideration
47. It is well established that the purpose of a deciding body or tribunal, such as the respondent Tribunal, is to provide speedy and effective redress in cases of alleged discrimination. It is not in dispute the procedures employed may be both informal and flexible. It is true, as Mr. Gerard Durcan, S.C., counsel for the Tribunal, submits, that the range of claimants before such a Tribunal do not fit into any one category. They may or may not be legally represented and, therefore, flexibility is both warranted and necessary.
48. The question is, are there grounds for any declaration? It has been observed, more than once, and not only in this jurisdiction, that it is not in the public interest, nor the intent of the legislation, that investigations, or inquiries, of this nature should be intermittent, or be interspersed with unnecessary representations or counter-representations, or by premature applications made to the courts (see, by way of illustration, the remarks in Pearlberg v. Varty [1972] 2 All.ER, cited in the High Court judgment delivered by Carroll J. in Aer Lingus Teoranta v. The Labour Court [1990] ILRM 485). However, this precept does not mean that a court might not, ultimately, grant relief were it shown that a deciding officer had, in fact, exceeded jurisdiction.
The Form of Relief Claimed
49. As part of the consideration of this appeal, it is necessary to point to the rules-rubric under which this application was initiated. Essentially, what is sought now is a simple declaration, although an injunction is part of the claim. There is a subtle, but important, distinction between the various forms of relief which may be claimed in judicial review. Order 84, Rule 18(1) provides:
“(1)An application for an order of certiorari, mandamus, prohibition or quo warranto shall be made by way of an application for judicial review in accordance with the provisions of this Order.
(2) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to -
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition, certiorari, or quo warranto,
(b) the nature of the persons and bodies against whom relief may be granted by way of such order, and
(c) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.” (emphasis added)
50. Elsewhere, Order 19, Rule 29, provides that no action or pleading is to be open to objection on the ground that a merely declaratory judgement or order is sought thereby. A court may, if it thinks fit, make binding declarations of right whether any consequential relief is or could be claimed or not.
51. While, historically, remedies such as declarations or injunctions were merely ancillary to the public law remedies just identified, this is no longer the case. The existence of declaratory proceedings provides a useful remedy in a wide range of circumstances, where, perhaps, the traditional judicial review remedies may not be appropriate. But, the question which arises, on the facts of this case, is whether a declaration should be granted? It is said the Officer has already strayed beyond her remit in allowing historical evidence at all.
52. There are a number of factors which militate against granting a declaration. First, the question arises in circumstances where it is very doubtful whether, in principle, the remedy of certiorari would be available at this stage. The officer has denied she has made any decision or order which might be impugned by judicial review. This has not been disproved to the requisite level of probability. On the face of things, she is acting within jurisdiction, or rather it has not been shown that she has exceeded her jurisdiction.
53. Second, it is necessary to, again, point out that this is an inquiry which is still in the course of hearing. It has commenced. Much is still to be adduced. Should a court, even by declaratory order, seek to direct the manner in which the Equality Officer should carry out her task, not only in circumstances where she has sworn that she has not reached any conclusion in relation to jurisdiction, but where the hearing is still in being? I think not. A declaration is not to be seen either as a surrogate for certiorari or for an injunction. I would hold that neither certiorari, nor an injunction, could be granted restraining the hearing at this stage. Such an application would be premature.
54. Further, in order to obtain relief, even by way of declaration, it would be necessary for the appellant to demonstrate that it is in imminent danger of suffering a diminution of rights, or a detriment. But, as yet, there has been no determination of rights or interests.
55. This is a situation where, by analogy, similar principles apply as arose in Blanchfield v. Harnett (3) [2002] 3 IR 207, Director of Public Prosecutions v. Special Criminal Court [1999] 1 IR 60, and the recent decision of this Court in Stirling v. Collins [2014] JIC 2603. In each of these authorities, the courts have emphasised that judicial review was an available remedy which might, in principle, permit challenges to decisions, made in the course of a trial, but only in truly exceptional circumstances. The courts have consistently held that, although decisions of a court of trial might, ultimately, be subject to certiorari, such relief was scarcely ever granted during the course of a trial. The fundamental principle, more recently reiterated in Stirling, is that, save only in the most exceptional circumstances, a trial should have “the unity and continuity of a play” (see O’Dalaigh C.J.’s remarks in the People (Attorney General) v. McGlynn [1967] I.R. 232). The circumstances in which certiorari was granted in Stirling were truly exceptional, and clearly went to jurisdiction. It would be an incongruity were this Court now to rule on a jurisdictional issue, in an investigation of this type, where the Equality Officer has not herself delivered a decision on that question.
56. The position here has some resonances too in the decisions of the High Court, and this Court on appeal, in Aer Lingus Teoranta v. The Labour Court [1990] ILRM 485. As Carroll J. pointed out in the High Court judgment in Aer Lingus, it is not obligatory for an Equality Officer to rule on a time issue “any more than a court is obliged to hear a preliminary issue on whether a claim is statute barred or not”. That judge laid emphasis on the fact that tribunals, engaging in this important form of work, must be allowed a discretion in the running of their affairs, as to whether to have a preliminary hearing, or whether to deal with all questions, including that of receivability, at one hearing. Subject to comments in the conclusion section of this judgment, I agree with this observation.
57. On appeal in this Court, in Aer Lingus, Walsh J. approved this observation, expressing the view that it would be “far preferable” that matters should not be brought to the High Court on a point of law, until after the determination of the Labour Court, as to any matter of law arising, had been made. Walsh J. laid emphasis on the fact that Carroll J. had “correctly” mentioned the fact that the Labour Court had not made any findings on the merits of the case, and that, if that had been the position, he would have been content to let the matter go back to the Labour Court.
58. I mention here, however, that in Aer Lingus, this Court did find it necessary to make adjudications in relation to the jurisdiction of the Labour Court, and reversed the High Court judgment in that regard. This was because the High Court judge had, in Walsh J.’s words, “elected” to go into questions of whether the acts complained of were capable of constituting unlawful discrimination, and expressed views on whether the relevant legislation had retrospective effect. This was in circumstances where the respondent had not fully concluded its deliberations in these issues. The situation which arose in Aer Lingus reinforces the inference that a court should guard against premature expressions of views on facts or law, and for that reason, I would set aside any part of McGovern J.’s judgment which might be interpreted as having expressed such views.
59. The position here is not analogous, either, to that which pertained in Cox v. Ireland [1992] 2 I.R. 503, where the plaintiff challenged a “decision” of civil servants to apply the provisions of s.34 of the Offences Against the State Act, 1939 to his circumstances, while also challenging the validity of the section. In Cox, this Court ruled that the civil servants in question had not made a “decision”, in that, the two defendants named had no alternative but to apply the provisions of s.34 OASA, 1939, to the case of the plaintiff, until the provisions in question were declared unconstitutional. But, this Court, nonetheless, granted a declaration by way of judicial review, that the section in question was unconstitutional. No such claim is brought here.
60. As Order 84, Rule 18(1) makes clear, the issue in this appeal concerns the question of whether or not it is “just and convenient” to grant a declaration. I do not consider that it would be either “just” or “convenient”. The hearing is still proceeding. It is to be presumed it will be fair. It is to be presumed that the Equality Officer will act within jurisdiction. The policy of this Act, and the courts generally, lean against interference in a pending hearing, save in the most exceptional circumstances. There has been no detriment, or denial of rights or interests, nor has it been sufficiently shown that there is an imminent danger of the appellant suffering such detriment.
Conclusion
61. I would, however, venture some further observations. It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures. It is no part of the case made that in conducting the hearing, as she has, the Officer is pursuing some fixed policy.
62. To my mind, it would not be appropriate to grant a declaration. Subject to my findings on the observations made by the High Court judge on facts and law, I would, therefore, dismiss this appeal. I would remit the matter to the Equality Officer for further investigation and final determination, in accordance with law. I would uphold the High Court judgment and order, to the extent that it held that the application is premature.
