THE SUPREME COURT
[Appeal No: 462/2011]
O’Donnell J.
Clarke J.
MacMenamin J.
Between/
Thomas Rowland
Plaintiff/Appellant
and
An Post
Defendant/Respondent
Judgment of Mr. Justice Clarke delivered the 27th March, 2017.
1. Introduction
1.1 Much has happened since this case was heard in the High Court during March, 2011 and was the subject of a judgment on the 26th July of that year. The case stems from the relationship between the plaintiff/appellant (“Mr. Rowland”) and the defendant/respondent (“An Post”) whereby Mr. Rowland was engaged by An Post as a sub-postmaster in the village of Bofeenaun, Ballina in County Mayo. Mr. Rowland had held that position since 1974.
1.2 Because the precise characterisation of the questions which became the subject of inquiry by An Post is itself the matter of some controversy I will simply use a neutral term of “issues” to describe what emerged in 2008. A process commenced at that time, which it will be necessary to describe in somewhat more detail, as a result of which Mr. Rowland was asked to “comprehensively and credibly” respond to various issues raised by An Post. Thereafter that process continued but it was asserted on behalf of Mr. Rowland that the procedures being followed by An Post were unfair and in breach of his contractual terms. In that context these proceedings were commenced and interim and interlocutory injunctions sought and obtained. The matter came on for plenary hearing before Murphy J. in the High Court in March, 2011 and, for the reasons set out in a judgment of the 26th July of that year, (Rowland v. An Post [2011] IEHC 272) the trial judge dismissed Mr. Rowland’s claim. While it will be necessary to analyse the reasoning of the trial judge in more detail the principal conclusion reached was that the relevant process was still at an investigative stage and that, in that context, there had been no breach of fair procedures.
1.3 However, Mr. Rowland appealed that decision of the High Court to this Court. An application was brought before this Court seeking an order restraining An Post from continuing with the process pending a determination of this appeal. In the context of the hearing of that application an undertaking was given on behalf of An Post that the process would continue in full compliance with the rules of constitutional justice. In those circumstances this Court did not grant the injunction sought and the process continued.
1.4 While, in one sense, not material to the issues which directly arise on this appeal, it is nonetheless of some relevance to note that the process concerned did continue to a conclusion as a result of which Mr. Rowland’s position as sub-postmaster was terminated. Separate proceedings have been commenced in the High Court (“the second proceedings”) in which it is asserted that the termination of the relevant contract was unlawful and various reliefs sought. The second proceedings remain in being although they have not progressed to any significant extent. The reason why that subsequent history is of some relevance is that a question was raised by the Court at the hearing of this appeal as to what, of substance, remained for decision on this appeal. That question arose from the fact that the focus of these proceedings had been to prevent the process from going any further. The order sought was an injunction directed to that end. Clearly there could be no basis on which the Court could now grant the injunction sought for the very process which was sought to be restrained has now been completed. Against that background counsel for Mr. Rowland suggested that, if the Court were persuaded that the trial judge was wrong in his conclusions, it would be open to the Court to make an appropriate form of declaratory order which might, potentially, have an effect on the second proceedings. On the other side of the same coin counsel expressed a concern that, as long as the judgment of the trial judge in this case remained in place, aspects of the argument which Mr. Rowland might wish to put forward in the second proceedings might be precluded.
1.5 Thus the focus of the appeal was as to whether it would be appropriate for the Court to make some form of declaration concerning the process and, as part of the analysis which might lead to a determination of whether it would be so appropriate, an issue arose as to the extent to which the findings of the High Court in this case might bind the High Court in deciding the second proceedings.
1.6 In the particular circumstances of this case it seems to me appropriate to start by looking at the legal test for considering whether the process engaged in by An Post could properly have been interfered with by the High Court at the stage to which the process had progressed at the time of the trial.
2. The Legal Basis
2.1 It seems clear that the key question which the Court must address on this appeal is as to whether the overall conclusion of the High Court, which was in substance to the effect that any application to that court was premature, was correct. If that view of the High Court cannot properly be disturbed then it would follow that the High Court was correct to refuse the injunction sought and, irrespective of the developments which have occurred since then, it would equally follow that it would be inappropriate for this Court to consider making any order in favour of Mr. Rowland whether declaratory or otherwise.
2.2 It must, in that context, first be noted that the proceedings were commenced and progressed to trial at a time where the process, however it might be characterised, was still in train. It must, of course, be recalled that, just after the proceedings were commenced, interim and interlocutory orders were put in place which prevented the process going any further pending trial.
2.3 Those facts raise the question of the standard by reference to which a court should intervene, whether by injunction, declaration or any other means, in a process having a disciplinary or similar character, which is still ongoing. The trial judge placed some reliance in that regard to my decision in the High Court in Becker v The Board of Management of St Dominic’s School & ors [2006] IEHC 130. It is true that Becker was a decision given on an application for an interlocutory injunction seeking to restrain an employment disciplinary procedure. There may well be additional reasons why it may not make sense for the Court to consider injuncting, at an interlocutory stage, an ongoing disciplinary process. In the ordinary way a plaintiff seeking an interlocutory injunction only has to establish an arguable case before the Court goes on to consider the balance of convenience and other similar matters. If, at every stage of a disciplinary process, a party could secure an interlocutory injunction if there was even an argument about whether the procedures adopted were permissible, the practical consequences for any effective disciplinary process would be obvious.
2.4 However, it seems to me that the underlying principle behind Becker is equally true in the context of a full hearing of an application designed to prevent any ongoing process from continuing. In many cases the proper approach of a court when called on to consider the validity of a disciplinary-like process is to look at the entirety of the procedure and determine whether, taken as a whole, the ultimate conclusion can be sustained having regard to the principles of constitutional justice. Many errors of procedure can be corrected by appropriate measures being taken before the process comes to an end. Decision makers in such a process have a significant margin of appreciation as to how the process is to be conducted (subject to any specific rules applying by reason of the contractual or legal terms governing the process concerned). Thus the exact point at which parties may become entitled to exercise rights such as the entitlement to know in sufficient detail the case against them, the entitlement in appropriate cases to challenge the credibility of evidence and the right to make submissions are, at least to a material extent, matters of detail to be decided by the decision maker in question provided that the procedures adopted do not, to an impermissible extent, impair the effectiveness of the exercise of the rights concerned.
2.5 Precisely because procedural problems can be corrected and because there may well be a significant margin of appreciation as to the precise procedures to be followed it will, in a great many cases, be premature for a court to reach any conclusion on the process until it has concluded.
2.6 However, the practical consideration which leans against a court interfering with an ongoing process may point in the opposite direction in a limited number of cases where the conduct of the process, up to the point when the Court is asked to review it, is such that it is clear that the process has gone irremediably wrong. In such a case, rather than the practicalities pointing to letting the process come to its natural conclusion and, if necessary, being reviewed by a court thereafter, those same practicalities point to stopping the process and thus saving all concerned from engaging in what must necessarily turn out to be the fruitless exercise of continuing a process whose conclusions if adverse are almost certain to be quashed.
2.7 However, in order for that latter consideration to become the dominant factor in the Court’s assessment, it follows that the Court must be satisfied that it is clear that the process has gone wrong, that there is nothing that can be done to rectify it and that it follows that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law. In any case where the plaintiff cannot establish that the case meets that standard it will ordinarily be inappropriate for the Court to intervene at that stage but rather the process should be allowed to continue to its natural conclusion at which stage it can, if any party wishes it, be reviewed.
2.8 But in the light of one of the issues which arose on this appeal, it is important to emphasise that a finding by a court, invited to intervene in an ongoing process, to the effect that it is premature to find the process defective on the basis of the sort of considerations which I have sought to identify, necessarily means that such a finding cannot prevent some or all of the points then sought to be raised from forming part of the proper assessment of a court invited to review the ultimate conclusion reached at the end of the process.
2.9 To take a simple example which arises in the context of one of the issues which it will be necessary to address in this case, the fact that a court may conclude that it is premature to determine that a procedure has gone irrevocably wrong because cross-examination of a particular witness was not allowed at a particular stage cannot be held to mean that a denial of cross-examination at all stages might not, in the circumstances of a particular case, render an ultimate adverse conclusion unsustainable. Indeed, there might even remain an argument, which it would be possible to pursue at the end of the day, that a delay in allowing cross-examination beyond a particular point rendered the process ultimately unfair to the extent that its conclusion should be quashed. Under the test which I propose the Court should only intervene in an ongoing process where it is clear that the process has gone irretrievably wrong. The fact that a court may not be so satisfied does not mean that a court reviewing an ultimate adverse decision made at the end of the process must necessarily disregard the points raised. Such points may not be sufficiently clear, at the stage of a challenge which is found to be premature, to justify intervention. But they, either alone or taken in conjunction with the remainder of the process, may nonetheless be sufficient to persuade a court at the end of the day that the ultimate decision cannot be sustained.
2.10 On that basis it seems to me to follow from the fact that the trial judge dismissed these proceedings on the basis of prematurity that the conclusions of the trial judge cannot be taken to bind any judge tasked with reviewing the sustainability of the ultimate decision taken in this case. Mr. Rowland must be free to rely on any points which can properly be made in the second proceedings. Likewise An Post is entitled to put up any answer which it may consider appropriate. Even if the view of the trial judge is confirmed on this appeal that view amounts to no more than a determination that it was not sufficiently clear that the process was irremediably infirm so as to justify intervention at the relevant stage. It goes no further and cannot affect, one way or the other, the merits of an overall assessment as to whether the final conclusion of the process can be sustained.
2.11 Having indicated the proper approach it seems to me to follow that the first question which arises on this appeal is as to whether it can be said that Mr. Rowland had established that the process embarked on by An Post had, as at the time of the trial, clearly gone irremediably wrong. It can be inferred that the trial judge concluded that Mr. Rowland had not so established. Unless that finding of the trial judge can be displaced then the appeal must necessarily be dismissed.
2.12 In order to assess that issue it is necessary to say a little about the process as conducted, the basis on which it is said that it is in breach of the principles of constitutional justice and the conclusions of the trial judge.
3. The An Post Process
3.1 I should start by noting, in passing, that it was at all times accepted by An Post during these proceedings that An Post were obliged to apply the rules of constructional justice in conducting the process with which these proceedings are concerned. In the light of that concession it is, of course, unnecessary to consider the parameters of the extent to which the rules of constitutional justice apply in relation to a contractual dispute such as the one which is at the heart of this case. Lest this judgment might be misinterpreted as determining that the rules of constitutional justice necessarily apply in all disputes of this type it is important to emphasise that the formal application of those rules, as a matter of law, arises in the context of public law disputes where decisions or determinations which may, as a matter of law, have an adverse effect on the rights or obligations of an individual must be determined by a process which complies with those rules.
3.2 It is also the case that certain private law disputes may give rise to a requirement to apply the rules of constitutional justice because such rules may, either by express inclusion or by implication, be taken to apply to a process arising under a contract whether that be, for example, a contract of employment, the contract which exists between the members of an organisation or, as here, a long term contract providing for a process which may lead to its determination for cause. As noted, some contracts, particularly employment agreements negotiated between employers and the representatives of employees, may make express provision that the rules of constitutional justice are to apply in certain processes. There is no such provision in terms in the contract governing this case although, as will be addressed later, the term “fair opportunity” is used. The extent to which it may be appropriate to imply a requirement to comply with the rules of constitutional justice into any contractual regime which does not make express provision for their inclusion is a matter to be considered on a case by case basis. However, because it is accepted that such rules apply in this case, it is unnecessary to address the criteria by reference to which such a term might generally be implied into a contract.
3.3 Finally, before addressing the specific process which occurred in this case, it is, of course, important to emphasise that the precise application of the rules of constitutional justice in respect of any particular process can be quite case specific even though the general principles, being that a person who may be adversely affected is entitled to know the basis on which it is said that they may suffer to their detriment and that they must be given an opportunity which, in all the circumstances of the particular case, affords them a reasonable opportunity to test and address the basis on which it might be said that an adverse result can arise.
3.4 The specific text of the agreement between the parties in this case which governs the potential determination of the position of a sub-postmaster is in the following terms:-
“An Post process for handling cases involving breach of contract.
A registered letter identifying all matters at issue is sent to the Postmaster for an explanation and giving 14 days for a response. If no reply is received than a follow up letter is issued giving a final 7 days for a response. The response may generate a need for further communications to expand on or clarify some of the responses or to seek additional information.
When the company is satisfied that the Postmaster has been given fair opportunity to respond on all the issues of concern being raised by the Company, the case is then reviewed by the Manager Contractors and a recommendation made to the Head of Contractors on the case. This may range from a warning to a recommendation to terminate the contract due to loss of confidence in the Postmaster. A decision is then taken on the case by the Head of Contractors which is then communicated to the Postmaster.
Should Head of Contractors decide to terminate the contract then a termination letter is issued by registered post advising the Postmaster accordingly and further advising that he/she has 7 days to appeal the decision.
If the Postmaster appeals the decision this is then submitted to the Director of Retail Operations and the Postmaster’s contractual status remains unchanged until the appeal is finalised provide that the Postmaster fully participates in the process.”
3.5 As can be seen the process to be followed is expressed in fairly general terms although it is clear that the postmaster concerned has to be given a “fair opportunity” to respond on “all the issues of concern being raised” by An Post. Furthermore, the so-called “Manager Contractors” is to make a recommendation to the “Head of Contractors” who makes the ultimate decision including a decision to terminate the contract. The process thus described also allows for an appeal procedure.
3.6 It would, I think, be fair to describe the process set out in those contractual terms as being one which is quite flexible as to the precise procedures to be followed. It will be necessary to return to that fact in due course.
3.7 Turning then to the specific facts of the process followed in this case, it should be noted that there is within An Post a mechanism known as a triennial review which is carried out as part of the ordinary contractual arrangements between An Post and a postmaster. On the basis of that triennial review the remuneration level for the following three years is established on the basis of the level of transactions in the review year. Thus the level of transactions in the review year can have significant importance for the level of remuneration in the following period. In this case there was a review year for Mr. Rowland running from the beginning of October 2005 until the end of September 2006 with the review in question being carried out in the earlier part of 2007.
3.8 By letter dated 3rd April, 2007 An Post asked Mr. Rowland for his comments on certain issues arising in the review year. It is not necessary, for the purposes of the issues which arise on this appeal, to go into those issues in any great detail. Suffice it to say that the suggestion made in the letter of the 3rd April is to the effect that there might be a concern that the relevant level of activity had been artificially increased and that, in certain respects, the activity in Mr. Rowland’s post office disclosed in the review was significantly out of line with comparable post offices.
3.9 There followed something of a stand off for a period of almost one year. In an initial responding letter of the 25th April 2007 Mr. Rowland described the inquiries and the request for information as “impertinent”. Various meetings followed involving, initially, the Irish Postmasters’ Union on behalf of Mr. Rowland and latterly his solicitors.
3.10 On the 27th June, 2008 An Post wrote a further letter containing what I think can be described as a detailed list of inquiries requesting answers. It also requires to be noted that the letter in question did suggest that the concerns raised called into question whether An Post could continue to have confidence in Mr. Rowland as a postmaster.
3.11 Mr. Rowland did respond on the 23rd October, 2008 but An Post argues that the response in question was partial and fell short of providing all of the information reasonably required. There followed a letter from An Post of the 4th December which again suggested that full responses were required and offered an oral hearing at which it was suggested Mr. Rowland could provide the necessary responses. That offer was, at least to an extent, taken up, although the solicitors who by then were acting for Mr. Rowland did raise questions as to the procedure to be followed at such a meeting. A date of the 2nd February, 2009 was fixed for the oral hearing but, three days before that date, these proceedings were commenced and an interim injunction was obtained ex parte restraining the hearing. That injunction was continued at the interlocutory stage by Charleton J. on the 30th March, 2009.
3.12 Two aspects of the dispute as to the process, which were raised between the parties between the initial letter raising queries in April 2008 and the commencement of proceedings almost a year later, need to be noted for they form the basis of the issues which arise on this appeal.
3.13 First, it was contended on behalf of Mr. Rowland that he was entitled, at that stage, to see the data emanating from other or typical post offices which gave rise to the queries which were posited on an assertion that Mr. Rowland’s equivalent data was significantly out of line with the norm. Second, it was said that Mr. Rowland ought to be entitled to arrange for the cross-examination of those who were involved in formulating those queries which, on Mr. Rowland’s case, were said to amount to an accusation and, in some respects, findings of fact.
3.14 These questions were also linked with a third issue which arose on this appeal which concerned the identity of the persons who were to conduct any further stages of the process. On Mr. Rowland’s case it was said that it was inappropriate that those who had been involved in formulating the queries and, so far as he was concerned, making accusations and coming to preliminary findings, should be involved in any oral hearing (perhaps other than as a witness if required) or involved in any final decision making.
3.15 In that latter regard it does also require to be noted that, subsequent to the hearing in the High Court, it was ultimately determined by An Post that a person who had had no previous involvement with these issues would make any final decisions. It may be, although it is not necessary to determine this issue for the purposes of the substantive appeal, that questions may arise as to costs arising from the identity of those who were intended to conduct the process but it is clear that the individuals against whom a complaint of lack of objectivity was raised did not ultimately take part in any final decision making process so that that issue, at least at the level of substance, is clearly now moot.
3.16 In essence the substance of the appeal, therefore, comes down to a question of whether the test identified earlier in this judgment, as to the circumstances in which it would be appropriate for a court to intervene in respect of an ongoing process, had been met as of the time when the substantive hearing before the High Court took place on either or both of the grounds identified being the fact that not all of the relevant data had been provided and the issue relating to cross-examination.
3.17 Before considering those issues it is necessary to briefly note the reasoning of the trial judge.
4. The High Court Judgment
4.1 The trial judge described Mr. Rowland’s claim as being to the effect that he was never told about the allegations against him, that there was a refusal of cross-examination and that the personnel who had been designated to conduct the inquiry had a conflict of interest.
4.2 The trial judge held that all issues of concern involving Mr. Rowland had been sent to him through correspondence. It was held that cross-examination did not arise because there were no witnesses to interview. The Court was also satisfied that the personnel appointed to conduct the disciplinary hearing had been altered so as to meet any reasonable concerns on Mr. Rowland’s behalf.
4.3 However, a key finding of the Court was that the disciplinary hearing stage had not yet been arrived at.
4.4 In my view it would be reasonable to characterise the ultimate decision of the trial judge as being one to the effect that it was premature to seek to injunct the disciplinary process. There are, it has to be said, some elements of the judgment which might be taken to have made findings beyond that. However, a finding of prematurity, if upheld, would, of course, be sufficient to dispose of the case and thus render any other findings irrelevant and, for the reasons already identified earlier in this judgment, not binding on any judge who was asked to review the process as a whole.
5. Analysis
5.1 A starting point has to be to note that, after the commencement of the proceedings but before the matter came to trial before Murphy J., An Post wrote a letter to Mr. Rowland’s solicitors on the 3rd June, 2010. At point 2 of that letter it was made clear that Mr. Rowland would be provided “with documentation relied upon by An Post to ground (the relevant allegations) but that documentation may be redacted to remove confidential material…” A requirement for confidentiality was also imposed.
5.2 The same letter, at point 3, indicated that there would be an oral hearing but that the process would be conducted on an inquisitorial basis. However, Mr. John J. Ryan, who was the Manager Contractors and who was to conduct the hearing, was stated to have a discretion to determine whether oral evidence was necessary “in order to adjudicate upon any matter in issue”. It was also indicated that, in such circumstances, either Mr. Rowland or his solicitor would be entitled to address questions through Mr. Ryan “to any person whose evidence may be considered necessary”. The letter then went on to indicate that Mr. Ryan would prepare a report and make a recommendation to Mr. Frank Ennis, the Chief Internal Auditor of An Post, who would give a written decision.
5.3 It is true that, at earlier stages of the process, An Post had set out its initial queries in quite robust terms and had demanded replies without giving Mr. Rowland either access to the data in question or the right to cross examine. However, it does not appear to me to be “clear” that the process could be said to have gone irremediably wrong simply by An Post adopting that initial position. A contract of employment or a long term contract such as that with which the Court is concerned in this case will almost inevitably involve a level of confidence and trust. In the context of such a contract it is not appropriate for a party to whom queries relevant to the performance of the contract are addressed to adopt a position which might be characterised as typical of Bart Simpson and demand proof. Rather it is appropriate to address the issues raised as best they can.
5.4 In addressing the issues raised it may well be that a party could legitimately qualify certain answers by reference to a lack of access to sufficient information. But to refuse to answer questions at all is not, in my view, appropriate, at least as a general proposition. There could, of course, be a whole range of responses to a suggestion that someone’s trading pattern was significantly out of line with the norm and with what might be expected. A credible basis might be put forward for suggesting that the assumption of being out of line with the norm was incorrect. It might be accepted that the pattern was out of line with others but an explanation might be tendered. It might be said that the fact that a trading pattern appeared to be abnormal was not, in the circumstances of the case, relevant to any legitimate issue which might be raised. A whole range of other possibilities might exist in the context of particular cases. It is important to emphasise that the process envisaged in this case involved an ongoing investigation which might ultimately turn into a matter which might lead to adverse findings. But the fact that the initial request for explanations was expressed in robust terms does not mean that the process did not start as an investigation. The extent to which it may be required that evidence be provided or a right to cross examine afforded will depend on the position adopted by the parties.
5.5 In this context it is, perhaps, worth noting the accepted practice in respect of the investigation of criminal offences to which a high level of constitutional protection applies. Gardaí doubtless question, in appropriate cases, individuals in a robust fashion provided that it is not inappropriately oppressive. Gardaí are not necessarily required to let a suspect know of all of the evidence which they have accumulated at the time of such questioning. Depending on the position adopted by the suspect the amount of evidence which may ultimately have to be put before a court may vary. It is difficult to see how a person in respect of whom queries are raised in relation to a long term trading relationship could be said to have a greater level of rights than someone whose liberty may be placed at risk as a possible ultimate conclusion to a criminal investigative process.
5.6 Furthermore, there is no reason in principle why there has to be an oral hearing unless there is a legitimate basis for determining that there is a factual issue which needs to be resolved in order for appropriate conclusions to be reached. There is no reason in principle, therefore, why procedures cannot be put in place to ascertain whether there is such a factual dispute before deciding whether a right to cross examine may be necessary to comply with the rules of constitutional justice. It follows that there is no reason in principle why the process may not evolve from an initial request for information through the formulation of points of concern but importantly provided that, before the process reaches a stage where an adverse decision can be made, the person concerned becomes entitled to any materials which might be relied upon for making an adverse decision and provided the person is given an opportunity to test any evidence (by cross-examination if necessary) where the process to date has established that there is a conflict or issue on the facts requiring to be resolved.
5.7 In other words there is no reason in principle why procedures cannot be put in place which seek to refine the issues in order to determine the precise extent of the materials which require to be disclosed and the precise requirement for cross-examination which may be needed in order that the process as a whole be considered procedurally fair. Unless the entitlement to obtain information or test evidence is afforded at a stage which is so late that it can be said that the person whose interests are in potential jeopardy has suffered an irremediable detriment then it is hard to see how the timing of when information is given or cross-examination allowed could, in and of itself, be regarded as creating a process which breached the rules of constitutional justice.
5.8 It might, of course, have been the case that insufficient information would have actually been given to Mr. Rowland to meet the requirements of fair process. It might have been that the exercise of the discretion to allow or refuse examination of witnesses might have been impermissibly exercised so as to exclude questioning which would have been necessary to reach a sustainable decision. Other things, indeed, could well have gone wrong. But it cannot be assumed that any of these things would have happened.
5.9 Therefore, as of the time of trial, there had undoubtedly been a refusal for a period of time to provide information requested or to allow examination of potentially relevant witnesses. But it was certainly not clear, for the purposes of the Becker test, that any such initial refusal had created a situation whereby the process had gone irremediably wrong. By the time the case came to trial it had been intimated that data would be provided and the potentiality for allowing of the examination of witnesses had also been established subject to persuading Mr. Ryan that any particular examination was necessary. Again it was certainly not clear, for the purposes of the Becker test, that the procedures that were to be followed would inevitably lead to an unsustainable decision.
5.10 For those reasons I am satisfied that the overall and ultimate conclusion of the trial judge, which was to the effect that that Becker test had not been met, was correct. It may be that it was putting things somewhat too far to say that the process had remained, up to the time of trial, at a purely investigative stage. The letter of the 3rd June, 2010 suggested that there were allegations and that, as a result of the hearing contemplated by that letter, potentially adverse recommendations might be made. But even though it may be wrong to characterise the process of having remained at a purely investigative stage, the trial judge was, in my view, correct to take the view that it had not been established that the process had clearly gone irremediably wrong to the extent that it was almost inevitable that any determination at the end of same could not be sustained.
5.11 For those reasons I am satisfied that the trial judge was correct to decline to grant the injunction sought and it follows that it would not be appropriate for this Court to grant any alternative relief.
6. Conclusions
6.1 For the reasons set out in this judgment I am, therefore, satisfied that the trial judge was correct to hold that the point had not been reached when it could be said that it was sufficiently clear, for the purposes of the established jurisprudence, that the disciplinary process in this case had gone irremediably wrong so as to warrant that a court should intervene by way of an injunction to halt the process.
6.2 On that basis I am satisfied that the trial judge’s ultimate conclusion was correct and that the appeal must be dismissed. However, in doing so I would make clear that, in my view, for the reasons addressed earlier in this judgment, any findings of the High Court judge other than the finding of prematurity will not bind any future judge who is called on to consider whether the disciplinary process against Mr. Rowland in its entirety can stand scrutiny. The finding of prematurity is based on upholding the view of the trial judge that it was not clear, for the purposes of the relevant jurisprudence, that the procedure had gone irremediably wrong. That does not mean that any of the factors sought to be relied on by Mr. Rowland in these proceedings cannot also be taken into account by a judge who is asked to review the process as a whole.
