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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rogers -v- An Post [2014] IEHC 412 (25 July 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H412.html Cite as: [2014] IEHC 412 |
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Judgment Title: Rogers -v- An Post Neutral Citation: [2014] IEHC 412 High Court Record Number: 2014 3750 P Date of Delivery: 25/07/2014 Court: High Court Composition of Court: Judgment by: Keane J. Status of Judgment: Approved |
Neutral Citation [2014] IEHC 412 HIGH COURT [2014 No. 3750 P] BETWEEN KEVIN ROGERS APPLICANT AND
AN POST RESPONDENT JUDGMENT of Mr Justice Keane delivered on the 25th July 2014 Introduction 2. A plenary summons was issued on behalf of the plaintiff on the 10th April 2014. In those proceedings, the plaintiff seeks a single substantial relief, namely, “an injunction restraining the defendant from taking any further steps in the disciplinary process relating to the plaintiff until the determination of criminal proceedings currently pending before Roscommon Circuit Criminal Court and titled The Director of Public Prosecutions v. Kevin Rogers, Accused, Bill No. RNDP/0004/13.” 3. On the 11th April 2014, the plaintiff was granted leave to issue, and effect short service of, the motion now before the Court. The single substantive interlocutory relief, the subject of that motion, is: “an order restraining the defendant from taking any further steps in the disciplinary process relating to the plaintiff until the determination of criminal proceedings currently pending before Roscommon Circuit Criminal Court and titled The Director of Public Prosecutions v Kevin Rogers, Accused, Bill No. RNDP/0004/13.” Background 5. On the 28th March 2012, the plaintiff was detained for questioning by An Garda Síochána. On the 2nd October 2012, the plaintiff was charged with an offence of perverting the course of justice, contrary to common law. The particulars of that offence are that on or about the 5th March 2012 the plaintiff tampered with a drink driving sample which had been posted by An Garda Síochána to the Medical Bureau of Road Safety for analysis. 6. The trial of the plaintiff took place before a judge and jury at Roscommon Circuit Criminal Court between the 26th November 2013 and the 5th December 2013. The jury could not agree upon a verdict and was discharged. A re-trial has now been fixed to commence on either the 9th or the 10th December 2014. The disciplinary process
In order to afford you an opportunity of furnishing any explanation, making any union representations or other representations you may wish to offer in respect of the above matters no further action shall be taken for a period of fourteen days (21st September 2012). If you fail to reply to this letter before that date the Company will proceed on the basis that you have no explanation to offer. You are also being afforded the opportunity, should you so wish, of attending an oral hearing in addition to, or as an alternative to furnishing a written explanation. You may be accompanied at such a hearing by a union representative or by a friend. If you do wish to avail of the opportunity of attending an oral hearing, please inform me in writing of your intention to request such a hearing within three working days of receipt of this letter. Alternatively, you may contact [An Post by telephone] to arrange same.”
(b) After the plaintiff’s criminal trial resulted in a hung jury, the defendant informed the plaintiff of its intention to re-initiate the disciplinary process against him. The plaintiff was again invited to furnish any explanation or make any representations he might wish, and was again offered an oral hearing, in the same terms as were contained in the defendant’s earlier letter of the 6th September 2012. (c) The plaintiff objects to the resumption of the disciplinary process on the basis that it was (and is) proposed to conduct a retrial of the criminal charge against him. Without prejudice to that submission, the plaintiff requires an oral hearing and requires to be represented by Senior and Junior Counsel, instructed by his solicitor, for that purpose. (d) The defendant is willing to permit the plaintiff to be represented at the proposed oral hearing by solicitor and counsel, even though that is not contemplated under the defendant’s agreed disciplinary procedures. (e) The explanation that the plaintiff wishes to provide, and the representations he wishes to make, for the purpose of the proposed disciplinary process are those set out in the written cautioned statement that he made to An Garda Síochána while detained for the purpose of questioning on the 28th March 2012. The plaintiff points out that Ms. Ann O’Reilly, a Fraud and Investigation manager with the defendant, was present at the Garda interview during which that statement was made. (f) The defendant has adopted the position that it is not appropriate for it to receive the plaintiff’s written cautioned statement to An Garda Síochána for the purpose of the disciplinary process, although it was conceded in the course of argument before me that little purpose is served by obliging the plaintiff to make a separate, though in all probability substantially identical, statement to the defendant by way of explanation or representation for the purpose of the disciplinary process. The defendant had indicated that, if no explanation was furnished nor any representations made before the 13th February last the defendant would proceed with the disciplinary process on the basis of the information available to it. (g) The plaintiff has been furnished with an extract from the defendant’s investigation report together with a copy of statements and attachments referred to in that report, totalling 48 pages of material. In addition, the plaintiff is to be afforded an opportunity to view the relevant CCTV footage for the purpose of the disciplinary process. (h) The defendant is prepared to provide an undertaking to the plaintiff that it will not require him to provide any information either by way of written or oral response, which he believes may incriminate him. (i) The defendant contends that the proposed oral hearing is not intended to be an adversarial one. No witnesses are to be called at the hearing. Its purpose is to afford the plaintiff an opportunity to put forward any representations he may wish to the defendant as part of the overall disciplinary proceedings. The plaintiff will not be cross-examined. Some questions may be asked of him regarding any representations put forward by him but such questions are generally only for the purpose of clarification. The only documentation that the defendant proposes to rely on for the purpose of the proposed hearing is that which has already been provided to the plaintiff.
Secondly, you have not set out precisely what allegation is being levelled against Mr. Rogers rendering it impossible for him to defend himself in that regard. Thirdly, we note it is not proposed to call any witnesses and so it is not clear how any allegation against Mr. Rogers can be established, nor is it clear what if any benefit it would be to him to have legal representation as cross examination will not be possible. Finally, an additional important issue now arises in the context of the recent revelations concerning recording/interception of certain communications to and from certain Garda Stations...It will be necessary for us to establish whether communications to and from Roscommon Garda Station in and about that time involving our Client were recorded or intercepted and this very important issue will have to be clarified, not just in the context of the criminal charge against him, but also in the context of your proposed Disciplinary Hearing, which had its genesis in the presence of a representative of an Post in Roscommon Garda Station during the course of the Garda investigation and interview.” The defendant’s disciplinary policy and procedure 12. The defendant submits that a consideration of its disciplinary policy and procedure serves to clarify how it proposes to conduct the disciplinary process in this case. The preface to the policy recites that its terms have been agreed between the defendant and the trade unions/staff associations representing the defendant’s staff. Paragraph 7 of the policy states:
• the right to be notified of the specific matters in respect of which disciplinary action is being considered at the time any proceedings are initiated and receive any relevant material, records or sources of data at that time, to the extent that they have been relied upon by management in initiating the proceedings • the right to respond to the allegation(s) prior to any disciplinary decision being made • the right to representation by a trade union representative at all stages of the procedure, including the appeal stage. Alternatively the employee may chose to be represented by a fellow employee of his/her choice provided the fellow employee they nominate is immediately available or available within a reasonable period of time, so that proceedings are not unduly delayed • the right to consideration of any matters he or she puts forward to the Company or is put forward on their behalf in the course of the disciplinary process • the right to be advised of the outcome of the Company’s disciplinary investigation • the right to appeal against any disciplinary sanction imposed by the Company”
… 8.2 The Company is not obliged to afford the employee the right of cross-examination of any person or persons who has given a statement which is relied upon in initiating or continuing disciplinary proceedings. In instances where a final written warning or dismissal is being considered, however, the employee may raise questions he/she would wish to have put to the party concerned and the Company will do so, within reason, as part of any process of further enquiry following the employee’s initial response to the notice of disciplinary proceedings.”
… (ii) instances of serious misconduct, a non-exclusive list of which is set out hereunder Instances of Serious Misconduct • Wilful delay of or interference with mail .... 14.3 Ordinarily, prior to disciplinary proceedings being initiated where dismissal related to serious misconduct is a consideration, a process of preliminary enquiry aimed at establishing basic facts and determining whether disciplinary proceedings against any individual is warranted will be undertaken. 14.4 In any instance where consideration is being given to dismissal, the employee shall be advised in writing of the irregularity for which he/she has come under notice. … 14.5 An employee who has been notified that their dismissal is under consideration shall be afforded a reasonable opportunity to respond (usually 10 working days) verbally and/or in writing to the notice of disciplinary proceedings and the irregularity(s) identified therein. 14.6 If further enquiries are necessary arising from the employee’s response these will be undertaken. If as a consequence of these enquiries any matters arise which are likely to be relied upon in making a disciplinary decision the employee will be provided with appropriate written details and afforded a further reasonable opportunity (usually 5 working days) to respond verbally and/or in writing. Ultimately, if the employee’s response is unsatisfactory, a decision to dismiss will be made.” The arguments 18. The first argument is that the plaintiff is entitled to the injunction he seeks because otherwise he will suffer irremediable prejudice - either through being constrained or inhibited in his participation in the disciplinary process or, should he participate fully, by potentially losing (at least some of) the benefit of the privilege against self-incrimination in the criminal process, or the tactical advantage of not disclosing his line of defence in advance of trial, or both. 19. As each party acknowledged in the course of argument, O’Flynn v. Mid-Western Health Board [1991] 2 I.R. 223 is the leading modern authority in this area. In that case, the Supreme Court (per Hederman J., with whom Finlay C.J., Griffin and O’Flaherty JJ concurred on the point) held that there is no immutable rule that civil proceedings must remain at a standstill to await the outcome of a criminal investigation. That finding was based, in turn, on the earlier decision of the Supreme Court in Dillon v. Dunnes Stores [1966] I.R. 397 (per Ó Dálaigh C.J., Haugh and Walsh JJ. concurring). 20. On behalf of the plaintiff it was submitted that the matter was, therefore, one of first impression, in which context the Court should be guided by the fundamental importance of the plaintiff’s constitutional right to a trial in due course of law, in conjunction with his entitlement to a disciplinary process that accords with the requirements of natural and constitutional justice and fair procedures. The plaintiff submits that there is a fair issue to be tried as to whether due deference to those constitutional rights requires that the disciplinary process should be suspended pending the determination of the criminal charge against him. 21. However, it is clear that, in order to demonstrate that he is entitled to an order restraining the disciplinary process against him, the plaintiff must show more than merely that there is a criminal trial pending arising out of the same events. If that was enough, in light of the constitutional rights to which anyone in the plaintiff’s position is plainly entitled, then it seems to me that there would be an immutable rule that disciplinary proceedings must remain suspended to await the outcome of a criminal prosecution in every case. 22. The plaintiff’s second and third arguments can conveniently be considered together, as they both involve what is, in essence, a separate and distinct claim that the disciplinary process in the form proposed will not be carried out in accordance with fair procedures (whether it is conducted before or after the determination of the criminal charge against the plaintiff). Specifically, the plaintiff’s second argument is that the defendant has not set out precisely what allegation is being levelled against him, rendering it impossible for him to defend himself. His third argument is that no allegation can be fairly or properly established against him except through the evidence of witnesses (presumably, such evidence to be given viva voce and subject to cross-examination), and that the legal representation he has been permitted to have at the proposed oral hearing confers no benefit upon him unless the process is conducted in that way. 23. A case very closely, if not directly, on point in relation to each of the first three arguments raised by the plaintiff is that of Carroll v. Law Society of Ireland (No. 2) [2003] 1 I.R. 284. The applicant, an apprentice solicitor, was facing a hearing before the respondent’s education committee concerning whether it had jurisdiction to entertain a number of complaints against him that, if made out, would preclude him from meeting the criterion of being a fit and proper person for admission to the roll of solicitors. One of the arguments put forward on behalf of the applicant was that the proposed hearing risked compromising his privilege against self-incrimination in the event of any subsequent criminal prosecution against him. Various declarations were sought by way of Judicial Review, including a declaration that, if the committee did have jurisdiction to hear and determine the complaints against the applicant, it could not rely on hearsay evidence and must permit cross-examination of all witnesses. 24. In addressing the latter submission, McGuiness J. concluded as follows (at 297):
I would however accept the submission of counsel for the respondent that it is not the function of judicial review to direct procedure in advance and I regard the dictum of Carroll J. in Philips v. Medical Council [1992] I.L.R.M. 469 as persuasive authority. I am not therefore prepared to make the declaration sought by the applicant.”
11. There may, however, be exceptions to that general rule. Where an employer has, in clear and unequivocal terms, indicated that procedures will be followed which will be manifestly unfair there may be circumstances where it is appropriate for the court to intervene at that stage. This will be so, in particular, in cases where the degree of prejudice which the employee concerned would suffer in the event of an adverse finding at the particular stage in the process in respect of which complaint is made would be great and unlikely to be substantially reversed by a finding of a court made after the process had come to an end.” 28. I return now to the other relevant argument advanced by the applicant in Carroll v. Law Society of Ireland (No. 2): that the necessity to safeguard his privilege against self-incrimination, in the face of certain of the complaints that were the subject of the proposed hearing before the education committee, mandated a finding that the education committee had no jurisdiction to consider those complaints. The relevant complaints were that the applicant had passed himself off as a solicitor when not qualified as such. To pretend to be a solicitor when not one is an offence under s. 56 of the Solicitors Act 1954. The Law Society of Ireland may prosecute any such offence under s. 77 of that Act. 29. In addressing that submission, McGuinness J. observed (at page 299 of the report) that the privilege against self-incrimination, or the right to silence, is a constitutionally protected right but that it is not an absolute one. Having noted that the respondent acknowledged the applicant’s right to remain silent for the purposes of the proposed hearing, McGuinness J. stated (at 299):
On consideration, it seems to me that this aspect of the applicant’s claim is also subject to the caveat that it is not the purpose of judicial review to direct procedures in advance. While the difficulty I have discussed above is a real one, it does not seem to me to be sufficient reason to hold that the education committee cannot be permitted to proceed with its inquiry. I am not prepared to make the declaration sought by the applicant but again I would direct the respondent’s attention to the need to maintain a clear line of division between this inquiry and any aspect of the respondent’s role as prosecutor under s. 77 of the Act of 1954.” 32. The plaintiff’s second argument - that the defendant has not set out precisely what allegation is being levelled against him - is, I must confess, difficult to follow. In the letter that the defendant wrote to the plaintiff on the 6th September 2012, indicating that it was considering disciplinary action against him, including recommending his dismissal, very specific details of the misconduct at issue are set out over three pages, amounting to a précis of the evidence then available to the defendant in relation to certain events that were alleged to have occurred at Roscommon Post Office on the 5th March 2012. On the penultimate page of that letter it is expressly stated:
34. The final argument raised by the plaintiff is that the disciplinary process against him should be restrained (presumably, without reference to the determination of the criminal proceedings against him) on the further discrete ground that it is as yet unclear whether any telephone communications involving him or his detention in Roscommon Garda Station were unlawfully recorded or intercepted by An Garda Síochána. This appears to be a reference to the matters the subject of the Commission of Investigation on the operation of Garda Síochána telephone recording systems, established on the 30th April 2014 by the Commission of Investigation (Certain Matters relative to An Garda Síochána and other persons) Order 2014. However, it has not yet been made clear how any such issue is capable of affecting the disciplinary process concerning the plaintiff, particularly in circumstances where it is the plaintiff himself who wishes to rely on the contents of the written cautioned statement that he made while in garda custody for the purpose of the proposed oral hearing that is to form part of the disciplinary process. The test 36. However, it is clear that in this case the grant of an interlocutory injunction will have the practical effect of determining the proceedings as a whole because the plaintiff will have obtained in advance of trial the very relief that he is seeking at the trial of the action. 37. In Jacob v. Irish Amateur Rowing Union Ltd [2008] 4 I.R.731, Laffoy J. addressed a broadly analogous situation. The plaintiff sought an order restraining the defendant from preventing him from competing at a regatta, which represented his final opportunity to compete for a place representing Ireland in the single scull class at the 2008 Olympic Games. The plaintiff argued that he had three separate causes of action against the defendant: a public law claim of legitimate expectation; a private law claim for breach of contract; and a constitutional claim that he had been deprived of his constitutional right to fair procedures. The defendant submitted that the ordinary principles in relation to interlocutory relief did not apply where the grant of interlocutory relief would effectively resolve the matter in favour of the plaintiff. 38. Laffoy J. noted that, in American Cyanamid v. Ethicon Ltd [1975] AC 396, the starting point for Lord Diplock’s analysis of the principles applicable to the determination of an application for an interlocutory injunction was that the grant of an interlocutory injunction is both temporary and discretionary. 39. Laffoy J. next pointed to the following observations with which O’Higgins C.J. prefaced his analysis in Campus Oil v. Minister for Industry (No. 2), supra, of the principles applicable to an application for an interlocutory injunction (at pp. 105-106 of the report):
41. Laffoy J. had particular regard to the judgment of the English Court of Appeal in Cayne v. Global Natural Resources plc [1984] 1 All E.R. 225. In that case the plaintiff shareholders applied for an interlocutory injunction to restrain the defendant company from implementing a merger agreement (and from proceeding with the associated allotment of shares) prior to the company’s impending A.G.M. The plaintiff shareholders contended that the merger agreement had been concluded specifically to dilute the votes of the existing shareholders rather than in pursuit of any legitimate commercial goal of the company, with the aim of defeating a motion to remove the company’s directors at the A.G.M. If the injunction were granted, the balance of power in the company would remain the same until after the crucial vote was taken at the A.G.M. and the plaintiffs would therefore obtain the result they sought in the proceedings. Kerr L.J. began his speech by considering the scope of application of the test set out in American Cyanamid, supra, stating (at 235): “The test for the application of Cyanamid is therefore whether the case is one where the court can see that it is likely to go to trial at the instance of the plaintiffs, and whether the grant of an injunction is therefore appropriate or not, as a way of holding the situation in the interim.” He continued (at 236): “[T]he overriding test for present purposes is that, if an injunction is granted, the effective contest between the parties is likely to have been finally decided summarily in favour of the plaintiffs.” 42. Laffoy J. went on to quote the following passage from the judgment of May L.J. (at p. 238):
It may well be that it is the same ultimate consideration which the court has in mind, namely the question whether it is likely to do an injustice. Where a plaintiff brings an action for an injunction, I think that it is, in general, an injustice to grant one at the interlocutory stage if this effectively precludes a defendant from the opportunity of having his rights determined in a full trial. There may be cases where the plaintiff’s evidence is so strong that to refuse an injunction and to allow the case to go through to trial would be an unnecessary waste of time and expense and indeed do an overwhelming injustice to the plaintiff. But those cases would, in my judgment, be exceptional.” Conclusion 45. In doing so, I have reached the following conclusions:
(b) This case is not one that is likely to go to trial at the instance of the plaintiff if he is granted the substantive relief that he seeks in the action at the interlocutory stage. It follows that the grant of an interlocutory injunction is not appropriate in this case as a means of maintaining the status quo pending such trial. (c) I am satisfied that this is a case in which, if the injunction sought is granted, the effective contest between the parties is likely to have been finally decided summarily in favour of the plaintiff. (d) In the premises, it would be an injustice to grant the injunction now sought at the interlocutory stage, as there is a very great likelihood that this would effectively preclude the defendant from the opportunity of having its rights determined at a full trial. (e) I am unable to conclude that this is an exceptional case in which the plaintiff’s evidence is so strong that to refuse an injunction and allow the case to go to trial would be an unnecessary waste of time and expense, or that it would do an overwhelming injustice to the plaintiff. 47. For the reasons set out above, I must refuse the application.
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