Mc Carthy & anor v An Coimisiun Le Rinci Gaelacha [2017] IEHC 856 (08 November 2017)

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JUDGMENT of Mr. Justice Tony O’Connor delivered on the 8th day of November, 2017

1. The mother and next friend of the plaintiff, who is a minor (“the minor”) in this judgment

explained in an affidavit sworn on Wednesday, 18th October, 2015 (three weeks ago) that

the minor, her twelve-year-old daughter, has been a consistent podium-placed child (i.e.

2. The real objective of this application is to allow the minor to dance in the Southern

England Oireachtas in November 2017, which would then allow the minor to defend her

world championship placing, commencing on 24th March, 2018. The mother also refers

to a further knock-on effect which could be caused for the minor’s qualification status in

3. The hiatus comes about because the minor’s teacher on 17th July, 2017, emailed the

minor’s mother (“the mother”) that due to irreconcilable difficulties over the past year

with the mother, she (the teacher) could not continue to have the minor in her class. The

mother unsuccessfully tried to persuade that teacher to reverse her decision but

ultimately registered the minor as a pupil of the mother who is also registered with the

4. The mother acknowledges that she was aware at all material times of the rules which are

the subject of these proceedings. The rules were devised and amended over many years

following discussions and votes by the membership of the defendant.

“where a pupil, formerly the pupil of a registered CLRG [i.e. the defendant] teacher,

joins the class of another CLRG teacher, the new teacher must not enter the pupil

in any registered competition until six months have elapsed unless the pupil is

allowed to compete by reason of rules 3.1.5 [death or deregistration of teacher],

3.1.6 [significant change of normal residence] or 3.1.7 [a successful application for

6. It was clarified for the Court that the application for an exemption under rule 3.1.7 as

made by the mother as teacher was considered by 17 of the 19 members of An

Buancoiste (“the subcommittee”) following the briefing by the vice-chair of the defendant,

who swore the affidavit in this application on behalf of the defendant. The vice-chair

recused herself from making the decision but clarified that she forwarded to each member

of the subcommittee on 31st October, 2017, in accordance with the indication given to

Gilligan J. on 26th October, 2017, a copy of the undated letter from the mother addressed

“Dear all”, as summarised at para. 15 of the mother’s second affidavit sworn yesterday on

7th November, 2017, and exhibited thereto together with the letter from the teacher

7. The subcommittee members, who reside in various places, were urged to respond in view

of the date given for the hearing of this application yesterday by Gilligan J. on 26th

October, 2017. The unanimous decision of the seventeen members of the subcommittee

8. Gilligan J. had sought to see whether there was any reason to have the application

determined if the subcommittee granted the application. It transpires as a result of the

exemption refusal that the application did proceed to hearing yesterday and this morning.

9. Laffoy J. in Jacob v. Irish Amateur Rowing Union Limited [2008] IEHC 196; [2008] 4 I.R.

731, sets out under the heading ‘The law’ an overriding factor which is particularly

apposite in circumstances of this application at paras.16 – 19. Is this a case, in the

words of May L.J. as quoted by Laffoy J. “so strong that to refuse to 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”, which in May L.J’s view would

10. Consideration of an application for an interlocutory injunction is not a box ticking

exercise. However, it helps to explains the Court’s exercise of its discretion to deal with

issues under various headings which counsel for the parties helpfully used in their outline

11. Mr. Meehan, counsel for the plaintiff, cogently argued that the minor by reason of having

paid the teacher (albeit by the mother) for enrolment relied upon “a promise” that the

plaintiff would be permitted to compete as a pupil of a teacher registered with the

defendant. In other words, the submission was that the minor was induced to enrol with

the teacher who was subject to the relevant rules. In that way, the defendant gave a

“promise” which was accepted and relied upon by the minor. Excerpts from a website

12. Mr. Hewson, counsel for the defendant, submitted that there could scarcely be a more

different “promise” as in the judgment of the Court of Appeal of England and Wales in

Bowerman v. ABTA [1996] C.L.C. 451 than the vague offer or representation put forward

13. I emphasise that the Court cannot determine an issue as to fact definitively following the

hearing of this type of application and based on affidavit evidence. Nevertheless, and in

deference to the duty of the Court to consider the applicable principles of law, I find the

alleged issue to be tried rather tentative for a number of reasons including:-

(i) the absence of specific evidence that the history on the website extract actually

(ii) the minor remains incapable of forming a contract at law, save for necessities, and

it is stretching a practical understanding of the circumstances to suggest that the

minor actually went through the process as is put forward now; and

(iii) the lack of any explanation by the mother as to why she did not commence

proceedings in her own name being the teacher who has a relationship through her

14. Therefore, insofar as this Court is concerned, there may be an issue to be tried but it is

not so strong as it would be a waste of time to proceed to a full trial.

15. The second issue refers to whether the relevant rules are disciplinary in nature.

Undoubtedly, the mother believes that the rules effectively discipline the minor for the

alleged breakdown in the teacher/mother relationship. I mentioned on a few occasions

during the hearing to both counsel that this Court, and particularly at this stage, was not

engaged to decide on the merits of the rules for child welfare. Whatever way one looks

at the scenario objectively, the rules are clear, unambiguous and have equal application

on their face. They are not dissimilar to the private law arrangements which arose for

consideration in Quinn v. Honourable Society of King’s Inns [2004] IEHC 220, [2004] 4

I.R. 344. Moreover, and although more applicable to the running of a specific sport or

recreational event, the words of O’Donnell J. at para. 8 in O’Connell v. The Turf Club

“All the modern sports are related to games played from time immemorial, whether of

throwing or kicking a ball of different dimensions, striking it with a stick, running the

fastest, or in this case, attempting to see who can ensure that an animal runs the fastest.

It is the essence however of any game that it requires some rules. Otherwise it will not be

possible to measure sporting excellence or demonstrate sporting skill. It is also the case

that many of those rules are somewhat arbitrary, but sanctified by tradition. Why a team

of 11, 13, 15 (or as was once the case in Gaelic sports, 17) players? Why a game of 70,

80 or 90 minutes? Why should some games end at the expiry of the time and others only

when the ball goes dead? Why is a pass forward by a player in rugby an occasion for loss

of possession and accompanying groans, but one of the glories of American football?

Why, as some have had reason to ruefully observe, is a second serve permitted in tennis

but not in golf? There is no good answer to any of these questions. They are so because

they are so. These rules are peculiarly inapt for judicial consideration, as Carroll J. and

Hogan J., among others, have had occasion to observe. There must be rules for the

organisation of any game, and accordingly there must a rule-making, and rule–enforcing,

body. To some extent at least, the idiosyncrasies of the rules become part of the tradition

valued by the game’s participants and spectators.” (para. 8; para. 45, p. 73).

16. It is readily apparent that O’Donnell J. in that particular case was dealing with a rule

which disciplined a participant but the same ethos applies to an organisation which makes

17. In summary, it is my view, without detracting from the right of the minor or the right of

the mother to seek a plenary hearing on the contract or disciplinary verses private

arrangement claims, that there is little more than tentative rights to be pursued under

18. As I said earlier, it is the Court’s overall discretion which is applied in this type of

application. I might use the phrase “the whole is greater that the sum of its parts” to

convey the exercise which this Court undertakes in this application.

19. There is little dispute that damages for either party will not be an adequate remedy. The

plaintiff may lose out on the opportunity to defend her placing in the World

Championships next March at her tender age. On the other hand, the integrity of the

defendant’s established traditions in applying its rules is threatened by the grant of an

interlocutory injunction which is likely to be the end of the proceedings since I cannot see

how it would benefit the minor to proceed to a full hearing while the effect of a ruling in

favour of the defendant at a plenary hearing will be pyrrhic victory indeed. Damages,

even if the minor or her mother would or could pay, will not undo the reputational and

20. If this Court were to grant the injunction to restrain the defendant from applying rule

3.1.4 and in some way the minor’s claim was ultimately determined in favour of the

(i) the minor would compete and would obtain a place, which placing may have to be

(ii) the minor would indirectly deprive another child of a place at one or other

21. There is much to be said for the defendant’s submission that children have no business

being involved in litigation unless their rights have been infringed. I understand how the

minor may be disappointed if it transpires that there is no other way this year for her to

compete in the qualifiers but she should take heart by the realisation that there are many

future events and World Championships which she can focus upon. Disappointment in

one year is not a real basis for this Court to intervene in the dramatic way which is now

sought. It may be that the minor will have to try harder to qualify in 2019 but trying

harder is indeed a way of improving beyond what could be expected.

22. Therefore, I refuse the application for the reliefs sought in the notice of motion issued on

25th October, 2017.

Result: Interlocutory Injunction refused for minor to be exempt from rule in Irish dancing based on alleged promise

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