High Court allows injunction pending appeal to delay vetting notification pending Court of Appeal review.

[2019] IEHC 148

THE HIGH COURT

[2018 No. 6400 P.]

BETWEEN

M.P

PLAINTIFF

AND

TEACHING COUNCIL OF IRELAND

DEFENDANT

JUDGMENT of Mr. Justice Allen delivered on the 8th day of March, 2019

Introduction

1. This is a case in which I gave judgment on 26th February, 2019. At the request of counsel, I put back the question of costs and

final orders for a week. On 5th March, 2019 I heard the defendant’s application for costs, and an application on behalf of the plaintiff

for an injunction pending the hearing of an appeal, which the plaintiff has instructed his solicitors to bring.

Costs

2. The costs application presents no difficulty. Mr. Farrell, for the defendant, asks for an order that the costs should follow the event.

Ms. Bolger, for the plaintiff, asks that there should be no order for costs because the case concerned a previously untested area of

law, which had been helpfully clarified; because the plaintiff’s earning capacity has been greatly reduced; and because the court

made no order as to costs on the defendant’s application, in other proceedings, pursuant to s. 47 of the Teaching Council Acts.

3. Mr. Farrell counters that if the decision was significant, there was no uncertainty in the legislation; that this was not public

interest litigation; that the case raised no point of law of conspicuous novelty; and that different rules apply to applications under the

teaching Council Acts.

4. I think that Mr. Farrell is right. This was an action brought exclusively to advance the plaintiff’s personal interest. It did raise an

issue of statutory interpretation, which was whether a scheduled organisation is precluded from making a notification to the National

Vetting Bureau under s. 19 of the Act of 2012 unless it does so as soon as may be, but the essence of the case was that the

defendant was actuated by malice and was acting mala fides. The plaintiff lost. I see no reason to depart from the ordinary rule that

costs follow the event.

5. There will be an order for taxation of the defendant’s costs of the proceedings, including reserved costs and the costs of

discovery, and for payment by the plaintiff of those costs when so taxed and ascertained.

Application for injunction pending appeal

6. This is a case in which the plaintiff claimed a permanent injunction restraining the defendant from making a notification to the

National Vetting Bureau under s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. For the reasons set

out in quite a long written judgment which I delivered on 26th February, 2019, I decided that the action must be dismissed.

7. The action was commenced by plenary summons issued on 16th July, 2018. The plaintiff moved immediately for an interlocutory

injunction restraining the defendant from making the proposed notification, and this was granted on the plaintiff’s undertaking that he

would not, pending the trial of action, carry on any activities for which a vetting disclosure would be required.

8. In the ordinary way, the interlocutory injunction would lapse on the disposal of the substantive action. In this case, the plaintiff

wishes to appeal and asks that notwithstanding the view that I have taken of the claim, I should continue the injunction (on the

plaintiff’s continued undertaking) pending the hearing of any appeal or, at least, until the first directions hearing before the Court of

Appeal.

9. Ms. Bolger, for the plaintiff, argues that the claim concerned an untested area of law, both as far as the Teaching Council and the

National Vetting Bureau are concerned. It is said that if the proposed notification is made, there will be a significant impact on the

plaintiff’s constitutional rights, which may be very difficult to undo, if his appeal were to succeed.

10. Mr. Farrell, for the defendant, does not contest the jurisdiction of this court to further restrain the making of a notification

pending any appeal by the plaintiff. He recalled that the defendant’s position on the interlocutory application in July 2018, was that s.

19 of the Act of 2012, makes it a criminal offence not to make a notification once a bona fide concern has been formed, so that the

defendant could not give an undertaking. This remained the defendant’s position. In my view, the position taken by the defendant

was correct in July 2018 and it is correct now.

11. The jurisdiction of the High Court to make an order of the nature now sought is well established. In L.C. v. Minister for Justice,

Equality and Law Reform [2016] IESC 36 the Supreme Court held that it has jurisdiction to grant an interlocutory injunction pending

appeal. The decision of the Supreme Court in Okunade v. Minister for Justice [2012] 3 I.R. 152 makes it clear that the High Court,

also, has jurisdiction to grant an injunction pending appeal, where this is shown to be necessary in the interests of justice.

12. Okunade was an appeal to the Supreme Court against the refusal of the High Court to restrain the deportation of the applicants

pending the hearing of their application for leave to seek judicial review of a refusal of subsidiary protection, and a decision to deport.

Prior to the appeal, the applicants’ leave application was refused by the High Court but the Supreme Court nevertheless heard the

appeal against the refusal of the injunction. Clarke J. (as he then was) delivered a judgment with which Denham C.J., Hardiman,

Fennelly and O’Donnell JJ. agreed.

13. At para. 57, Clarke J. said:-

“…it seems to me that the distinction between a stay where certiorari or prohibition is sought and an injunction in other

cases is not based on an intention that different criteria apply to the grant of, on the one hand, a stay and, on the other

hand, an injunction. Rather the reason for the distinction is that there is a difference in substance between a stay and

an injunction.”

14. Having explained the difference between a “stay” and an “injunction”, Clarke J. continued, at paras. 61 and 62:-

“…It does not seem to me that the task of balancing those legitimate competing interests is different dependent on

whether the measure sought to be challenged is said to be one which should be quashed by certiorari or prohibited, on

the one hand, or whether an injunction is considered the appropriate means of intervening, on the other. Nor is it the

case that the mere fact that there may be a measure in place which can be ‘stayed’ should alter that balance in

comparison with a case where the most effective means of preserving the position pending trial may be to consider the

grant of an injunction. The underlying requirements of justice are not dependent on the form of judicial review order

ultimately sought or the form of temporary order applied for…

That, of course, leads to the question of what the appropriate criteria are or, put another way, what the test is for the

grant of a stay or injunction which has the effect of preventing an otherwise valid measure or order from having effect

pending trial.”

15. On the authority of Okunade, the starting point is to recognise the risk of injustice, inevitable in either case, that a party may be

subject to a challenged reviewable measure, only to find that the measures held to be invalid after a full trial, or that a person or

body may be temporarily absolved from being subject to an otherwise valid measure, that is found at trial to be valid. The underlying

principle is to put in place a regime which minimises the overall risk of injustice. Okunade, as I have observed, was a judicial review,

but it is clear from the judgment that the same principle applies to private law litigation.

16. At para. 67 of Okunade Clarke J. said:-

“…Indeed, although it is unnecessary to go into detail for the purposes of this case, it seems to me that a like general

principle underlies the approach of the court in many other types of cases where the same broad problem arises. In

many situations it is necessary to decide what is to happen in the intervening period pending a trial or other

determination (or indeed an appeal) when, by definition, it is not possible to decide what the ultimate outcome will be. All

such cases involve the risk that, when the dust has settled, it will be seen that some person or body has suffered either

by the intervention of the court or, equally, by its non-intervention.”

17. Having recalled the principle established in Campus Oil v. Minister for Energy (No. 2) [1983] I.R. 88 and the variations involved in

the implementation of that test in specific type of cases, Clarke J. concluded that the Campus Oil test provided a useful starting

point in determining the principles to be applied on an application for an injunction pending an appeal, but with the caveat that the

detailed application of the principle was likely to be different.

18. It is long and well established that the overriding consideration in deciding whether to grant a stay is to maintain a balance, so

that justice will not be denied to either party. The same overriding consideration applies to a case in which an injunction pending

appeal is sought.

19. In Star Elm Frames Limited v. Fitzpatrick [2016] IECA 234, Ryan P. said that the balance to be struck is between the entitlement

of the unsuccessful party to appeal, and the right of the successful party to the benefit of the judgment obtained. Ryan P. identified

the objective as being:- “…to preserve the right of appeal in the sense of maintaining the status quo as far as possible so that if the

appellant succeeds his victory will be practically meaningful. And vice versa.”

20. In the course of this application, an issue arose as to whether the threshold to be met by an applicant for an injunction pending

appeal might be higher than that applicable on an application for an interlocutory injunction pending trial or, perhaps, whether on such

an application the court should engage in an assessment of the strength of the case. The answer to the first question is to be found

in the decision of the Supreme Court in C.C. v. Minister for Justice, Equality & Law Reform [2016] IESC 48. In that case, Clarke J.

saw no basis for applying a different principle or test to an application for a stay or injunction pending appeal, and an application for

an interlocutory order pending trial. Clarke J., however, did acknowledge that legal and factual issues can fall away at trial as a result

of findings of fact or developments or clarifications that occur during the course of the trial. So, while the test is whether there are

bona fide or arguable grounds of appeal, the application of that test may be focussed by the judgment of the High Court.

21. The preponderance of authority suggests that the High Court, on an application such as this, at least in the majority of cases,

should not go beyond assessing whether there is an arguable ground of appeal, to attempt to assess the strength or weakness of the

appeal.

22. It is worth recalling that in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170 the Supreme Court held that

one of the principles to be applied on an application for a late appeal is that the applicant must establish that an arguable ground

exists. It seems to me that the same test is applicable on an application such as this.

23. In Redmond v. Ireland [1992] 2 I.R. 362, the Supreme Court said that one of the factors to be taken into account on an

application for a stay is that a heavy responsibility lies upon the legal advisors of those seeking a stay of execution to assist the

court on the reality of the appeal on liability.

24. Drawing the strands together, it seems to me that this application is not to be approached as an application for the continuation

of the interlocutory injunction granted pending the trial of the action, but rather as a new application which takes into account how

the case unfolded at trial. The initial test to be applied at this stage is whether there is a bona fide ground or grounds for appeal.

25. Applying the Campus Oil test as formulated by McCracken J. in B. & S. Ltd. v. Irish Auto Trader Ltd. [1995] 2 I.R. 142, the first

step is to establish whether the party seeking the injunction has shown that there is a fair or bona fide or serious question to be

tried. This formulation, recalled with approval in Okunade, puts the onus of proof on the party seeking the injunction, in this case the

plaintiff.

26. On this application counsel emphasised the potential impact of the judgment on the plaintiff’s legal and constitutional rights but

did not articulate what the ground or grounds of appeal might be.

27. The plaintiff’s case at this stage is very different to what it was at the time of the application for the interlocutory injunction

pending trial. The several claims in the summons and statement of claim, other than the claim for a permanent injunction and damages

for misfeasance in public office, were either abandoned or not pursued.

28. In the course of the trial of this action, a number of issues fell away. The first was whether a bona fide concern that a person

might harm etc. a child or vulnerable person had to be based on a finding or allegation that the person had previously harmed etc. a

child or vulnerable person. It was conceded that the relevant bona fide concern might arise from a finding or allegation of harm to a

person other than a child or vulnerable person. The second was whether a bona fide concern might arise on the basis of untried and

untested allegations. Unsurprisingly, it was conceded that it could. The third was the allegation that the decision of the disciplinary

panel had been intentionally or maliciously sent to someone other than the plaintiff. At the trial it was acknowledged that this had

been a mistake. The fourth was the allegation that the defendant had maliciously informed the plaintiff’s employer in China of the

outcome of the disciplinary inquiry: which it had not. The fifth was the allegation that the defendant did not comply with the

“Personal Data Security Breach Code of Practice”, which was not pursued.

29. There were, in the end, two strands to the plaintiff’s case. The first was delay, and the second was malice. It must be recalled

that it was never part of the plaintiff’s case that there was no objective basis for a bona fide concern.

30. The first strand was delay. For the reasons given, I concluded that there was no delay on the part of the defendant, but I am

content to take the view for present purposes that the plaintiff may be able to formulate an arguable ground of appeal that I was

wrong in that conclusion: perhaps because the defendant ought to have been in a position to make the necessary assessment

immediately or soon after the disciplinary inquiry had concluded.

31. Success on such a ground, however, would not avail the plaintiff. It seems to me that the core issue, if any appeal is to succeed,

is not whether the defendant delayed but whether the consequence of any delay in making a notification is to absolve the defendant

of its statutory obligation, and to deprive the defendant of its power, to notify a bona fide concern. In my view, the “use it or lose it”

argument is untenable. I do not consider that this is an issue which can fairly be said to require “detailed argument and mature

consideration”.

32. The second strand, the allegation of malice, boiled down to an argument that the defendant’s Evidence of Character Panel

maliciously set out to destroy the plaintiff’s reputation, out of spite that the disciplinary inquiry into the most serious allegations

against the plaintiff had collapsed. This argument ignores the objective evidence and the fact that the members of the defendant

who made up the Evidence of Character Panel had nothing whatsoever to do with the disciplinary inquiry. I saw no conceivable basis

for the claim of misfeasance in public office, and I cannot imagine that the Court of Appeal could take any other view. In my view,

there was never a bona fide issue to be tried that the defendant was guilty of misfeasance in public office. If I am wrong in that,

there was not a shred of evidence produced in support of that case. In either case, it seems to me that there can be no good

arguable ground of appeal.

33. The plaintiff has not articulated, nor have I been able to discern, any arguable ground of appeal.

34. Against the inevitability that this will go further, I think that I should express my view on the balance of convenience.

35. Absent an injunction, the defendant will make the notification it has concluded it must make. The defendant argues that unless

and until an application is made for a vetting disclosure, the information will be inert. But, as Mr. Farrell put it in the course of the

trial, it will be inert, like nuclear waste. Perhaps contained is a better word. If the report is made, the plaintiff will have all of the

statutory protections put in place by the Act of 2012, but it seems to me that he can reasonably apprehend a risk that when all of

those procedures and safeguards have been exhausted, the decision might be that the information is “specified information” and that

its disclosure might be necessary and proportionate. Such a disclosure might very well damage his employment prospects.

36. Prima facie the defendant has a statutory obligation to make a notification and has a legitimate interest in complying promptly

with that obligation. The reporting obligation in s. 19 is a critical part of a statutory scheme for the protection of children and

vulnerable persons and there is a public interest in not undermining that scheme.

37. As against that, the plaintiff is willing to undertake that he will not, pending the outcome of his appeal, engage in any activities

for which a vetting disclosure might be required. If he were to do that (and no doubt has been expressed that he would not abide

such an undertaking) I think that it could fairly be said that the database would not be compromised by the fact that it would not

have a record of the defendant’s concern. If the plaintiff’s appeal were to be upheld, it would be difficult and cumbersome to expunge

any notification from the National Vetting Bureau database.

38. I think that it must be said that, in principle, the making of a notification that ought not be made would be an infringement of the

plaintiff’s rights. Put another way, the plaintiff has a right to expect that the database should not include information concerning him

which should not be on the database.

39. The injustice to the defendant if the plaintiff’s appeal were to fail would be that its entitlement to comply with its statutory

obligations would be postponed. The injustice to the plaintiff if his appeal were to succeed would be that he would be faced with the

prospect of further litigation to seek to expunge the information, and of further delay in getting back to work as a teacher.

40. If the plaintiff had an arguable ground of appeal, my view would be that the making of the notification should be postponed

pending the hearing of his appeal. On the stance that the defendant has (quite properly) taken, that postponement could only be by

an injunction pending appeal, on the plaintiff’s undertaking in the terms offered.

41. Logically, if the plaintiff has no arguable ground of appeal, there should be no stay but I think that the plaintiff is entitled to the

chance to persuade the Court of Appeal that I am wrong. Balancing the plaintiff’s right to an effective appeal against the limited

postponement of the defendant’s right, I consider that the least risk of injustice is to further postpone the making of the notification

until the first directions hearing before the Court of Appeal.