Supreme Court dismisses injunction claim where employee failed to prove legal representation is essential for fair disciplinary proceedings.

THE SUPREME COURT [Appeal No: 2018/178] Clarke C.J. MacMenamin J. Dunne J. Charleton J. O’Malley J.

BETWEEN/ BARRY MCKELVEY PLAINTIFF/APPELLANT AND IARNRÓD ÉIREANN/IRISH RAIL DEFENDANT/RESPONDENT Judgment of Mr. Justice Clarke, Chief Justice delivered the 11th November, 2019.

1. Introduction

1.1 There are very many recent cases in which both first instance and appellate courts have had to consider the circumstances in which it is appropriate to grant injunctions in the context of workplace disciplinary proceedings. It might well have been thought that the law in this area is reasonably well settled. However, the particular, and important, issue which came into focus in these proceedings before both the High Court and the Court of Appeal was the question of the entitlement of an employee who was the subject of disciplinary proceedings to be legally represented at an internal hearing to be conducted by his employer as part of an agreed code.

1.2 The plaintiff/appellant (“Mr. McKelvey”) is an employee of the defendant/respondent (“Iarnród Éireann”). In circumstances which it will be necessary to outline in a little more detail in due course, he was initially subject to an investigation concerning what was said to be the potentially irregular purchase of fuel using a company card. As a result of that investigative process, Iarnród Éireann proposed to commence disciplinary proceedings alleging, in substance, misuse of the card in question amounting to what might reasonably be called theft of fuel.

Solicitors on behalf of Mr. McKelvey raised various issues concerning the process but, so far as the appeal to this Court is concerned, asserted an entitlement to represent Mr. McKelvey at any hearing or hearings which might take place as part of that disciplinary process. Iarnród Éireann made clear that they did not consider that Mr. McKelvey was entitled to be so represented.

1.3 In those circumstances, an injunction was sought from the High Court to prevent the disciplinary process going ahead. A number of grounds were relied on, including the assertion that Mr. McKelvey was entitled to legal representation and that Iarnród Éireann had declined to recognise this fact. For the reasons set out in her unreported judgment delivered on 28 July 2017, the High Court (Murphy J.) granted Mr. McKelvey an injunction in the following terms:-

“It is ordered that the Defendant Iarnród Éireann/Irish Rail be restrained from commencing with the disciplinary hearing in respect of the said Plaintiff unless his entitlement to be legally represented is granted”

1.4 Iarnród Éireann appealed to the Court of Appeal. For the reasons set out in the judgment of Irvine J. (Baker and Whelan JJ. concurring) (see Iarnród Éireann/Irish Rail v. McKelvey [2018] IECA 346), the appeal was allowed and the injunction discharged. Thereafter, Mr. McKelvey sought and obtained leave to appeal to this Court. It is appropriate, therefore, to start with the basis on which leave to appeal was granted.

2. The Leave to Appeal

2.1 In the application for leave filed, it was asserted by Mr. McKelvey that leave to appeal to the Supreme Court should be granted on the basis that the issue of the circumstances in which an employee ought to be afforded the benefit of legal representation at a workplace disciplinary hearing was a matter of general public importance. Mr. McKelvey further sought to query the extent to which an employer can rely on the code of practice issued under the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration)

Order 2000 (S.I. 146/2000) in order to refuse a request for legal representation. In the respondent’s notice, Iarnród Éireann, opposing the application for leave, asserted that Mr.

McKelvey’s application for an interlocutory injunction was premature and that the decision of the Court of Appeal should be further affirmed on this ground.

2.2 In a determination of this Court dated 25 February 2019 (McKelvey v. Iarnród Éireann / Irish Rail [2019] IESCDET 50), leave was granted on the grounds set out in the application for leave, on the basis that an issue of general public importance had been raised. The Court held, at para. 6 thereof, that:-

“…the court is satisfied that the question of the circumstances in which it can be said that an employee or office holder, other than a prison officer, is entitled to legal representation in disciplinary proceedings raises an issue of general importance which merits consideration by this court.”

2.3 For reasons which I hope will become apparent, it is clear (and was not an issue of any dispute between the parties) that the entitlement to be legally represented at internal disciplinary proceedings can be dependent on facts associated with the nature of the allegations which form the subject of the process and on the likely course of the process itself. For that reason, it is important to provide some background as to the disciplinary process which Mr. McKelvey sought to restrain.

3. The Disciplinary Process

3.1 Mr. McKelvey had been an employee of Iarnród Éireann since 1999 and was promoted to the position of Per Way Inspector in 2013. He was assigned to Division 3, where his responsibilities included managing employees charged with maintaining the Cork to Dublin railway line. In the course of his work, he had been provided with fuel cards to facilitate the refuelling of company vehicles and machinery. Other Iarnród Éireann employees also have the use of such cards.

3.2 In July 2016, concerns arose within Iarnród Éireann regarding the level of expenditure on fuel cards issued to the employees within Division 3. In broad terms, the apparent irregularities in fuel purchasing involved the purchase of fuel in amounts significantly higher than that of other divisions, indicating excessive use of the fuel cards, the purchase of both diesel and unleaded petrol using Small Plant Cards, in circumstances where such cards were normally used to purchase small quantities of unleaded petrol to fuel small plant equipment and the purchase of fuel in locations and at times which did not appear to be consistent with proper usage nor in accordance with the activities of the division.

3.3 As a result, a preliminary investigation into the matter was carried out, in the course of which a number of employees were interviewed. Mr. McKelvey was interviewed on a number of dates between August 2016 and February 2017, the notes of which meetings have been exhibited to the Court by way of affidavit. It is apparent that the concerns of Iarnród Éireann regarding the purchasing irregularities were put to Mr. McKelvey and that his individual usage of fuel cards was queried. It was suggested by Mr. McKelvey, in response, that such purchases could have been made by other staff members using his cards.

3.4 By letter dated 13 March 2017, Mr. McKelvey was informed that he was being suspended on basic pay until further notice as a result of the investigation into the use of fuel cards. Two other employees were also suspended on the same basis. On 8 May 2017, Iarnród Éireann formally commenced disciplinary proceedings against Mr. McKelvey by issuing a Disciplinary Advice Form A document in respect of the charge of:-

“Theft of fuel through the misuse of a company fuel card(s), which has resulted with the company suffering a significant financial loss”

3.5 The allegations levelled against Mr. McKelvey, which it is understood that he will have to meet at the disciplinary hearing, are set out in a document which could be properly characterised as a charge sheet, as contained in the “evidence file” furnished to him by Iarnród Éireann at his request in May 2017. This document refers to both individual transactions made using the fuel cards which were provided to Mr. McKelvey (being both, it appears, a Small Plant Card to fuel small plant equipment and a personal fuel card to fuel a company vehicle for business use) and broader patterns of fuel purchasing between 2015 and 2016 involving the use of Mr. McKelvey’s fuel cards and the fuel cards assigned to Division 3.

3.6 In that document, it is asserted that excessive amounts of fuel were purchased using Mr.

McKelvey’s fuel cards during this time and at various locations around the country. It is said that Mr. McKelvey’s fuel cards were often in use at weekends, on public holidays and during periods when he was on annual leave and that they were occasionally used in different locations in quick succession. The details included a suggestion that a large number of transactions were made on Mr. McKelvey’s personal fuel card between 2015 and 2016, totalling 3386 litres of diesel, many of which indicated purchases apparently in excess of the fuel tank capacity of his car. For a number of months in 2015, the Small Plant Card provided to Mr. McKelvey was used to purchase diesel, as against usual practice as outlined above, but from September 2015 onwards, the card was said to have been used to purchase large amounts of petrol. Further, upon the expiry of Mr. McKelvey’s Small Plant Card in 2016, it was alleged that Mr. McKelvey proceeded to use cards assigned to Division 3 to purchase excessive amounts of fuel. Mr.

McKelvey is also alleged to have used a vehicle in Division 3 without authorisation on one specific occasion. This contention is not important for the purposes of these proceedings.

3.7 In response, Mr. McKelvey stated during his interviews that the large amounts of diesel purchased were for the purposes of fuelling the tower lights equipment and that another possible explanation for the patterns of fuel purchasing was that his fuel cards were taken and used by other staff members without his knowledge. In this respect, the evidence file also alleges that Mr. McKelvey attempted to influence staff to say that they had used his fuel cards but that the staff concerned refused to do so and denied that they would ever have used the cards. This contention had not been put to Mr. McKelvey during the course of the investigation.

3.8 Following the receipt of the Form A document in May 2017, Mr. McKelvey requested a personal hearing. Correspondence was subsequently exchanged between Iarnród Éireann and solicitors acting on behalf of Mr. McKelvey, in the course of which it was requested that Mr. McKelvey be allowed representation by a solicitor and counsel at the disciplinary hearing, given what was said to be the complexity of the allegation and what Mr. McKelvey perceived was a lack of information in relation thereto. In particular, in an affidavit sworn by Mr. McKelvey, it is apparent that he considers the fact that two other employees were accused of the same offence to be a significant “complicating factor”, in circumstances where he had not been furnished with their statements and was unaware whether the disciplinary hearing would involve all three accused employees.

3.9 Mr. McKelvey’s request for legal representation was refused by Iarnród Éireann on the basis that there was no provision for representation by solicitor and/or counsel in the formal procedures prescribed by the Grievance and Disciplinary Policies and Procedures of Iarnród Éireann (“the Iarnród Éireann Disciplinary Code”). Rather, this code provides the employee with “the right to representation by fellow employee or trade union representative”. In an affidavit which is before this Court sworn by Mr. Danaher, an employee of Iarnród Éireann, it is deposed that Mr.

McKelvey’s trade union representative, Mr. Cullen, is considered to be an experienced official highly familiar with Iarnród Éireann’s disciplinary procedures. Mr. McKelvey deposes that Mr.

Cullen’s representation of his co-accused in the disciplinary hearing gives rise to a conflict.

3.10 It should be noted that, at this juncture, a separate dispute had arisen between the parties in relation to the provision, in advance of the proposed hearing, of documentary evidence concerning the allegation made against Mr. McKelvey. However, this dispute is not relevant to this appeal. Prior to the proposed date of the disciplinary hearing, Mr. McKelvey had been provided with the “evidence file”, which comprises the charge sheet referred to above, a spreadsheet entitled “Tower Lights on Site 2015/2016” and an untitled spreadsheet recording hundreds of transactions made using the fuel cards of Division 3. In accordance with the procedures outlined in the Iarnród Éireann Disciplinary Code, Mr. McKelvey should be furnished with any outstanding documentation which he considers relevant at the commencement of the hearing and can request an adjournment to the hearing in order to consider same.

3.11 The procedures contained within the Iarnród Éireann Disciplinary Code were agreed between Iarnród Éireann and the relevant trade unions representing its employees and were accepted by a ballot vote of staff in 1994. It was accepted by the parties that the code is in compliance with the code of practice set out in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146/2000), the purpose of which is to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures and which itself is silent as to the question of legal representation of employees during a workplace disciplinary process.

Paragraph 4.4 of the code set out therein defines an “employee representative” as including “a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise”.

3.12 This statutory instrument was published pursuant to s. 42 of the Industrial Relations Act 1990.

Subsections (4) and (5) thereof, as amended, provide:-

“(4) In any proceedings before a court, the Labour Court, the Commission, the Employment Appeals Tribunal, Director General of the Workplace Relations Commission or a rights commissioner, a code of practice shall be admissible in evidence and any provision of the code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be taken into account in determining that question.

(5) A failure on the part of any person to observe any provision of a code of practice shall not of itself render him liable to any proceedings.”

3.13 Notwithstanding that the Iarnród Éireann Disciplinary Code refers only to an employee’s right to representation by a fellow employee, it has not been disputed by the parties that Iarnród Éireann have a discretion to permit Mr. McKelvey to be legally represented at the disciplinary hearing. Further, it is not disputed that the Iarnród Éireann Disciplinary Code was notified to Mr. McKelvey as part of his contract of employment.

3.14 It was against that background that these proceedings were launched. It will be necessary to examine the legal principles in more detail in due course, both in the context of analysing the decisions of the High Court and of the Court of Appeal and of setting out the basis on which I would propose that this Court address the matter. However, in brief summary, there are two questions of law which potentially arise on this appeal, both of which derive from legal propositions to be found in recent case law. It is perhaps appropriate to briefly set out those propositions at this stage.

4. The Legal Principles

4.1 In the course of both the written and the oral procedure before this Court, it was accepted by both sides that the decision of Geoghegan J., speaking for this Court in Burns v. Governor of Castlerea Prison [2009] IESC 33, [2009] 3 I.R. 682, represented the law concerning the entitlement to have legal representation at a disciplinary process such as that which is at issue here. There was some debate between counsel as to the proper interpretation of what this Court decided in Burns, but it is clear that both the High Court and the Court of Appeal also operated, quite correctly, on the basis that the fundamental principles applicable to the question of whether there is an entitlement to legal representation can be found in Burns.

4.2 The second legal principle which is of some relevance is the question of the appropriateness or otherwise of a court intervening either before or during (as opposed to at the end of) a disciplinary process. In that regard, the most recent decision of this Court is to be found in my judgment in Rowland v. An Post [2017] IESC 20, [2017] 1 I.R. 355.

4.3 While it will again be necessary to refer in a little more detail to the judgment in that case in due course, it is fair to say that the basic principle identified is to the effect that courts should be reluctant to intervene while a disciplinary process is ongoing but rather should wait until the process has come to an end and then decide whether the result of that process is sustainable in law. However, the judgment in Rowland also recognises that there may be cases where it is clear that the process has, as it were, “gone off the rails” to such an extent that there could be no reasonable prospect that any ultimate determination could be sustainable in law. In such cases, it is clear that the Court can and should intervene at an interlocutory stage to prevent a process continuing in circumstances where the result of that process will almost certainly be redundant.

4.4 It was in the context of those broad principles that the courts below determined the issues arising, although clearly taking a different view as to the proper application of those principles to the circumstances of this case. It is next appropriate, therefore, to consider the reasoning of both the High Court and the Court of Appeal in reaching those different conclusions.

5. The Judgments in the Lower Courts

5.1 As mentioned above, both the High Court and Court of Appeal considered that the fundamental principles applicable to the question of whether there is an entitlement to legal representation were to be found in Burns. In the High Court, Murphy J. relied in particular upon a set of criteria to be considered in the context of a request for legal representation, as first identified by Webster J. in R v. Home Secretary ex parte, Tarrant [1985] 1 Q.B. 251, and approved by Geoghegan J. in Burns as a series of factors which should serve as “starting off points” from which to approach such a request. These were set out at para. 14 of the judgment of Geoghegan J. as:-

“1. The seriousness of the charge and of the potential penalty;

2. Whether any points of law are likely to arise;

3. The capacity of a particular prisoner to present his own case;

4. Procedural difficulty;

5. The need for reasonable speed in making the adjudication, that being an important consideration; and

6. The need for fairness as between prisoners and as between prisoners and prison officers.”

5.2 Applying those criteria to the facts of these proceedings, and in light of what was described as the “complexity” of the case, the High Court judge held that it was clear that Mr. McKelvey satisfied the test for the provision of legal representation and she granted the reliefs sought.

Each criterion, as set out above, were considered in turn; first, it was held that the charge of theft alleged against Mr. McKelvey was very serious and that both the potential penalty of dismissal and the potential for reputational damage which the charge carried were significant.

The High Court judge then found that multiple points of law were likely to arise in the disciplinary hearing, including issues of alleged flaws in the investigation, of imprecision in the charges levelled against Mr. McKelvey and of whether the defendant must establish loss.

5.3 In respect of the third criterion, the High Court judge considered, in light of what she considered to be the convoluted facts and multiple witnesses likely to be involved in the hearing, that “[t]he notion that the plaintiff has the capacity to navigate such a process unaided is frankly ridiculous”. In terms of procedural difficulty, the High Court judge found that the procedures to be adopted during the disciplinary hearing were unclear and this was therefore an area in which Mr. McKelvey might well require the assistance of legal representation.

5.4 Addressing the need for reasonable speed in making the adjudication, it was held that while allowing legal representation would slow the disciplinary process down, the negative impact of this delay on Iarnród Éireann was “relatively minor” due to the fact that Mr. McKelvey was suspended. Finally, in respect of the need for fairness as between the parties, the High Court judge found that as Iarnród Éireann had chosen to allege theft against Mr. McKelvey, he had an entitlement to defend himself and to rebut the charges.

5.5 Irvine J., delivering judgment in the Court of Appeal, held that the High Court judge erred in law and in fact in concluding that Iarnród Éireann incorrectly exercised its discretion in refusing Mr.

McKelvey legal representation. Irvine J. held that while the criteria as considered in the High Court were a useful starting point from which to approach the issue, the core question which is to be determined in proceedings such as these, as set out by Geoghegan J. in Burns, is whether a disciplinary hearing could be said to be unfair or in breach of the principles of natural and constitutional justice by reason of the fact that the employee does not have legal representation. In particular, Irvine J. relied on the proposition set out at para. 13 of Geoghegan J.’s judgment, that “[t]he cases for which the respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional”.

5.6 Following the principle that it is undesirable to involve lawyers in workplace investigations, in light of the delay and increased costs which would result, unless it is established that there is something exceptional about the matters in question, Irvine J. held that there were no special or exceptional circumstances to warrant the conclusion that Mr. McKelvey would not receive a fair hearing in the absence of legal representation. In reaching this conclusion, she addressed the criteria which were considered by the trial judge in light of the evidence.

5.7 While it was held that the charge alleged against Mr. McKelvey was properly classified as serious, Irvine J. considered that it was likely that the High Court judge ascribed undue weight to this factor. Further, it was held that the possibility that criminal proceedings may be instituted as a result of the conduct under investigation was not a particularly significant factor, as any finding made against Mr. McKelvey in the course of the disciplinary hearing would not be admissible as evidence against him in any such proceedings and it did not mean that the disciplinary hearing was of an exceptional nature, particularly given that the charge of theft was considered to be of a relatively straightforward nature. Irvine J. also considered that, in the circumstances of workplace disciplinary procedures, there was nothing exceptional about the sanction of dismissal to which Mr. McKelvey might be subjected, nor about the consequences of any adverse findings for his reputation and future employment prospects and as such, these factors could not be dispositive of his entitlement to legal representation.

5.8 Irvine J. disagreed with the conclusion of the High Court judge that multiple points of law were likely to arise in the course of the disciplinary hearing. It was held that the circumstances did not involve any issues of legal complexity; there was no evidence to suggest that any legal issue was likely to arise in respect of any possible flaws which there may have been in the preliminary investigation, as the charge will have to be established based on evidence adduced at the disciplinary hearing, and in addition, Irvine J. did not consider that there was anything imprecise about the charge of theft. Finally, issues of proof were held to involve questions of fact and it was considered that proof of loss would follow as a matter of fact if the evidence established that Mr. McKelvey used his fuel card for the improper purchases of fuel.

5.9 Furthermore, it was held that there was no evidence to support the finding that Mr. McKelvey lacked the capacity to defend his interests at the disciplinary hearing, in circumstances where he was to be represented by Mr. Cullen, an experienced trade union official. Finally, Irvine J.

rejected the High Court finding that there was a lack of clarity surrounding the procedures to be deployed at the disciplinary hearing and held that this was not a consideration to be correctly taken into account in the context of Mr. McKelvey’s request for legal representation, particularly in light of the procedures clearly set out in Iarnród Éireann’s Disciplinary Code. It was stressed that should an issue of legal complexity arise in the course of the disciplinary hearing, it would still be open to Mr. McKelvey to seek that the hearing be postponed in order to enable him to obtain legal representation.

5.10 As noted earlier, Mr. McKelvey raised a number of issues before the High Court. One of the orders which he sought was that the disciplinary hearing be restrained pending the provision of documentation to him. However, the trial judge considered that this application was premature given that the hearing had not yet commenced and that the Iarnród Éireann Disciplinary Code provided for the provision of documentation at the beginning of the process.

5.11 Insofar as the question of legal representation was concerned, neither the High Court nor the Court of Appeal dealt expressly with the question of the appropriateness or otherwise of intervening in advance of or during the disciplinary process. However, at the hearing before this Court, it was accepted by both parties that the principle identified in Rowland was such that the Court should only intervene if it was clear that legal representation was required. It seems to me that such was the correct approach. If it is clear that legal representation is required in a disciplinary process, then a denial of such representation would undoubtedly meet the criteria identified in Rowland, for it would be equally clear that it would be highly unlikely that any

decision made at the end of such a process would be sustainable. On the other hand, if it is not clear that legal representation is necessarily required, then it would follow that it would be premature for the Court to intervene, for the Court should not assume that legal representation would be wrongfully refused in circumstances where it had subsequently become clear that the process necessitated such representation in order that it be fair.

5.12 In the light of that analysis, I turn next to the principles applicable to legal representation at internal disciplinary processes.

6. The Principles Applicable to Legal Representation

6.1 I should start by indicating that I see no reason to depart from the approach adopted by Geoghegan J. in Burns. No argument was made on this appeal on behalf of Iarnród Éireann to the effect that it did not have a discretion to allow legal representation in a disciplinary hearing and that such representation might be required where it might be necessitated in accordance with the principles set out in Burns. In those circumstances, it does not seem to me that questions arise for resolution on this appeal as to whether it may be possible to exclude by contract any entitlement to legal representation in a private law employment dispute. For like reasons, no issues arise as to the extent to which different considerations might apply where an employer is a statutory undertaking. Finally, no disputes seem to me to arise in this case as to the type of language which would need to be set out in a disciplinary process in order to exclude a right of legal representation in all circumstances (assuming that this is legally possible). I would, therefore, leave those and related questions over to a case in which they clearly arose and were the subject of argument on behalf of the parties.

6.2 It follows that I accept, at least for the purposes of this case, that there may be circumstances in which, in line with the reasoning in Burns, Mr. McKelvey might be entitled to legal representation in the context of the type of disciplinary process which he faces. Before going on to consider the various factors which might be relevant in an assessment of whether an entitlement to legal representation exists, which were identified in Burns by reference to the judgment of Webster J. in the United Kingdom in Tarrant, it does seem to me to be clear that the overarching principle identified by Geoghegan J. is to be found at para. 13 of his judgment, where he states:-

“The cases for which the respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional… In any organisation where there are disciplinary procedures, it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.”

6.3 It is, of course, clear that a regime (whether contractual or statutory) that provides for a disciplinary process will contain an implied term (if there is no express term to the same effect)

that the relevant process will be fair. However, it is also clear that precisely what is required to ensure that a process is fair in that sense will depend on a variety of factors and may well vary from case to case. The statement of Geoghegan J. to the effect that legal involvement may be necessary in some limited circumstances but ordinarily will not be necessary involves a finding that it is only in those cases where legal representation is necessary to achieve a fair hearing that any implied entitlement to such representation can be said to exist.

6.4 In passing, it should be observed that a disciplinary scheme can, of course, make express provision for an entitlement to legal representation and, if it does, an employee will undoubtedly be entitled to be represented by a lawyer if such comes within the scope of whatever the scheme provides. Likewise, an employer will always be entitled to allow someone to be represented by a lawyer even if the person concerned may not have a legal entitlement in that regard. However, these proceedings are concerned with a disciplinary scheme which does not confer an express entitlement to a lawyer and where the employer does not wish to allow representation. It follows that the ultimate issue which any court has to determine in a case such as this is as to whether disciplinary proceedings continuing without legal representation would amount to unfair proceedings and thus be in breach of the implied term as to fairness. It follows, in turn, that such a breach could only be established where it can be shown that legal representation is “necessary” to ensure a fair process.

6.5 It seems to me that the criteria of “necessity”, as thus identified, requires further explanation.

There may be many cases where the forensic skills of an experienced advocate with a legal qualification may enable the presentation of a case in a more favourable light. But it seems to me that to say that a case might be somewhat better presented by a lawyer falls a long way short of saying that the presence of a lawyer is necessitated in order for the process to be fair.

6.6 It can hardly be doubted that the particular skills brought to bear by the most experienced and able counsel may add something to a case, whether in the courts or anywhere else, over and above that which might be brought to bear by a fully competent but not, perhaps, quite so experienced advocate. Even in the sphere of criminal law, not every accused will be able to have the benefit of the most outstanding defence counsel of the day. The fact that such a counsel might arguably bring something added to the case over and above its conduct by a perfectly competent and suitably experienced colleague could not lead to a contention that a trial was unfair simply because it might have been possible to find someone who might have been able to bring something additional to the table.

6.7 When considering whether any process is fair, in the context of representation, the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation.

The level which will be considered adequate will depend on an overall assessment of all of the circumstances of the process envisaged. In that context, I would, at the level of principle, agree with the submission made by counsel for Mr. McKelvey to the effect that the proper approach to the approval by Geoghegan J. of the criteria identified in Tarrant does not involve treating those criteria as elements which need to be necessarily separately established but rather that they, and any other appropriate factors, go into the overall evaluation made in the context of reaching an assessment as to whether legal representation is necessary in order for the process to be fair (as opposed to a consideration of whether legal representation might give some added value).

6.8 It follows that the appropriate assessment to be made is as to whether it has been demonstrated that, in all of the circumstances of this case, legal representation is truly necessary in that sense. Before going on to apply that principle to the facts of this case it is, perhaps, worth mentioning the case of Carmody v. Minister for Justice [2009] IESC 71, [2010]

1 I.R. 635. While that case did involve the question of the level of legal representation to which an accused was entitled (rather than an entitlement to legal representation in the first place), and while it also involved a summary criminal trial, it seems to me that nonetheless some guidance can be obtained from the approach of the Court. The issue was as to whether the accused was entitled under the legal aid scheme to counsel as well as a solicitor in the context of a summary trial of charges under the provisions of the Diseases of Animals Acts 1966, as amended, the European Communities (Registration of Bovine Animals) Regulations 1996, and the Brucellosis in Cattle (General Provisions) Order 1991, as amended. These charges involved the alleged wrongful movement and irregular registration of cattle. The evidence before the Court came first from the solicitor assigned under the legal aid scheme to represent Mr.

Carmody. He indicated that he was an experienced solicitor and regularly represented persons in summary trials before the District Court. However, he indicated that, in the particular circumstances of the case in question, he did not feel that he could do a proper job in defending the accused. That position was supported by an affidavit from a particularly experienced local solicitor who equally indicated that he almost always did his own defence work in the District Court but that he, too, would have instructed counsel in the case in question. Furthermore, it was clear that the prosecution intended to be represented by counsel. It was in the light of that powerful body of evidence, the Court concluded that it was necessary, in order that there be a fair trial, that counsel be instructed.

6.9 That decision was, of course, against the background of the constitutional position identified in The State (Healy) v. Donoghue [1976] I.R. 325 which made clear that, in certain circumstances, an accused who could not provide for their own defence was entitled, as part of the requirement that they be tried in due course of law, to have legal assistance provided at the State’s expense.

As part of that entitlement, the Court in Carmody held that there were circumstances, admittedly unusual, where such an entitlement might extend to the requirement to have counsel instructed in summary District Court proceedings on the basis, in substance, that a trial without that level of legal representation would not be fair nor would it be a trial “in due course of law”. But it is clear that there was very substantial evidence before the Court to indicate that experienced criminal defence solicitors did not consider that they would be able to provide an adequate defence without instructing counsel. Doubtless there may be cases which are likely to be tried in the District Court on a summary basis where it might be said that the instruction of experienced defence counsel might add something to the defence. However, it is clear from Carmody that it is necessary to go much further. It must be shown that the instruction of counsel is necessary in order for there to be a fair trial. If such considerations apply in the context of a criminal trial where the constitutional right to liberty is at play, then they apply with much greater force in the context of an internal disciplinary process.

6.10 It follows that it is next necessary to consider whether there are any circumstances established on the evidence in this case which make clear that legal representation is necessary to ensure a fair process rather than, potentially, being merely of some possible advantage to the relevant employee.

6.11 In addition, it is necessary to have regard to the principles identified in Rowland. What is sought here is an interlocutory injunction to restrain a disciplinary process before it has begun.

The same principles apply here as would apply in respect of an attempt to restrain an ongoing disciplinary process before it has come to its natural conclusion. The process should only be restrained where it is clear that things have gone sufficiently off the rails such that no decision at the end of the process is likely to be sustainable in law.

6.12 In passing, I would add that it seems to me that the principle identified in Rowland really forms part of the balance of convenience consideration that goes into the overall assessment which is to be made at an interlocutory stage, which in turn leads to the fashioning of a result which runs the least risk of injustice. The regular halting of a disciplinary process because of the possibility that something might have gone wrong (on merely the basis of an arguable case) potentially operates to defeat the orderly conduct of employer/employee relations and thus lead to a material risk of injustice to the relevant employer if an injunction is granted but the claim ultimately fails. However, requiring a process to continue in circumstances where it is almost inevitable that the result will have to be set aside at the end creates a real risk of injustice.

6.13 The overall question which must be asked in this case is, therefore, as to whether it is clear at this stage that allowing this disciplinary process to go ahead without legal representation would result in a final decision which, if averse to Mr. McKelvey, would be most unlikely to be sustainable in law.

6.14 In that context, it is not appropriate to consider mere speculation as to issues or questions which might arise in the course of a hearing. Almost any disciplinary process, no matter how simple, might theoretically take a turn which would give rise to very difficult legal questions where the benefit of legal advice and assistance might be necessary. But the theoretical possibility of such an eventuality does not justify a decision that legal advice and representation is necessary from the beginning in order that there be a fair process. As the Court of Appeal pointed out, nothing in the judgment of that Court was to be taken as indicating that Mr.

McKelvey might not, at some stage, become entitled to legal representation if the situation demanded it. The question both for the courts below and for this Court is as to whether it is clear at this stage that Mr. McKelvey cannot have a fair process without legal representation – is legal representation necessary rather than merely potentially being of some advantage? I turn now to that question.

7. The Circumstances of this Case

7.1 At its heart, the allegation against Mr. McKelvey is relatively straightforward. It is said that he used, or allowed to be used, his fuel cards in an improper way so as to obtain either for himself or others fuel which was not intended to be used for the purposes of his employment. That allegation is easy to understand.

7.2 The evidence from which it might be inferred that such conduct occurred is undoubtedly a little more complex. It involves an analysis of the patterns of the use of the cards concerned. In addition, it may well be that issues may arise concerning the truth or otherwise of the suggestion that others may have used Mr. McKelvey’s cards without his permission, or that, alternatively, he attempted to get others to say that they had done so. But these again are straightforward questions of fact.

7.3 In addition, the procedures to be followed are well-established and would be well known to any experienced trade union official who was experienced in the conduct of disciplinary procedures in involving Iarnród Éireann. I have to say that I cannot see anything in either the allegations, the likely evidence or the process likely to be followed which would place these disciplinary proceedings beyond the competence of an experienced trade union official.

7.4 It should be recalled that an internal disciplinary process such as this is not a criminal trial.

While the process must be fair, the formal rules of evidence or the procedures which govern either criminal or civil proceedings do not necessarily apply. The position of persons who may also have been the subject of investigation and the question of any evidence which they might give is not necessarily governed by the procedures or rules of evidence which would apply in a similar situation in the courts. Of course, the credibility of such persons may, in an appropriate case, be questioned on the basis of their own possible involvement. But they do not necessarily have to be treated in exactly the same way as a potential accomplice, co-accused or codefendant in court proceedings. What is required is that Mr. McKelvey and his trade union representative be given a reasonable opportunity to challenge the evidence of any such persons on any reasonable basis. In those circumstances, it does not seem to me that there is, at least at present, any real basis for suggesting that legal issues of any substance will emerge.

7.5 It is true that the allegation is one of theft and that an adverse result to the process could result in dismissal. That is undoubtedly a factor to be taken into account, but it does not seem to me that it can, of itself, bring the case into a category where it can be shown that legal representation is necessitated. The fact that theft may also be a criminal offence is of some marginal relevance but is, in my view, of limited weight having regard to the fact that any result of this disciplinary process could have no bearing on a criminal trial where the guilt of an accused would need to be established beyond reasonable doubt. If, coupled with the seriousness of the allegation and of the potential consequences, there are particularly difficult issues of law or extremely complex facts, then the cumulative effect of each of those matters might lead, in an exceptional case, to the view that legal representation was required.

However, it does not seem to me that this is such a case.

7.6 There is nothing in the evidence which would lead to the sort of conclusion which this Court reached in Carmody which was to the effect that the representation being provided (in that case, a solicitor without counsel) was inadequate to secure a fair trial. Likewise, I am not satisfied that there is anything in the evidence in this case which would satisfy a court that representation by an experienced trade union official would not be adequate to secure a fair process.

7.7 That leads finally to a consideration of the point made to the effect that it may be that the trade union official concerned might have a conflict of interest by reason of the fact that there may be others accused of similar offences whose interests may not coincide with those of Mr. McKelvey, such that the trade union official concerned could not fairly and legitimately represent those competing interests. That may or may not turn out to be the case. But if such a conflict does transpire, there is nothing in the evidence to suggest that another experienced trade union official might not be able to take over the role of representing Mr. McKelvey so as to remove any risk of conflict of interest should it arise. To suggest that there will necessarily be a conflict of interest is purely speculative. But to suggest that such a conflict could not be resolved should it arise is to place a further speculation on top of the first.

7.8 In all those circumstances, I am not satisfied that it has been established that there is a clear case that the representation of Mr. McKelvey in these disciplinary proceedings by an experienced trade union official would not be adequate to meet the needs of a fair process. It follows in turn that, in my view, the circumstances which would justify the grant of an interlocutory injunction at this stage are not made out.

8. Conclusions

8.1 For the reasons set out in this judgment, I have concluded first that the true question which the Court must address is as to whether this is a case where it is clear at this stage in the disciplinary process involving Mr. McKelvey that the process concerned could not be regarded as fair unless he were to be afforded legal representation. As already noted, Mr. McKelvey seeks to restrain a process which, in substance, has only just begun. It is well settled that a court should not restrain a disciplinary process prior to its conclusion unless it is clear at the stage when an injunction is sought that something has occurred which is sufficiently serious and incapable of being cured so that there was no realistic prospect that a legally sustainable

conclusion could be reached at the end of the process.

8.2 I am also satisfied that the proper approach to the question of whether a disciplinary process can be regarded as unfair because of the absence of an entitlement to legal representation is as set out in Burns. I am also satisfied that the various considerations identified in Burns are not matters which need to be separately established but rather are factors to be taken into account in an overall assessment as to whether a fair process can take place without legal representation. I am also satisfied that the observation to be found in the judgment in Burns to the effect that legal representation will only be required as a matter of fairness in exceptional cases provides overall guidance to the proper approach.

8.3 For the reasons set out earlier in this judgment, and applying the approach adopted in Burns, I am not satisfied that it has been established that this is the sort of clear case where it can now be said that a fair process cannot ensue without legal representation. On that basis, I am satisfied that the Court of Appeal was correct to allow the appeal from the High Court in this case and to decline to grant Mr. McKelvey an injunction restraining the process. As I have noted, it does not seem to me that this necessarily would bar Mr. McKelvey from asserting at a subsequent stage in the process that he was entitled to legal representation because of the way in which the process had evolved.