Court of Appeal dismisses appeal against refusal of discovery and striking out in teacher disciplinary complaint proceedings.

UNAPPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2026] IECA 13

Court of Appeal Record Number: 2025/94

High Court Record Number: 2022/456 JR

Binchy J. Butler J. Meenan J.

BETWEEN/

GEARÓID JOHNSON

APPELLANT

- AND –

THE TEACHING COUNCIL

RESPONDENT

JUDGMENT of Mr. Justice Charles Meenan delivered on the 13th day of February 2026

Introduction: -

1. This is an appeal from the judgment and order of the High Court (Bolger J.) refusing the appellant orders for discovery, replies to particulars and an order striking out the statement of opposition filed on behalf of the respondent.

2. At issue in this application is the interpretation and effect of certain provisions of the Teaching Council Act, 2001 (as amended) (the “Act of 2001”) that provide for the consideration and investigation of complaints made against teachers. In general terms these provisions provide procedures to decide whether a complaint meets certain criteria to warrant further action being taken by way of a disciplinary hearing. It should be noted that other statutes that provide for the consideration and determination of complaints against professionals e.g., Doctors, Dentists, Solicitors and Pharmacists have similar provisions.

Background: -

3. The appellant qualified as a secondary teacher in 1996. At the time leave was granted in these judicial review proceedings (4 July 2022) the appellant had some 26 years of teaching experience for the most part in the Ballyfermot College of Further Education, a constituent college of the City of Dublin Education and Training Board (“CDETB”). The CDETB is the patron of Ballyfermot College, as provided for in the Education and Training Boards Act, 2013. At all material times until 2020 the appellant was an employee of CDETB. The appellant is currently working as a teacher at Moyle Park College, Clondalkin, Dublin 12.

4. Over a number of years the appellant became active on social media posting on issues concerning gender, race and religion. In April 2015 two individuals in the employment of CDETB made a series of complaints to the management of Ballyfermot College about certain postings they had seen on the appellant’s private social media account. Subsequently, the appellant had a meeting with management and gave assurances that no mention of the college would ever be made by him on social media. Nevertheless, the complainants continued to complain about the appellant’s social media posts.

5. In May 2015 it would appear that a decision was taken that no further action would be taken concerning the complaints. In October 2016 a further complaint was made by a mature student which, the appellant believed, involved the complainants from 2015. This complaint concerned an alleged opinion given in class by the appellant concerning the “Marriage Referendum” held in 2015. A meeting followed, after which the appellant deleted his social media profile as, what he described as being, “an act of good will”. However, this was not the end of the matter.

6. In December 2017, the original two complainants made a formal complaint against the appellant alleging “workplace bullying”. Investigations were commenced concerning the appellant. There then followed a suspension in October 2018 from which a disciplinary process ensued.

7. The result of the disciplinary process, which was protracted, was that in January 2020 the appellant was notified that his employment was to be terminated. The appellant, unsuccessfully, appealed this decision pursuant to the provision of the Education Act, 1998.

8. In a letter dated 14 January 2020 the Chief Executive Office of the CDETB made a complaint to the “professional standards” section of the respondent.

The Complaint: -

9. The letter of 14 January 2020 set out the details of the complaint including extracts from some twelve social media postings made by the appellant. It was stated that these postings “... could reasonably be deemed to impact negatively on the learning and working environment for students and teachers”

and : -

“…it is not felt that the tone or content of these is consistent with the Code of Conduct for Teachers or the basic standards we expect from members of staff in the teaching profession.” In support of the complaint reference was made to earlier investigations carried out including a report furnished by Collier Broderick, a specialist firm that provides human resource services who were instructed by the appellant’s employer.

Relevant statutory provisions: -

10. Section 42 of the Act of 2001 sets out, in some detail, the role and function of the investigating committee of the respondent.

Section 42(1B) provides: -

“The investigating committee may consider a complaint relating to the matter specified at paragraph (b) of subsection (1) notwithstanding that the conduct to which the complaint relates occurred prior to the coming into operation of this part where that conduct –

(a) would have constituted a criminal offence at the time that conduct occurred and

(b) is of such a nature as to reasonably give arise to a bone fide concern that the teacher may –

(i) harm any child or vulnerable person,

(ii) cause any child or vulnerable person to be harmed,

(iii) put any child or vulnerable person at risk from harm,

(iv) attempt to harm any child or vulnerable person, or

(v) incite another person to harm any child or vulnerable person.”

11. Section 42(9) provides: -

“Following its inquiry, the investigating committee shall –

(a) where it is of the opinion that there is a prima facie case to warrant further action being taken in relation to a complaint, make a decision to refer the complaint, in whole or in part, to the disciplinary committee or

(b) where it is of the opinion that there is no prima facie case to warrant further action being taken in relation to a complaint, make a decision to refuse to refer the complaint to the disciplinary committee.” Section 42(1B) makes provision for the investigation of a complaint concerning conduct which occurred prior to the coming into operation of Part V of the Act of 2001. Part V makes provision for the investigation and determination of complaints made of professional misconduct against registered teachers. Part V was only commenced on 25 July 2016.

Investigation of complaint: -

12. By letter dated 21 May 2021 the appellant was informed by a case officer from the professional standards section, an employee of the respondent, that at a meeting of the Executive Committee held 26 April 2021 the Executive Committee had considered the matters referred to in the letter of 14 January 2020. Arising from that meeting the complaint had been referred to the Investigating Committee of the respondent.

13. The contents of the letter of 21 May 2021 are of importance in considering the various issues raised in these proceedings. I will set out the relevant passages. The letter states: - “The Investigating Committee The Investigating Committee is the Committee of the Teaching Council that looks into and gives initial consideration to complaints about registered teachers ..” The letter enclosed for the attention of the appellant various documentation in support of the complaint.

The letter continues: -

“Initial consideration by the Investigating Committee

The complaint will be considered by the Investigating Committee at its next available meeting. Generally speaking, there are two parts to the initial consideration of a complaint (referred to as parts 1 and 2 below) before the Committee considers whether it will investigate the complaint. Part 1 – when did the events occur? If the conduct complained of took place before the commencement of Part 5 of the Teaching Councils Acts 2001 – 2015 which was 25 July 2016, the Investigating Committee will first have to decide if it is entitled to consider the complaint. It is only in exceptional circumstances that the Committee can decide to proceed to consider such a complaint. The Committee is only entitled to proceed where it decides that: -

(a) the conduct complained of is conduct that would, if proven, have constituted a criminal offence at the time it occurred; and

(b) the conduct is of such a nature as to reasonably give rise to a bone fide concern that a child or a vulnerable person may be physically, sexually or emotionally exploited or abused..”

and: -

“The complaint and inquiry process

If the Investigating Committee proceeds to investigate the complaint, you will be given copies of any documentation received in relation to the complaint and invited to provide submissions and information to the Investigating Committee before it decides whether to refer the complaint to the Disciplinary Committee for an inquiry”

and: -

“Information/submissions from you

You are not obliged to furnish any submissions or information in relation to the complaint at this time. However, if you wish to do so, it would be expected that, at this point, any submissions from you would be in relation to the two parts of the initial consideration as described in the section of this letter entitled Initial consideration by the Investigating Committee.”

14. Where the complaint relates to matters that occurred before 25 July 2016 the Investigating Committee has to take a decision whether it has jurisdiction to investigate the complaint. If the Committee so decides, it will then proceed to an inquiry as to whether a prima facie case has been made out to warrant further action being taken by referring the complaint (or part of the complaint), to the Disciplinary Committee of the respondent. The terms of the letter of 21 May 2021 reflect the relevant provisions of s. 42 of the Act of 2001.

15. The appellant made written submissions, dated 18 June 2021 that ran to some fiftyfive pages. In the course of this lengthy submission he did not directly address the matters referred to in s. 42(1B) of the Act.

Decision of 29 June 2021: -

16. The Investigating Committee met on the 29 June 2021 as per the letter of 21 May 2021. The appellant was informed of the decision taken by letter dated 6 July 2021. The letter stated: - “The Committee considered all of the documentation before it and decided to proceed to consider and investigate the complaint.” “The Committee considered the twelve social media posts and decided that ten of those posts do amount to conduct that would have constituted a criminal offence at the time they occurred. In this regard, the Committee noted that the corresponding offence is section 2 of the Prohibition of Incitement to Hatred Act 1989. ---- The Committee also decided that the conduct is of such a nature as to reasonably give rise to a bone fide concern that the teacher may harm, cause harm et cetera to a child or vulnerable person as referred to in section 42(1B) of the Teaching Council Acts, 2001 to 2015.” The letter informed the appellant that it would now hold an investigation into the complaint and invited the appellant to make any further submissions if he so wished.

17. By email dated 27 July 2021 the appellant provided a detailed response in respect of the social media posts, the subject of the complaint. This response ran to some fifty-one pages.

18. On 21 December 2021 the appellant received a “case report” concerning the complaint from the respondent. In response the appellant made further submissions.

19. Decision of 24 January 2022: -

By letter dated 1 February 2022 the appellant was informed that the Investigating Committee had met on 24 January 2022 and that the complaint which they were investigating had been referred to the Disciplinary Committee of the respondent. The letter noted that the Investigating Committee had previously decided that two of the twelve social media post did not amount to conduct that would have constituted a criminal offence. The letter stated: - ‘Pursuant to section 42(9)(a) of the Teaching Council Acts 2001 to 2015 (the “Act” the Committee formed the opinion that there is a prima facie case to warrant further action being taken in relation to the complaint, and decided to refer the complaint in whole to the Disciplinary Committee for an inquiry to be held by a panel of the Disciplinary Committee on a date to be fixed.’”

Judicial review proceedings: -

20. By order of the High Court (Barr J.) the appellant was granted leave to seek, inter alia, the following reliefs: -

(1) An order of certiorari quashing the decision of the respondent of 24 January 2022 (communicated by letter of 1 February 2022) to refer the complaint made by the Chief Executive of the City of Dublin ETB dated 14 January 2021 against the applicant to the Disciplinary Committee of the respondent.

(2) An injunction precluding the respondent taking any further steps in the aforesaid disciplinary process commenced against the applicant.

Application to the High Court: -

21. By notice of motion, dated 8 March 2024, the appellant sought the following orders against the respondent: -

(1) An order pursuant to O. 31 of the Rules of the Superior Court requiring the respondent to make discovery on oath of the following categories of documents.

(i) All documentation including briefing documents or other advice in relation to the Committee addressing its obligations under s. 42(1B) of the Act of 2015 and the definition of “harm” as provided to or generated by or utilised by the Investigating Committee and its members in the exercise of their statutory function in the complaint process involving the applicant;

(ii) all documentation -- in relation to the meaning attributed to by the Committee to what “conduct” was being investigated by them and how that came to be viewed as “professional conduct…”

(2) An order directing the respondent to provide full and detailed particulars as previously sought in correspondence of the grounds contained in the statement of grounds of opposition insofar as the said grounds involve:

(i) the Committee addressing its obligations under s. 42(1B) of the Act of 2015 and the definition of “harm”;

(ii) the meaning attributed by the Committee to what “conduct” was being investigated; and

(iii) why the Investigating Committee had regard to the workplace investigation reports authored by Collier Broderick.

(3) An order pursuant to O. 84, r. 22(5) of the Rules of the Superior Courts seeking to strike out the statement of opposition filed on behalf of the respondent.

Judgment of the High Court: -

22. The matter came on for hearing before Bolger J. in the High Court on 8 October 2024. A written judgment was delivered on 31 December 2024 refusing the reliefs sought in the notice of motion with subsequent order of 31 January 2025.

23. In her judgment the trial judge stated: -

‘’ 7. The Investigating Committee decided at its meeting of 29 June 2021 that it did have jurisdiction pursuant to s. 42(1B). The single substantive relief sought by the applicant in his judicial review proceedings, for which he has been given leave, is to quash the Investigating Committee’s later decision of 24 January 2022 to refer the complaint to the Disciplinary Committee. The applicant has never sought to challenge the Investigating Committee’s earlier decision of 29 June 2021. Therefore, if the applicant succeeds in his substantive judicial review proceedings, it is the decision of 24 January 2022 to refer the complaint to the Disciplinary Committee that will be quashed and any other decision including that of 29 June 2021 will stand.

8. The focus of the applicant’s interlocutory application for discovery and particulars is on the earlier decision of 29 June 2021, rather than the decision of 24 January 2022. The applicant argues he is entitled to know what opinion the Investigating Committee formed in determining it had jurisdiction pursuant to s. 42(1B), the basis for that opinion and how it was formed, given that the matter will never be revisited, including by the Disciplinary Committee if or when the complaint is referred to them.”

24. The trial judge further held what the appellant was seeking was similar to what was found to be an attempt to supplement a decision which was rejected by Hyland J. in Jackson Way Properties Limited & Anor. v. The Information Commissioner [2020] IEHC

73. The trial judge noted that in a supplemental affidavit the respondent’s entire documentary record of the disciplinary proceedings had been put before the court including the minutes of the Investigating Committee of 29 June 2021.

25. The trial judge rejected the submission of the appellant that the statement of opposition was not in accordance with the Rules of the Superior Courts insofar as it was submitted that it comprised, for the most part, of denials. The trial judge considered the content of the statement of opposition including: - “50. The statement of opposition runs to some nine pages and twenty three paragraphs which identify the respondent’s position on the legal issues the applicant has set out in his pleadings, primarily the correct statutory interpretation of s. 42 of the Act and the respondent’s compliance or non-compliance with it. It does contain denials of the applicant’s allegations (as might be expected) but it is not limited to bare denials as it also contains extensive pleas around what the respondent claims was done lawfully within its jurisdiction and in compliance with the Act. …”

26. The trial judge did grant leave to the appellant to amend the statement of grounds by the addition of three paragraphs which were directed towards the decision of 29 June 2021.

Notice of appeal: -

27. In his notice of appeal the appellant set out some eight grounds of appeal. In particular, I refer to the following grounds: - “(i) The learned trial judge erred in law and in her understanding of the nature of the applicant’s challenge in her finding that the applicant has never sought to challenge the decision of the Investigating Committee of the 29th June 2021. At all material times it has been contended that what was in law to be regarded as a preliminary view adopted by the Investigating Committee on 29th June 2021 was subsumed into the decision of 24 January 2022 to refer the complaint against the applicant to the Disciplinary Committee of the respondent.

(iii) The learned trial judge in consequence erred in law in her understanding of the statutory framework in the issue.

(vii) The learned trial judge erred in law in holding that the respondent should not be required to make discovery or furnish further details whether by way of particulars or affidavit concerning the meaning that was attributed by the Investigating Committee to the word ‘harm’ on the basis that this had a clear statutory meaning which it can be assumed in the absence of evidence to the contrary the Committee was aware. …”

Consideration of appeal: -

28. The appellant did not challenge the decision of 29 June 2021. This much is clear from the statement of grounds. The appellant submitted to this court that the decision of

29 June 2021 was a “gateway” or “preliminary” decision and thus not judicially reviewable. It was also submitted that the said decision was analogous to a decision under planning legislation involving substitute consent. However, this submission was not elaborated on.

29. In my view, this submission of the appellant is not supported by the relevant statutory provisions. Section 42(1B) clearly provides for a decision to be taken as to whether the Investigating Committee has jurisdiction to consider a complaint that relates to events that occurred prior to 25 July 2016. For such a complaint to be considered it must meet the requirements that are clearly set out in the subsection. If it does not do so, then that concludes the consideration of the complaint. If the complaint does meet the requirements then there is a further inquiry under s. 42(9) to decide if there is “a prima facie case to warrant further action being taken in relation to the complaint ..”.

30. This interpretation is reflected in the correspondence that was sent by the respondent to the appellant referred to at para. 13 above. The letter of 21 May 2021 refers to “two parts to the initial consideration of a complaint” and the appellant was invited to make submissions on the matters to be considered by the Investigating Committee under s. 42(1B). This is not a “preliminary view” as submitted by the appellant. It is a “stand alone” decision which was not the subject of any challenge by way of judicial review.

31. The appellant was informed of the outcome of the meeting of 29 June 2021 by letter dated 6 July 2021. This letter stated, inter alia, that twelve social media posts had been considered and it was decided that ten of those posts did meet the criteria for an inquiry by the Investigating Committee under s. 42(9). Thus the complaint insofar as it related to two of the twelve social media posts was dismissed, a determination in favour of the appellant. This was not “a preliminary view”.

32. Following the decision of 29 June 2021 the appellant received “a case report” on 21 December 2021 and was invited to make further submissions to the Inquiry under s. 42(9).

33. I am in full agreement with the trial judge that the documents sought by way of discovery and the letters seeking further particulars relate to the decision of 29 June 2021. As there is no challenge to that decision the appellant is not entitled to these reliefs.

34. There is a further issue which does not appear to have been considered by the High Court but was the subject of submissions to this court namely the legal status of the decisions taken by the Investigating Committee and whether, in this case, they are amenable to judicial review.

35. The various bodies that regulate and set standards for professions all have statutory procedures to consider and adjudicate on complaints. A common feature of these procedures is an investigative process to identify which complaints require further consideration and which do not. Fair procedures required by natural justice will vary depending upon what is at stake at different stages of the decision-making process. However, it is well-settled that a person, such as the appellant, who is the subject of a complaint does not necessarily enjoy the full panoply of the rights of fair procedures at the investigative stage. He or she is entitled to be informed of the details of the complaint and afforded an opportunity to make submissions. The outcome of the investigative process in this case is no more than a finding “that there is a prima facie case to warrant further action being taken ..”. I refer to the following passage in Law Society v. Walker [2007] 3 IR 581 where Finnegan P. described the investigative process concerning a complaint made against a solicitor: - “In the light of the authorities which I mention I am satisfied that the function of the Tribunal is to consider all matters on Affidavit before it. While at this stage of the procedures the Tribunal is not the fact finding body it may for the purposes of deciding on whether a prima facie case is disclosed make findings of fact where the facts are clear for example where the complaint is based on a clear misapprehension as to the facts or the law. Subject to this the Tribunal should consider all the material before it and determine whether the application has any real prospect of being established at an inquiry any doubt being resolved in favour of an inquiry being held. The purpose of this stage of the regulatory process is to enable complaints which are frivolous, vexatious, misconceived or lacking in substance to be summarily disposed of.”

36. The decisions of 29 June 2021 and 24 January 2022 are not findings that the complaint against the appellant has been substantiated but rather that there is a case to answer. The complaint has been referred to the Disciplinary Committee where the appellant will enjoy full rights to fair procedures. In the course of hearing the appeal it was confirmed that at the hearing before the Disciplinary Committee the appellant is not constrained in the issues he may raise by reason of the decisions taken by the Investigating Committee. The appellant is fully entitled to contest the matters considered by the Investigating Committee on 29 June 2021 including the matters listed at s. 42(1B)(a) and (b). The decisions of the Investigating Committee does not limit or curtail his defence to the complaint.

37. I am satisfied that the appellant’s criticism of the statement of opposition is misplaced. The reliefs sought in the statement of grounds are directed towards the decision of 26 January 2022. The statement of opposition sets out clearly that this decision did not determine the complaint but rather was part of an investigative process. Further, the statement of opposition sets out in detail the content of correspondence that passed between the appellant and the respondent. I am satisfied that the appellant has identified no lack of candour on the part of the respondent. The statement of opposition does not consist merely of denials.

38. By reason of the foregoing the appeal will be dismissed. As for costs, the provisional view of the court is that as the respondent has been “entirely successful”, in resisting the appeal, it is entitled to its costs. Should the appellant wish to take issue with this he may do so by way of written submissions (not more than 1,500 words) to be delivered within 14 days of the date of the delivery of this judgment. The respondent may reply to this submission, also by way of written submission (not more than 1,500 words) within a further 14 days.

39. As this decision is being delivered electronically Binchy and Butler JJ. have authorised me to record their agreement with it.