High Court refuses injunction to stop early-stage university disciplinary procedure citing Rowland v An Post standard.

THE HIGH COURT

[2026] IEHC 55

[Record No. 2025/4938 P]

BETWEEN

SHAYAN KHIMJI

PLAINTIFF

AND

UNIVERSITY COLLEGE DUBLIN

DEFENDANT

JUDGMENT of Ms Justice Bolger dated the 28th day of January, 2026

1. This is the plaintiff's application for injunctive relief to restrain and to withdraw a Student Discipline Procedure (hereinafter “the disciplinary procedure”) that has been invoked by University College Dublin (hereinafter “the university”) against the plaintiff. For the reasons set out below, I refuse this application.

The proceedings

2. The plaintiff seeks to set the disciplinary procedure aside in its entirety and does not seek any alternative relief restraining the university from conducting the disciplinary procedure in a particular way such as restraining an identified person from continuing to have a role in the procedure. As this court pointed out in Bhblasted S.R.L Societa Benefit and Ors v Meta Platforms Ireland Limited [2025] IEHC 699, whilst the court, “does have jurisdiction to craft remedies different or in addition to that sought, ideally the court's focus should be on the remedy that the plaintiff has sought and on which the affidavit evidence of both parties is based.”

3. The plaintiff is a fifth-year medical student on the university’s six-year degree programme. Whilst the plaintiff has set out a lot of detail on affidavit about difficulties, he says he encountered in completing some modules from early 2025 due to medical issues, the disciplinary procedure he seeks to set aside arises from what is alleged to have occurred between him and a member of the School of Medicine faculty on 13 May 2025. On the following day, he was advised that the matter was being referred to Student Engagement, Conduct, Complaints, and Appeals (hereinafter referred to as ‘SECCA’). On 13 August, he was invited to attend a Student Conduct Meeting by the Dean of Students. This is the first, informal, stage of the Student Discipline Procedure. The Defendant says that the Plaintiff is seeking to restrain the entirety of the Student Discipline Procedure when it is at a very early stage, and relies on the decision of the Supreme Court in Rowland v An Post [2017] IR 355. That meeting was rescheduled on several occasions arising from issues raised by the plaintiff’s solicitors from when they commenced correspondence on 3 June 2025. The meeting was eventually scheduled to take place on 10 September. By ex parte order dated 9 September, the disciplinary procedure was restrained pending the within interlocutory hearing that was heard over two days on 4 and 5 December 2025. The plaintiff's criticism of the university’s affidavit as hearsay

4. The plaintiff’s detailed affidavits set out his account of disputed facts. Those matters may fall to be considered by the university's internal procedures, including but not necessarily limited to the impugned disciplinary procedure. Many of the plaintiff’s allegations and criticisms are disputed by the university in an affidavit sworn by their in-house solicitor, some of which is hearsay insofar as factual matters are put in dispute. The plaintiff criticises the university for not having filed an affidavit sworn by any of the persons involved either in the incident on 13 May or the subsequent invoking of the disciplinary procedure.

5. This court should not be drawn into determining matters that may later require determination by a decision-maker pursuant to the university’s internal procedure, including the disciplinary procedure. I have had regard to the clear dicta of the Court of Appeal on that point in Burke v O’Longáin & Ors [2025] IECA 148 at para. 9; "There is dispute between the parties as to the basis upon which disciplinary proceedings were instigated against the appellant and the issues likely to require determination by the DAP. Whilst the dispute in this latter regard falls to be considered in this court (as it did in the court below), as correctly noted by the Judge, it is not the function of the court when hearing an interlocutory injunction application to determine the issues between the parties, much less make any assessment of the matters which will be the subject of the hearing of the appellant’s appeal to the DAP against his dismissal” O’Faherty J went on to identify that the decision-making panel in question "will have to engage on the requisite analysis of the legitimacy of that instruction” (at para. 146).

6. It is almost trite law to say that this court could not engage with and should not be drawn into, determining matters that may have to be determined later within the very procedure that a plaintiff seeks to restrain. Such circumstances give rise to the exercise of the discretion afforded to the court by Order 40, rule 8 of the Rules of the Superior Courts to allow hearsay evidence. This interlocutory application seeks to restrain a procedure within which allegations and counter allegations have or may be made, which may require determination within that or another internal procedure. It is entirely different to that which came before the Supreme Court in RAS Medical Limited v The Royal College of Surgeons in Ireland [2019] IESC 4 on which the plaintiff sought to rely.

7. The university’s affidavit sets out what gave rise to the invoking of the disciplinary procedure and, in doing so, offered sufficient basis for the university’s defence to the interlocutory reliefs the plaintiff seeks, thereby coming comfortably within the application of Order 40, rule 4 of the Rules of the Superior Courts as set out by Sanfey J in Fennell v Slevin & Ors [2020] IEHC 677 and upheld by Edwards J in the Court of Appeal in [2023] IECA 177.

8. I therefore find that there is no basis to the plaintiff’s criticism of the university for relying on hearsay evidence in their replying affidavit.

Background to the disciplinary procedure

9. Despite the court not being tasked with determining issues of conflict between the parties, it is necessary to set out some of the background to the invoking of the disciplinary procedure. The plaintiff became ill around the beginning of 2025 during his fifth year of his six-year medical degree. He applied for and was granted what are known as IX grades for four modules he had not been able to sit due to his illness. He successfully remediated three of them but there were issues with a module that requires, inter alia, a four-day placement in a GP practice. The plaintiff alleges that the module coordinator for that module, Dr Clendennen, was unwilling to engage with him and failed to identify a new placement for him. He exhibited a large volume of the email correspondence he had with Dr Clendennen in which she advised him of steps that required to be taken before she could progress his placement.

10. Among the correspondence and documents exhibited, are meeting notes and emails confirming a meeting that took place between the plaintiff’s father and Prof Cullen, who is the Head of Subject for General Practice and Dr Clendennen’s superior, on 7 May 2025 which the plaintiff did not attend. The plaintiff's senior counsel told the court that he had no instructions on what took place at that meeting. There was another meeting with Prof Cullen on 8 May which the plaintiff attended with his father at which he says he was told that Prof Cullen would take over the arrangement of his GP placement from Dr Clendennen. That is disputed by the university.

11. The issue that has been put before the disciplinary procedure relates to what is alleged to have occurred on 13 May 2025, when the plaintiff and his father attended at Dr Clendennen’s office without an appointment (hereinafter referred to as "the incident"). Prof Cullen was also in the room (as acknowledged in the plaintiff’s written submissions at para. 15, though are not referred to in the plaintiff's affidavit). In his lengthy 122-paragraph affidavit, the plaintiff sets out the following brief account of that meeting at paras. 44, 48, 49 and 50 of his grounding affidavit as follows; "44. However, on 12 May 2025, I was informed that Dr Clendennen had, once again, been charged with arranging the format and timing of my IX assessments in MDSA30310. Accordingly, on 13 May 2025 when my father and I concluded other business on UCD’s campus, we attended Dr Clendennen’s office. I hoped (which hope I believe my father shared) to provide more detail to Dr Clendennen in relation to my circumstances, which particulars may demonstrate the need for the same variety of accommodations as had been afforded to me in the Clinical Skills Module.

48. On 13 May 2025, I hoped to discuss the format and timing of my outstanding IX assessments so I could finalise the details of my upcoming tests and specialist appointments in June 2025. Additionally, I intended to communicate my disappointment in the handling of the matter by that juncture.

49. I introduced myself to Dr Clendennen and, thereafter, perceived disgust in the manner with which Dr Clendennen regarded my father and me. Dr Clendennen stated she did not have time to talk, that she did not wish to meet, and that I should not return to her office again.

50. My father and I set about departing the Health Sciences Building. My father received a phone call from Professor Cullen shortly thereafter. Professor Cullen invited my father and me to a meeting with him, which meeting took place in the Head of Subject’s office.” The plaintiff alleges that after he and his father left Dr Clendennen’s office, he was given certain assurances by Prof Cullen. That is disputed by the university.

12. The events immediately following the plaintiff's attendance at Dr Clendennen’s office on 13 May are important because the plaintiff claims that the disciplinary procedure was invoked against him in retaliation for having told Prof Cullen that he intended to make a formal complaint against Dr Clendennen because of her treatment of him. Documents have been put before the court that confirm important aspects of the timing of various events, some of which were exhibited in the plaintiff’s grounding affidavit but others were not exhibited until the university filed its replying affidavit. They include the following:

(i) Incident log, 13 May 2025 at 8pm

An incident log from the university's internal security personnel from a report made to security shortly after the incident, was created on 13 May just after 8pm. It was included with the Student Misconduct Incident Report prepared by Prof Michael Keane, Dean of Medicine, on 19 May referring a complaint to the disciplinary procedure. The form, and attached incident report, were sent to the plaintiff in July 2025, well before the within proceedings were instituted on 9 September 2025. Neither document was exhibited by the plaintiff in his grounding affidavit. This document is important as it predates the plaintiff's email, sent in the early hours of 14 May to Prof Cullen, which the plaintiff says indicated his intention to make a complaint against Dr Clendennen and which the plaintiff says led, in effect, to a mal fides invoking of the disciplinary procedure against him.

(ii) Email from the plaintiff to Prof Cullen, 14 May 2025 at 1:44am The plaintiff wrote a lengthy email to Prof Cullen some hours after the incident, attaching his thread of emails with Dr Clendennen. He referred to her "reaction and look of disgust when I requested a meeting with her today, it is clear that there is some prejudice towards me and I do not believe she can objectively evaluate me". He accused Dr Clendennen of being unprofessional and irresponsible and said the process with her had been stressful and worsened his mental state. The email does not expressly refer to the plaintiff’s intention to invoke a complaints procedure against Dr Clendennen but very clearly criticised her treatment of the plaintiff.

(iii) Email from Prof Cullen to the plaintiff, 14 May 2025 at 8:20pm Prof Cullen emailed the plaintiff on 14 May at 8:20pm and advised him that he had serious concerns about the plaintiff's behaviour following the events of the previous day in Dr Clendennen's office and that the matter would be referred to the disciplinary procedure. Prof Cullen also said that any potential academic plan to accommodate general practice will not proceed this academic year (a decision which seemed to have been later altered as the plaintiff's GP placement did ultimately take place in the summer of 2025).

(iv) Email from the plaintiff to Prof Keane, 14 May 2025 8:48pm

The plaintiff wrote to Prof Keane, Dean of the School of Medicine, at 8:48pm that day claiming, "a retaliatory and false narrative is now being used to undermine my academic progress and deflect from the core issue I originally raised”. The plaintiff said that Prof Cullen’s email came after he had complained about Dr Clendennen.

(v) Letter of 19 May 2025 from Prof Keane to the plaintiff

By letter dated 19 May, Prof Keane wrote to the plaintiff in relation to the incident and advised him that Prof Keane, as chair of the Governing Board, had determined the incident be referred to SECCA due to an alleged breach of the university's Code of Conduct. Prof Keane attached a link to the process. He expressed concern in relation to the plaintiff’s mental health and well-being, he said it was evident that the plaintiff had been experiencing ongoing mental health difficulties and advised the plaintiff to withdraw and take a leave of absence until the Spring of 2026.

(vi) Incident report, 19 May 2025

Prof Keane filled out a four page incident report dated 19 May which set out what he and his identified colleagues (Dr Clendennen, Prof Cullen and two other named academics from the School of Medicine) considered to be a breach of the Student Code under sections 3.2 and 3.3.3 namely obstructive, disruptive or reckless behaviour and violent, abusive, threatening, offensive or unacceptable behaviour (which specifically identified harassment). The report attached documents including the security incident report (referred to at (i) above) and some meeting notes and correspondence about the interactions other staff had had with the plaintiff.

13. Neither that incident report nor the accompanying documentation was exhibited by the plaintiff in his grounding affidavit, in spite of his applying for ex parte relief about the legality of the invoking of the disciplinary procedure, which was invoked by this report. Neither did the plaintiff exhibit the actual disciplinary procedure that he sought to restrain. The plaintiff asserted in his 122- paragraph grounding affidavit at para. 4; “Finally, this Affidavit is brief due to the time constraints within which it needed to be prepared. A further Affidavit is currently being prepared in which I will set out in greater detail the background to these proceedings”. This does not excuse his failure to exhibit documents that are central to the invoking of the disciplinary procedure that he sought to set aside by way of an ex parte application. The plaintiff’s solicitors had been in correspondence with the university’s solicitors since June 2025 and on five separate occasions prior to the instituting of the within proceedings, had threatened injunction proceedings to restrain the university from proceeding with the disciplinary procedure. This was the application the plaintiff finally made on 9 September, albeit for reasons in addition to those identified originally by the plaintiff’s solicitors in their detailed correspondence.

14. There are other important documents that the plaintiff did not exhibit in his grounding affidavit. Part of the plaintiff’s application for injunctive relief is based on his contention that his complaints against Dr Clendennen and Prof Cullen pursuant to the university’s bullying and harassment policy, should proceed before the disciplinary procedure (an argument to which I return to below). He explains this argument at paras. 87 to 88 of his grounding affidavit, where he states; "87. I say that in May 2025, I made formal complaints of bullying and/or harassment and/or victimisation in respect of Dr Nia Clendennen and Professor Walter Cullen. I say that such complaints must be screened by a three-person panel to identify if there exists a prima facie case that a respondent has engaged in prohibited conduct.

88. I say that on 3 June 2025, I was notified that the Screening Panel had not yet been in a position to assess my formal complaints re the General Practice academics. I was informed that the delay in screening my complaints arose because the complaints referenced my referral to the Student Discipline Procedure.”

15. In fact, at the time the plaintiff swore his grounding affidavit, the university’s replying affidavit confirmed that the plaintiff’s complaint against Prof Cullen of 22 May had been screened by the panel which had sought information about the disciplinary procedure from the plaintiff, which the plaintiff refused to give. Email correspondence went on between the screening panel and the plaintiff over May, June and July and eventually, on 9 July 2025, the plaintiff stated; “I do not give you consent to contact SECCA on my behalf. If I have not been contacted by SECCA, this means that the complaint has not been screened in. Once again, I am reiterating that my complaint is because the Student Disciplinary Referral was made in retaliation to undermine me, so this has nothing to do with SECCA. It is two separate policies". In relation to the complaint against Dr Clendennen of 21 May, the plaintiff was advised on 3 June (well before he swore his grounding affidavit) that the screening panel deemed the incident alleged not to fall under the scope of the bullying and harassment policy.

16. Not only were those emails not exhibited by the plaintiff, despite what he says was the relevance of his two bullying and harassment complaints to what he says was the illegitimacy of the university’s decision to invoke the disciplinary procedure against him, but his account of their status in his grounding affidavit was incorrect and misleading. The plaintiff in his replying affidavit sought to explain and apologise for what he said was “a genuine error” on his part and referred to incorrect pluralisation. I found his explanation unconvincing and am reminded of the language used by the Court of Appeal in A.B. v The Health Service Executive [2025] IECA 48 where the court referred at para. 138 to a university having "to prise" information from the plaintiff.

17. In completing my account of the background, insofar as it is relevant to the plaintiff's within application for interlocutory relief, I note that the plaintiff’s correspondence had raised issues about the blocking of his academic progress. Those issues are not before the court in this application as the plaintiff has been accommodated in his GP placement and is currently continuing his academic career. However, I also note the plaintiff's concerns about one of the powers open to the Dean of Studies arising from the meeting scheduled for 10 September that was injuncted by this court on 9 September. Pursuant to s. 5.5(c) and (e) of the disciplinary procedure, the following is available to the Registrar or their nominee at the conclusion of the student conduct meeting; "c) “uphold the alleged breach and apply one or more of the following penalties.

• Issue a letter of warning to the student regarding their future behaviour. The matter may be referred to should any further allegations be made against the respondent.

• Impose a fine not exceeding €250.

• …..

• In addition to the penalties above, a respondent may be required to undertake an activity / action intended to satisfy the University that the respondent understands the consequences of their conduct and learns from the experience.

e) where an alleged breach is of a serious nature and/or a student’s behaviour is negatively impacting members of the University community, and without prejudice, impose a temporary suspension of the respondent from the University, a University facility and/ or service or postpone the conferral of academic award, scholarship, or prize pending the outcome of a Student Discipline Procedure”

18. The power to temporarily suspend a student is clearly part of the disciplinary procedure and is a potentially very serious step that could have dramatic consequences for a student. However, this exercise is not without limits. It could, if relevant or appropriate, form the basis of an application to a court during a disciplinary procedure. The fact of a punitive power being made available to a

decision maker by a disciplinary procedure does not in itself impugn the procedure. I return to this point further below in addressing the plaintiff’s allegation of bias but suffice to state here that I accept the plaintiff’s submission that s. 5.5(c) and (e) are potentially serious powers that could be exercised at the completion of the meeting. It is not, as the university's counsel contends, something outside of the disciplinary procedure that does not attract the protection of fair procedures.

The plaintiff’s challenge to the disciplinary procedure

19. The plaintiff mounts this challenge to the disciplinary procedure on three separate grounds, each of which I will examine further below:-

(i) Bias;

(ii) Retaliation for indicating an intention to complain about Dr Clendennen;

(iii) The plaintiff’s complaints under the bullying and harassment policy should have taken precedence over the disciplinary procedure.

20. The standard the plaintiff must establish, of a fair issue or a strong case, potentially varies for each of those issues. The plaintiff is not just seeking to restrain the disciplinary procedure pending it being operated in a lawful manner (for example, providing something like crossexamination or details on an allegation made) but rather he seeks to set it aside in its entirety and, in effect, prevent the university from continuing with this process at all. That is closer to mandatory than prohibitory relief, attracting the strong case test. In addition, an allegation of bias is potentially one that requires a strong case to be satisfied, whether claimed in relation to prohibitory or mandatory relief.

21. The university, whilst raising the issue, submits that the plaintiff fails under both standards and that the court does not therefore have to determine which standards applied. For the reasons set out below, I think they are correct in that regard.

The test for injunctive relief

22. The court must apply the well-established criteria of Merck Sharp and Dohme, the relevant elements of which were concisely applied to a disciplinary procedure by Butler J in Dunne v Board of Management of Little Angels [2023] IEHC 312 where she stated at para. 312; “The principles applicable to the grant of interlocutory injunctions are summarised by O’Donnell J. at para. 65 of his judgment, although he is careful to emphasise that these are general principles rather than inflexible legal rules. I do not propose to set these principles out in full partly because they do not all apply in every case and partly because they are, by now, well known. Instead, I will refer to three elements which appear to be of particular relevance to this case. These are firstly the need to consider whether, if the plaintiff succeeds at trial, a permanent injunction might be granted. The defendant argues strongly that it would not be, and that this precluded the grant of an interlocutory injunction in this case. Secondly, the requirement on a plaintiff to establish a fair question to be tried and the extent to which, as both sides agreed, that threshold is raised by virtue of the fact that this application seeks an injunction to restrain an on-going disciplinary process. Thirdly, in the event the plaintiff establishes a fair question to be tried where the balance of convenience or the least risk of injustice lies as between the parties pending the determination of the substantive proceedings.” I now proceed to assess the plaintiff's case on the three grounds set out above and will then proceed to consider, insofar as relevant, the balance of convenience and least risk of injustice.

(i) Bias

23. The disciplinary procedure is conducted by the Registrar or their nominee. The procedure states that their nominee will be the Dean of Students who is currently Dr Last. The plaintiff was or must have been aware of that since he was first furnished with a copy of the disciplinary procedure at an early stage. Since then, the plaintiff’s solicitors have written many letters and, on five separate occasions prior to the institution of these proceedings have threatened an injunction to restrain the disciplinary procedure. The plaintiff’s concerns about Dr Last and his stated view that a real and serious spectre of bias is raised by Dr Last’s association with the School of Medicine and the academic staff involved in making the complaint of 19 May, arose for the first time in the plaintiff’s solicitors letter of 5 September, sent to the university’s solicitors on a Friday afternoon and indicating their intention to make an ex parte application on the following Monday.

24. The plaintiff says he is concerned because Dr Last was previously, and will in the future, be employed by the School of Medicine, is a subordinate of Prof Keane who made the referral, is a colleague of the other persons involved in the complaint and has collaborated on various academic papers with them over many years. In those circumstances, the plaintiff says the test in Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 I.R. 412 of a reasonable person in the circumstances having a reasonable apprehension that the plaintiff would not secure a fair hearing from an impartial judge, is satisfied.

25. The plaintiff relies on the recent decision of the Court of Appeal in Burke v O’Longain [2025] IECA 148 where the Court of Appeal found there was a reasonable apprehension of bias in circumstances where the impugned decision maker had been involved in advising a school principal about the use of pronouns for school students and the defendant’s school principal had been acting consistently with that advice which "is precisely the issue to which the appellant takes objection” (at para. 140). Faherty J held that the Bula test of the reasonably informed observer "would consider that the [decision-making body] will have to engage on the requisite analysis of the legitimacy of that instruction” (at para. 146).

26. The university disputes any reporting relationship between Dr Last and Prof Keane as Dr Last reports to the Registrar. They describe the plaintiff’s suggestion that previous or future involvement in the School of Medicine or collegiate research gives rise to bias as "fanciful". They highlight the court's previous recognition of the need for disciplinary proceedings in a school setting to remain workable and realistic (Student A.B. (a minor) v The Board of Management of a Secondary School [2019] IEHC 255).

27. The standard to be applied was set out in Burke as follows; “the standard as to the approach to be taken by a court on the issue of a reasonable apprehension of bias is that of the objective person. That person is not an unduly suspicious person, rather it is someone who directs their mind properly to the facts and who is not overly sensitive in the context in which the issue arises. The reasonable observer is fairminded but robust in their analysis. The test that is required is not a test that is set up in such a way as to banish every possible suspicion”. It appears that there is a collegiate research relationship between Dr Last and the persons who lodged the complaint about the plaintiff. The existence of that relationship alone does not come to the level of evidence as existed in Burke where the cogent and rational link between the decision maker and the issues that were to be decided was established. I do not consider the relationship, in itself, would satisfy an informed objective person of the existence of bias. Such a person would determine that the fact of collegiate research relationship between Dr Last and the person who made complaint does not establish bias, particularly in the absence of any suggestion of Dr Last having had any involvement in the incident of 13 May or any recent involvement in the School of Medicine.

28. I do not consider the plaintiff has satisfied either the existence of a fair issue or a strong case that this process is tainted by objective bias or that the plaintiff would secure permanent injunctive relief at trial.

(ii) Retaliation

29. The plaintiff contends that the timing of events, combined with Prof Keane’s reference to the plaintiff’s mental health, confirm that the disciplinary procedure was invoked in retaliation against him for raising concerns about his treatment by Dr Clendennen. It is clear from the security incident report set out above at para.12(1) that concern was expressed about the incident before the plaintiff told Prof Cullen that he considered he had been badly treated by Dr Clendennen, as the plaintiff set out in his email to Prof Cullen in the early hours of 14 May.

30. In relation to the plaintiff’s mental health, there is ample evidence in the documents before the court that the plaintiff had raised his mental health concerns with the university well in advance of Prof Keane's letter of 19 May. This includes email correspondence from the plaintiff of 16 April 2025 in which he refers to suffering from stress, his own application for extenuating circumstances made in March and his GP’s letter (referred to in his solicitor’s correspondence as having been sent to the School of Medicine in April). In addition, there is a reference in a meeting report of 7 May 2025 of the plaintiff's father advising Prof Cullen of his concerns. He also stated that the plaintiff was having an issue with his GP placement which was causing him a lot of stress. The plaintiff in his email of 12 May 2025 refers to his mental recovery and in his email to Prof Colin of 14 May, he refers to his mental health/stress.

31. Prof Keane’s reference to the plaintiff's mental health was sourced from the accounts provided by the plaintiff or his father that he had experienced mental health difficulties and stress. Prof Keane’s reference to those issues does not establish a fair issue that his invoking of the disciplinary procedure was in retaliation for the plaintiff having expressed his concern about his treatment by Dr Clendennen.

(iii) The university’s bullying and harassment procedure should have proceeded before the disciplinary procedure

32. The plaintiff contends that his complaints against Dr Clendennen and Prof Cullen pursuant to the bullying and harassment procedure should have been addressed, including by an independent investigator, prior to the disciplinary procedure. That presupposes an overlap of two procedures that could not apply here where one procedure is against the plaintiff as a student and the other is a complaint by him against an academic. Regardless of the outcome of the plaintiff’s bullying and harassment complaint against a member of the academic staff, it could not lead to an invoking of the student misconduct procedure which is what the disciplinary procedure is.

33. In any event, both procedures expressly recognise that it would be a matter for the university to determine which procedure should take precedence in terms of which might proceed first. It is not for a student (or indeed for an academic) to determine the running order of two complaints procedures going on at the same time.

34. In addition, I have concerns about the plaintiff’s failure to make full and proper disclosure of the matter relating to his bullying and harassment complaints, in particular the fact that his complaint against Prof Cullen was put on hold precisely because he would not consent to the disclosure of matters relating to the disciplinary procedure.

35. The plaintiff has not established a fair issue to be tried arising from the disciplinary procedure going ahead before the bullying and harassment procedure.

The disciplinary procedure and irremediable flaws

36. Any injunction in relation to disciplinary procedures must comply with what the Supreme Court held in Rowland v An Post [2017] 1 IR 355 i.e. that the court should not interfere prematurely unless the impugned flaws are incapable of being remedied within the procedure. This approach can be clearly seen even pre-Rowland in Carroll v Bus Átha Cliath [2005] 4 IR 184 and Minnock v Irish Casing Company Ltd and Stewart [2007] 18 ELR 229 and post-Roland in Barrett v Commissioner of An Garda Síochána [2023] IECA 112 and Lally v Board of Management of Rosmini Community School [2021] IEHC 633. In O’Neill v The Commissioner of An Garda Síochána [2020] IEHC 448 Allen J said: “a court should be reluctant to intervene, particularly at an interlocutory stage, in an incomplete disciplinary process, and will do so only where a clear case has been made out that there is a serious risk that the process is seriously flawed and incapable of being cured, and that the continuation of the process might cause irreparable harm to the plaintiff”. In Barrett, the court stated that: “1) The court should look at the entirety of the process in question with a view to ascertaining whether the errors of procedure, or other legal errors, alleged by the employee are capable of being corrected by appropriate measures being taken before the process comes to an end; if they are capable of being rectified, the courts should be reluctant to grant the relief sought on grounds of prematurity. 2) However, if the nature of the complaint is such that the defects complained of cannot be cured as the process unfolds, and it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law, prematurity will not be an obstacle to seeking relied while the process is ongoing.” Butler J in Lally summarised the current position regarding the restraint of an ongoing disciplinary procedure, stating: “5. …The settled case law makes it clear that in normal course an ongoing disciplinary process should be allowed to proceed unless it is clear that the process has gone irremediably wrong such that any conclusion reached adverse to the employee would be bound to be legally unsustainable (per Clarke J., as he then was, in Rowland v. An Post [2017] IR 355).”

37. I am not satisfied that the manner in which the plaintiff claims that the impugned procedure is flawed is not at the stage of having gone so irremediably wrong that any conclusion reached adverse to the plaintiff would be bound to be legally unsustainable. The plaintiff does not get over the Rowland standard required for the grant of an injunction to restrain a disciplinary procedure.

Least risk of injustice

38. If I am wrong on the existence of a fair issue to be tried and/or that matters are not irremediably flawed, then in relation to the balance of convenience and the least risk of injustice, I agree with the plaintiff that damages are not an adequate remedy. However, in all the circumstances that have arisen in this case, the least risk of injustice requires that this disciplinary procedure, which is still at an early stage, should be allowed to continue. If the plaintiff's rights to fair procedures and whatever rights he has pursuant to the procedure are not properly applied in the application of the procedure or his rights to fair procedures are not honoured, he remains entitled to seek to challenge the application of the procedure at that stage.

Conclusion

39. I refuse the reliefs that have been sought.

Counsel for the plaintiff: John Rogers SC, Michael Devitt BL

Counsel for the defendant: Feichín McDonagh SC, Mark Curran BL