Barrett v The Commissioner of an Garda Siochana and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 08 May 2023
• Neutral Citation: [2023] IECA 112
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number. 2022/122

Between/

John Barrett

Applicant/Appellant

and

The Commissioner of an Garda Síochána

and

The Minister for Justice

Respondents

[2023] IECA 112

Noonan J.

Ní Raifeartaigh J.

Binchy J.

Record Number. 2022/122

COURT OF APPEAL

CIVIL

Interlocutory relief – Protected disclosures – Disciplinary procedures – Appellant seeking interlocutory relief – Whether disciplinary procedures invoked against the appellant were connected with statements made by the appellant on earlier occasions which the appellant claimed were protected disclosures

Facts: The appellant, Mr Barrett, holding the position of Executive Director of Human Resources and People Development within An Garda Síochána, and who was a member of the Senior Leadership Team, was the subject of a disciplinary process. He issued proceedings in July 2020 in which he claimed that the disciplinary process was legally flawed in many respects, but he sought interlocutory relief for the first time only on the 30 December 2020, after the recommendation for his dismissal was made by the first respondent, the Commissioner of An Garda Síochána, to the second respondent, the Minister for Justice. His complaints included “fair procedures” grounds in respect of the process (both as to the initiation of the process and the manner in which it was conducted). He also contended that the disciplinary process itself constituted a “detriment” which he suffered as a result of having made “protected disclosures” within the meaning of the Protected Disclosures Act 2014. The High Court (Stack J) refused to grant an interlocutory injunction: [2022] IEHC 86. The appellant appealed to the Court of Appeal against the refusal.

Held by Ní Raifeartaigh J that this was not a case where the Rowland/McKelvey principles (Rowland v An Post [2017] 1 I.R. 355; McKelvey v Iarnród Éireann [2020] I.R.573) precluded the appellant from seeking interlocutory relief. She held that most of the arguments he was making (both in terms of protected disclosures and fair procedures) involved fundamental challenges to the very existence of the disciplinary process which (on the logic of his arguments) could not be remedied as the process unfolded. In those circumstances, she held that it behoved him to move with reasonable expedition if he wished to seek interlocutory relief. She held that he engaged in significant delay before seeking interlocutory relief; he became aware that a disciplinary process had been commenced in May 2018, fully took part in the hearings before the investigator before finally withdrawing in July 2020, underwent suspension on full pay, and did not seek interlocutory relief until the end of December 2020, despite having issued proceedings six months earlier. She held that his delay in seeking interlocutory relief was a factor which should in and of itself be regarded as a sufficient reason for refusing interlocutory relief, no matter how one views the other variables in the case, and whether one considers delay as a stand-alone ground or as part of the balance of convenience. She held that the effect of s. 5(8) of the Protected Disclosures Act 2014 is that, where there is a dispute as to whether a communication is a protected disclosure, an applicant for interlocutory relief benefits from the statutory presumption; the respondent can rebut the presumption but must do so by proving that the communication is not a protected disclosure on the balance of probabilities. She held that the High Court judge erred insofar as she did not factor the presumption and the standard of proof for rebuttal into her analysis.

Ní Raifeartaigh J held that the appeal should be dismissed. Since the appellant had not been successful in the appeal, her preliminary view was that the respondents were entitled to their costs.

Appeal dismissed.

APPROVED 26 June 2023

No redactions needed

JUDGMENT delivered by Ms. Justice Ní Raifeartaigh on the 8 ^th day of May 2023

Introduction

1 . This is an appeal in respect of the High Court's refusal of an interlocutory injunction. The appellant, holding the position of Executive Director of Human Resources and People Development within An Garda Síochána, and who is a member of the Senior Leadership Team, was the subject of a disciplinary process which commenced by May 2018 and was expanded by the (then) new Commissioner, Drew Harris in October 2018. The process reached an advanced stage; an investigation was conducted by a Senior Counsel (in which the appellant participated with the assistance of solicitor, junior and senior counsel for a significant amount of time before withdrawing); an investigation report was provided to the Minister by the Senior Counsel (November 2020); and a recommendation was made (December 2020) by the Commissioner to the Minister for Justice that the appellant be dismissed. The appellant had issued proceedings in July 2020 in which he claimed that the disciplinary process was legally flawed in many respects, but he sought interlocutory relief for the first time only on the 30 December 2020, after the recommendation for his dismissal was made. His complaints include what might loosely be characterised as “fair procedures” grounds in respect of the process (both as to the initiation of the process and the manner in which it was conducted), although they were in many respects much more far-reaching than what might be termed the usual type of procedural arguments which often feature before the courts, and they include allegations of conspiracy. He also contends that the disciplinary process itself constituted a “detriment” which he suffered as a result of having made “protected disclosures” within the meaning of the Protected Disclosures Act 2014. The High Court refused to grant an interlocutory injunction (Stack J. [2022] IEHC 86) and this judgment concerns his appeal against the refusal.

2 . Notwithstanding the refusal of the interlocutory injunction, the appellant remains in his position, albeit suspended on full pay, by reason of an undertaking given by the respondents pending the determination of this Court.

3 . While a large number of issues were argued, and dealt with in considerable detail by the High Court judge, I am of the view that the appellant's delay in seeking interlocutory relief is in and of itself a valid reason for refusing the relief sought. I therefore agree with the High Court judge's conclusion on the issue of delay, although she dealt with the issue of delay after she had disposed of a number of other issues. While it is of course true that in general the courts are reluctant to intervene to halt disciplinary processes ( Rowland v. An Post [2017] 1 I.R. 355; McKelvey v. Iarnród Éireann [2020] I.R. 573), it is also true that there are some circumstances in which prematurity is not a valid reason to refuse an application for interlocutory relief even though the disciplinary process is ongoing. I will here explain very briefly why I am of the view that the present case falls into the latter category, but this will be dealt with in greater detail below.

4 . In the present case, many of the appellant's complaints go far beyond assertions of unfair procedures which might be rectified in due course by the process itself and are, instead, of an existential nature; he complains that the entire process was flawed from the outset and deeply unjust in and of itself. He alleges that the process was conceived out of malice and personal animus and maintained against him for improper reasons. He maintains that the process amounts to his victimisation for having made protected disclosures. If these complaints have substance, the only cure for the process would be its abandonment. The logic of the appellant's own complaints, therefore, brings the case into a category where, had he moved with reasonable expedition in the ordinary way, he could not have been defeated by a prematurity argument. His failure to do so, with the result that a significant length of time elapsed, is in my view fatal to the exercise of the court's discretion in his favour in the matter of interlocutory relief. All of this will be explained further in due course.

5 . Notwithstanding that I consider that the appellant's delay should be dispositive of the application (and appeal), I will also address some of the appellant's protected disclosures arguments. I do so because this is an area in which there is relatively little authority, and an important issue arises with regard to the burden and standard of proof in a case such as this, that is to say, one where there is a statutory presumption which reverses the burden of proof on one particular aspect of the appellant's case.

PART I — Background and Chronology

6 . It is necessary to examine the background history and chronology in some detail in order to contextualise both my comments on the protected disclosures issue and my view on delay. However, while it is necessary to provide sufficient information for this purpose, I hope to keep this description as neutral and brief as possible given that the substantive hearing has yet to take place. The appellant swore a large number of affidavits and placed numerous exhibits before the Court, including extensive correspondence and extracts from the Public Accounts Committee and the Tribunal of Inquiry into Protected Disclosures (“the Disclosures Tribunal”). It would not be appropriate in this interlocutory judgment to deal with all of those in detail.

The Templemore Affair

7 . The appellant submits that the Court should take into account, as part of the evidential matrix herein, certain events which I will refer to as the Templemore affair. In 2015, the appellant became aware of financial irregularities in the Garda College at Templemore and made a disclosure about these irregularities to his superiors. These matters were publicly investigated by the Oireachtas Committee of Public Accounts (hereinafter “the...