Buckley v Irish Prison Service
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 03 March 2020 |
| Neutral Citation | [2020] IEHC 459 |
| Docket Number | [RECORD NO. 2018/831 JR] |
| Court | High Court |
| Date | 03 March 2020 |
AND
[2020] IEHC 459
Ní Raifeartaigh J.
[RECORD NO. 2018/831 JR]
THE HIGH COURT
Judicial review – Natural and constitutional justice – Mootness – Applicant challenging by way of judicial review a decision of the respondent to transfer him – Whether the decision to transfer the applicant was taken in breach of principles of natural and constitutional justice
Facts: The applicant, Mr Buckley, challenged by way of judicial review a decision of the first respondent, the Irish Prison Service (the IPS), dated 24th August, 2018 to transfer him from the Operational Support Group in Cork to the Prison Service Escort Corps. The applicant had not applied for the transfer, did not wish to be transferred, and was given short notice (seven days) of the transfer. The applicant took early retirement from the IPS after and as a consequence of the transfer. He claimed that the decision to transfer him was taken in breach of principles of natural and constitutional justice. A central part of the respondents’ opposition to the case was mootness; it was submitted that because the applicant had retired, the issue of whether the transfer was valid or not was no longer a live issue. The respondents also pleaded that the transfer of the applicant within the prison service was expressly permitted by the terms of his employment contract.
Held by the High Court (Ní Raifeartaigh J) that if a public body makes an otherwise judicially reviewable decision in respect of an employee which causes that person to leave his or her employment, it could not invariably be said that the case is moot. Ní Raifeartaigh J held that the evidence in this case did not warrant the granting of the reliefs sought by the applicant because he had not succeeded in establishing that his transfer was of a type which either fell within the scope of judicial review or attracted entitlements under natural and constitutional justice.
Ní Raifeartaigh J held that the reliefs sought would be refused.
Reliefs refused.
In this case the applicant challenges by way of judicial review a decision of the Irish Prison Service (“the IPS”) dated 24th August, 2018 to transfer him from the Operational Support Group (“OSG”) in Cork to the Prison Service Escort Corps (“PSEC”). The applicant had not applied for the transfer, did not wish to be transferred, and was given short notice (seven days) of the transfer. The applicant took early retirement from the IPS after and as a consequence of the transfer. He claims that the decision to transfer him was taken in breach of principles of natural and constitutional justice. It is important to note this; his case is based upon a claim of constitutional (and not merely employment law) entitlement. A central part of the respondents’ opposition to the case was mootness; it was submitted that because the applicant had retired, the issue of whether the transfer was valid or not was no longer a live issue. The respondent also pleaded that the transfer of the applicant within the prison service was expressly permitted by the terms of his employment contract and made a number of submissions arising out of that fact.
This case was heard at the same time as the cases of applicants Mr. McDonald and Mr. Dowling, in respect of which I am also giving judgments today. Mr. Buckley's case is different from the other two in some important aspects; first, he was in fact transferred (unlike Mr. McDonald whose transfer decision was never implemented), and secondly, he was never the subject of any allegation of bullying (unlike Mr. McDonald and Mr. Dowling). Accordingly, the Dignity at Work Policy, which sets out procedures to be followed in the event of an allegation of bullying or harassment and which is relevant in the other two cases, simply does not arise in this case.
A striking feature of the case is that the reason for the transfer of the applicant on 24th August, 2018 was in dispute between the parties. The respondent maintained that the transf0er was for ordinary operational purposes, namely that an officer of the applicant's rank was required in the position to which he was assigned in the PSEC, because of increases in the number of prisoners requiring transport that had taken place over a number of years. The applicant, however, did not accept this explanation and, in a series of affidavits, put forward various alternative theories as to why he had been transferred. Common to all of them was his view that the motivation for his transfer was not one of simple operational need and that the true purpose (whatever it was) had been concealed from him and from the Court, and further, that the transfer was in substance or in effect a sanction. In some of his affidavits, he maintained that there was an inextricable link between his transfer and the events which had given rise to Mr. McDonald's transfer, and this contention was vigorously pursued at the hearing before me.
The factual dispute about the reason for the transfer is interlinked with legal questions about the role of this Court in reviewing the circumstances of the transfer. Accordingly, I will set out the evidence in the case in some detail below before addressing the legal issues.
When the proceedings were instituted, the reliefs sought included an injunction staying the transfer of the applicant and an order of certiorari quashing the transfer decision. However, as the applicant has since retired from the IPS, those particular reliefs are now clearly moot.
The applicant also sought the following reliefs and the applicant's counsel disputes that any mootness attaches to them. These are:
• A declaration that the order of transfer of 24th August, 2018 was ultra vires the powers of the Personnel Officer of the respondents in circumstances where they failed to notify him in advance of the transfer and afford him an opportunity to make submissions in relation to and/or in opposition to the said transfer.
• A declaration that they failed to comply with the requirements and procedures of the Dignity at Work policy in circumstances where the applicant had formally notified the respondents of his objection to the transfer.
• A declaration that the respondents were in breach of his right to fair procedures, natural and constitutional justice.
• An order for damages for abuse of process, breach of duty, breach of Dignity at Work policy, negligence, inconvenience and loss.
The references to the Dignity at Work Policy are puzzling in view of the fact that no allegations were made against the applicant and no procedure under the Policy was set in train.
In the Statement of Grounds, the applicant simply set out a narrative of the events in question and then asserted that the respondents were in breach of his right to natural and constitutional justice; that the order of transfer was an abuse of process; that the respondents had knowingly and recklessly damaged the applicant's reputation, integrity and credibility pending a genuine and thorough investigation of “the complaints;” and that he had suffered loss and damage and would continue to suffer loss and damage unless protected by the Court. Again, in circumstances where no complaints had been made against the applicant, the reference to “complaints” is puzzling.
In the Statement of Opposition, the respondents raised a preliminary objection on grounds of mootness by reason of the fact that the applicant had retired from the Irish Prison Service. Another significant plea was that the IPS had a contractual entitlement to transfer the applicant and it was denied that the respondents were in breach of his rights to natural and constitutional justice and/or that there had been an abuse of process. They also denied that they had damaged the applicant's reputation, integrity and credibility “pending a genuine and thorough investigation” as alleged and pointed out that no complaints had ever been made in respect of the applicant under the Dignity at Work policy nor were any investigations pending at the time of his transfer.
The first matter to be addressed is the question of mootness, which was raised on behalf of the respondents as a preliminary legal issue.
It was submitted on behalf of the respondents that there was no longer any live issue in dispute because the applicant was no longer working within the IPS, having retired, and therefore the issue of transfer was of historical interest only. The parties referred the Court to the usual authorities in relation to mootness, including PV v. The Courts Service [2009] 4 IR 264, Goold v. Collins [2004] IEHC 38, Lofinmakin (A Minor) & Ors v. Minister for Justice & Ors [2013] IESC 49 and Godsil v. Ireland [2015] IESC 103.
In contrast to the decision I have reached in relation to the McDonald case, I am not prepared to dismiss the case of Mr. Buckley on grounds of mootness. This is not a case where the transfer never happened, like Mr. McDonald's case. Moreover, there was a causal connection between the applicant's retirement and the transfer decision which is alleged to have been invalid or unlawful. The position would no doubt be different if the applicant's retirement had little or nothing to do with the impugned transfer, but what seems to me to be important is that it appears undisputed that the transfer was precisely the cause of his resignation. If a public body makes an otherwise judicially reviewable decision in respect of an employee which causes that person to leave his or her employment, it seems to me that it could not invariably be said that the case is moot. This may err slightly on the side of a...
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