C (G) v R Chairperson of a National School and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 06 July 2010 |
| Neutral Citation | [2010] IEHC 278 |
| Court | High Court |
| Docket Number | [No. 508 J.R./2009] |
| Date | 06 July 2010 |
[2010] IEHC 278
THE HIGH COURT
AND
AND
DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190
RSC O.84 r21(1)
O'FLYNN v MID WESTERN HEALTH BOARD 1991 2 IR 223
O'DONNELL v DUNLAOGHAIRE CORP 1991 ILRM 301
JUDICIAL REVIEW
Delay
Certiorari - Limitation period - National school for children with intellectual disabilities - Employee - Allegation of sexual abuse by parents of child - Allegations by multiple children - Investigation by health board - Police investigation - Decision not to prosecute - Resumption of school disciplinary inquiry - Adverse findings in health board reports - Threat to issue proceedings if inquiry not concluded by school - Leave granted to challenge continued suspension - Offer to hold inquiry - Rejection of offer - Suspension on full pay for thirteen years - Whether applicant guilty of delay in bringing proceedings - No effort to obtain assessments - Whether applicant in 'constructive' possession of assessments - Duty to move promptly - Objective test - O'Flynn v Mid-Western Health Board [1991] 2 IR 223 and O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 applied - De Róiste v Minister for Defence [2001] 1 IR 190 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Extension of time refused (2009/508JR - Hedigan J - 06/07/2010) [2010] IEHC 278
C(G) v R(S)
Facts The applicant was an employee of the first named respondent and in March 1997 he was suspended from his position following allegations of sexual abuse made by a student at the school. The applicant remained suspended from the school for over thirteen years on full pay. The Gardai, with the involvement of the second named respondent also commenced an investigation into the matter but ultimately decided not to prosecute the applicant. On 20 October 2004 the applicant was advised that reports had been received from the second named respondent relating to eight former students and that the findings in the reports impacted on the applicant's suitability to continue on in the school's employment. The applicant was also advised on that date that a disciplinary enquiry would take place and he was subsequently invited to attend a disciplinary meeting on 10 December 2007. The applicant instituted these proceedings on 11 May 2009 and was granted leave to seek a declaration that his continued suspension was unlawful and an order of certiorari quashing the decision of the respondent refusing to permit the applicant to return to work. It was submitted on behalf of the applicant that the respondent was guilty of delay in that it caused the protracted suspension of the applicant. The applicant explained his delay in instituting these proceedings on the basis that he did not receive the health board reports until 2008 and believed that any findings made therein adverse to him could be challenged at a disciplinary inquiry.
Held by Hedigan J. in refusing to extend time: That the first named respondent was not in a position to set up its inquiry until the gardai and HSE investigations had been completed. Having regard to the terms of Order 84 rule 21(1) of the Rules of the Superior Courts, 1986 the applicant should have moved to seek judicial review of the decision to suspend him at the earliest time a ground arose. The latest point at which the applicant ought to have moved to bring proceedings was the 20 October 2004 and consequently the applicant was considerably out of time in instituting these proceedings. No satisfactory explanation was proffered to explain that inordinate delay. In relation to the challenge of the findings contained in the second named respondent's reports time also ran from 20 October 2004 when the broad outline of those reports was made known to the application. The explanations put forward by the applicant for the delay on his part were disingenuous and not credible for the purpose of extending time. It was necessary to have an inquiry into the allegations and the delay in holding same was caused by the applicant himself.
Reporter: L.O'S.
At the hearing of these proceedings on the 28th and 29th April, 2010 it was agreed by the parties that the issue of delay should be dealt with by this Court as a preliminary issue. Therefore, this judgment will address this aspect of the case alone.
The applicant is an employee of the first named respondent ("the school"). He commenced employment as a classroom assistant/careworker at the school in September 1995. On the 5th March, 1997 he was suspended from that position following allegations of sexual abuse made by a student at the school, through his parents. The applicant has remained suspended from the school for over thirteen years on full pay.
The first named respondent is the chairperson of the board of management of the school. The school in question is a national school for children suffering from intellectual disabilities.
The second named respondent ("the HSE") was established in January 2005 as the single body with statutory responsibility for the management and delivery of health and personal social services in this jurisdiction. It replacedinter alia the Mid Western Health Board ("the Health Board"), which had dealings with the applicant since 1997.
On the 12th March, 1997 the applicant was informed by the then chairperson of the board of management, Sr. M., in the presence of the principal at the school, M.D., that a pupil of the school, J.L., had made a complaint of sexual abuse against the applicant through his parents and that he was to be suspended with immediate effect. On the same date Sr. M. wrote to the applicant inviting him to a meeting of the board of management to be held on the 24th March, 1997. She outlined the details of the incident J.L. had alleged and she enclosed a copy of the written statement J.L.'s mother had made in this regard. She also indicated to the applicant that the allegation had been reported by the mother of J.L. to the Health Board.
In a reply dated the 20th March, 1997 the applicant's then solicitor wrote to Sr. M. to advise that he would be representing the applicant. He sought an adjournment of the meeting of the board of management to seek further instructions and also sought a number of documents from the school. Sr. M. acceded to the request for an adjournment. The school instructed McCann Fitzgerald Solicitors. They wrote to the applicant's solicitors on the 8th April, 1997 advising them inter alia that the applicant's attendance at a board of management meeting would be required and that copies of all documentation pertaining to the matter "including reports/minutes of all relevant meetings" would be made available. In addition, that letter indicated that the Health Board was conducting an investigation, involving an assessment of J.L., which would take approximately eight to ten weeks.
On the 24th April, 1997 in a further letter from the school's solicitors to the applicant's solicitors, the school advised that the board of management would not be in a position to give its final view on the matter until the Health Board released its report, following its investigation. The letter also suggested that the applicant could meet with the board of management to progress the matter a stage further. On the 9th June, 1997 the school's solicitors noted that the Health Board's report was not yet completed. They stated that the school was compiling a full set of relevant documents in the meantime which it would furnish to the applicant and the letter went on to outline in detail the procedure that would be followed at a meeting of the board of management with the applicant in the following terms:-
2 "1. That Mr. Copeland would be entitled to attend and be represented by solicitor or solicitor and counsel.
2. That an independent practising barrister would be present to advise the Chair as appropriate to ensure that the procedures followed would be fair and reasonable.
3. That a stenographer would be present to take a note of any evidence given and of any submissions.
4. That the parents of [J.L.] would be in attendance to give such evidence as may be appropriate.
5. That depending on the content of the report of the Health Board when received, the relevant Health Board personnel involved in its investigation would be asked to be in attendance to give such evidence as may be appropriate.
6. That as may be appropriate your client would be invited to give evidence and to call any witness(-es) on his behalf as may be appropriate.
7. That any witnesses who give evidence would be subject to questioning by the members of the Board and by (or on behalf of) your client.
If you have any comments on the proposed procedure as outlined above, same would be considered by our client."
The final paragraph of the same letter confirmed that a verbal complaint had been received by the school on the 26th May, 1997 from the parents of another student, N.C., in respect of alleged sexual abuse by the applicant. The letter indicated that the parents of N.C. had been advised that the school would not consider such a complaint unless it was made in writing and that if same was received that it would forward it to the applicant's solicitors.
In the meantime the gardaí, with the involvement of the Health Board, had commenced an investigation into the matter. Interviews were conducted with students, teachers and staff of the school in this regard. In total, eight pupils, through their parents, made allegations of sexual abuse to the gardaí and to the Health Board. The complaints...
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