Clare County Council v Director of Equality Investigations and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 21 July 2011
• Neutral Citation: [2011] IEHC 303
• Court: High Court
• Date: 21 July 2011

[2011] IEHC 303

THE HIGH COURT

[No. 595 JR/2009]

Clare Co Council v Director of Equality Investigations & Ors

BETWEEN/

CLARE COUNTY COUNCIL

APPLICANT

V.

THE DIRECTOR OF EQUALITY INVESTIGATIONS

-AND-

THE EQUALITY TRIBUNAL

RESPONDENTS

-AND-

MONGAN & ANORS

NOTICE PARTIES

EQUAL STATUS ACT 2000 S25

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6

EQUAL STATUS ACT 2000 S27

RSC O.84 r20(7)(A)

EQUAL STATUS ACT 2000 S37A(1)

EQUAL STATUS ACT 2000 S38

EQUAL STATUS ACT 2000 S25(3)

COUNTY LOUTH VOCATIONAL EDUCATIONAL COMMITTEE v EQUALITY TRIBUNAL UNREP MCGOVERN 24.7.2009 2009/10/2227 2009 IEHC 370

HAUGHEY, IN RE 1971 IR 217

EQUAL STATUS ACT 2000 S21(6)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

O DOMHNAILL v MERRICK 1984 IR 151 1985 ILRM 40 1984/5/1593

EQUAL STATUS ACT 2000 S22

EQUAL STATUS ACT 2000 S21

EQUAL STATUS ACT 2000 S25A

AER LINGUS TEORANTA v LABOUR COURT & ORS 1990 ILRM 485 1990/1/1

RSC O.84 r21(1)

EQUAL STATUS ACT 2000 S21(1)

EQUAL STATUS ACT 2000 S25(1)

CALOR TEORANTA v MCCARTHY UNREP CLARKE 19.3.2009 2009/8/1772 2009 IEHC 139

AER LINGUS TEORANTA v LABOUR COURT & ORS UNREP CARROLL 26.2.1988 1990 ILRM 485 1988/4/850

JUDICIAL REVIEW

Fair procedures

Right to housing - Travellers - Discrimination - Appropriate procedures - Level of formality required - Degree of discretion afforded to investigative body - Provision of accessible remedy for discrimination - Allowances to be made for lay persons- Whether procedure conforms with constitutional requirements - Whether appropriate for courts to interfere with expert tribunal - Role of procedural guidelines - Whether complainants can expand on information contained in complaint form - Louth VEC v Equality Tribunal [2009] IEHC 370 (Unrep, McGovern J, 24/7/2009), Calor Teo v McCarthy [2009] IEHC 139 (Unrep, Clarke J, 19/3/2009), Aer Lingus Teo v Labour Court [1990] ILRM 485 followed - Equal Status Act 2000 (No 8), s 25 - Relief refused (2009/595JR - Hedigan J - 21/7/2011) [2011] IEHC 303

Clare Co. Council v Director of Equality Investigations

Facts: The applicant sought orders to prevent the respondent from proceeding with complaints made to the respondents pursuant to the Equal Status Act 2000-2004. The respondents received a large number of discrimination and harassment complaints by one individual, Ms. Rosen, on behalf of members of the travelling community and relating to alleged failure of the applicant to provide accommodation, who now was expressed to have obstructed investigations. The applicants complained that the respondents acted wrongly in accepting claims with insufficient information and that procedures had been adopted allowing complaints to be expanded substantially. The respondents contended that the massive number of complaints received caused considerable administrative difficulty to them.

Held by Hedigan J. that the reliefs sought overall in the proceedings would be refused. The Court accepted the respondents submission that it had no power to prevent Ms. Rosen from representing the notice parties. The Court was not satisfied that there were grounds upon which to prohibit the respondents from performing its statutory function of determining the complaints. The Equality Officer was doing the best that she could in difficult circumstances.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered the 21st day of July 2011.

2 1. The applicant is the County Council with responsibility for the administrative area of County Clare. The first respondent directs the second respondent which is an impartial forum established to hear or mediate complaints of alleged discrimination under equality legislation. The notice parties have initiated proceedings alleging that the applicant has discriminated against them. These proceedings are pending before the second named respondent.

3 2. The relief's sought by the applicant are as follows:-

4 (i) An order of Prohibition preventing the Respondents from proceeding further and/or from adjudicating on the purported complaints made to the Respondents on behalf of the Notice Parties against the Applicant, pursuant to the Equal Status Acts 2000-2004.

5 (ii) A Declaration by way of an application for judicial review that the Respondents have no jurisdiction to make any decision in the said complaints having regard to the fact that the purported complaint forms sent to the First Named Respondent did not disclose any valid complaint against the applicant within the meaning of the Equal Status Acts, 2000-2004 and/or in accordance with the Respondent's procedural Guidelines.

6 (iii) A Declaration by way of an application for judicial review that any decisions of the Respondents in respect of the purported complaints of the Notice Parties and purportedly made under section 25 of the Equal Status Acts 2000-2004, is invalid and/or ultra vires and/or wrong in law and/or contrary to fair procedures and natural and constitutional justice, was reached unlawfully and is of no legal effect and is in breach of Article 6 of the European Convention on Human Rights.

7 (iv) An order of Certiorari quashing any decision of the second named Respondent providing redress to any Notice Parties pursuant to section 27 of the Equal Status Acts 2000-2004, as being made ultra vires, unlawfully and contrary to fair procedures and natural and constitutional justice and in breach of Article 6 of the European Convention on Human Rights.

8 (iv) An Order pursuant to Order 84 Rule 20 (7) (a) of the Rules of the Superior Courts staying the First Respondent's purported investigation and adjudication of the Notice Parties purported complaints pending this application for Judicial Review, or until otherwise ordered by this Honourable Court.

9 (vi) An injunction preventing any further investigation of the applicants by the respondents Agent, Ms Marion Duffy of any complaints made by the Notice Parties through the purported agency of Ms Heather Rosen.

10 (vii) Costs

11 (viii) Directions as to service of Notice Parties.

Background

12 2 3.1 Commencing in late November 2003 and continuing until in or about November 2006 the respondents received a large number of complaints of discrimination and harassment against the applicant pursuant to the Equal Status Act 2000 as amended. The complaints were submitted by one Heather Rosen on behalf of members of the traveller community and related to the alleged failure by the applicant to provide the complainants with accommodation. In 2005, the respondents assigned Ms Marian Duffy to investigate the complaints.

13 3 3.2 To date, Ms Duffy has sat in nine separate sessions. Each session was of approximately one week's duration. Sessions took place in May 2006, September 2006, October 2006, January 2007, February 2007, May 2007, February 2009, April 2009 and May 2009. The non attendance of complainants was a consistent feature of the process. In the course of the sittings of the Equality Tribunal scheduled for the 16 ^th -20 ^th October, 2006, all 6 complainant families failed to attend before Ms Duffy and their cases were dismissed. At the call over in December 2006, 9 out of 32 families attended, 22 family groupings had their cases dismissed and one family withdrew its complaint. At the call over in January 2007, 8 out of 29 families attended, the remaining 21 family groupings had their cases dismissed. At the call over in May 2007, 40 out of 56 families attended. Ms Duffy went on academic leave in October 2007 for the academic year 2007/08. In September to November 2008, Ms Duffy issued a series of decisions arising from the May 2007 call over. Approximately 40 cases were dismissed due to non-attendance.

14 4 3.3 In 39 separate cases Ms Duffy issued decisions expressing the opinion that Ms Rosen had obstructed the investigation and pursuant to s.37A (1) of the Equal Status Act 2000 she ordered Ms Rosen to pay the applicant specified amounts in respect of expenses incurred by the applicant. On a number of occasions the applicants complained that it appeared that the subject matter of many of the forms submitted appeared to be statute barred. To address lack of specifics in originating complaint documents Ms Duffy required Ms Rosen to submit a further document referred to as a "points in time" document. The applicant consistently complained that the "points in time" document did not provide the sufficient or specific information as would enable them properly to defend the case.

15 5 3.4 Matters eventually came to a head in early 2009. By letter dated the 18 ^th March, 2009, the applicant's solicitor wrote to Ms Duffy claiming that the information provided was lacking in specificity and that the applicant was unable to respond. The applicant further complained that the contents of the complaint forms appeared to relate to events which occurred before the introduction of the Equal Status Act 2000 and that there was an absence of requisite details in the information provided to allow them determine whether the complaints were in accordance with the time allowed by law for same.

16 6 3.5 Ms Duffy responded in April 2009, her letter notified the applicants of a list of complainants due to appear for a call over of outstanding cases on 18 ^th May, 2009. By letter dated the 12 ^th May, 2009 the applicants through its solicitors notified Ms Duffy of its intention to withdraw from further participation in the process and on 19 ^th June, 2009, leave to apply for Judicial Review was granted.

17 7 3.6 In total some 1,300 complaints were referred to the Equality Tribunal concerning some 450 individuals from 96 families. To date 73 families have been dealt with. Of these 72 were dismissed under section 25 of the Equal Status Act. Of these 61 complainant families had findings issued against them under section 25...