O'Connell v Building & Allied Trade Union

CourtCourt of Appeal (Ireland)
Judgment Date17 November 2016
Neutral Citation[2016] IECA 338
Date17 November 2016
Docket NumberNeutral Citation Number: [2016] IECA 338 2014 1373

[2016] IECA 338


Peart J.

Finlay Geoghegan J.

Peart J.

Hogan J.

Neutral Citation Number: [2016] IECA 338

APPEAL NO.: 2014 1434

2014 1373

- AND–

Damages – Conspiracy – Intimidation – Appellants seeking to appeal against a finding that they were liable in damages to the respondent for breaches of constitutional rights, conspiracy and intimidation – Whether trial judge was entitled to find that the appellants had infringed the respondent's right to earn a livelihood by excluding him from Union membership

Facts: The first defendant/appellant, Building and Allied Trade Union (BATU), and its named officers, the second, third and fourth defendants/appellants, Mr Morris, Mr O'Shaughnessy and Mr McNamara, appealed to the Court of Appeal against a finding that they were liable in damages to the plaintiff/respondent, Mr O'Connell, for breaches of constitutional rights, conspiracy and intimidation which he alleged they perpetrated against him. The plaintiff appealed to the Court of Appeal against a dismissal of his claims against the fifth defendant, Construction Industry Federation (CIF), on the basis firstly that they were statute-barred, and secondly on the merits. These findings were contained in the written judgment of Ryan J delivered in the High Court on the 17th July 2014 following a six day hearing.

Held by Peart J that: 1) the evidence clearly established that as the plaintiff did not surrender the relevant C2 form prior to October 1999 so that he was only entitled to membership of the Union qua "worker" from that point onwards, the trial judge's findings against the defendants in respect of the period up to the end of October 1999 could not stand; 2) during the period from November to December 1999 the plaintiff had been admitted as a probationary member of the union, holding a union card and the trial judge's finding that there had been intimidation on the part of the Union (or the second, third and fourth defendants) or a breach of the plaintiff's constitutional right to earn a livelihood during this period was not borne out by the evidence and, accordingly, could not stand; 3) the plaintiff never received a union card after the probationary period and the trial judge was entitled to conclude on the available evidence that no valid justification for the failure to admit an otherwise prima facie qualified person from membership had been advanced by the Union; 4) the trial judge's conclusions that the defendants had engaged in the torts of intimidation or conspiracy from January 2000 onwards by threatening or intimidating employers who had employed the plaintiff on the ground that he did not have a union card were not borne out by the evidence and accordingly could not be sustained; 5) the trial judge was entitled to find that the Union (but not its individual officials) had infringed the plaintiff's right to earn a livelihood by excluding him from membership in circumstances where it enjoyed an effective monopoly control of access to the relevant market and by then informing employers that he was not a member, leading them to dismiss him or not to employ him further because he was not a member of BATU, and the assessment of damages in respect of this breach of constitutional rights would have to be remitted to the High Court for determination; 6) the trial judge's finding that the action against the CIF was statute-barred and out of time was clearly established on the evidence and the plaintiff's appeal in respect of this discrete claim must accordingly be dismissed.

Peart J held that the appeal should be allowed in part.

Appeal allowed.


There are two appeals before the Court. One by the first defendant ("BATU") and its named officers against a finding that they are liable in damages to the plaintiff (yet to be assessed) for breaches of constitutional rights, conspiracy and intimidation which he alleges they perpetrated against him; and one by the plaintiff against a dismissal of his claims against the second defendant ("CIF") on the basis firstly that they are statute-barred, and secondly on the merits. I will address the BATU appeal first. These findings are contained in the written judgment of Ryan J. (as he then was) delivered in the High Court on the 17th July 2014 following a six day hearing.


The plaintiff represented himself both in the High Court and in this Court, and did so competently as a non-lawyer, and courteously. He is an experienced block-layer by trade. Having qualified as such in the late 1970s he joined a trade union which later amalgamated with another union and became what is now BATU. He worked in the Limerick area throughout the 1980s either as a builder's direct employee where he was subject to PAYE income tax for the duration of any particular job, or as an independent subcontractor under the Revenue Commissioners' C2 scheme, as the occasion demanded.


Under BATU's rules, membership of the union was open only to 'workers', which it interprets as meaning only block layers in direct employment or unemployed. A registered subcontractor did not meet that criterion. However, it seems to be common case that during the 1980s while the late Jim Kemmy T.D was the union's local representative in Limerick, a somewhat indulgent attitude was taken to subcontractors. A blind eye was turned to the fact that some 'workers' who were members of BATU worked sometimes as subcontractors on a C2 certificate when necessary in order to obtain work, which by all accounts was very scarce at the time.


During the 1990s the plaintiff, like many others, was forced by economic circumstances to seek work abroad, and did so in Germany and in the United Kingdom. He did not pay his union dues to BATU during his absence which caused his union membership to lapse. He returned to Ireland in 1997, and wished to resume working as a block-layer in the Limerick area, again either as a direct employee of a builder, or as a C2 subcontractor as previously.


However, he found that by then there was a less indulgent approach on the part of BATU to block-layers who worked as C2 subcontractors. Mr Kemmy had been replaced as the local union representative by Mr Morris, one of the personal defendants named in these proceedings, who considered that the rules for membership of BATU must be strictly adhered to so that there was no longer any question of block-layers who held a C2 certificate being admitted as members of BATU.


It would appear also that building employers in the Limerick area had agreed with BATU that they would employ as block layers only those who were members of BATU it being considered to be the appropriate union for block-layers at the time. This meant that the builder employers in Limerick and BATU each operated a policy which combined to ensure that block-laying work on building sites was available only to block-layers who worked as direct employees, and who were also members of BATU. Accordingly any block layer who held a C2 subcontractor's certifiacte from Revenue would not, if that was known, get employment on a building site in the Limerick area.


The plaintiff wanted to resume his membership of BATU so that he could again work as a block-layer in the Limerick area. He felt that his previous membership of BATU should have led to a simple resumption of his previous membership, but he was told that he had to re-apply, and that as part of that application he must furnish a letter from Revenue confirming that he did not hold a C2 subcontractor certificate. For over two years he objected to having to furnish such a letter on various bases such as that Revenue had told him that he did not have to give such a letter, that it was a breach of his right to privacy as he would have to provide his RSI number, or that the union failed to draw his attention to any particular BATU rule which required an applicant for membership to furnish such a letter. His objections to furnishing this letter from Revenue meant that the union would not grant his application for membership of BATU. The true reason for his objection to furnishing such a letter only emerged during his cross-examination in the High Court, namely that during the relevant time and until October 1999 he in fact held a C2 subcontractor certificate from Revenue, and could therefore never have provided the required letter from Revenue unless he gave it up. In October 1999 after his then current C2 certificate lapsed, he obtained the required letter confirming that he did not hold a C2 certificate, and again sought to re-join the union. He was granted membership but only on a probationary basis for a period of 8 weeks. Certain conditions had to be fulfilled during that period including that all arrears of union dues would be paid, and that he would not in future make any contact directly with Mr Morris at his home, and that all his dealings with BATU would be conducted through its Limerick branch. The reason for the imposition of such conditions was because of certain incidents that had taken place between the plaintiff and Mr Morris in October 1999 which in fact had led to injunction proceedings by BATU against the plaintiff, as well as a personal injuries action by the plaintiff against Mr Morris. Those matters were the culmination of difficulties between the plaintiff and BATU during 1997/1999 over his membership application, and are dealt with in more detail in the judgment of Ryan J. In so far as it may be necessary to refer to them again I will do so, but for the purposes of the issues on this appeal they are...

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4 cases
  • John O'Connell v Building and Allied Trades Union, Edward Morris, Patrick O'Shaughnessy and Michael McNamara
    • Ireland
    • Court of Appeal (Ireland)
    • 15 October 2021
    ...and the High Court's assessment of damages was, accordingly, postponed. 11 . On 17 November 2016, the Court of Appeal (Peart J.) [2016] IECA 338, upheld the High Court's finding of a breach of the appellant's constitutional right to work but did not find sufficient evidence to support the f......
  • John O'Connell v The Taxing Master (Paul Behan)
    • Ireland
    • Court of Appeal (Ireland)
    • 1 July 2021
    ...complex history, being initiated in 2002. Following a hearing in the High Court ( [2014] IEHC 360), and appeal to this Court ( [2016] IECA 338) they concluded in a decision of O'Connor J. of 21 June 2018 whereby the first defendant (BATU) was ordered to pay damages to the applicant of €15,0......
  • O'Connell v Building & Allied Trades Union
    • Ireland
    • High Court
    • 12 April 2018
    ...intimidation and conspiracy were dismissed by the Court of Appeal. The 62 page judgment of the Court of Appeal, having neutral citation [2016] IECA 338, led to five specific conclusions. The findings of Ryan J. in his judgment, having neutral citation [2014] IEHC 360, in favour of the pla......
  • O'Connell v Financial Services and Pensions Ombudsman (2)
    • Ireland
    • High Court
    • 20 October 2020
    ...the breach of his constitutional rights. That judgment of the Court of Appeal was in O'Connell v. Building and Allied Trade Union & Ors. 2016 IECA 338. He then represented himself before the me in 2018 and I awarded him €15,000 for general damages. Mr. O'Connell has indicated to this court ......

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