ESB v Sharkey

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 09 February 2024
• Neutral Citation: [2024] IEHC 65
• Docket Number: Record No.: 2023/1642P

Between:

Electricity Supply Board

Plaintiff

and

Kieran Sharkey

Defendant

[2024] IEHC 65

Record No.: 2023/1642P

THE HIGH COURT

JUDGMENT of Mr Justice Rory Mulcahy delivered on 9 February 2024

Introduction.

1 . In McGee v Governor of Portlaoise Prison [2023] IESC 14, O'Donnell CJ reminds us of the manner in which constitutional law develops:

“The development of constitutional law in a common law system owes more to chance, therefore, than to systematic deduction from accepted principle. It is dependent on the happenstance of litigation raising an issue that is recognised as such by the lawyers and judges involved, and then the manner in which it is analysed. Development is at best incremental, random, and unpredictable.”

2 . This application represents an example of the happenstance of litigation referenced by the Chief Justice. The particular factual circumstances arising, and the arguments of the parties as to the consequences flowing from those particular facts, require the court to address the vexed question of when an individual can rely on constitutional rights in the private sphere. In particular, the court is asked to consider whether the Defendant's privilege against self-incrimination, or his right to silence, can be relied on in the teeth of his employer's demand that he respond to its request for information.

3 . In brief, the Plaintiff is the Defendant's employer and wrote to the Defendant asking him to provide answers to questions regarding certain matters, alleged to have occurred during the course of his employment, in respect of which the Defendant is the subject of a criminal investigation. The Defendant denied wrongdoing, but otherwise refused to answer any questions, invoking his right to silence.

4 . In these proceedings, the Plaintiff seeks a declaration that the Defendant has, by refusing to answer the questions, repudiated his contract of employment or that it is entitled to treat his contract of employment as having been terminated. In the alternative, it seeks an Order compelling the Defendant to disclose certain information to it.

5 . By Consent Order dated 15 May 2023, it was agreed by the parties that the following points of law be set down for trial:

• 1. Does the Defendant's right to silence and/or privilege against self-incrimination permit him to lawfully refuse to comply with the directions issued to him by the Plaintiff in its letter dated 17 February 2023?

• 2. If the answer to the first question is ‘No’, does the Defendant's refusal to comply with the directions issued to him by the Plaintiff in its letter dated 17 February 2023 amount to a repudiatory breach of his contract of employment with the Plaintiff such that the Plaintiff is entitled to treat his contract of employment as terminated?

• 3. If the answer to the second question is ‘Yes’, on what date was the said contract of employment terminated?

6 . For the reasons set out below, the answer to the first of those questions is a qualified ‘Yes’. In those circumstances, the second and third questions do not arise for consideration.

Factual Background

7 . Most of the factual background relevant to the application is set out in an affidavit of Brian Tapley, Custom and Project Delivery Manager with the Plaintiff (“ ESB”), although Mr Sharkey has also sworn an affidavit which details certain factual matters which have not been contested. I note that certain of the factual background has also been set out in detail in a recent related judgment of the High Court (Dignam J), ESB and Anor v Richmond Homes Ltd and Anor [2023] IEHC 571, concerning an application for a Norwich Pharmacal Order, to which I will refer briefly below.

8 . Mr Tapley explains that the Defendant is a network technician who commenced employment with ESB on 2 February 2017. In May 2022, ESB became aware of allegations from two developers, Richmond Homes Ltd (“ Richmond”) and Arkmount Construction Limited (“ Arkmount”), that certain ESB employees were demanding cash payments for expediting the completion of works to be carried out by ESB. Mr Tapley met with representatives of both firms. The representative of Richmond, Mr M (as he is referred to in the judgment of Dignam J), advised Mr Tapley that, in February 2022, he requested that electricity meters be installed in a new development in Malahide. He said that he was advised to contact the relevant network technician and, therefore, contacted the Defendant. Mr M alleged that the Defendant advised him that he should pay €50 per meter to the network technicians who would install the meters. Mr M advised that meters were installed on two occasions and that on each occasion, the network technician installing the meters was paid €50 per meter. It was not alleged that the Defendant had received any payments.

9 . Mr M also told Mr Tapley that the Defendant asked Richmond's site foreman to arrange for the tiler on site to carry out tiling work at the Defendant's home. He alleged that the sum charged for that work was “ probably well below cost for the job completed”.

10 . ESB reported these allegations to An Garda Siochána on 1 June 2022. An Garda Siochána asked ESB not to do anything that would put the relevant employees, including the Defendant, on notice of their investigation, although, as explained in Mr Sharkey's affidavit, the Gardaí carried out searches at the Defendant's home on 27 July 2022 and searched his vehicle. Two mobile phones were seized and the Defendant was advised by a member of the Gardaí that he was being investigated for bribery and corruption in his work for ESB.

11 . On 27 July 2022, ESB commenced proceedings in the High Court against Richmond and Arkmount (bearing Record Number 2022/3755P) seeking certain reliefs requiring Richmond to disclose to ESB information and documents relating to payments made to employees of ESB, a Norwich Pharmacal order. By consent order, dated 6 October 2022, Richmond and Arkmount were required to provide to ESB documents concerning, evidencing or recording the making of alleged payments to any employee of ESB in connection with the carrying out of any works at, inter alia, the Malahide site. Relevant documents were provided by Richmond and Arkmount on 25 October 2022, which were exhibited in Mr Tapley's affidavit. ESB sought further orders against Richmond and Arkmount, which application was the subject of a contested hearing in February 2023 and is the subject of Dignam J's judgment referenced above.

12 . Mr Tapley wrote to the Defendant on 8 August 2022 on behalf of ESB, following a meeting between the Defendant and Mr Tapley which the Defendant had requested following the Garda search of his home. The letter confirmed that ESB had notified An Garda Siochána of certain issues which a customer had brought to its attention and informed Mr Sharkey about the Norwich Pharmacal proceedings. The letter included the following statement:

“At this time, ESB does not propose engaging with you further in relation to this matter but we do expect to engage with you further as matters develop. In the meantime, in terms of supports, the ESB Employee Assistance Programme is available to you at this time and of course the line support of your supervisor and manager….

Finally, if you have engaged in conduct in connection with your employment with ESB that requires to be disclosed to ESB then you should immediately provide all relevant information to ESB.”

13 . Following the hearing of the application against Arkmount and Richmond in February 2023, Mr Tapley wrote to the Defendant (and others) on 17 February 2022 on behalf of ESB. As this is the letter which contains the request for information the subject of these proceedings, it is worth setting out in full:

“Dear Kieran,

I am writing to you further to my letters of 8 August 2022 and 2 December 2022.

As you're aware, ESB has initiated High Court proceedings against Arkmount Construction Limited and Richmond Homes Limited seeking documentation and information relevant to certain allegations that have been made to ESB.

You are one of the ESB employees referenced in those allegations as having received payments of cash or other consideration from one of these companies.

ESB recently made an application in the High Court for Orders compelling those companies to provide further information / documentation relating to the allegations and this application was heard by the High Court on 7, 8 and 10 February 2023. The High Court reserved its judgment.

As members of the public can attend Court proceedings of this type, significant information about the allegations – including the fact that you are one of the persons against whom the allegations have been made – is now in the public domain.

The nature of the allegations made is very serious, i.e., that unlawful payments were made in a clandestine way to ESB employees, including you. In circumstances where the details of those allegations are now in the public domain, ESB believes that it is necessary and appropriate to seek certain confirmations from you in connection with alleged behaviour the subject matter of the allegations:

1. Please confirm whether you have ever asked for or received any payment (whether in cash or otherwise) or any other emolument (including gifts) from a third party (not limited to Arkmount Construction Limited or Richmond Homes Limited) in connection with the performance of your duties with ESB, or the performance by any other person of his/her duties on behalf of ESB.

2. If you have ever asked for or received any payment(s) or other emolument(s), please confirm full details of same, including details of what you received, the date on which payments or other emoluments were received and the identity of the person or company that provided those payments or emoluments to you.

You are directed to provide the foregoing confirmations by 5pm on Tuesday 21 ^st Fe...