Fanning v Public Appointments Service and Others

JudgeMr. Justice David Keane
Judgment Date16 October 2015
Neutral Citation[2015] IEHC 663
CourtHigh Court
Date16 October 2015

[2015] IEHC 663


[No. 3149P/2015]
Fanning v Public Appointments Service & Ors
No Redaction Needed





Employment – S. 10(1)of the Garda Siochana Act 2005 – Interlocutory injunction – Fair procedures – Damages for loss of reputation

Facts: The plaintiff sought an interlocutory injunction to restrain the continuation of the recruitment process being organised by the first named defendant attendant upon the proposed appointment of two persons as deputy commissioners of An Garda Siochana. The plaintiff contended that the first named defendant was required to engage a decision arbitrator as published in the booklet uploaded in its website while the first named defendant asserted that information had been wrongly published and the plaintiff had already been afforded opportunity by way of internal review confirming the prior outcome.

Mr. Justice David Keane refused to grant an interlocutory injunction to the plaintiff. The Court held that the plaintiff had failed to demonstrate that there existed a fair question to be tried and his failure in the interview process would not be ground to award him damages for loss of reputation. The Court observed that the sitting of a person who was involved in appointment of concerned persons to other posts would not be ground to invoke the reasonable apprehension of biasness. The Court found that an injunction to restrain the recruitment process to carry out the smooth functioning of An Garda Siochana for the common good could not be adequately compensated in terms of damages and thus, the balance of convenience rested in favour of the first named defendant and an injunction must be refused.


JUDGMENT of Mr. Justice David Keane delivered on the 16th October 2015


1. This is an application for an interlocutory injunction to restrain the continuation of the recruitment process attendant upon the proposed appointment by the Government of two persons as Deputy Commissioners of An Garda Síochána. The Government is empowered to make such appointments under s. 10 (1) of the Garda Síochána Act 2005. The plaintiff is an Assistant Commissioner of An Garda Síochána who was an unsuccessful candidate in that process.


2. That interlocutory injunction is sought pending the determination of the underlying proceedings, which commenced with the issue of a plenary summons on the 23 rd April 2015. The claim indorsed upon that summons seeks various reliefs comprising: declarations that the recruitment process, and the conduct of that process, infringed the plaintiff's constitutional right to fair procedures and natural justice; a declaration that the recruitment process was conducted in a manner contrary to the legitimate expectation of the plaintiff; an injunction restraining the further conduct of the recruitment process by the Public Appointments Service for an unspecified period; and damages for breach of the plaintiff's constitutional rights and breach of his legitimate expectation.


3. Regrettably, when the application came before me for hearing on the 3 rd June 2015, no statement of claim had yet been delivered and so I have no formal particulars of the plaintiff's claims concerning the specific representation or representations of the defendants for which he contends; the specific conduct of the defendants alleged to have occurred in breach of any such representation; and the specific acts or omissions of the defendants that are alleged to amount to a breach of the plaintiff's constitutional right to natural justice and fair procedures.


4. However, there has been an extensive exchange of affidavits in the context of the present application, which was brought by motion on notice issued on the same date as the plenary summons, the 23 rd April 2015. From the matters deposed to by the plaintiff and the submissions of the plaintiff's Counsel, a number of issues emerge.


5. The recruitment process now at issue was organised by the first defendant, the Public Appointments Service ("PAS"), following a request from the Government made on the 20 th January 2015. Initially, it was envisaged that the process would be completed by the 17 th March 2015. Later, it was agreed that the PAS would provide the names of the recommended candidates to the Government by the 31 st March 2015. Under s. 10 of the Garda Síochána Act 2005, the actual appointment of such numbers of persons to the rank of Deputy Garda Commissioner as the Government sees fit is the sole prerogative of the Government.


6. The recruitment process was an open one that commenced with the publication of a number of advertisements on the 30 th January 2015 in both the domestic and foreign press and on a number of recognised websites that deal with policing matters. The closing date for receipt of completed applications was stipulated as midnight on the 19 th February 2015.


7. Also commencing on the 30 th January 2015, a sixteen page candidate information booklet ("the information booklet") was made available on the PAS website, describing the role, personal specification and terms and conditions of the office concerned, and setting out the process by which candidates would be selected for recommendation to Government. It is averred on behalf of the PAS that such booklets are provided in all competitions.


8. Under the heading "Selection" in the information booklet, the following text appears:

"The selection process for this role may involve: "


· shortlisting of candidates, on the basis of the information contained in their application;


· a competitive preliminary interview;


· completion of an online questionnaire(s) (sic);


· comprehensive reference checks;


· work sample/role play/media exercise, and any other tests or exercises that may be deemed appropriate;


· a competitive final interview which may include a presentation."


9. The information booklet as initially made available included the following statement in a section entitled "Principal Conditions of Service":

"The appointment is subject to the Civil Service Regulations Acts 1956 to 2005 and the Public Service Management (Recruitment and Appointments) Act 2004 and any other act for the time being in force relating to the Civil and/or Public Service."


10. On behalf of the defendants it is averred that the statement just quoted was included in the information booklet in error. It does not appear to be disputed that, as a matter of law, s. 7(1)(c) of the Public Service Management (Recruitment and Appointments) Act 2004 ("the 2004 Act") expressly excludes from the scope of that Act any appointment that is to be made by the Government, such as the appointment of a person to the rank of Deputy Commissioner of An Garda Síochána.


11. Similarly, at Appendix 5 to the information booklet, which bears the title "Other Important Infomiation", in a section headed "General Information", the following text appears:

"The PAS will consider requests for review in accordance with the provisions of the codes of practice published by the CPSA. A candidate can seek a review by a person in the recruiting body (initial reviewer). Where a candidate remains dissatisfied following this initial review, he/she may seek to have the conduct of the initial review examined by a "decision arbitrator."


As an alternative to the above, it is open to a candidate to have the matter resolved on an informal basis, as set out below. If a candidate remains dissatisfied following any such discussion it is open to him/her to seek a formal review.


The Codes of Practice are available on the website of the Commission for Public Service Appointments."


12. Again, it has been averred on behalf of the defendants that this portion of the information booklet (and the summary of the codes of practice review procedures immediately following) was published in error. The relevant codes of practice are those which s. 23 (1) of the 2004 Act requires the Office of the Commission for Public Service Appointments ("the CPSA") to prepare and, as has already been noted, s. 7 (1) (c) of the same Act expressly excludes Governmental appointments from its scope. Moreover and, presumably, for the avoidance of any doubt, the code of practice specifically invoked in this case - the Code of Practice on Appointments to Positions in the Civil Serviceand Public Service (2007) - contains the following express statement at Appendix A under the heading "Excluded Positions":

"This code of practice is not applicable to a number of positions."


These include:



· Governmental appointments




13. From the affidavit evidence submitted on behalf of the defendants, which is unchallenged in this respect, it would appear that, on the 4 th February 2015, the errors just described were discovered and a fourteen page corrected Candidate Information Booklet ("the corrected information booklet") was published on the PAS website with effect from the 6 th February 2014. The corrections made were the following:


(a) the replacement of the erroneous statement at page 6 of the original booklet that the appointments were to be made subject to the Civil Service Regulation Acts and 2004 Act with the statement that they were subject to "the prevailing terms and conditions applicable to the rank of Deputy Commissioner in the Garda Síochána,"; an


(b) the replacement of that section of Appendix 5 just described, which provides for a review process in accordance with the CPSA codes of practice made under the 2004 Act, with the following statement under the heading "Review Process":

"Should a candidate be unhappy with an action or decision in relation to their...

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3 cases
  • Michael Hoey v Waterways Ireland
    • Ireland
    • Supreme Court
    • 28 May 2021
    ...emphasise that what is a fair case to be tried, the Campus Oil test, establishes quite a low threshold, see Keane J in Fanning v Public Appointments Service [2015] IEHC 663, it is not a negligible test. Nor is that test a reason to ignore clear legal authority. Nor could the test be equate......
  • Kelly v Irish Prison Service
    • Ireland
    • High Court
    • 27 February 2017
    ...any fair procedures argument is pursued, the respondent relies on the decision of Keane J. in Fanning v. the Public Appointments Service [2015] IEHC 663 in which the High Court refused the plaintiff, who is an Assistant Commissioner of An Garda Síochána, an injunction to restrain the condu......
  • Madden v Louth County Council
    • Ireland
    • High Court
    • 30 June 2020
    ...v. An Post [1998] 4 I.R. 288. Ms. Phelan drew particular attention to the decision of Keane J. in Fanning v. Public Appointments Service [2015] IEHC 663. That, incidentally, was an application for an interlocutory injunction by a disappointed applicant for promotion but Keane J. emphasised ......

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