Fanning v Public Appointments Service

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Reynolds
Judgment Date10 July 2019
Neutral Citation[2019] IEHC 561
Date10 July 2019
Docket Number[2015/3149 P.]

[2019] IEHC 561

THE HIGH COURT

Reynolds J.

[2015/3149 P.]

BETWEEN
JOHN FINTAN FANNING
PLAINTIFF
AND
PUBLIC APPOINTMENTS SERVICE, IRELAND

AND

THE ATTORNEY GENERAL
DEFENDANTS

Delay – Statement of claim – Non-disclosure – Defendants seeking to strike out the plaintiff’s claim for failure to deliver a statement of claim within the time permitted by the Rules of the Superior Courts – Whether the plaintiff’s claim relating to non-disclosure of an anonymous letter dated the 13th of August, 2014 was brought outside the time limit applicable to such a claim by way of analogy to judicial review proceedings under Order 84 of the Rules of the Superior Courts

Facts: The plaintiff, Mr Fanning, sought a number of declaratory reliefs to the effect that the process of recruiting and appointing two Deputy Commissioners of An Garda Síochána in or about March 2015 was in breach of, inter alia, his legitimate expectation and his constitutional right to fair procedures. The plaintiff also took issue with the nature of the questions asked of him by the interview panel and sought further ancillary relief. The proceedings issued by way of plenary summons on the 23rd of April, 2015. An appearance was entered on the 27th of April, 2015, by the defendants, Public Appointments Service, Ireland and the Attorney General. The plaintiff also issued a motion seeking interlocutory relief restraining the continuation of the recruitment process pending the outcome of his proceedings. That application was unsuccessful and in the course of delivering his judgment, Keane J noted that the plaintiff had failed to deliver a statement of claim. Since that time, the plaintiff had engaged in correspondence with the first defendant seeking records relating to the recruitment process under the Freedom of Information Act 2014. The plaintiff appealed a refusal to disclose certain records to the Information Commissioner and in a decision dated the 1st of July, 2016 the plaintiff was partially successful in that regard. In November 2016, the plaintiff sought additional records from the first defendant, which request was partially granted. Again the plaintiff sought a review in relation to the refusal to disclose certain records. By decision dated the 9th of November, 2017 the plaintiff’s application was unsuccessful. Thereafter, the plaintiff engaged in further correspondence with the first defendant seeking additional information and failed to deliver a statement of claim. On the 6th of March, 2018 the defendants issued a motion seeking to strike out the plaintiff’s claim for failure to deliver a statement of claim and/or for failure to prosecute his case with due expedition. The motion was returnable to the 13th of April, 2018. On the previous afternoon, the plaintiff’s solicitor delivered the statement of claim in which a claim of conflict of interest and/or a breach of fair procedures relating to the non-disclosure of an anonymous letter dated the 13th of August, 2014 was made by the plaintiff for the first time. On the 8th of June, 2018 the defendants issued a second motion seeking an order striking out this aspect of the statement of claim.

Held by the High Court (Reynolds J) that, in all the circumstances, it would be a great injustice to the plaintiff to accede to the application to dismiss on the grounds of delay, where the defendants had been guilty of the same conduct. In circumstances where the statement of claim had been delivered, Reynolds J held that the Court would dispense with the necessity of service of a notice of intention to proceed with a view to progressing matters between the parties.

Reynolds J held that the defendants had not set out any basis for their departure from the Rules of the Superior Courts save and except for the issue of delay upon which the Court had already ruled; indeed, in maintaining the application further delay had accrued. In the circumstances, Reynolds J held that the Court would refuse the relief sought and direct the defendants to file their defence without any further delay.

Relief refused.

JUDGMENT of Ms. Justice Reynolds delivered on the 10th day of July, 2019.
1

In the within proceedings, the defendants have issued two motions against the plaintiff, the first of which is to strike out the plaintiff's claim for failure to deliver a statement of claim within the time permitted by the Rules of the Superior Courts. In the second motion, the defendants seek a declaration that the plaintiff's claim relating to non-disclosure of an anonymous letter dated the 13th of August, 2014 was brought outside the time limit applicable to such a claim by way of analogy to judicial review proceedings under Order 84 of the Rules of the Superior Courts.

Background
2

In the proceedings, the plaintiff seeks a number of declaratory reliefs to the effect that the process of recruiting and appointing two Deputy Commissioners of An Garda Síochána in or about March 2015 was in breach of, inter alia, his legitimate expectation and his constitutional right to fair procedures. The plaintiff also takes issue with the nature of the questions asked of him by the interview panel and seeks further ancillary relief.

3

The proceedings issued by way of plenary summons on the 23rd of April, 2015. An appearance was entered on the 27th of April, 2015, by the defendants herein.

4

The plaintiff also issued a motion seeking interlocutory relief restraining the continuation of the recruitment process pending the outcome of his proceedings. That application was unsuccessful and in the course of delivering his judgment, Keane J. noted that the plaintiff had failed to deliver a statement of claim.

5

Since that time, the plaintiff has engaged in correspondence with the first named defendant seeking records relating to the recruitment process under the Freedom of Information Act 2014. The plaintiff appealed a refusal to disclose certain records to the Information Commissioner and in a decision dated the 1st of July, 2016 the plaintiff was partially successful in that regard.

6

In November 2016, the plaintiff sought additional records from the first named defendant, which request was partially granted. Again the plaintiff sought a review in relation to the refusal to disclose certain records. By decision dated the 9th of November, 2017 the plaintiff's application was unsuccessful.

7

Thereafter, the plaintiff engaged in further correspondence with the first named defendant seeking additional information and failed to deliver a statement of claim.

8

On the 6th of March, 2018 the defendants issued a motion seeking to strike out the plaintiff's claim for failure to deliver a statement of claim and/or for failure to prosecute his case with due expedition.

9

The motion was returnable to the 13th of April, 2018. On the previous afternoon, the plaintiff's solicitor delivered the statement of claim in which a claim of conflict of interest and/or a breach of fair procedures relating to the non-disclosure of an anonymous letter dated the 13th of August, 2014 was made by the plaintiff for the first time.

10

On the 8th of June, 2018 the defendants issued a second motion seeking an order striking out this aspect of the statement of claim.

First Motion
11

By letters dated the 6th of April, 2016, 19th of April, 2017 and 6th of December, 2017 the defendants' solicitors wrote to the plaintiff's solicitors consenting to the late delivery of the statement of claim and advising of the possibility of the within motion in the event that no statement of claim was received.

12

On the 6th of March, 2018 the defendants issued a motion seeking to strike out the plaintiff's claim for failure to deliver a statement of claim and to prosecute the claim with due expedition. Moreover, the defendants contend that they have been prejudiced in their defence by reason of the delay in prosecuting the claim herein and rely on the following matters in this regard:

(a) The appointments made in the impugned 2015 competition remain the subject of proceedings and the reputation of the first named defendant and of the interview board remain under suspicion.

(b) Potential witnesses would be obliged to recollect what occurred at an interview conducted almost three years ago and any further delay can only be expected to diminish that recollection.

(c) One of the four members of the interview board has unfortunately passed away.

(d) Considerable resources have been required to deal with the very significant number of FOI...

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