Hand v Ludlow

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 18 December 2009
• Neutral Citation: [2009] IEHC 583
• Judgment citation (vLex): [2009] 12 JIC 1805
• Court: High Court
• Date: 18 December 2009

[2009] IEHC 583

THE HIGH COURT

No. 928 J.R./2008

Hand v Ludlow

JUDICIAL REVIEW

BETWEEN

JOHN HAND

APPLICANT

AND

BRENDAN LUDLOW

RESPONDENT

CONSTITUTION ART 40.3

CONSTITUTION ART 40.3.2

EDUCATION ACT 1998 S16

EDUCATION ACT 1998 S15

EDUCATION ACT 1998 S17

EDUCATION ACT 1998 S22

EDUCATION ACT 1998 S23(1)

EDUCATION ACT 1998 S24

EDUCATION ACT 1998 S2

BECKER v BOARD OF MANAGEMENT ST DOMINICS SECODARY SCHOOL CABRA 2005 1 IR 561

RAFFERTY v BUS EIREANN 1997 2 IR 424

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

MURPHY v TURF CLUB 1989 IR 171

RAJAH v ROYAL COLLEGE OF SURGEONS OF IRELAND 1994 1 IR 384

MURTAGH v BOARD OF GOVNORS OF ST EMERS SCHOOL 1991 1 IR 482

O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419

EDUCATION ACT 1998 S7

EDUCATION ACT 1998 PART II

EDUCATION ACT 1998 PART III

EDUCATION ACT 1998 PART IV

EDUCATION ACT 1998 PART V

EDUCATION ACT 1998 S23(2)

BROWN v BOARD OF MANAGEMENT OF RATHFARNHAM PARISH NATIONAL SCHOOL & ORS 2008 1 IR 70

RSC O.84 r21

EDUCATION ACT 1998 S16

HENEGHAN v WESTERN REGIONAL FISHERIES BOARD 1986 ILRM 225

O'NEILL v IRISH HEREFORD BREED SOCIETY LTD 1992 1 IR 431

JUDICIAL REVIEW

Remedies

Disciplinary hearing - School - Contract of employment - Public law remedy - Whether dispute amenable to judicial review or private law remedy - Whether respondent employer entitled to conduct appropriate inquiries into allegations of misconduct - Delay - Failure to apply promptly for leave to seek judicial review - Bias - Prejudgment - Applicable principles of law - Objective test - Reasonable man - Becker v Board of Management, St Dominic's Secondary School [2005] IEHC 169, [2005] 1 IR 561 and O'Neill v Beaumont Hospital Board [1990] ILRM 419 applied - Brown v Board of Management of Rathfarnham Parish National School [2006] IEHC 178, [2008] 1 IR 70 and Heneghan v Western Regional Fisheries Board [1986] ILRM 225 distinguished - Rafferty v Bus Éireann [1997] 2 IR 424; Geoghegan v Institute of Chartered Accountants in Ireland [1995] 3 IR 86; Murphy v Turf Club [1989] IR 171; Rajah v Royal College of Surgeons of Ireland [1994] 1 IR 384; Murtagh v Board of Governors of St Emer's School [1991] 1 IR 482 and O'Neill v Irish Hereford Breed Society Limited [1992] 1 IR 341 considered - Rules of the Superior Courts 1986 (SI 15/1986) O 84 r 21 - Constitution of Ireland 1937, Articles 40.3 and 40.3.2 - Education Act 1998 (No 51), ss 2, 15, 16, 17, 22, 23 and 24 - Application dismissed (2008/928JR - O'Keeffe J - 18/12/2009) [2009] IEHC 583

Hand v Ludlow

Facts: The applicant was a Primary School principal and the respondent was the appointed manager of the school. The applicant was the subject of allegations of wrongdoing arising from a School inspection and the roll book management of the school and the transfer of pupils to a school where the wife of the applicant was also a principal and who was in need of student number enhancement for the purposes of a Developing School System schema. A Single Manager and not a Board was appointed to investigate the applicant. The applicant sought an order of prohibition so as to prohibit the respondent from conducting a disciplinary hearing. The applicant sought a declaration that the respondent could not cast himself as investigator, complainant, prosecutor, witness and adjudicator pursuant to the Education Act 1998. A declaration was also sought that the respondent was not empowered to investigate such breaches and that he was acting ultra vires. The applicant alleged inter alia that the respondent was acting under dictation, that the Act did not contemplate the appointment of a Single Manager for the purpose of investigating and disciplining a school principal. Declarations were sought inter alia that the applicant's right to natural justice and fair procedures had been breached by the disciplinary procedure conducted.

Held by O'Keefe J. that the test was an objective one and the respondent having engaged in lengthy correspondence with the applicant and/ or his advisors was required to deal with all the issues that arose. Neither his attendance at specific meetings nor his discharge of his duties was such that applying the objective test that a reasonable man might reasonably fear that there was prejudgment which would prevent a fair and independent hearing of the issues. There was no bias or animus made out that would disqualify the respondent. The application would be dismissed.

Reporter: E.F.

1 Mr. Justice O'Keeffe on 18th day of December, 2009

Background

2 1. The Applicant is a Primary School Principal at St. Oliver Plunkett's Primary School, Navan ("the School"). The Respondent is the appointed manager of the School.

3 2. This application for judicial review commenced on 30 ^th July, 2008 and the Applicant sought an order of prohibition by way of application for judicial review prohibiting the Respondent from conducting a disciplinary hearing on 5 ^th August, 2008 at Navan. An order of prohibition prohibiting the Respondent from pursuing any disciplinary procedure on foot of a purported investigation and the results of which were contained in a letter of 10 ^th June, 2008 from the Respondent to the Applicant was also sought. The Applicant sought a declaration that the Respondent could not purport to cast himself as investigator, complainant, prosecutor, witness and adjudicator in a disciplinary context pursuant to the provisions of the Education Act 1998, ("the Act") or otherwise. A declaration was sought that the Respondent was not empowered to investigate or pursue alleged breaches by the Applicant of the Rules for National Schools which were the exclusion preserve of the Minister of Education and Science. A declaration was also sought that the Respondent was acting ultra vires in that he cannot lawfully exercise all or any of the powers which he was purporting to exercises in circumstance where:-

4 (a) He is acting under dictation;

5 (b) The Act does not contemplate the appointment of a Single Manager for the stated purpose of investigation/disciplining of a School Principal and

6 (c) Alternatively, there was not lawful basis for the appointment of the Respondent.

7 3. Without prejudice to the foregoing reliefs, a declaration was sought that an investigation by the former Board of Management of the School into alleged disciplinary infractions by the Applicant was:-

8 (a) unlawfully terminated by the Respondent;

9 (b) arrogated by the Respondent onto himself without lawful authority.

10 4. A declaration was also sought that the investigation disciplinary procedure conducted by the Respondent into allegations against the Applicant was carried out in breach of the Applicant's constitutional rights including:-

11 (b) the Applicant's right to natural justice and fair procedures as guaranteed by Article 40.3 of the Constitution;

12 (c) the Applicant's right to work and earn a livelihood as guaranteed by Article 40.3 of the Constitution; and

13 (d) the Applicant's right to his good name as guaranteed by Article 40.3.2 of the Constitution

14 5. In the grounds upon which relief was sought, the Applicant stated he had been the subject of allegations of wrong doing which commenced with a visit by an inspector of the Department of Education and Science ("the Department") to the School in October 2007. He claims that he fully co-operated with the school inspector of the Department in respect of her inquiries in relation to pupil enrolment and pupil transfers between the School and Kilmainham Wood National School, Co. Meath. He asserted that upon the expiry of the term of office of the Board of Management of the School on 30 ^th November, 2007, that no new Board of Management was appointed by the Patron, Bishop Michael Smith, the Bishop of Meath, and instead that the Respondent, Fr. Brendan Ludlow was appointed Single Manager of the School. It was claimed that the appointment of the Respondent as manager was not made in accordance with the provision of the Act. The staff and parents of pupils at the School were informed on 7 ^th January, 2008, that serious matters that come to the attention of the Patron and for that reason a new Board of Management would not be appointed.

15 6. The Applicant was appointed Principal of the School in February 1997. He had been an Acting School Principal since 1980 and a School Principal since 1986.

16 7. In his grounding affidavit, the Applicant stated that the Bishop of Meath who was the Patron of the School, with the approval of the Minister for Education and Science ("the Minister") purported to appoint a manager to the School, namely the Respondent, purportedly pursuant to the provisions of Section 16 of the Act (the terms of office of the Board of Management of the School having expired on 30 ^th November, 2007). He claimed further that the Act made no provision for the appointment of a manager upon the expiry of the term of office of a Board of Management and that the Respondent's appointment was made without lawful authority.

17 8. The School is a large Catholic Co-Educational Primary School. It had some 596 pupils on its role since 30 ^th September, 2007. Teaching staff for the year 2007/2008 in addition of the Principal comprised 23 mainstream class teachers, 16 teachers who work in a support capacity and 17 special needs assistants.

18 9. Fr. Dwane Gavin was the Chairperson of the Board of Management, whose term of office expired on 30 ^th November, 2007.

19 10. The Applicant describes a visit on 8 ^th October, 2007 to the School by an inspector of the Department who asked him to provide all of the roll books which he stated he complied with. He said that the inspector checked in particular in relation to four children who had transferred to Kilmainham Wood National School in September...