Heffernan v Hibernia College Unlimited

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 29 April 2020
• Neutral Citation: [2020] IECA 121
• Date: 29 April 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2019/424

Between:

MICHAEL HEFFERNAN

APPELLANT/PLAINTIFF

AND

HIBERNIA COLLEGE UNLIMITED COMPANY

RESPONDENT/DEFENDANT

[2020] IECA 121

Whelan J.

Haughton J.

Murray J.

Court of Appeal Record No. 2019/424

High Court Record No. 2019/6068P

THE COURT OF APPEAL

CIVIL

Costs – Interlocutory injunctive relief – Moot – Appellant seeking to appeal against an order for costs made in favour of the respondent – How costs should be properly allocated

Facts: The appellant, Mr Heffernan, appealed to the Court of Appeal against an order for costs made by Twomey J in favour of the respondent, Hibernia College Unlimited Company, following the appellant’s unsuccessful application for interlocutory injunctive relief. This appeal presented the issue of how costs should be properly allocated where, at a late stage of an application for such relief, the defendant offers concessions to the plaintiff which might obviate the need for the Court to adjudicate on the application for an interlocutory injunction. An issue also arose as to how the Court should approach an appeal against such an order where the underlying proceedings have become moot.

Held by Murray J that the Court would not interfere in the substantive decision made by the trial judge in the exercise of his discretion that the course of action offered by the respondent should be exhausted, and would not interfere in the consequent decision made that some costs should be awarded against the appellant for not having treated with that offer. Murray J held that the principle reflected in Irish Bacon Slicers Limited v Weidemark Fleoishwaren GmbH [2014] IEHC 293 that the offering at a late stage of an interlocutory application of a remedy which in the view of the Court meets the needs that animated the application to Court in the first place should, absent good reason to the contrary, be reflected in an order for costs in favour of the party that had incurred costs in obtaining that remedy. Murray J had difficulty in understanding why the costs order in favour of the respondent was from the date of the letter of 12 September. Murray J noted that the respondent itself allowed the appellant until 16 September to decide whether to accept the offer in the letter; that, properly, reflected the fact that the appellant was entitled to some time to consider and take advice on the proposal. Murray J held that the costs ordered against the appellant should have mirrored that and should therefore have run from close of business on Monday 16 September. Murray J held that, in this case, he had adopted the course of action of reviewing the decision of Twomey J on the merits in a context in which the case the respondent came to Court to meet was not presented by reference to Cunningham v President of the Circuit Court [2012] IESC 39 and in which re-engineering the costs hearing into the framework posited in that decision would have involved further court time and costs. Murray J noted that there was authority enabling an appellate court to address an issue of costs in this way in moot proceedings where the parties do not contend otherwise (Caldwell v Mahon Tribunal [2011] IESC 21, as explained in Lofinmakin v Minister for Justice, Equality and Law Reform [2013] IESC 49, at para. 108).

Murray J held that this appeal should be allowed and the order of Twomey J varied to the extent that (a) an Order should be made that the appellant recover from the respondent the costs of and consequent upon the application for interlocutory relief up to and including close of business on 16 September 2019, and (b) the Order for costs made in favour of the respondent should be limited to the costs incurred in connection with the application of the respondent that the interlocutory injunction not proceed on the day of 17 September. It was Murray J’s view that the appellant was entitled to recover the costs incurred by him in preparing the affidavits, in attending Court on 31 July, the costs of solicitors and counsel in preparing for and attending for the injunction application as listed for hearing on 27 August, the costs of considering and responding to the respondent’s affidavits, and costs entailed by considering and taking advice upon the respondent’s offer.

Appeal allowed.

JUDGMENT of Mr. Justice Murray delivered on the 29th day of April 2020

Background:

1 This is an appeal against an order for costs made by Twomey J. in favour of the respondent following the appellant’s unsuccessful application for interlocutory injunctive relief. It presents the issue of how costs should be properly allocated where, at a late stage of an application for such relief, the defendant offers concessions to the plaintiff which might obviate the need for the Court to adjudicate on the application for an interlocutory injunction. An issue also arises as to how this Court should approach an appeal against such an order where the underlying proceedings have become moot.

2 The proceedings arose from the decision of the respondent (a private third level college) to withdraw the appellant’s place on the respondent’s Professional Master of Education programme (‘the programme’). The programme qualifies successful graduates as post primary teachers.

3 As part of the programme students must complete a placement in schools. In consequence, the provisions of the National Vetting Bureau (Children and Vulnerable Persons) Act 2016 applies, and the respondent must ensure that students enrolled on its programmes of study complete Garda Vetting. To that end, it operates a Garda Vetting Policy and Procedure. Essentially, that policy provides that upon details of prosecutions or convictions having being obtained by the respondent with the consent of the student, the respondent determines if any convictions thus disclosed merit consideration by its Garda Vetting Committee (‘GVC’). Where a case is referred to it, the GVC invites submissions and reaches a decision as to whether it is appropriate that the applicant be admitted to the course.

4 In the case of the appellant, when he enrolled on the programme in April 2017 and was requested to complete Garda vetting, he asked that his place be deferred for a year because he had outstanding criminal charges. That deferral was subsequently extended for an additional year until March 2019, when the appellant advised the respondent that the pending cases had been concluded.

5 The appellant thereupon undertook Garda vetting. The vetting disclosure confirmed that he had been convicted at Fermoy District Court on 22 February 2019 of an offence of driving under the influence of alcohol contrary to s.49 of the Road Traffic Act 1961, as amended. The respondent in purported operation of its policy determined that the appellant should be required to attend before the GVC. The appellant contended both before the GVC, on appeal from its decision and in these proceedings that that referral should not have taken place, as the offence of which he had been convicted did not give rise to concerns around ‘children, young people or vulnerable groups’. This, the appellant contended, was a pre-requisite to the jurisdiction of the GVC.

6 Following a meeting of the GVC on 18 April, the appellant was advised of the withdrawal of his place. The letter so advising him (dated 30 April) explained the decision thus:

‘Following our recent meeting that concluded the administrative process in respect of this matter and in light of the fact that a criminal conviction has, at this point in time, been returned on your vetting disclosure, Hibernia College has taken the decision to withdraw your place on the programme.‘

7 An appeal brought by the appellant to the respondent’s appeal committee was unsuccessful, the appellant being advised of the rejection of each of three grounds of appeal he had advanced, by e-mail dated 22 July 2019. On 25 July the appellant’s solicitors wrote to the respondent recording their contention that the decision reached was unlawful having regard to the submissions made to the appeal body, stating that those submissions had been ignored by the appeal committee, and suggesting that proper reasons had not been given. The respondent was requested to confirm that the appellant could continue his studies at Hibernia College, that the decisions of the GVC and appeal body were of no effect and that the appellant was not excluded in taking up his studies the following term. They threatened an application for injunctive relief if these confirmations were not forthcoming.

8 That letter was responded to by the respondent’s solicitors on 26 July. They rejected the claims that the decisions of the relevant bodies were unlawful or that there was any urgency justifying interlocutory relief, and requested that the appellant’s solicitors provide ‘clear and succinct reasons’ as to why injunctive relief was required at that point.

The proceedings:

9 These proceedings were instituted by plenary summons on 31 July 2019, the appellant seeking both public and private law reliefs. Underlying these reliefs were claims that the decision of the respondent to exclude the appellant from its programme was as a matter of public law, unlawful (in that it was unreasonable, unsupported by reasons, ultra vires the respondent, and in breach of principles of natural and constitutional justice) and (for reasons that were essentially similar) In breach of contract as a matter of private law.

10 At the same time, the appellant issued an application seeking interlocutory injunctive relief restraining the respondent from upholding or giving effect to the decision of the GVC and appeal committee by terminating the appellant’s placement on the programme, and restraining the respondent from excluding him from the programme. In the course of the affidavit he swore to ground that application, the appellant made complaints that the appeal committee had failed to address the grounds raised in...