Hughes v The Revenue Commissioners
|Mr. Justice Allen
|08 March 2019
| IEHC 147
|[2017 No. 502 J.R.]
|08 March 2019
 IEHC 147
THE HIGH COURT
[2017 No. 502 J.R.]
Costs – Judicial review – Moot proceedings – Applicant seeking costs of a judicial review application which had become moot – Whether the cause of the mootness was either the unilateral act of one of the parties or an underlying external change of circumstance
Facts: The applicant, Mr Hughes, on 21st June, 2017 (by leave of Noonan J given on 19th June, 2017) applied for 16 substantive reliefs, the first of which was an order of mandamus compelling the Revenue to maintain four assistant principal legal executive officer positions within the legal technical stream. Besides, the applicant claimed a variety of declarations to the same end including a declaration as to his entitlement to rely on the Legal Technical Agreement (a collective agreement between IMPACT representing the legal technical grades in the Revenue Solicitor’s Office and the Corporate Services Division of the Revenue) and a number of declarations directed to the conduct and conclusions of the Manpower Advisory Services (MAS) review of the staffing requirements of the Revenue Solicitor’s Division. On 4th December, 2017, the respondents, the Revenue Commissioners and the Minister for Public Expenditure and Reform, objected that the applicant ought to have availed of the Conciliation and Arbitration Scheme for the Civil Service, and robustly rejected the applicant’s criticisms of the MAS review and recommendation. The application was listed for hearing on 22nd March, 2018. On the morning of 12th March, 2018, Mr Dempsey, Assistant Secretary of the Corporate Services Division for Revenue, contacted Ms O’Brien, Assistant General Secretary of Fórsa (a trade union formed by the amalgamation of IMPACT, the Civil, Public and Services Union and the Public Service Executive Union (PSEU)). Mr Dempsey advised Ms O’Brien of a decision made on 19th February, 2018 by Mr Murphy, an adjudicator under the Conciliation and Arbitration Scheme, on a claim made by the PSEU in respect of the promotion system in Revenue, generally. Mr Dempsey indicated that on the basis of that decision, he was prepared to accept a claim from Fórsa for the creation and filling of one assistant principal legal executive officer position. Mr Dempsey confirmed his proposal by email of 13th March, 2018 and added: “If Fórsa agrees Revenue would expect Mr Hughes to drop his action.” This was discussed by the applicant with Ms O’Brien and the Revenue Solicitor and on 15th March, 2018 the hearing date was vacated by consent. In due course, the one position of assistant principal legal executive officer was created and filled. The case made by the applicant was that the first respondent’s proposal to create and fill, and the creation and filling of, one position of assistant principal legal executive officer was made in response to these proceedings and that the creation and filling of the position rendered the proceedings moot save as to costs, which the applicant contended the respondents should pay.
Held by Allen J that this was a case which, by the time the costs argument came before him, was moot, but at the time when it might have been heard, probably was not. Allen J held that the cause of the mootness was not, strictly speaking, either the unilateral act of one of the parties or an underlying external change of circumstance. Allen J held that the catalyst which gave rise to the result, however, was a factor outside the control of the parties.
Allen J held that the justice of this case would best be met if there was no order as to costs.
No order as to costs.
The applicant in these proceedings is a legal executive who is, and since August, 2002 has been, employed in what is now officially called the Revenue Solicitor's Division of the Revenue. That division was previously called, and is still often referred to as, the Revenue Solicitor's Office.
The applicant was initially employed as a law clerk. In 2007 he was regraded to legal executive officer and in March, 2008 was promoted to higher legal executive officer.
In 2002 the Revenue undertook a comprehensive review of the Revenue Solicitor's Office. The staff there were divided into three streams: the professional stream, made up of qualified solicitors; the legal technical stream, made up of legal executives; and the administrative stream, made up of general civil servants.
The technical staff, and IMPACT trade union on their behalf, were dissatisfied with the review and there were threats of industrial action. In about November, 2004, under the aegis of Mr. Tom Pomphrett, a process was agreed which was satisfactory to the staff in the legal technical stream and the IMPACT trade union. This was recorded in a collective agreement between IMPACT, representing the legal technical grades in the Revenue Solicitor's Office, and the Corporate Services Division of the Revenue. This collective agreement was styled the Legal Technical Agreement.
The restructuring package and its implementation were expressly contingent upon the continued cooperation of the staff with the then current and more general restructuring of the Revenue.
The 2004 agreement provided that the old grades of Chief Legal Clerk, Principal Legal Clerk, Senior Legal Clerk and Legal Clerk were to be reclassified and regraded to mirror the grades in the Chief State Solicitor's Office, which had been restructured in 2001. Clause 9 of the Legal Technical Agreement provided that:
‘The legal technical stream, to be introduced over time and subject to Government policy on staff numbers, will comprise the following grade structure.
1 Revenue Principal Legal Executive Officer
4 Assistant Principal Legal Executive Officers
6 Higher Legal Executive Officers
7 Legal Executive Officers.’
There was a delay first in finalising and then implementing the 2004 agreement, but in 2007 the regrading provided for took place and was back-dated to 2004. The applicant was regraded as a legal executive officer and, as I have said, in March, 2008 promoted to higher legal executive officer.
Between 2009 and 2015 there was a moratorium on recruitment and promotion in the public service, with limited exceptions for positions assessed to be critical. All four positions of assistant principal legal executive officer in the Revenue Solicitor's Division became vacant between 2008 and 2010 and were not filled.
In 2009 and 2010 there was some correspondence from IMPACT to the human resources division of the Revenue, complaining of non-adherence to the 2004 agreement to which the answer, variously, was that the agreement specifically provided for deployment ‘as business priorities and the exigencies of the service demand’ and that there was a Department of Finance moratorium on recruitment and promotions.
In November, 2015, following the lifting of the moratorium, there was a meeting between IMPACT and management. That meeting resulted in an agreement that there would be a review of the staffing requirements of the Revenue Solicitor's Division. That review was carried out in 2016 by the Manpower Advisory Services unit in Revenue. The Manpower Advisory Services (‘ MAS’) had been established in 2002 at the same time as a restructuring programme was established for the Revenue, and had since completed a number of reviews and reports on several geographical regions and divisions.
The MAS report on the Revenue Solicitor's Division was completed on 16th March, 2017. It concluded that the technical resource allocation recommended in the 2004 agreement was no longer viable. MAS proposed that the Revenue Solicitor's Division ‘progress from the 2006 recommended allocation and, at present, retain the existing legal technical staff allocation with no proposed increase’. (The 2004 agreement was finalised in 2006, hence the reference to the 2006 allocation.)
The applicant was dissatisfied with the MAS report and, by his solicitors, by letter dated 12th May, 2017 complained that the report was artificial, superficial and completely unsatisfactory and had left him with no alternative but to challenge the matter by way of judicial review. That letter did not spell out precisely what the applicant wanted, save that he wanted to condemn the MAS review and recommendations. His statement required to ground application for judicial review, however, left no room for doubt: he wanted the four assistant principal legal executive officer positions filled.
On 21st June, 2017 (by leave of Noonan J. given on 19th June, 2017) the applicant applied for 16 substantive reliefs, the first of which was an order of mandamus compelling the Revenue to maintain four assistant principal legal executive officer positions within the legal technical stream. Besides, the applicant claimed a variety of declarations to the same end, including a declaration as to his entitlement to rely on the Legal Technical Agreement, and a number of declarations directed to the conduct and conclusions of the MAS review.
There was quite a long delay in the filing and service of the statement of opposition but it eventually came on 4th December, 2017. The respondents objected that the applicant ought to have availed of the Conciliation and Arbitration Scheme for the Civil Service, and robustly rejected the applicant's criticisms of the MAS review and recommendation.
An affidavit of Ms. Janice Dempsey, who lead the MAS review, was filed on behalf of the respondents. Ms. Dempsey explained the genesis and evolution of the MAS and refuted the applicant's criticisms of the review of the Revenue Solicitor's Division. An affidavit of Mr. Paul Dempsey, Assistant Secretary of the Corporate...
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Joseph Hughes v The Revenue Commissioners and the Minister for Public Expenditure and Reform
...to the High Court for his costs, and that application was resisted by the respondents. In a reserved judgment delivered on 8 March 2019 ( IEHC 147), Allen J determined that in the circumstances no order for costs should be made. The applicant appealed to the Court of Appeal against th......