John Byrne v Irish Sports Council

JurisdictionIreland
JudgeMr Justice Michael Peart
Judgment Date06 August 2013
Neutral Citation[2013] IEHC 438
CourtHigh Court
Date06 August 2013

[2013] IEHC 438

THE HIGH COURT

Record Number: No. 507 JR/2013
Byrne v Irish Sports Council
No Redaction Needed
No Redaction Needed

Between:

John Byrne
Applicant

And

Irish Sports Council
Respondent

IRISH SPORTS COUNCIL ACT 1999 S21(1)

IRISH SPORTS COUNCIL ACT 1999 S21

IRISH SPORTS COUNCIL ACT 1999 S12

IRISH SPORTS COUNCIL ACT 1999 S13(2)

IRISH SPORTS COUNCIL ACT 1999 S6

IRISH SPORTS COUNCIL ACT 1999 S6(2)(A)

IRISH SPORTS COUNCIL ACT 1999 S7

IRISH SPORTS COUNCIL ACT 1999 S7(2)

IRISH SPORTS COUNCIL ACT 1999 S6(1)(G)

IRISH SPORTS COUNCIL ACT 1999 S20

IRISH SPORTS COUNCIL ACT 1999 S20(6)

TRALEE BEEF & LAMB LTD (IN LIQUIDATION), IN RE ; KAVANAGH v DELANEY & ORS 2008 3 IR 347 2008 2 ILRM 420 2008/32/6904 2008 IESC 1

IRISH SPORTS COUNCIL ACT 1999 S7(2)(F)

IRISH SPORTS COUNCIL ACT 1999 S7(1)

AG & HUTCHINGS v GREAT EASTERN RAILWAY CO 1880 5 APP CAS 473

MCCARRON v SUPERINTENDENT KEARNEY 2010 3 IR 302 2011 1 ILRM 237 2010/31/7813 2010 IESC 28

FIREARMS ACT 1925 S2(2)

CASEY v MINISTER FOR ARTS 2004 1 IR 402 2004 2 ILRM 260 2004/7/1408 2004 IESC 14

BLASCAOD MOR TEORANTA & ORS v CMRS OF PUBLIC WORKS IN IRELAND & ORS UNREP KELLY 18.12.1996 1997/1/96

IRISH SPORTS COUNCIL ACT 1999 S20(4)

IRISH SPORTS COUNCIL ACT 1999 S20(1)

O'SULLIVAN v LAW SOCIETY OF IRELAND & SOLICITORS DISCIPLINARY TRIBUNAL UNREP SUPREME 23.2.2012 2012/36/10490 2012 IESC 21

O CEALLAIGH v BORD ALTRANAIS 2000 4 IR 54 2000/2/648

JUDICIAL REVIEW

Fair procedures

Statutory body - Powers - Investigation - Legality - Statutory interpretation - Standards in public office - Whether statutory body had powers to appoint investigator - Whether decision to appoint investigator amounted to prima facie finding - Whether applicant suffered reputational damage - Whether power to appoint advisor or consultant permitting appointment of investigator - Whether applicant ought to have been afforded opportunity to be heard - Whether documents giving rise to investigation ought to have been furnished to applicant - O'Sullivan v Law Society of Ireland [2012] IESC 21, (Unrep, SC, 23/2/2012) and Ó Ceallaigh v An Bord Altranais [2000] 4 IR 54 applied - In re Tralee Beef & Lamb Ltd (In liquidation); Kavanagh v Delaney [2008] IESC 1, [2008] 3 IR 347; AG v Great Eastern Railway Co (1880) 5 App Cas 473; McCarron v Kearney [2010] IESC 28, [2010] 3 IR 302; Casey v Minister for Arts [2004] IESC 14, [2004] 1 IR 402 and An Blascaod Mor Teoranta v Commissioners for Public Works in Ireland (Unrep, Kelly J, 18/12/1996) considered - Irish Sports Council Act 1999 (No 6), ss 6, 7, 13, 20 and 21 - Relief granted (2013/507JR - Peart J - 6/8/2013) [2013] IEHC 438

Byrne v Irish Sports Council

Facts: These proceedings concerned a decision made by the respondent on the 16th April 2013 to appoint an investigator to investigate the applicant. The applicant had been appointed to the respondent Council in September 2009. One of the functions of the respondent was to allocate funding to various National Governing Bodies, which included the Football Association of Ireland (the ‘FAI’), a body he had worked for from 2004 to 2011. Because of his previous involvement with the FAI, the applicant was expected to list the body as a declared interest to the Standards in Public Office Commission, something which he did annually even after he left the FAI. He also absented himself from any Council meetings concerned with FAI funding. On the 12 th April 2013, the applicant received a letter from the Chairman of the respondent, Mr Kieran Mulvey, requesting that he meet with him before the next respondent meeting scheduled for the 16th April 2013. The applicant stated that when he met with Mr Mulvey, he was asked to resign from the Council. The applicant was shown a letter that Mr Mulvey received from the FAI and accused of breaching the Council's Code of Conduct, the Irish Sports Council Act 1999 ("the Act of 1999"), and the Standards in Public office requirements. A bundle of emails had also been included with the letter, but the applicant claimed he was not permitted to view these. He went on to claim that no specific allegations were made against him and he refused the request to resign. The applicant did not attend the following Council meeting but he said he learned from the minutes of the meeting that Mr Mulvey had circulated the FAI”s letter, but not the bundle of emails. He then tabled a motion to appoint an investigator to investigate the applicant and the Council voted unanimously in support.

The applicant initiated judicial review proceedings against the respondent”s decision. He claimed that he first learned of the specific allegations made against him when he read redacted copies of the emails exhibited to Mr Mulvey”s affidavit, and from there he gathered that he had been accused by the FAI of sending emails to fellow Council members in regards to FAI funding. The applicant claimed that the decision of the Council was ultra vires because there was no statutory power that allowed the Council to investigate a Council member. He also stated that the decision was reached in breach of fair procedures as all relevant information had not been made available and he was not personally given an opportunity to address the Council. Having had an opportunity to read the emails, the applicant also claimed that they did not justify the decision to initiate an investigation. On the other hand, Mr Mulvey stated in his replying affidavit that he was of the opinion that there was enough information in the FAI”s letter to reach a decision to initiate an investigation; therefore, there was no need to exhibit the emails at the Council meeting especially when there were questions of confidentiality at that stage.

Held by Peart J that the first issue to be determined was whether the Council”s decision was ultra vires. It was said that if that was found to be the case, there was no need to determine the other grounds. It was said that section 13(2) of the Act of 1999 made it clear that only the Minister for Arts, Sport and Tourism (‘the Minister’) could remove a Council member from his position. On that basis, it was held that this implied that the Council had no role in the process whatsoever. It was also pointed out that this was not a function that was outlined in a list of Council”s functions at section 6 of the Act of 1999. Further, it was noted that whilst section 20 of the Act of 1999 allowed for the Council to take action against a member of the Council's staff, a consultant, or an adviser where they failed in their disclosure in stated interests obligations, there was no mention in that section, or in the Act whatsoever, of such a power to take action against a Council member. On that basis, it was determined that no such power existed by implication and that the decision of the respondent would be quashed.

Although it was unnecessary to determine the question of fair procedures, it was held by the Court that given the possibility of damage to the applicant”s reputation as a result of the investigation, he should have been allowed to answer the allegations before the Council”s decision was reached. It was further held that Mr Mulvey”s refusal to exhibit the bundle of emails to the Council appeared to be unfair as it denied them an opportunity to review all the available evidence before reaching their decision. However, given the earlier finding, it was said that there was no need to reach a firm conclusion on this ground.

Decision of the respondent quashed.

1

Mr Justice Michael Peart delivered on the 6th day of August 2013:

2

1. The applicant has given his professional life to sport in one way or another. In more recent times he was Director of Special Projects with the Football Association of Ireland ("FAI") from 2004 until 2011, and for the past 12 months has been Chief Executive Officer of the HSE Community Games.

3

2. In September 2009 he felt honoured to have been appointed by the then Minister for Arts, Sport and Tourism to the Irish Sports Council.

4

3. He has participated fully on that Council since his appointment, whose function consists of, inter alia, allocating funding to various National Governing Bodies, including the FAI. In fact the applicant was appointed to the National Governing Bodies Grant Committee and was Chairman of that Committee for a while.

5

4. Not unexpectedly, the applicant's previous connections to the FAI were known to the Minister as well as to Council members when he was appointed to the Council. Each year the applicant and all other members of the Council make a declaration of interests to the Standards in Public Office Commission, and each year, even after his employment with FAI ended in 2011, he continued to include the FAI as a declared interest.

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5. In addition, whenever at a Council meeting an agenda item related to the FAI funding, the applicant will absent himself. This is in line with established practice, since many of the Council members have established connections with a particular sport, and it avoids any chance that a particular member might be considered to have influenced a vote on funding to the sporting organisation with which they have a declared interest. The Minutes of Council meetings record which members absented themselves in this way at any particular meeting.

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6. The applicant has stated on affidavit that when he was appointed to the Council the Minister at the time stressed to him that he was appointed to represent the public interest and the best interests of the taxpayer, and he goes on to say that he took this very seriously, so much so that "this may sometimes have resulted in me asking uncomfortable, unpopular or probing questions and may have caused vested interests to feel challenged but has never been improper and has always been properly motivated".

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7. Without...

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