John Higgins v Governor and Company of Bank of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 21 January 2013
• Neutral Citation: [2013] IEHC 6
• Court: High Court
• Date: 21 January 2013

[2013] IEHC 6

THE HIGH COURT

[No. 11002 P./2001]

[No. 1390 P/2004]

Higgins v Bank of Ireland

BETWEEN

JOHN HIGGINS

PLAINTIFF

AND

GOVERNOR AND COMPANY OF THE BANK OF IRELAND

DEFENDANT

(Joined by Order of Mr Justice Clarke dated 5 December 2005)

CRIMINAL JUSTICE ACT 1994 S32(2)

CRIMINAL JUSTICE ACT 1994 S57

CRIMINAL JUSTICE ACT 1994 S31(12)

GALLAGHER v REVENUE COMMISSIONERS 1995 1 IR 55

MAGUIRE v ARDAGH 2001 1 IR 385

MCGOWAN v MURPHY UNREP SUPREME 10.4.1967

MESKELL v CIE 1973 IR 121

TAYLOR v SMITH 1991 1 IR 142

ROCHFORD v STOREY UNREP O'HANLON 4.11.1982 1983/4/1022

QUIRKE v BOARD LUTHCHLEAS NA HEIREANN 1988 IR 83

MORGAN v TRINITY COLLEGE 2003 3 IR 157

RAJPAL v ROBINSON 2005 3 IR 385

GOGAY v HERTFORDSHIRE CO COUNCIL 2000 IRLR 703

CRONIN v EIRCOM LTD 2007 3 IR 104

MALIK & MAHMUD v BANK OF CREDIT & COMMERCE INTERNATIONAL SA 1998 AC 20

DEEGAN v MIN FOR FINANCE 2000 ELR 190

SHEEHY v RYAN 2008 4 IR 258

R v HULL UNIVERSITY 1999 4 AER 747

JOHNSON v UNYSIS 2001 ICR 480

EASTWOOD v MAGNOX ELECTRIC PLC 2004 IRLR 733

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

MCGRATH v TRINTECH TECHNOLOGIES LTD & TRINTECH GROUP PLC 2005 16 ELR 49

CARROLL v BUS ATHA CLIATH 2005 4 IR 184

NOLAN v EMO OIL SERVICES LTD UNREP LAFFOY 21.1.2009 2009/42/10441 2009 IEHC 15

STATE (HEGARTY) v WINTERS 1956 IR 320

ORANGE v DIRECTOR OF TELECOMS (NO.2) 2000 4 IR 159

KIRKWOOD HACKETT v TIERNEY 1952 IR 185

HENNESSEY v K-TEL IRELAND LTD UNREP SUPREME 12.6.1997 1998/21/8033

CONDON v CORAS IOMPAIR EIREANN (CIE) UNREP BARRINGTON 16.11.84 1985/1/52

COURTNEY v OUR LADY'S HOSPITAL LTD (T/A OUR LADY'S HOSPITAL CRUMLIN) & ORS 2011 2 IR 786

TORT

Malicious conspiracy

Employment contract - Plaintiff manager of branch of defendant bank - Plaintiff alleged to have facilitated illegal activities - Inquiry conducted by defendant - Plaintiff dismissed by defendant - Whether inquiry fair and impartial - Whether plaintiff denied right of appeal - Whether perjury on part of defendant's witnesses - Whether conspiracy by defendant against plaintiff - Whether plaintiff placed on special paid leave or suspended by defendant - Whether placing of plaintiff on special paid leave lawful - Whether wrongful dismissal - Whether objective bias pleaded by plaintiff - Whether plaintiff defamed by defendant - Whether plaintiff entitled to costs for legal representation before defendant's inquiry - Meskell v CIE [1973] IR 121 distinguished - Quirke v Bord Luthchleas na hÉireann [1988] IR 83; Maguire v Ardagh [2002] 1 IR 385; Morgan v Trinity College [2003] 3 IR 157; Carroll v Bus Átha Cliath [2005] IEHC 1, [2005] 4 IR 184; Maha Lingam v HSE [2005] IESC 89 (Unrep, SC, 4/10/2005); Nolan v Emo Oil Services Ltd [2009] IEHC 15 (Unrep, HC, Laffoy J, 21/1/2009) considered - Claim dismissed (2001/11002P - O'Keeffe J - 21/1/2013) [2013] IEHC 6

Higgins v Bank of Ireland

Facts The proceedings arose out of the suspension and subsequent dismissal of the plaintiff by the defendant in his position as manager of two newly merged bank branches. The applicant had received a number of promotions throughout his career including that of commercial manager. A new cheque encashment procedure had been introduced along with a code of conduct. Matters arose out of a brach audit and the plaintiff was placed on special paid leave. The plaintiff maintained that he was suspended without reasons. It was the plaintiff”s contention that there had been bias and a conspiracy to get rid of him and that the audit that was carried out was used as a cloak to carry out a special investigation. There were allegations that the plaintiff had engaged in transactions which had facilitated money laundering and facilitated customers with tax evasion. The plaintiff claimed that the inquiry the Bank had conducted had been in breach of the principles of natural and constitutional justice and fair procedures. The plaintiff maintained that there had been full traceability in respect of all cheques. There had also been concern expressed that one of the people the bank had relied upon for information in its investigations had not been made available as a witness.

Held by O”Keeffe J in dismissing the plaintiff”s claim: The court did not accept the theory of the plaintiff that certain persons had devised a plot to terminate the employment of the plaintiff because of money laundering and other illegal activities attributed to the plaintiff. There was no credible evidence to prove that certain persons were part of a conspiracy. In the inquiry that had taken place the plaintiff had been afforded plaintiff every opportunity to answer or rebut the various matters that had been raised in the special investigation report. The Bank was entitled to accept the parameters of the inquiry. The court did not accept that there was an implied duty on the Bank to disclose the identity of the witness who had provided some of the original evidence. The plaintiff had been wrongfully deprived of his right of appeal. The placing of the plaintiff on special paid leave was for investigative purposes and was lawful. Other matters sought to be raised by the plaintiff were under the remit of the Unfair Dismissal legislation.

1 JUDGMENT of Mr. Justice O'Keeffe delivered on the 21st day of January, 2013

2 1. These proceedings arise from the alleged suspension (20 ^th April, 2001) and subsequent dismissal (8 ^th October, 2003) of the plaintiff by the defendant in his position as manager of the newly merged branches of the defendant at Park Street and Clanbrassil Street, Dundalk. The first set of proceedings in the title hereof commenced on 4 ^th July, 2001. These proceedings were for interlocutory relief restraining the defendant from proceeding with disciplinary procedures against the plaintiff and from continuing the alleged suspension of the plaintiff from his position as manager of the Clanbrassil Street branch. The second set of the proceedings were commenced on 3 ^rd February, 2004, and sought damages for, inter alia, wrongful dismissal, conspiracy and libel.

3 2. These proceedings were at hearing for 51 days including legal submissions. A large amount of documentation was opened to the Court and there was extensive cross-examination of the witnesses on both sides. The Pleadings were also extensive as was the correspondence generated as a result of the Disciplinary Inquiry which was conducted over some 21 days resulting in extensive findings by the Inquiry.

4 3. In order to understand the range of issues, evidence and findings the Court considers it appropriate to set out in Schedule form some of the matters addressed. Accordingly:

5 · Schedule 1 deals with the Disciplinary Inquiry correspondence

6 · Schedule 2 deal with selected extracts from (i) the 41 page document of the 14 ^th June, (ii) the Special Investigation Report (iii) the findings of the Disciplinary Inquiry in respect of selected transactions

7 · Schedule 3 contains extracts from the Pleadings

8 · Schedule 4 contains selected extracts from the findings of the Disciplinary Inquiry

Evidence of Mr John Higgins

9 4. The plaintiff was born in 1952 and joined the defendant in October 1971. He commenced his employment at the Park Street, Dundalk branch of the defendant. Park Street was a busy branch with many professional and farming customers. He worked in Park Street from October 1971 - March 1986. He was trained as a business development executive of the defendant. In 1986, he was promoted to assistant manager in Cootehill. In September 1987, he was transferred to Kells, where he was assistant manager from September 1987 to March 1989. Whilst in Cootehill and Kells he procured satisfactory ratings for each of the branches. In 1989 he was appointed a manager at Dunshaughlin.

10 5. In September 1990, he was moved to Clanbrassil Street, Dundalk, as manager. The Clanbrassil Street branch was on the northern side of the town as was the customer base. In July 1993, he was appointed to a grade 2 manager which was a significant promotion for him. In November 2000 he was promoted on the recommendations of Mr pat Byrne, the newly appointed Regional manager North East, to the position of commercial manager in Dundalk at a time when there were only eight such positions in Ireland. He was appointed to oversee the merger of the Park Street and Clanbrassil Street branches in 2000 to be completed by 26 ^th February, 2001. The merger of Park Street and Clanbrassil Street branches in Dundalk was part of the Group Transformation Programme which commenced during 2000. The Clanbrassil Street branch had a successful profit record. Each year he exceeded his annual targets and as a result was awarded performance ratings at the upper end of the scale.

11 6. In 2000 he lost the assistance of a deputy manager and an assistant manager which increased his workload.

12 7. A material change in the regulatory environment occurred when the Criminal Justice Act 1994, came into operation in April, 1995. A new cheque encashment procedure commenced in November 2000. This required cheques made account payee to be lodged directly to such account and not to be dealt with otherwise. This caused inconvenience for many of the larger customers of the branch. Whilst the new cheque encashment policy was being introduced, he said he was told by his superiors not to lose a good customer by not cashing a cheque. In some instances he said he would have done cashed a cheque whilst warning the customer that this was the last time that this would happen for him.

13 8. He accepted that the Code of Conduct dated 20 ^th February, 1998, applied to all group employees and obliged compliance in full with the legal and regulatory requirements of the particular country it operated in and to observe best...