Kelly (plaintiff) v National University of Ireland ( and Director of the Equality Tribunal (notice party)

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 05 May 2009
• Neutral Citation: [2009] IEHC 484
• Court: High Court
• Docket Number: [2007 No.
• Date: 05 May 2009

Kelly v National University of Ireland (Orse University College, Dublin)

BETWEEN

PATRICK KELLY

PLAINTIFF

AND

THE NATIONAL UNIVERSITY OF IRELAND, ALSO KNOWN AS UNIVERSITY COLLEGE, DUBLIN

DEFENDANT

AND

THE DIRECTOR OF THE EQUALITY TRIBUNAL

NOTICE PARTY

[2009] IEHC 484

[No. 52 CA/2007]

THE HIGH COURT

PRACTICE AND PROCEDURE

Judgment

Set aside - Fraud - Perjury - Proof - Burden of proof - Rigorous standard of proof - Privilege in respect of oral testimony -Agency - Witness for party - Whether agent of party - Meek v Fleming [1961] 2 QB 366 and Sphere Drake Insurance plc v Orion Insurance Co plc [1999] EWHC 286 (Comm) (Unrep, English HC, Langley J, 11/2/1999) followed - Application dismissed (2007/53MCA - McKechnie J - 5/5/2009) [2009] IEHC 484

Kelly v UCD

WORDS AND PHRASES

On behalf of

Evidence given by employee (2007/53MCA - McKechnie J - 5/5/2009) [2009] IEHC 484

Kelly v UCD

Facts: The plaintiff sought inter alia an order setting aside the judgment of the High Court delivered earlier in the proceedings on the grounds that it was obtained by fraud. The plaintiff had been denied a place on a Masters programme at a University and challenged the refusal on the basis of gender discrimination. He had sought an inspection of documents submitted by students who had successful taken up a place on the course. The Court had delivered a decision upholding the confidentiality of the documents and refusing their disclosure to the plaintiff. The plaintiff argued that a witness for the Defendant University, the Head of a School, as agent thereof, had perjured herself as to the contents of application forms over which confidentiality was claimed. The witness had filed a Supplemental Affidavit.

Held by McKechnie J. that the Court had the opportunity to hear and observe the witness being cross-examined and there was no evidence that the Court had been mislead. The application of the plaintiff would be dismissed.

Reporter: E.F.

CCR O.57A R6(6)

P v P 2002 1 IR 219 2001/20/5450

DIN v BANCO AMBROSIANO SPA 1991 IR 569

HIP FOONG HONG v NEOTIA & CO 1918 1 AC 888

FAGAN v BURGESS 1999 3 IR 306

LOONEY v BANK OF IRELAND 1996 1 IR 157

HALBURY'S LAWS OF ENGLAND 4ED VOL 28

LOONEY v BANK IRELAND O'FLAHERTY UNREP SUPREME 9.5.1997 2000/11/4377

MEEK v FLEMING 1961 2 QB 366

SPHERE DRAKE INSURANCE PLC & ALEXANDER HOWDEN HOLDINGS PLC v ORION INSURANCE CO PLC 1990 1 WLR 1126 1999 EWHC 286

PERJURY ACT 1911 S1(1)

BOODOOSINGH v REMANARACE 2005 AER D 150 MAR 2005 UKPC 9

RSC O.40 r11

Background and Submissions

1 1. This ruling arises out of a motion brought by the Plaintiff, and grounded upon his affidavit sworn 25 ^th December 2008, which was before this Court on 17 ^th February 2009. This motion sought:

2 2 "1. An order setting aside the judgement delivered by Mr Justice McKechnie on July 31, 2008, on the ground that it was obtained by fraud.

2 2. Alternatively, any order the effect of which is the appliance of the substantive rule that a person who procures a judgement to be given in his or her favour [sic.] by fraud ought not to be allowed to profit from the fraud.

3 3. An order directing the Defendant to pay the Plaintiff's expenses relating to this application."

2 2. The substantive proceedings between the plaintiff and the defendant arise out of a decision by U.C.D. communicated to Mr. Kelly on 15 ^th March 2002, wherein he was informed that he was not being offered a place, on first round offers, on a course leading to a Masters in Social Science (Social Worker) Mode A for the academic period 2002 - 2004. He challenged this on the ground of gender discrimination. His complaint was dismissed by a written decision given on behalf of the Notice Party on 2 ^nd November 2006. An appeal from this decision is pending in the Circuit Court.

3 3. As part of the appeal process, Mr. Kelly sought an Order from the Circuit Court under O. 57A r. 6(6) of the Circuit Court Rules, whereby he wanted inspection of documents submitted by those who had been offered and took up a place on the course. It was opposed by U.C.D. on a number of grounds, including, inter alia, that the personal and sensitive information contained within them was given in confidence, and that such confidence should be protected by the courts. The application was refused by the President of the Circuit Court, Mr. Justice Deery, and by way of appeal, the matter eventually came on for hearing before me.

4 4. In a ruling which I gave on 31 ^st July 2008 I upheld the confidentiality of the documents, and refused their disclosure to the Plaintiff. I did so on the ground that they contained information which was personal in nature, and which related to abuse or other sensitive personal events, experienced or witnessed by the successful applicants. I held that, even were the names removed from such documents, the same could still be used to identify the affected individuals. Evidence opposing Mr. Kelly's application was given on behalf of the Defendant, by a Suzanne Quin, who was cross examined on her affidavit. It is the Plaintiff's contention that Ms. Quin perjured herself in giving evidence as to the contents of the application forms over which confidentiality was claimed. In particular where she stated:

"the personal statements sought in the course of the aforementioned application process elicited in many cases the furnishing of private, confidential and intimate details about the personal circumstances and background of many of the prospective applicants to the course. In certain cases, such disclosures included personal revelations about the individuals' personal family and background experiences of such sensitive and personal issues as, for example, sexual abuse, suicide, incest, substance abuse and traumatic family breakdown. I say and believe that the said occurrences of a deeply personal and intimate nature in many cases amounted to a catalyst for said candidates to pursue a career in social work and hence to apply for a place on the course the subject of the within proceedings." (Affidavit of Suzanne Quin sworn 28 ^th February 2007, para. 7)

5 5. The Plaintiff in his grounding affidavit draws attention to a memorandum contained in the Book of Appeal (at p. 877), that is the book of documents in the substantive appeal, and previously exhibited by Suzanne Quin. In that are listed examples of such personal and family matters as including bereavements, suicide of family or close friends, drug or alcohol addictions of family, friends or themselves, disabilities in their immediate family, and physical and sexual abuse.

6 6. It is the above two statements by Suzanne Quin, who is Head of the School of Applied Social Science at U.C.D., which Mr. Kelly examines in light of the cross-examination of that witness on 6 ^th May 2008. The crux of his argument, in support of which he quotes extracts from the cross-examination, is that Suzanne Quin admitted that she had probably not read, nor was she acquainted in detail with, all of the applications made in 2002. She also admitted that the examples given by her in paragraph 7 of her affidavit and in the aforesaid memo were not necessarily from the 2002 documents, and was unable to definitively state that there were.

7 7. The Plaintiff, in submissions dated 5 ^th December 2008, argues that the case law makes it clear that a judgment which is obtained through fraud is "a mere nullity" ( P. v. P [2001] IESC 76, Murray J. quoting Murphy J. in Tassan Din v. Banco Ambrosiano SPA [1991] IR 596 at 580). Further, it is contended, from Hip Foong Hong v. J. Neotia & Co. [1918] 1 AC 888 at 894, that:

"A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail..."

Therefore where a judgment is "tainted" by fraud the whole of judgment must fail.

8 8. The Plaintiff thus contends that the whole of the judgment of 31 ^st July 2008 must be nullified given the "fraudulent" representations of Ms. Quin in her affidavit, which were revealed through her cross-examination, and given that such representations appear to be material to the ultimate decision in the judgment.

9 9. The last few paragraphs of the submissions relate to Ms. Quin being an "agent" of the defendant. The Plaintiff draws attention to the fact that her affidavit contained the phrase "ma[de] on behalf of", and draws the conclusion that the deponent is thus an agent of the Defendant.

10 10. In response to these allegations of perjury, Ms. Quin has filed a Supplemental Affidavit dated 9 ^th February 2009, which states in no uncertain terms what her position is. She reiterates her objections to providing any application forms to the Plaintiff, since even if large amounts of the information contained in them was to be redacted, it could still be possible for the Plaintiff to ascertain whom the applicants therein were. Further she is concerned as to the use which Mr. Kelly may put these documents. She finally prays that the Court prevent Mr. Kelly from repeating the allegations of perjury against her, either in Court or elsewhere.

11 11. The Plaintiff replies to this Supplemental Affidavit by arguing that the Court must administer justice in public and that there is a constitutional protection on freedom of expression; so that the Court may not grant such an order to Suzanne Quin. Further, he states that the claim for such relief is not properly before the Court and should have been brought by way of separate Motion.

Perjury

General Principle of Privilege:

12 12. It is appropriate at this point to make some observations in relation to the nature of perjury in general. It is accepted jurisprudence that generally no civil action lies following the perjury of a witness on foot of evidence given in open court. In Fagan v. Burgess [1993] 3 IR 306,...