Kelly v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin,Mr Justice Peter Charleton,Mr. Justice O'Donnell,Ms. Justice Dunne
• Judgment Date: 30 March 2021
• Neutral Citation: [2021] IESC 23
• Docket Number: [Supreme Court Record No. S:AP:IE:2020:000044] Court of Appeal record number 2014/745 [2019] IECA 299 High Court record number 2010/319 JR [2012] IEHC 000,[S.C. No. 44 of 2020]
• Year: 2021
• Court: Supreme Court

BETWEEN:

PATRICK J. KELLY

APPELLANT

-AND-

THE MINISTER FOR AGRICULTURE, FISHERIES & FOOD, THE MINISTER FOR FINANCE, THE GOVERNMENT OF IRELAND, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2021] IESC 23

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

[Supreme Court Record No. S:AP:IE:2020:000044]

[2020] IESC 000

Court of Appeal record number 2014/745

[2019] IECA 299

High Court record number 2010/319 JR

[2012] IEHC 000

THE SUPREME COURT

AN CHÚIRT UACHTARACH

Bias – Evidence – Judicial review – Appellant seeking to judicially review a determination by the third respondent – Whether the first instance investigation into the appellant’s conduct was tainted by bias

Facts: The Court of Appeal (McGovern, Baker, Costello, JJ), in a judgment delivered on the 17th December, 2019 ([2019] IECA 299), upheld a decision of Hedigan J in the High Court ([2012] IEHC 558), to refuse the application of the appellant, Mr Kelly, to judicially review a determination by the third respondent, the Government of Ireland, to dismiss the appellant from the position of Harbour Master at Killybegs Fishery Harbour Centre with effect from 30th September, 2009. The process leading to the decision comprised of an investigation, an appeal to the Civil Service Appeal Board and, ultimately, the government. The appellant appealed to the Supreme Court. He contended that the first instance investigation into his conduct was tainted by bias. On this, the appellant relied particularly on what transpired at a meeting which took place in 2004 between a Minister, who was also a local TD, the Assistant General Secretary of the Department of the Marine, and the official appointed to carry out the investigation. The appellant contended that the allegations at the meeting tainted the entire disciplinary process which followed, culminating in his dismissal. The appellant, additionally, relied on the fact that the same Minister, who had made the complaints in 2004, participated in a Cabinet meeting of the government in 2009 which decided that the appellant should be dismissed from his Civil Service position. The respondents denied that there was any, or any sufficient, evidence of bias in the procedures adopted. They submitted that the evidential and legal tests for establishing bias were not met. They contended that the Minister’s participation in the government decision could not cause a legal apprehension of bias.

Held by Dunne J that it was, undoubtedly, the case that the Minister had strong views to express in relation to Mr Kelly, and that she voiced those to Mr Fitzpatrick, the investigator appointed by the Department of the Marine, in the course of the meeting with him. Dunne J held that the Minister was entitled to make complaints about Mr Kelly’s conduct even if she did so in pejorative terms; however, she should not have participated in the Cabinet meeting at which the decision to dismiss Mr Kelly was taken bearing in mind her trenchant views. In Dunne J’s view, the hypothetical reasonable observer would have a reasonable apprehension as to the possibility that the decision taken by the government by reason of the presence of the Minister at the Cabinet meeting was tainted by bias.

Dunne J held that, in the circumstances, she would allow the appeal on that ground.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 30th day of March, 2021

1 For the purposes of this judgment I gratefully adopt the narrative of events contained in Dunne J.'s comprehensive and detailed judgment. I agree that the order of the Court of Appeal on the issue of objective bias should be quashed, on the basis of the fact that the Minister attended the Cabinet meeting. Dunne J. correctly, in my view, holds that the Minister should not have participated in the Cabinet meeting at which the decision to dismiss Mr. Kelly was taken, bearing in mind, for objective bias, the clear evidence regarding her previously expressed views on the appellant. Applying the accepted test, she concludes that the hypothetical reasonable observer would have a reasonable apprehension as to the possibility that the decision taken by the government, by reason of the presence of the Minister who had expressed those strong views at the Cabinet meeting, was tainted by objective bias. When faced with such a comprehensive and detailed judgment, one would normally hesitate before differing. But, to my mind, the test applicable in relation to the Minister's attendance at the Cabinet meeting can also be applied to the beginning of the process, bearing in mind that Mr. Fitzpatrick was not only an investigator, but also had an adjudicative role whose views were binding on the Appeal Board.

2 As will be evident, the Minister made a complaint to the Assistant Secretary General of the Department of the Marine & Natural Resources, Dr. Beamish, on the 8th October, 2004. At one level, it could be said she was relaying a complaint she had received relating to harbour management at Killybegs. Dr. Beamish sent an email to Mr. Fitzpatrick and the Secretary General of the Department which recorded the general contents of his telephone call with the Minister. Dr. Beamish also made a note that the Minister had a concern that the appellant had employed his brother-in-law in the harbour, allegedly without following due process, and that the appellant was switching off the CCTV system there. No other complaints were specified in that email.

3 To my mind, what happened next was critical. The Minister took up Dr. Beamish's offer to meet Mr. Fitzpatrick, the investigator. The purpose for this it is now said to be to outline her “full range” of concerns in the matter. This meeting involving the Minister, Dr. Beamish and Mr. Fitzpatrick took place on the 15th October, 2004.Mr. Fitzpatrick, the investigator, took notes at the meeting. Those notes recorded that the Minister had outlined a much wider range of complaints in relation to the appellant. The fact that the Minister had made these complaints was not made known to the appellant during much of the investigation.

4 For the purposes of this judgment, it is unnecessary to rehearse the jurisprudence which has been so comprehensively dealt with in Dunne J.'s judgment delivered today. I do not differ from her summary of the law or her conclusion as to the test which should be applied. But, in my view, logic requires that the same logical principle must be applied to the beginning of the process as to the end point, that is, the Cabinet meeting. The fact of her attendance does not raise an issue of Cabinet confidentiality. If she had been absent from the meeting or had absented herself for this part of the agenda of the Cabinet meeting, nothing would have prevented her from deposing to this effect by affidavit. There is no such evidence. But the first question that arises is a simple one. Why did the Minister meet Mr. Fitzgerald? There was absolutely no necessity for the meeting. The investigation could have simply commenced with a communication from Dr. Beamish to Mr. Fitzpatrick, asking him to commence an investigation, in fact, said to be one of a series.

5 The Minister's original complaints could have been passed on to Mr. Fitzpatrick. Mr. Fitzpatrick could then have commenced his investigation. The question then sub-divides itself as to the fact of the meeting and the content. I do not think that the fact of the meeting can be classed as irrelevant to the process. There was no evidence that, for some reason, there should be personal contact between the Minister and Mr. Fitzpatrick, who was to carry out the investigation. If there had been, the Court would have been informed. The second limb in the context of the meeting, that a number of the complaints made by the Minister and conveyed to Mr. Fitzpatrick, turned out to be irrelevant, is immaterial. What is relevant is that a meeting did take place between a senior cabinet Minister from another department and a departmental official, where the Minister gave expression to what can only be seen as a series of highly prejudicial comments in relation to Mr. Kelly's character, conduct and personality.

6 Mr. Fitzpatrick recorded the following about the appellant, prior to embarking on the investigation:

• “Difficult man”

• “People apoplectic – not acceptable”

• “HM piloting boats, getting paid cash, not D Marine books”

• “No security system – PK doesn't want”

• “Anti-social behaviour (drinking) (college) xxx haunt”

• “Girl in office”

• “Nervous breakdown – not well”

• “PK bully boy”

• “PK money (beat wife)”

• “Doorman, nearly killed young fella”

• “Shot every dog in D'Gal Town”

7 The concern is, then, what inference an objective observer may draw, not only from the fact of the meeting, but from the content. Unavoidably, the evidence establishes that to an objective observer, the investigator, whose findings were to have binding effect, embarked on the investigation with this range of quite damning criticisms in his mind. As Dunne J. comments, in making the complaints the Minister used intemperate language. (para. 116 of her judgment). It may be that some of the complaints made by the Minister did not, ultimately, form part of the investigation. It may indeed be that the particular complaints were irrelevant to the investigation as it transpired. But, to my mind, the objective observer, possessed now of the relevant facts, would have to draw the inference that, seized of information from an authoritative and influential source, Mr. Fitzpatrick was going to carry out a process involving adjudication regarding a person who was difficult, had engaged in unacceptable behaviour, was getting paid cash, who was refusing to utilise a security system, was engaging in anti-social behaviour, including drink involving a college, and what was called an “XXX” haunt; that a girl in the office had a nervous breakdown and was not well; that the...