Kelly v University College Dublin

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 29 January 2013
• Neutral Citation: [2013] IEHC 23
• Docket Number: [No. 52CA/2007]
• Court: High Court
• Date: 29 January 2013

[2013] IEHC 23

THE HIGH COURT

[No. 52CA/2007]

Kelly v University College Dublin

BETWEEN

PATRICK KELLY

APPLICANT

AND

UNIVERSITY COLLEGE DUBLIN

RESPONDENT

RIORDAN v AN TAOISEACH (NO.4) 2001 3 IR 365

EQUAL STATUS ACT 2000 S3(1)(A)

EQUAL STATUS ACT 2000 S3(2)(A)

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 234(1)

TREATY ESTABLISHING THE EUROPEAN COMMUNITY ART 234(3)

GREPE v LOAM 1887 37 CH D 168

PRACTICE AND PROCEDURE

Access to courts

Isaac Wunder - Order restraining present and future proceedings - Administration of justice - Abuse of process - Whether grounds present for imposition of restraining order - Grepe v Loam (1887) 37 Ch D 168, Kelly v National University of Ireland, Dublin [2012] IEHC 169, (Unrep, Hedigan J, 9/5/2012) and Riordan v Ireland (No 4) [2001] 3 IR 365 considered - Equal Status Act 2000 (No 8), ss 3(1)(a) and 3(2)(a) - Treaty on the Functioning of the European Union, art 267 - Order granted (2007/52CA - Hedigan J - 29/1/2013) [2013] IEHC 23

Kelly v University College Dublin

Facts: The plaintiff had applied for a place on a Masters course provided by the respondent. He was initially refused a place, and contended his interview was conducted in a rude manner and the refusal was discriminatory on the basis of his gender. Due to the manner in which the plaintiff had conducted the litigation, the High Court had given leave to the respondent to apply for a restraining order. The respondent now applied for said order.

Held by Hedigan J, that the plaintiff had clearly abused the resources of the Courts, as well as causing immense costs to be incurred by the respondent. The Court was satisfied the plaintiff had pursued groundless and lengthy litigation causing difficulty in ensuring the proper administration of justice. The order sought would therefore be granted.

Mr. Justice Hedigan

1 This is an application by the respondent for an order restraining the applicant herein from taking any further steps in the within proceedings in either this Court or the Circuit Court and a further order restraining the applicant from instituting any further proceedings against the respondent herein or against any of its servants or agents whether past or present without having first obtained leave of the High Court.

2 I have directed that this application should be heard on the basis of written submissions alone. I directed both parties to file these and serve them on each other together with any grounding affidavits they wished to swear. The defendant objects that the plaintiffs submissions were not served in accordance with this Court order. They have nonetheless been exchanged as have affidavits and I propose to deal with the application on the basis of these documents.

3 In my second judgment delivered in these proceedings on the 9^th May, 2012,I dealt with the basis upon which a court may make a restraining order colloquially known as an Isaac Wunder order. It may be as well if I repeat here what I set out therein at paragraphs 10 to 12:

4 2 "10. The third matter to be dealt with is whether, in the circumstances of this case, there should be a restraining order placed on the applicant. This court may, of its own motion, order that no proceedings, either of a certain type or at all, may be issued by a certain person without leave of the court. Such an order is colloquially described as anIsaac Wunder Order. The jurisdiction of the superior courts to impose such orders was addressed in Riordan v. An Taoiseach (No.4) [2001] 3 IR 365. Keane C.J. in the Supreme Court stated that:-

5 It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious … This court would be failing in its duty as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation … This court is extremely reluctant, as the High Court has been, to restrain the access of any citizen to the courts. The stage has clearly been reached, however, where the proper administration of justice requires the making of such an order against the appellant. Accordingly … the court will, in exercise of its inherent jurisdiction, order that the appellant be restrained from instituting any proceedings, whether by way of appeal or other wise, against any of the parties to these proceedings…'.

6 It seems to me that in this case the relevant considerations for the Court in determining whether to impose aWunder Order are as follows:-

7 (i) The nature of the proceedings brought.

8 (ii) The manner in which the proceedings were conducted.

9 11. The plaintiff maintains that he has been the victim of discrimination on grounds of gender and as a result of this discrimination he was not offered a place for a Masters in Social Science (Social Worker) mode A for the academic period 2002-2004. The plaintiff submitted his completed application form to UCD on the 23^rd December, 2001. He was interviewed in February, 2002 as part of the selection process; he was informed by letter dated the 15^th March, 2002 that he was not being offered a place on the course. The plaintiff was dissatisfied with the decision, he claims that he was more qualified than the least qualified female applicant for the course and the decision not to offer him a place on the course was based on his gender and not the results of the application process. When questioned by this Court about the nature of his complaint, the plaintiff explained that when he was interviewed for a place on the course he was treated rudely. This, together with the decision to refuse him a place, is the discriminatory conduct of which the plaintiff complains. However the plaintiff was subsequently offered a place on the course. In August 2002, UCD wrote to Mr. Kelly stating that they were very pleased to offer him a place on the course. It is quite true that the place on the course was...