M.P. v Teaching Council of Ireland

CourtHigh Court
JudgeMr. Justice Allen
Judgment Date08 March 2019
Neutral Citation[2019] IEHC 148
Docket Number[2018 No. 6400 P.]
Date08 March 2019

[2019] IEHC 148


Allen J.

[2018 No. 6400 P.]


Injunction – Misfeasance in public office – National Vetting Bureau (Children and Vulnerable Persons) Act 2012 s. 19 – Dismissal of claim – Costs decision

Facts: The plaintiff was a registered teacher. He was the subject of an investigation and a disciplinary inquiry under Part 5 of the Teaching Council Act 2001. Following the conclusion of the Part 5 inquiry the defendant, the Teaching Council of Ireland, notified the plaintiff of its intention to make a notification to the National Vetting Bureau under s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. The plaintiff brought an action for a permanent injunction restraining the defendant from making a notification to the Bureau. The plaintiff’s case was that the requirements of s. 19 had not been met; that the defendant had no bona fide concern; and that the decision to make the proposed notification was motivated by malice towards him and amounted to misfeasance in public office. The claim was dismissed (see [2019] IEHC 102), and the Court now heard submissions on costs and final orders.

Held by the High Court that costs would be granted for the defendant as it was a clear case bought solely to advance the plaintiff’s personal situation and costs should follow the event. In respect of an application for an injunction pending appeal, the Court was persuaded the plaintiff should have the opportunity to persuade the Court of Appeal that there should be no stay.

JUDGMENT of Mr. Justice Allen delivered on the 8th day of March, 2019

This is a case in which I gave judgment on 26th February, 2019. At the request of counsel, I put back the question of costs and final orders for a week. On 5th March, 2019 I heard the defendant's application for costs, and an application on behalf of the plaintiff for an injunction pending the hearing of an appeal, which the plaintiff has instructed his solicitors to bring.


The costs application presents no difficulty. Mr. Farrell, for the defendant, asks for an order that the costs should follow the event. Ms. Bolger, for the plaintiff, asks that there should be no order for costs because the case concerned a previously untested area of law, which had been helpfully clarified; because the plaintiff's earning capacity has been greatly reduced; and because the court made no order as to costs on the defendant's application, in other proceedings, pursuant to s. 47 of the Teaching Council Acts.


Mr. Farrell counters that if the decision was significant, there was no uncertainty in the legislation; that this was not public interest litigation; that the case raised no point of law of conspicuous novelty; and that different rules apply to applications under the teaching Council Acts.


I think that Mr. Farrell is right. This was an action brought exclusively to advance the plaintiff's personal interest. It did raise an issue of statutory interpretation, which was whether a scheduled organisation is precluded from making a notification to the National Vetting Bureau under s. 19 of the Act of 2012 unless it does so as soon as may be, but the essence of the case was that the defendant was actuated by malice and was acting mala fides. The plaintiff lost. I see no reason to depart from the ordinary rule that costs follow the event.


There will be an order for taxation of the defendant's costs of the proceedings, including reserved costs and the costs of discovery, and for payment by the plaintiff of those costs when so taxed and ascertained.

Application for injunction pending appeal

This is a case in which the plaintiff claimed a permanent injunction restraining the defendant from making a notification to the National Vetting Bureau under s. 19 of the National Vetting Bureau (Children and Vulnerable Persons) Act 2012. For the reasons set out in quite a long written judgment which I delivered on 26th February, 2019, I decided that the action must be dismissed.


The action was commenced by plenary summons issued on 16th July, 2018. The plaintiff moved immediately for an interlocutory injunction restraining the defendant from making the proposed notification, and this was granted on the plaintiff's undertaking that he would not, pending the trial of action, carry on any activities for which a vetting disclosure would be required.


In the ordinary way, the interlocutory injunction would lapse on the disposal of the substantive action. In this case, the plaintiff wishes to appeal and asks that notwithstanding the view that I have taken of the claim, I should continue the injunction (on the plaintiff's continued undertaking) pending the hearing of any appeal or, at least, until the first directions hearing before the Court of Appeal.


Ms. Bolger, for the plaintiff, argues that the claim concerned an untested area of law, both as far as the Teaching Council and the National Vetting Bureau are concerned. It is said that if the proposed notification is made, there will be a significant impact on the plaintiff's constitutional rights, which may be very difficult to undo, if his appeal were to succeed.


Mr. Farrell, for the defendant, does not contest the jurisdiction of this court to further restrain the making of a notification pending any appeal by the plaintiff. He recalled that the defendant's position on the interlocutory application in July 2018, was that s. 19 of the Act of 2012, makes it a criminal offence not to make a notification once a bona fide concern has been formed, so that the defendant could not give an undertaking. This remained the defendant's position. In my view, the position taken by the defendant was correct in July 2018 and it is correct now.


The jurisdiction of the High Court to make an order of the nature now sought is well established. In L.C. v. Minister for Justice, Equality and Law Reform [2016] IESC 36 the Supreme Court held that it has jurisdiction to grant an interlocutory injunction pending appeal. The decision of the Supreme Court in Okunade v. Minister for Justice [2012] 3 I.R. 152 makes it clear that the High Court, also, has jurisdiction to grant an injunction pending appeal, where this is shown to be necessary in the interests of justice.


Okunade was an appeal to the Supreme Court against the refusal of the High Court to restrain the deportation of the applicants pending the hearing of their application for leave to seek judicial review of a refusal of subsidiary protection, and a decision to deport. Prior to the appeal, the applicants' leave application was refused by the High Court but the Supreme Court nevertheless heard the appeal against the refusal of the injunction. Clarke J. (as he then was) delivered a judgment with which Denham C.J., Hardiman, Fennelly and O'Donnell JJ. agreed.


At para. 57, Clarke J. said:-

‘…it seems to me that the distinction between a stay where certiorari or prohibition is sought and an injunction in other cases is not based on an intention that different criteria apply to the grant of, on the one hand, a stay and, on the other hand, an injunction. Rather the reason for the distinction is that there is a difference in substance between a stay and an injunction.’


Having explained the difference between a ‘ stay’ and an ‘ injunction’, Clarke J. continued, at paras. 61 and 62:-

‘…It does not seem to me that the task of balancing those legitimate competing interests is different dependent on whether the measure sought to be challenged is said to be one which should be quashed by certiorari or prohibited, on the one hand, or whether an injunction is considered the appropriate means of intervening, on the other. Nor is it the case that the mere fact that there may be a measure in place which can be “stayed” should alter that balance in comparison with a case where the most effective means of preserving the position pending trial may be to consider the grant of an injunction. The underlying requirements of justice are not dependent on the form of judicial review order ultimately sought or the form of temporary order applied for…

That, of course, leads to the question of what the appropriate criteria are or, put another way, what the test is for the grant of a stay or injunction which has the effect of preventing an...

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