Madden v Louth County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 30 June 2020
• Neutral Citation: [2020] IEHC 319
• Docket Number: [No. 2020/3649 P.]
• Court: High Court
• Date: 30 June 2020

BETWEEN

JOHN MADDEN

PLAINTIFF

AND

LOUTH COUNTY COUNCIL

DEFENDANT

[2020] IEHC 319

Allen J.

[No. 2020/3649 P.]

THE HIGH COURT

Interlocutory injunction – Threshold test – Balance of justice – Plaintiff seeking interlocutory order – Whether the threshold test had been met

Facts: This was an application to the High Court by an unsuccessful candidate in a closed competition for promotion for an interlocutory injunction restraining the appointment of one of the successful candidates pending the hearing of a challenge to the validity of a decision of an independent referee, appointed by agreement of the parties, on an appeal by the plaintiff, Mr Madden, against the outcome of the competition. As far as the plaintiff was concerned, the conduct of the appeal was unfair and the outcome unjust and his challenge to the impugned decision was unanswerable. As far as the defendant, Louth County Council, was concerned, there was no unfairness in the process and the plaintiff had not met the threshold test of establishing even that there was a bona fide issue to be tried, much less, as the defendant contended was the applicable test, a strong case that he was likely to succeed at trial. The plaintiff and the defendant contended, respectively, that the balance of justice was clearly in favour of, and against, the making of the order sought. The plaintiff’s grievance was that his appeal was conducted otherwise than in accordance with the agreed procedure, unfairly, and in breach of the requirements of natural justice.

Held by Allen J that he was not satisfied that the plaintiff had made a sufficient link between the interlocutory order sought and the substantive relief claimed in the action. Allen J concluded that, whether the interlocutory order was made or not, the action was unlikely to come to trial, and further, that the making of the order sought would effectively determine the issue as to whether the remaining promotion should be made from the panel established in 2019; accordingly, the threshold test applicable was whether the plaintiff had made out a strong case that would be likely to succeed at trial. Allen J was not satisfied that that threshold test had been met. Allen J held that, in any event, the risk of injustice to the defendant if the order were to be made was clear and measurable, while any risk of injustice to the plaintiff if the order were not to be made was entirely uncertain and he found that the balance would have been tilted very much against the making of the order.

Allen J held that the plaintiff’s motion must be refused.

Motion refused.

JUDGMENT of Mr. Justice Allen delivered on the 30th day of June, 2020

Introduction

1 This is an application by an unsuccessful candidate in a closed competition for promotion for an interlocutory injunction restraining the appointment of one of the successful candidates pending the hearing of a challenge to the validity of a decision of an independent referee, appointed by agreement of the parties, on an appeal by the plaintiff against the outcome of the competition.

2 As far as the plaintiff is concerned, the conduct of the appeal was unfair and the outcome unjust and his challenge to the impugned decision is unanswerable. As far as the defendant is concerned, there was no unfairness in the process and the plaintiff has not met the threshold test of establishing even that there is a bona fide issue to be tried, much less, as the defendant contends is the applicable test, a strong case that he is likely to succeed at trial. The plaintiff and the defendant contend, respectively, that the balance of justice is clearly in favour of, and against, the making of the order sought.

3 The plaintiff's grievance can be shortly stated to be that his appeal was conducted otherwise than in accordance with the agreed procedure, unfairly, and in breach of the requirements of natural justice. The legal issues, however, are more complicated.

The evidence

4 The plaintiff, Mr. John Madden, is a firefighter. He worked as such for Clare County Council from 2002 to 2006 and has since then been employed by the defendant, Louth County Council, on a full-time basis as a firefighter/driver. Over the years Mr. Madden has undertaken a good deal of professional training and development and has earned many certificates. He has for many years aspired to be promoted to the rank of sub-officer and has from time to time acted up in that capacity.

5 By notice circulated by e-mail on 21st August, 2019 Louth County Council Fire and Rescue Service invited applications from suitably qualified persons who were full-time personnel in the service for the filling of positions as Fulltime Station Officer and Fulltime Sub-Officer.

6 The service is made up of ten station officers, ten sub-officers and 35 firefighters. The object of the competition was to create panels of suitable persons from which vacancies in each of the higher ranks would be filled as they arose. The notice of the competition showed that by direction of the Minister for Housing, Planning and Local Government pursuant to article 8 of the Local Government (Appointment of Officers) Regulations, 1974 the life of the panels was to be for no more than one year, unless extended.

7 The notice of the competition set out the method of selection. To qualify for the competition candidates were required to have completed five years of fire brigade service and to pass a psychometric test. Mr. Madden met these criteria.

8 The competition was to be in three stages: a written examination, a five-minute presentation, and an interview on general suitability. The method assigned marks to each stage - 200 to the written test, 150 to the presentation, and 150 to the interview. Candidates who qualified for inclusion on the panel would be ranked by their overall score out of 500 but to make the panel they had to achieve at least 50% at each stage. To qualify for interview candidates were required, in addition to passing the written examination, to demonstrate in their application form to the satisfaction of a short-listing board that they possessed sufficient skills and experience in operational competency, team-leading, and personal effectiveness to be called for interview.

9 Candidates short-listed for interview were to be assessed at interview under each of those three competencies - operational, team-leading, and personal effectiveness - using some or all of a number of indicators listed for each competency.

10 On 5th September, 2019 Mr. Madden submitted his application. He sat and achieved a high mark in his written examination and was short-listed and called to make his presentation and for interview on 4th October, 2019 at the County Hall, Dundalk.

11 An interview board was assembled made up of Mr. Ned O'Connor, retired County Manager of South Tipperary County Council - who would chair the panel - Mr. John Guilfoyle, a senior officer in Dublin Fire Brigade, and Mr. Brian Sweeney, retired Chief Fire Officer of Strathclyde Fire Service. All had extensive experience of sitting on interview panels. Messrs. Guilfoyle and Sweeney had extensive experience and expertise in firefighting. There were eight firefighters who had qualified for interview.

12 The members of the interview board were provided with directions or guidance - there is an issue as to which it was - as to the conduct of the interviews, and blank forms for the marking of the candidates. The forms for the interviews showed that candidates were to be marked separately on operational competency, team-leading, and personal effectiveness and, in separate boxes, in respect of each competency, the indicators which had been listed on the notice inviting applications, some or all of which were to be taken into account.

13 The blank forms showed - as the advertised method of selection had - that the candidates were to be marked out of a total of 150. They also showed or suggested - and this is the nub of Mr. Madden's grievance - that candidates were to be marked separately out of 50 for each of the three competencies, and were required to achieve a minimum qualifying score of 25 marks for each competency, and a minimum overall qualifying score of 75 marks out of 150.

14 The breakdown of the marks in this way was not in terms part of the method of selection which had been advised to prospective candidates, but the forms provided to the interview board were the same as those which had been used in a competition in 2014 in which Mr. Madden had participated and in which he had been successful and following which he had been listed on a panel for promotion to sub-officer made up at that time, but not reached before the panel expired.

15 In an e-mail of 24th September, 2019 the interview board members were advised generally of the selection process. It was noted that the competition was particularly important because it would fill two station officer positions and three sub-officer positions arising from retirements over the coming ten months and that the new officers and sub-officers could be in place for between ten and fifteen years.

16 Mr. Madden presented himself at the County Hall on the afternoon of 4th October, 2019, made his oral presentation, and was interviewed. At about 6.00 p.m. Mr. Madden telephoned the Human Resources Department of the Council to ask whether the results would be available that afternoon. The results were not then available but Mr. Kieran Lawless, an Administrative Officer in the HR Department called him back at, Mr. Madden says, approximately, 7:03 p.m. that evening to tell him that, as Mr. Lawless recalls, he had been unsuccessful in the interview or as Mr. Madden recalls, that he had failed. Three of Mr. Madden's colleagues were similarly unsuccessful. Four were successful and were put on the panel for promotion in the order in which they had ranked in the competition overall.

17 Mr. Madden was...