Mary Becker (plaintiff) v The Board of Management of St. Dominic's Secondary School & Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 01 May 2007
• Neutral Citation: [2007] IEHC 156
• Docket Number: Record No. 1239P/2006
• Date: 01 May 2007
• Court: High Court

BECKER v BOARD OF MANAGEMENT OF ST DOMINICS SECONDARY SCHOOL CABRA

MS. MARY BECKER

Plaintiff

THE BOARD OF MANAGEMENT OF ST. DOMINIC'S SECONDARY SCHOOL, CABRA, MARY KEANE, DEREK KICKHAM, PATRICIA FITZSIMONS, KATHLEEN CROWLEY, TIM CHADWIDCH, KEVIN BARRY AND MONICA KENNEDY

Defendants

[2007] IEHC 156

Record No. 1239P/2006

THE HIGH COURT

DUBLIN

Abstract:

Contract law - Specific performance - Whether the plaintiff’s claim for specific performance should be dismissed having regard to an earlier settlement agreement.

The substantive proceedings in this case were settled between the parties on 15 November 2006 and the terms of the settlement agreement were reduced to writing and signed by the plaintiff. The settlement essentially provided that both parties would apply to the Early Retirement Application Committee (ERAC) for the plaintiff to be entitled to early retirement on the grounds of irretrievable breakdown of the relationship between the parties and the proceedings would be adjourned pending the determination of that application. In pursuance of the settlement agreement both parties applied to the ERAC. Subsequently, the plaintiff having become dissatisfied with the working out of the settlement agreement initiated proceedings for specific performance of the agreement permitting the plaintiff to continue teaching at third level or in the alternative a declaration that no agreement was reached as between the parties upon the terms suggested, as alleged by the defendants.

Held by Smyth J. in dismissing the plaintiff’s claim:1. That the substantive action stood settled in the terms of the settlement agreement dated 15 November 2006. The joint application to the ERAC and the settlement were clearly linked and both parties agreed in the application form the basis upon which the application was made. Furthermore, the plaintiff fully understood the agreement and there were no caveats contained in the settlement. The agreement was clear and unambiguous and therefore binding on both parties.

Reporter: L. O’S

GORDON v GORDON 1951 IR 301

TOURNIER v NATIONAL PROVINCIAL & UNION BANK OF ENGLAND 1924 1 KB 461

SWEENEY v DUGGAN 1997 2 IR 531 1997 2 ILRM 211 1997 6 2236

O'MAY v CITY OF LONDON REAL PROPERTY CO LTD 1979 245 EG 1065

1 JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 1ST MAY 2007

2 JUDGMENT OF MR. JUSTICE T.C SMYTH DELIVERED ON THE 1ST DAY OF MAY 2007 AS FOLLOWS:

3 MR. JUSTICE SMYTH: These proceedings were settled between the parties on 15th November 2006, after several hours of negotiations.

4 Both parties had the benefit of legal advice and the Plaintiff also had the benefit of the advice and assistance of her Trade Union representative. The terms of settlement were reduced to writing and signed by the Plaintiff and her signature witnessed by her solicitor.

5 The Department, Minister for Education & Science was represented in an amicus curiae role by counsel to confirm to the Court, and to assure the parties that the time constraints in the closing dates for receipt of Applications for the Early Retirement Scheme for teachers' retirement at the end of the 2005/2006 school year would be waived in favour of the Plaintiff.

6 Subsequent to the settlement aforesaid, the parties sought to give effect thereto and the Plaintiff, became dissatisfied with the working out of the agreement and initiated these proceedings for: -

7 2 (i) Specific performance of the agreement permitting the Plaintiff to continue teaching at third level, irrespective as to whether any such school or college is funded directly or indirectly by the Department of Education & Science, with an agreed prohibition preventing the Plaintiff from teaching at secondary level.

8 3 (ii) In the alternative, a Declaration that no agreement or settlement was reached as between the parties upon the terms suggested, as alleged by the Defendants.

9 The substantive proceedings arose out of a dispute or disputes between the parties and elements of their relationship where there were many unhappy differences between the Plaintiff, who was a teacher in the Defendant school.

10 The terms of settlement (inter alia) provided as follows:-

11 2 "1. It is hereby agreed that the parties will jointly apply to ERAC (Early Retirement Application Committee) for the Plaintiff to be entitled to early retirement on the grounds of irretrievable breakdown of the relationship between the Plaintiff and the Defendants.

12 2. The parties agree to adjourn the above entitled proceedings until the determination of the above application.

13 3. If the application is successful, the Plaintiff agrees to strike out the above entitled proceedings with no order as to costs.

14 4. The Defendant undertakes not to prosecute any disciplinary proceedings against the Plaintiff while the early retirement application is being processed.

15 5. In the event of the early retirement application being unsuccessful, the Defendant agrees not to prosecute any current disciplinary proceedings against the Plaintiff until after the above entitled action has been re-listed for hearing and heard.

16 6. On early retirement, if successful, the Plaintiff to be paid her lump sum and pension from date of retirement by the Department of Education.

17 7. The Defendant requests that the Plaintiff absent herself with immediate effect until the determination of the early retirement application and agrees to pay her, her full pensionable salary, until that date and the Plaintiff agrees.

18 8. If the application is unsuccessful, the Plaintiff to be permitted to resume employment forthwith."

19 The other five terms of the agreement are not relevant for present purposes.

20 On the same date as the settlement both parties acted in pursuance to paragraph (1) of the agreement and jointly applied to the ERAC for the Plaintiff to be entitled to early retirement on the grounds of an irretrievable breakdown in the relationship between them. In further part performance of paragraph 7 of the agreement, the Plaintiff absented herself with immediate effect until the determination by the ERAC. Part of the undisputed documentation in one of the several visits to Court since the settlement of the substantive action discloses that the terms and conditions of the Early Retirement Scheme for teachers were agreed at the Conciliation Council for teachers, which is comprised of representatives of the teacher unions, school management, the Department of Finance and the Department of Education & Science. The terms of the agreed scheme are set out in Circular PEN 22/05 (hereinafter referred to as the Circular). The Plaintiff's application to the ERAC includes a form of declaration which incorporates, by reference, the Circular.

21 The Circular, dated 15th November 2005, is a nine page document dealing with a wide range of matters and circumstances. The structure of the scheme consisted of three strands. Dr. Fords SC submitted, that strands 2 and 3 could not possibly arise in the Plaintiff's case. The logic of this submission is that Strand (1) applied and this related to teachers who are consistently experiencing professional difficulties in their teaching duties. In the course of her declaration, the Applicant stated:-

"I have read the guidelines on the identification of professional difficulties (under the headings Expertise, Commitment and Ongoing Professional Difficulties) as set out in the Appendix to this application form. I apply under Strand (1), on the grounds that, in carrying out my teaching duties I am experiencing professional difficulties in the following areas:-"

22 Which are then set out in manuscript by the Plaintiff. In the Certification section of the declaration, there is the following query in printed form:-

"NB 2: If you also are applying for early retirement under Strand (2), please say so. If not so applying, please state Strand (1) only. (Do not leave blank)."

23 The Plaintiff, by manuscript, confirmed she was applying under Strand (1) only. The guidelines aforesaid form part of the joint application documentation lodged with the ERAC.

24 The Circular (inter alia) provided details referable to Strand (1), and the processing of applications and in respect of future employment, specifically that:-

"10.1 Acceptance by a teacher of early retirement under Strands (1) and (2) of this scheme will be subject to his/her agreement that she/he will not be eligible for future employment in any capacity as a teacher or/lecturer in any school or college recognised and funded directly or indirectly by the Department of Education & Science."

25 In the events, the application having been made in accordance...