Mary Stokes v Christian Brothers High School Clonmel and Others

• Jurisdiction: Ireland
• Judge: Justice Clarke,Mr. Justice Hardiman
• Judgment Date: 24 February 2015
• Neutral Citation: [2015] IESC 13
• Docket Number: [S.C. No. 184 of 2012]
• Court: Supreme Court
• Date: 24 February 2015

Stokes v Christian Brothers High School Clonmel & Anor

IN THE MATTER OF SECTION 28 OF THE EQUAL STATUS ACT 2000 -2008

In the Matter of section 28 of the Equal Status Acts, 2000 -2008

Between/

MARY STOKES (ON BEHALF OF JOHN STOKES A MINOR)

Appellant

and

CHRISTIAN BROTHERS HIGH SCHOOL CLONMEL

Respondents

and

THE EQUALITY AUTHORITY AMICUS CURIAE

Christian Brothers High School Clonmel

Circuit Court Appellants/Respondents to the Appeal

and

Mary Stokes (on behalf of John Stokes a minor)

Circuit Court Respondents/Appellants on the Appeal

and

The Equality Authority

Amicus Curiae

[2015] IESC 13

Murray J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

[Appeal No: 184/2012]

THE SUPREME COURT

Education – Admissions – Discrimination – Appellant seeking to appeal against refusal of admission on grounds of discrimination – Whether indirect discrimination had been established

Facts: The appellant on this appeal, J Stokes, was a member of the travelling community. He was refused admission to the respondent to this appeal, Clonmel High School, in January 2010. The appellant commenced proceedings through his mother, Ms Stokes, on grounds of discrimination. The case which he sought to make was successful at the level of the Equality Tribunal. Thereafter, the respondent brought a statutory appeal to the Circuit Court which was successful, and the finding of discrimination was reversed. Subsequently, an appeal was brought to the High Court by the appellant which was unsuccessful, as a result of which a further appeal was advanced on his behalf to the Supreme Court. The case concerned the application of a rule in respect of admissions to a secondary school which, it was said, indirectly affects children from the travelling community. The rule in question gives preference to children whose father had previously attended the school in question. The appellant's argument was that such a rule significantly impacts in a discriminatory way against members of the travelling community because of the limited number of members of that community who are of an age to have children wishing to go to secondary school, who had themselves the benefit of secondary schooling. The respondent's argument before the Supreme Court centred on the concept of the creation of a risk of disadvantage rather than an actual disadvantage. On the basis of that argument, it was said that, at least so far as indirect discrimination is concerned, a risk of disadvantage was not sufficient because the relevant legislation requires that a party be at a particular disadvantage and not at a risk of such disadvantage.

Held by Clarke J that, having considered the legal question as to whether any right of appeal exists to the Supreme Court in the circumstances, the language of s. 28(3) of the Equal Status Act 2000 was insufficient to exclude an appeal to the Court. Considering whether the appellant's claim brought before the Director of the Equality Agency was out of time, Clarke J held that to now rule that the respondent is entitled to rely on a time bar, and thus to deprive the appellant of the opportunity to persuade the Director to extend time would be to countenance a manifest injustice. Clarke J noted that there were two legs to the question of whether indirect discrimination had been established; the second leg, concerned with justification, only arises in the event that the first leg, whether particular disadvantage has been established, is made out. Considering the question of particular disadvantage, Clarke J held that it was not open to the trial judge in the Circuit Court to conclude that any disadvantage, let alone a particular disadvantage, had been established by reason of the absence of adequate evidence to allow a proper analysis to be carried out. Clarke J held that it followed that it was unnecessary, in the circumstances, to go on to consider whether the provision might be considered to be objectively justified because in the absence of a sustainable finding concerning the degree of disadvantage, the exercise of attempting to assess appropriateness or necessity would be fraught with danger.

Clarke J held that that the decision of the Circuit Judge on the question of the establishment of particular disadvantage must be overturned. Clarke J held it unnecessary to go on to consider, in the abstract, whether the Circuit Judge was correct to conclude that the impugned provision was nonetheless justified notwithstanding that it created a particular disadvantage. Clarke J held that the final result determined on by the Circuit Judge, being to dismiss the claim, was correct. In those circumstances Clarke J dismissed the appeal.

Appeal dismissed.

1 JUDGMENT of Mr. Justice Hardiman delivered the 24th day of February, 2015.

2 Judgment of Mr. Justice Clarke delivered the 24th February, 2015.

3 Judgments delivered by Hardiman J [McKechnie J concur.] & Clarke J [Murray J & O'Donnell J [concur.]

4 1. This case relates to the admission policy of the respondent School, the Christian Brothers High School, Clonmel ("the School"). It has already been litigated, at length, in three separate oral hearings, before three different tribunals on foot of a complaint by Mrs. Stokes made in July 2010.

5 2. Alter various preliminary procedures there was an oral hearing before the Director of the Equality Tribunal in November 2010. The Director upheld the complaint on the basis of the "parental rule", a rule which gave a certain priority to applicants who were the children of past pupils.

6 3. From this decision the School appealed to the Circuit Court, under a right of appeal conferred by s.28(1) of an Act of 2000. This appeal was successful and the decision of the Director was set aside. This was the second full oral hearing.

7 4. From this decision, thirdly, Mrs. Stokes appealed to the High Court "on a point of law" on behalf of her son. The Equality Authority applied for and was granted leave to appear at the appeal as Amicus Curiae. The decision of the High Court (McCarthy J.) was delivered on the 3 ^rd February, 2012. The appeal was dismissed.

8 5. Now, Mrs. Stokes purports to appeal to this Court, a third appeal and a fourth hearing of this complaint.

9 6. In summary, therefore, Mrs. Stokes made a complaint on behalf of her son in relation to the School's admission policy. The complainant was successful before the Director of the Equality Agency. The School appealed to the Circuit Court. On appeal the School was successful and Mrs. Stokes appealed to the High Court. However, the School was again successful and the appeal was dismissed.

10 7. All of these hearings were full oral hearings at which both parties were present or represented. The Equality Authority, whose Director made the first-instance decision was represented as Amicus Curiae at the third hearing in the High Court.

The present issue.

11 8. Mrs. Stokes, on behalf of her son, now purports to appeal to this Court. The School says no such appeal lies.

12 Mrs. Stokes relies, firstly, on the terms of Article 34.4.3 of the Constitution:

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court...".

Legal provisions affecting the Appeal.

13 9. Section 28 of the Equal Status Act 2000 undoubtedly provides to either side a right of appeal from the Director to the Circuit Court. It provides:

14 2 "28(1) Not later than forty two days from the date of a decision of the Director under s.25, the complainant or the respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of appeal.

15 (2) In the determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

16 (3) No further appeal lies, other than an appeal to the High Court on a point of law".

17 (Emphasis added)

18 10. In this case, the School was successful in the Circuit Court in setting aside the Order of the Director. An appeal from this decision lies to the High Court "on a point of law". But "No further appeal lies" by virtue of the provisions of subsection (3).

19 11. There is no doubt in my mind but that the purported appeal to this Court would be a "further" appeal. It would be "further" to the School's appeal from the Director to the Circuit Court and to Mrs. Stokes appeal from the Circuit Court to the High Court "on a point of law". Any appeal after that, in the same matter, is necessarily a "further" appeal. It is a "further" appeal, most fundamentally, because there have already been two previous appeals. But the statute says that "no further appeal lies".

20 12. I accept, for the reasons given by Mr. Justice Clarke in his judgment in this case that a statutory restriction of the right of appeal to this Court must be expressed in clear language. I would specifically follow a dictum to that effect of Keane C.J. in A.B. v. Minister for Justice Equality and Law Reform [2002] 1 I.R. 296. At p.303 the learned Chief Justice said:

"However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the Courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this Court provided for in Article 34.4.3 may only be removed or abridged by a statutory provision which is clear and...