MD v The Board of Secondary School

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Donnell,Mr. Justice Gerard Hogan,Mr. Justice Maurice Collins
• Judgment Date: 10 April 2024
• Neutral Citation: [2024] IESC 11
• Court: Supreme Court

Between/

MD (a minor suing by his father and next friend MD)

Appellant

and

Board of Management of a Secondary School

Respondent

[2024] IESC 11

O'Donnell C.J.

Woulfe J.

Hogan J.

Collins J.

Donnelly J.

AN CHÚIRT UACHTARACH THE SUPREME COURT

Judicial review – Injunction – Jurisdiction – Respondent appealing against injunctive relief – Whether the High Court applied the correct test in granting injunctive relief

Facts: The applicant commenced judicial review proceedings in the High Court. The key reliefs sought at paragraph 2, 3 and 4 of the grounding statement were in the following terms: “2. An order of certiorari, by way of application for judicial review, quashing the decision of [the respondent, the Board of Management of a secondary school] on the 30th January 2023 (“the decision”) refusing to allow the applicant to remain in the school following the decision to expel and pending the determination of the appeal pursuant to section 28 of the Education Act 1998. 3. A declaration by way of application for judicial review that the decision was reached contrary to fair procedures and/or was irrational and/or unreasonable and/or disproportionate and/or was made in a manner that fettered the respondent’s discretion. 4. An interim order staying the decision of the respondent, or interim and/or continuing injunction prohibiting the respondent from excluding the applicant from the school pending the determination of an appeal of the decision of 30th January made by the applicant pursuant to section 29 of the Education Act 1998.” On 14th February 2023, Meenan J granted the applicant leave to apply for judicial review in respect of those reliefs. He also made an order staying the decision of the respondent to exclude the applicant from the school pending the determination of the s. 29 appeal by the appeal committee. On 3rd March 2023, the school applied to the High Court (Bolger J) to have the interim injunctive orders which had been granted by Meenan J set aside. That application was refused by Bolger J in a judgment delivered on 8th March 2023. The Supreme Court granted leave pursuant to Article 34.5.4⁰ of the Constitution on 25th May 2023 for a direct appeal from the decision of Bolger J in the High Court. The principal issue arising on the appeal concerned the general jurisdiction of the High Court to grant an injunction under s. 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 as applied by s. 48 of the Courts (Supplemental Provisions) Act 1961.

Held by Hogan J that the manner in which the order restraining expulsion was granted by the High Court was not in accordance with established legal principles regarding the granting of interlocutory injunctions and, in any event, there was no proper consideration of the balance of convenience; nor was there any recognition of the fact that this was in substance an application for a mandatory interlocutory injunction. Despite any possible confusion arising from the wording of Ord. 84, r. 20(8)(b) of the Rules of the Superior Courts, Hogan J considered that these principles apply irrespective of whether the applicant has commenced the proceedings by plenary action or by way of judicial review. Accordingly, Hogan J held that if interim relief is granted in judicial review proceedings, that relief should be time limited, and it should also provide that the onus lies with the moving party to apply for interlocutory relief on notice to the respondent. Hogan J held that the mere fact that leave to apply has been granted does not in and of itself establish that the Campus Oil/Merck test (Campus Oil Ltd v Minister for Industry and Commerce (No. 2) [1983] IR 88 and Merck, Sharp & Dohme Corporation v Clonmel Healthcare Ltd [2019] IESC 65), or, in the case of mandatory interlocutory injunctions, the more elevated Maha Lingham test (Maha Lingham v Health Service Executive [2005] IESC 89) has been satisfied.

Hogan J allowed the appeal on that basis.

Appeal allowed.

Judgment ofMr. Justice O'Donnell, Chief Justice delivered on the 10th day of April, 2024.

1 . I agree with Hogan and Collins JJ. that the appeal herein must be allowed. I wish to add only two comments.

2 . First, the legal context of the factual dispute in this case is rather unusual. The relationship between a school and a pupil is essentially a matter of private law even though the service provided by a school to a pupil is one which is largely, and in some cases completely, subsidised by the State and regulated by it. The Education Act of 1998 does not purport to regulate the decisions made by a school in respect of its pupils in disciplinary matters; that is a matter for the individual school. Section 29 of the Act however, grafts onto whatever procedure the school itself adopts the possibility of a statutory appeal.

3 . The initial confusion in this case about the decision challenged and the grounds upon which it was alleged any such decision was impermissible or otherwise unlawful, was never entirely dispelled. However, it appears now that the challenge launched was to an alleged decision of the school not to permit the pupil to attend the school after an expulsion decision had taken effect. It was not argued in these proceedings that this was a private law decision rather than one made within the field of public law, and the matter was, in any event, confused by the fact that the admission (or readmission) of the pupil was sought pending the hearing and determination of the section 29 appeal. I do not wish to seek to determine that matter in the absence of argument and in circumstances where, given the outcome of the case, it is not necessary to do so. However, it should not be taken that the decision in this case means, or even suggests, that judicial review will always be available in respect of disciplinary or other decisions made by a school more generally. That would require argument and analysis in the context of the facts in any particular case.

4 . Second, it was not argued in this case that the approach taken by the High Court was itself required or mandated by the provisions of Order 84 of the Rules of the Superior Courts introduced in 1986. Accordingly, no argument was addressed to the limits of the rules-making function. I do not consider that a consideration of that issue is a necessary or desirable route towards the resolution of this case, and I would leave any such question to a case in which it was necessary to determine it. Subject to these observations I agree with the judgments of Hogan and Collins JJ. and the order which they propose.

JUDGMENT ofMr. Justice Gerard Hogandelivered the 10th. day of April 2024

Introduction

1 . This appeal raises important questions regarding the jurisdiction and practice of the High Court to grant interlocutory relief in Ord. 84 judicial review proceedings. The issue arises in the following way.

2 . The respondent to this appeal, MD, was a secondary school student (“the student”) in his Junior Certificate year at a particular secondary school. The school in question is a recognised school for the purposes of the Education Act 1998 (“the 1998 Act”). (As the High Court made an order to this effect pursuant to s. 45(1) of the Courts (Supplemental Provisions) Act 1961, the identities of the parties – including the name of the school — have been redacted). Serious allegations of misconduct were made against the student, including very serious allegations of bullying directed at a fellow female student in the school. In December 2022 the school's Principal prepared a report detailing the allegations.

3 . In the wake of these allegations the Board of Management met on 17th January 2023 and made a preliminary decision to expel the student from the school. By virtue of s. 24(4) of the Education (Welfare) Act 2000 (“the 2000 Act”) a period of 20 school days must elapse before the Board can make a final decision to exclude a student. Taking account of the mid-term break the 20-day period was due to expire on 2 ^nd March 2023. By letter dated 26 ^th January 2023 MD's solicitors wrote to the Principal of the school calling upon him to permit the student to remain in the school pending the outcome of a statutory appeal of the expulsion decision to the Secretary General of the Department of Education and Skills pursuant to s. 29(1) of the 1998 Act. Where this occurs, the Secretary General is obliged to appoint an appeal committee pursuant to s. 29(2) of the 1998 Act. This Court has already determined that this particular statutory appeal is a de novo appeal on the merits: see Board of Management of St. Mológa's National School v. Secretary General of the Department of Education and Science[2010] IESC 57, [2011] 1 IR 162.

4 . The letter of 26 ^th January 2023 threatened legal proceedings to compel the school to maintain the enrolment of MD pending the outcome of the s.29 appeal. The Chairman of the Board of Management replied by letter dated 30 ^th January 2023 saying that there was no provision in the Department of Education's procedures “whereby a student could remain in a school pending a final determination of a Board of Management meeting that the student in question should be permanently excluded.”

5 . Following a further exchange of correspondence, the applicant commenced judicial review proceedings in the High Court. The key reliefs sought at paragraph 2, 3 and 4 of the grounding statement were in the following terms:

“2. An order of certiorari, by way of application for judicial review, quashing the decision of the respondent on the 30 ^th January 2023 (“the decision”) refusing to allow the applicant to remain in the school following the decision to expel and pending the determination of the appeal pursuant to section 28 of the Education Act 1998.

3. A declaration by way of application for judicial review that the decision was reached contrary to fair procedures...