Noel Lennon v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 30 April 2015
• Neutral Citation: [2015] IECA 92
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 50 of 2015]
• Date: 30 April 2015

Lennon v Health Service Executive

BETWEEN/

NOEL LENNON

APPLICANT/APPELLANT

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT/RESPONDENT

[2015] IECA 92

Peart J.

Irvine J.

Hogan J.

No. 50 Exp/2015

THE COURT OF APPEAL

Judicial Review – Defamation - Defamation Act 2009 – Practice and Procedures – Right to a Jury Trial – Legislative Intention -

Facts: In this case the plaintiff, a school teacher, had been placed on administrative leave following the making of a complaint by the parents of a pupil to the effect that their son had been sexually abused. Other serious complaints of a similar nature followed. The question to be addressed by the Court in this case was where a plaintiff had simultaneously commenced both judicial review proceedings and an action for defamation pursuant to the Defamation Act 2009, may that plaintiff be deprived of his right to jury trial in respect of the defamation action by reason of a case management direction made, admittedly for sound and practical reasons, in respect of the hearing of the two cases?

Held by Justice Hogan in light of the available evidence and submissions presented that a plaintiff"s right to combine a claim for defamation and an injunction in single proceedings could not prejudice a defendant"s entitlement to opt for jury trial in respect of a defamation claim. In those circumstances, it was reasoned that the High Court had no jurisdiction to create what in effect would amount to a discretionary exception to that common law right which had been copper-fastened by legislation, even if it was done for the very understandable reasons of efficiency and case management. Referring to the case-law, it was determined that these cases further reinforced the conclusion that the High Court had no jurisdiction to dilute the plaintiff"s right to jury trial in respect of this defamation action. Justice Hogan determined that it was clear that the plaintiff was entitled by virtue of statutory provisions to jury trial. Consequently, the Court allowed the appeal and declared that the plaintiff was entitled to a jury trial in respect of the defamation proceedings.

1 1. Where a plaintiff has simultaneously commenced both judicial review proceedings and an action for defamation pursuant to the Defamation Act 2009 ("the 2009 Act"), may that plaintiff be deprived of his right to jury trial in respect of the defamation action by reason of a case management direction made, admittedly for sound and practical reasons, in respect of the hearing of the two cases? This is essentially the issue which we are required to determine in the present appeal and it arises in the following way.

2 2. The plaintiff is a national school teacher. In 2004 he was placed on administrative leave following the making of a complaint by the parents of a pupil to the effect that their son had been sexually abused. Other serious complaints of a similar nature followed. The plaintiff then commenced judicial review proceedings (2004 No. 1160JR) ("the 2004 proceedings") seek to quash a decision of the HSE (or, more accurately, its statutory predecessor, the Midwestern Health Board) made on 20 July 2004 which had apparently validated on a prima facie basis the complaints and which decision had been made in circumstances where he had not been heard.

3 3. An order was made by consent on 16 ^th June 2005 quashing this decision which had been taken at a child protection conference. The HSE then indicated that it would commence a fresh investigation. The plaintiff then brought a second set of judicial review proceedings (2006 No. 593 JR) ("the 2006 proceedings"). The 2006 proceedings were compromised and by consent the proceedings were struck out by the High Court on 11 ^th December 2006. The effect of this consent order was that the HSE assured the plaintiff that all relevant documentation bearing on the investigation had been furnished to him.

4 4. Three separate criminal prosecutions followed arising out of these complaints. The plaintiff was, however, acquitted of all charges following three separate criminal trials on 13 ^th May 2009, 7 ^th July 2009 and 15 ^th October 2010. Following these acquittals, the plaintiff then sought to be reinstated to his teaching post. The HSE made clear, however, that it intended to continue its investigation.

5 5. That investigation concluded with a letter sent by the senior social worker in charge of the investigation, Mr. Bill Hamill, on 14 ^th December 2012 to the Board of Management of the school in question. In that letter Mr. Hamill briefly outlined the history of the matter, including the fact that the HSE had previously deemed the complaints to be credible. Mr. Hamill then referred to the fact that the plaintiff had been acquitted following criminal prosecutions. He then stated:

"In conclusion, taking into account the social work assessment [of 2004] but having regard to the rejection of all of the allegations made against him, it is still the considered view of the HSE that on balance the outcome of the allegation is inconclusive."

6 6. In the wake of this letter the plaintiff was then invited to resume his teaching duties which he did on 30 ^th April 2013. The plaintiff maintains, however, that the HSE investigation was seriously flawed and he commenced a third set of judicial review proceedings (2013, 203 JR) ("the 2013 proceedings") seeking to quash the outcome of that investigation. The 2013 proceedings were subsequently amended in circumstances I shall later describe.

7 7. On 7 ^th November 2013 the plaintiff then issued proceedings claiming damages for defamation under s. 29 of the 2009 Act. He also sought a correction order under s. 30 of the 2009 Act. The gist of the defamation proceedings is to the effect that the plaintiff alleges that on various dates between 14th December 2012 and 25 ^th June 2013 Mr. Hamill conversed with the parents of children attending the school and that in these conversations Mr. Hamill said or implied that the plaintiff was a threat to children attending the school and that he should not have been permitted to return work.

8 8. On 27 ^th January 2014 the High Court made an order by consent amending the 2013 proceedings. The additional relief and grounds thus added to those judicial review proceedings was to the effect that the HSE had acted ultra vires insofar as Mr. Hamill had communicated with the parents and had suggested that the plaintiff should not be allowed to resume his teaching duties. It is clear that there is a considerable overlap between the two sets of the proceedings.

9 9. On 24 ^th November 2014 the respondent applied by motion to the High Court for an order consolidating the 2013 proceedings with the defamation proceedings and for general case management directions as to the mode of trial. In a ruling delivered on 15 January 2015 McCarthy J. held that the 2013 proceedings be listed together with the defamation proceedings, ruling that it was a matter for the trial judge whether to hear the cases together or successively. In the course of that ruling McCarthy J. said as follows:

"I think that the right to trial by jury is not an absolute one. There is an inherent jurisdiction in the Court to regulate its own procedure. There is indeed a jurisdiction or at least a duty on the Court to so regulate it to ensure that constitutional justice is afforded to all parties. It may also take into account another aspect of the public interest. There is always a public interest in affording constitutional justice to parties. Procedural issues in considerations such as the use of court time are entirely secondary to substantive issues of merit and must always take second place, notwithstanding the greater emphasis on such matters in more recent times on a practical level. However, it is not in the public interest that there be a multiplicity of trials where one trial would do justice between the parties. It is not in the public interest to use up or expend the time of the court unnecessarily. It is not in the public interest that parties be either put to the hazard of having orders for costs against them or, in the first instance, incur costs which they may or may not recover."

One can see, in other words, that there are sound reasons why a discretion is vested in the courts to direct cause of actions or proceedings to be heard even at the price, so to speak, of the exclusion of an entitlement to trial by jury."

10 10. On an appeal to this Court, the single issue was whether the High Court was thereby entitled to make a case management direction which had the effect of depriving the plaintiff of his right to jury trial in respect of the defamation proceedings. It may be acknowledged at the outset that case management decisions of this nature should but rarely be upset on appeal. As Clarke J. pointed out in Dowling v. Minister for Finance [2012] I.E.S.C. 32:

"The trial court must retain a very large measure of discretion over the directions which are appropriate and the measures to be adopted in the event of failure to comply. There would be no reality to the achievement of the undoubted advantages which flow from case management if this Court were, on anything remotely resembling a regular basis, to entertain appeals from parties who were dissatisfied with either the precise directions given or orders made by the Court arising out of failure to comply."

11 11. It may next be accepted that there is a considerable overlap between the issues raised in both sets of proceedings. From the perspective of convenience and the avoidance of duplication of costs, the order made by McCarthy J. - whereby he directed that the two cases were to be heard either together or successively - has a very great deal to commend it. In the context of where there are two separate, overlapping proceedings,...