Ognjenovic v Commission for the Regulation of Utilities

• Jurisdiction: Ireland
• Judge: Mr Justice Barry O'Donnell
• Judgment Date: 11 October 2024
• Neutral Citation: [2024] IEHC 578
• Court: High Court
• Docket Number: [2021 NO. 5535P]

Between:

Domagoj Ognjenovic

Plaintiff

and

Commission for Regulation of Utilities

Defendant

[2024] IEHC 578

[2021 NO. 5535P]

THE HIGH COURT

Facts: The defendant brought an application to strike out the plaintiff's proceedings, whether in part or in whole, pursuant to Order 19, rules 27 and 28 of the Rules of the Superior Court The application was grounded on an affidavit sworn by the manager of the CRU The application to strike out was based on several assertions about the feasibility of the claims made in the pleadings and on the basis that many of the pleadings should have been pursued by way of an application for judicial judicial review. Judge refused the application and made no order for costs but would hear oral submissions if necessary

Application refused

Judgment ofMr Justice Barry O'Donnelldelivered on the 11 ^th of October, 2024

INTRODUCTION

1 . This judgment concerns an application by the defendant, the Commission for Regulation of Utilities ( CRU) to strike out the plaintiff's proceedings, either in part or in whole, pursuant to Order 19, rules 27 and 28 of the Rules of the Superior Courts ( RSC). The application was brought by a notice of motion dated the 29 November 2023, and was grounded on an affidavit sworn by Tara O'Beirne, sworn on the 29 November 2023. Ms O'Beirne is a manager at the CRU. A replying affidavit was sworn on the 7 February 2024 by Francis Rowan, who is a solicitor acting for the plaintiff. The court has had the benefit of helpful written and oral submissions made on behalf of the parties.

2 . The plaintiff is an electrical contractor. As will be explained below, in broad terms the plaintiff's claims arose from a genuine concern that during the period between June 2018 and October 2018 his former employer acted improperly by submitting Completion Certificates regarding electrical installations that purported to have been certified by the plaintiff, when in fact this was not the case. The plaintiff commenced and later settled proceedings against his former employer. In these proceedings, the plaintiff seeks declaratory orders, mandatory relief and damages under multiple headings. The claims are made as against the CRU in its capacity as the statutory body with overall responsibility for the regulation of matters relating to electrical safety.

3 . The CRU has now sought to the have the proceedings – or parts of the proceedings — struck out as bound to fail. That application is based on several assertions about the feasibility of the claims made in the pleadings, and also on the basis that many of the claims are properly characterised as public law claims that ought to have been pursued by way of an application for judicial review, and which, in that light, have been brought out of time.

4 . For the reasons set out in this judgment I have concluded that a significant number of the plaintiff's claims must be struck out. The decision is grounded in findings, first, that certain reliefs amount to public law claims that the plaintiff could have asserted in an application for judicial review. It was an abuse of the court to claim those reliefs in a manner that significantly bypassed the relevant time limits in the Rules of the Superior Courts, without a proper explanation or excuse. Second, a number of claims for damages were made under different headings. The statement of claim set out no claims that the plaintiff suffered any recognisable loss or damage. In fact, by agreement between the parties, prior to the hearing of the application the plaintiff further narrowed the claims that he suffered adverse consequences from the asserted breaches of duty to a claim that he suffered non-material damage. As such, the asserted tortious claims (other than claims pursuant to the Data Protection Act 2018) were found to be bound to fail. Third, certain of the heads of damage claimed in the prayer for relief simply were not connected to or grounded in any substantive pleas in the body of the statement of claim.

5 . In order to understand the context for this judgment it is necessary to explain the claims made by the plaintiff in his statement of claim and to set out briefly the relevant statutory functions of the CRU.

THE UNDERLYING LEGISLATIVE SCHEME

6 . The CRU is a statutory body formerly known as the Commission for Energy Regulation. For the purposes of these proceedings, the Energy (Miscellaneous Provisions) Act 2006 amended the Energy Regulation Act 1999 by the insertion of new sections that conferred functions on the CRU relating to electrical safety and the regulation of electrical contractors.

7 . The primary functions with which these proceedings are concerned are found in new sections 9C and 9D of the 1999 Act. In general terms, these provide for the regulation of the activities of electrical contractors with respect to safety. That function is achieved, inter alia, by the CRU appointing a person to be a designated body referred to as an Electricity Safety Supervisory Body ( ESSB). The members of the designated ESSB are described as “ registered electrical contractors”. In addition, the CRU is required to publish criteria relating to (i) electrical safety supervision, (ii) the safety standards to be achieved and maintained by electrical contractors, and (iii) the procedures to be adopted by an ESSB. The criteria are required to contain “ information” relating to a series of matters, including according to section 9D(5)(b)(vii) and (x):

“ (vii) the matters to be covered by a completion certificate in respect of different categories or classes of electrical works and the circumstances in which each such class of certificate shall be used;” and

“ (x) the procedures to be followed, and the records to be maintained, by a designated body or its members (where appropriate), in connection with subparagraphs (i) to (ix).”

8 . A person cannot be appointed as an ESSB unless the CRU is satisfied that it has the capability and entitlement to carry out a further series of supervisory and review functions in relation to registered electrical contractors. By section 9D (12), where a registered electrical contractor carries out electrical works, the works shall be carried out in accordance with the safety requirements approved by the CRU from time to time.

9 . The following matters were not in issue:

• a. For the purposes of section 9D(1)(a) of the 1999 Act as amended, the CRU appointed the Register of Electrical Contractors of Ireland ( RECI) as ESSB for the period 2016 to 2022. RECI, which also operated under the name “ Safe Electric” and was a separate body from the CRU in terms of legal personality.

• b. In April 2016, the CRU published criteria ( the Criteria) pursuant to section 9D (5) of the 1999 Act, as amended.

• c. Under the Criteria each registered electrical contractor is required to employ a suitable number of Qualified Certifiers. These persons are required to be trained electricians and are permitted to certify electrical works. Each Qualified Certifier has a unique Qualified Certifier Number ( QCN).

• d. Each registered electrical contractor is required to certify any electrical works for which it is responsible. A Qualified Certifier is entitled to certify an electrical installation on behalf of the registered electrical contractor.

• e. A certificate must be copied to the customer and a record of the certificate must be maintained by the registered electrical contractor. A copy must also be returned to the ESSB (RECI in this case). Those copies could be filed in hard copy or electronically. A feature of the system that operated until in or about January 2020 was that the electronic filing system did not expressly require details of the name, signature or QCN of the Qualified Certifier.

• f. Pursuant to s. 9D(18) of the Act, the CRU is to specify the form for completion certificates, the procedures to be followed and the records to be maintained.

• g. Paragraph 1.2.3. of the Criteria requires the CRU to specify the “Core Activities” which RECI was required to undertake. These include:

  “(iii) Monitoring, Inspection and Audit of electrical contractors registered with the Body;”

  “(vi) Management of the distribution, sale, recording, control and the validation of Certificates;” and

  “(ix) Maintaining records of, and reporting on, the activities of the Body.”

• h. In addition, according to Common Procedure No.1 in the Criteria, RECI is required to have a written procedure for the validation of completion certificates, which is to confirm that the certificates contain all the requisite information.

• i. Common Procedure No.5 of the Criteria makes clear that RECI is obliged to have a checking and validation process for completion certificates.

• j. For data protection purposes, the CRU is the “data controller” in respect of personal data relating to its core activities and RECI was a “data processor”.

THE UNDERLYING PROCEEDINGS

10 . The plaintiff commenced these proceedings by a plenary summons dated the 23 September 2021, and a statement of claim was delivered on the 29 November 2021. The plaintiff's claim as pleaded is lengthy and it was very difficult to connect many of the matters pleaded to the seventeen substantive reliefs that are set out in the prayer for relief. As will be set out below the chronology is important to certain aspects of this application, and the following appears to the court to constitute a short chronology of the material facts, which is unfortunately quite lengthy. The overwhelming majority of the matters set out are extracted from the statement of claim and a small number of matters emerged from Ms O'Beirne's affidavit.

CHRONOLOGY

11 . The plaintiff is a qualified electrician who was a registered member of RECI. In June 2018, the plaintiff was employed by a registered electrical contractor, McHugh Electric ( McHugh). Following his employment, McHugh appears to have obtained a...