Olumide Smith v The Office of the Ombudsman and Adam Kearney and Bernard Traynor and Peter Tyndall

• Jurisdiction: Ireland
• Judge: Ní Raifeartaigh J.,Binchy J.,Barniville J.
• Judgment Date: 27 April 2022
• Neutral Citation: [2022] IECA 99
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/141

Between/

Olumide Smith

Appellant

and

The Office of the Ombudsman and Adam Kearney and Bernard Traynor and Peter Tyndall

Respondents

[2022] IECA 99

Ní Raifeartaigh J.

Binchy J.

Barniville J.

Appeal Number: 2021/141

THE COURT OF APPEAL

Racial discrimination – Harassment – Equal Status Acts 2000–2015 – Appellant advancing an appeal pursuant to s. 28(3) of the Equal Status Acts 2000–2015 – Whether the appellant was discriminated against by the first respondent

Facts: The appellant, Mr Smith, appealed to the Court of Appeal from two decisions of the High Court (Simons J), the first (dated 11th February 2020, [2020] IEHC 51) being the substantive judgment, and the second (handed down on 5th May 2021) being a written decision on costs following on from the substantive judgment. The substantive judgment related to an appeal brought by the appellant from a decision of the Circuit Court, the latter being an appeal advanced pursuant to s. 28(3) of the Equal Status Acts 2000–2015. The appeal to the High Court was, as required by the legislation, on a point of law only. The appellant set out 16 grounds of appeal in his notice of appeal. For the most part, these were expressed in the most general, and at times disparaging, terms. The appellant claimed that the trial judge erred in failing to apply principles and tests identified in a range of authorities, to which he referred expressly, but without identifying specifically the principles or tests established by those authorities which he claimed the trial judge failed to apply. The closest the appellant came to being specific in the grounds of appeal was in ground 8 in which he stated that the trial judge erroneously applied the principles referred to in the case of Stokes v Christian Brothers High School Clonmel [2015] IESC 13. The appellant claimed that the trial judge erred by failing to apply the principles identified by the Supreme Court at para. 43 of its judgment in Cahill v Minister for Education and Science [2017] IESC 29 (grounds 8 and 15). He claimed that the High Court erred in failing to find that the Circuit Court erred in failing to find primary facts upon which reasonable inferences could be drawn, in breach of Articles 2(1), 2(2)(a), 2(2)(b), 2(3), 2(4), 3(1)(h), 8(1), 8(2), 8(5) and 9 of Council Directive 2000/43/EC, and in breach of Article 47 of the CFREU, Articles 6(1) and 13 of the ECHR, Articles 8 and 10 of the UDHR and Article 35.2 of Bunreacht na hÉireann (ground 15). At ground 13, the appellant stated that the trial judge exceeded his jurisdiction in reviewing the DAR. He further claimed that the trial judge erred and “found non-existent faults, ridiculed and blamed [the appellant] for using the due process i.e. institute High Court proceedings via SI number 428 of 2018 form”. At ground 17 the appellant stated that the “High Court’s Findings, Conclusions, Judgments and Order represent perversion of justice, fairness, fair procedures, and equal treatment on the ground of racial or ethnic origin in breach of the CFREU, ECHR, UDHR and the Constitution of Ireland as above”.

Held by the Court that the appellant, before the Adjudication Officer of the Workplace Relations Commission, and again before the Circuit Court, failed to adduce any evidence at all, never mind evidence sufficient to meet even the low threshold of a prima facie case, that he was in any way discriminated against by the first respondent, the Ombudsman, in the manner in which he and his officials received, considered and adjudicated upon the appellant’s second complaint to the Ombudsman, or in the subsequent refusal to review the decision on that complaint. The Court held that the same applied as regards the appellant’s complaint in relation to harassment; his claims amounted to no more than mere assertion.

The Court dismissed the appeal in its entirety. Since the appellant had been wholly unsuccessful in his appeal, the Court’s indicative order as to costs was that the appellant should be ordered to pay the costs of the respondents incurred in connection with the appeal, the amount of which should be determined by adjudication in default of agreement.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 27 ^th day of April 2022

1 . This is a judgment on an appeal from two decisions of the High Court (Simons J.), the first (dated 11 ^th February 2020, neutral citation [2020] IEHC 51) being the substantive judgment, and the second (handed down on 5 ^th May 2021) being a written decision on costs following on from the substantive judgment. While the appeal in respect of the latter was formally before this Court, all of the submissions of the parties were focused on the substantive judgment, and no arguments were advanced at all as regards the costs judgment.

2 . The substantive judgment related to an appeal brought by the appellant from a decision of the Circuit Court, the latter being an appeal advanced pursuant to s.28(3) of the Equal Status Acts 2000 – 2015 (the “Equal Status Acts”). The appeal to the High Court was, as required by the legislation, one on a point of law only.

3 . In the substantive judgment, Simons J. provides a detailed account of the complex factual background giving rise to the proceedings. He identifies and analyses all relevant statutory provisions and analyses and discusses relevant authorities, before coming to his conclusion which was to dismiss the appeal. Since this Court finds itself in complete agreement with every aspect of the judgment of Simons J., it is not proposed to rehearse afresh the full details of the facts giving rise to proceedings or to conduct the same extensive analysis as that undertaken by the trial judge. Instead, this Court will focus on the issues that are necessary to dispose of this appeal.

4 . Nonetheless it is necessary to refer briefly to the relevant facts which may be summarised as follows. In 2014, the appellant was involved in family law proceedings in the District Court, in respect of which he was granted a legal aid certificate by the Legal Aid Board (hereinafter the “LAB”). By reason of matters which are not relevant here, the legal aid certificate was revoked by the LAB in 2015. The appellant requested a review of that decision by the LAB, in accordance with its procedures. However, following this review, the decision to revoke the legal aid certificate was confirmed.

5 . Arising out of this, the appellant made a complaint (the “First Complaint”) to the first named respondent (hereinafter the “Ombudsman”). Unfortunately, the details of the First Complaint are unavailable, because the file of the Ombudsman in respect of that complaint is missing. However, there is available a letter of 3 ^rd December 2015 from the Ombudsman to the appellant in connection with the First Complaint, in which the Ombudsman records that the complaint was not upheld, and that the appellant appealed the decision not to uphold his complaint. This was an internal appeal to a different case officer within the office of the Ombudsman. It is not a statutory appeal, but rather an informal appeal process developed by the Ombudsman.

6 . The letter of 3 ^rd December 2015 is the decision on that appeal. The letter records that, having investigated the complaint, the Ombudsman was satisfied that the LAB had refused the appellant a legal aid certificate in accordance with its governing legislation (the Civil Legal Aid Act, 1995) and the Ombudsman had not identified any administrative failing. This letter was issued to the appellant by the fourth named respondent, Mr. Bernard Traynor. In the letter he states that having reviewed the original decision of the Ombudsman, as issued by a Ms. Moore, he could find no evidence that she had failed to examine the First Complaint properly, or that she had failed to understand the First Complaint or that the decision of the Ombudsman was incorrect or unreasonable.

7 . The litigation in which the appellant was involved, and in respect of which he had applied for a legal aid certificate, continued, and it appears that he was involved in both District Court proceedings (in the context of maintenance and access to children) and Circuit Court proceedings (in the context of a divorce application). While it is not entirely clear either when or in what context, the appellant decided to issue judicial review proceedings, apparently with a view to quashing an earlier decision of one of those courts, and he sought legal aid in connection with those proceedings. This was refused by a letter of the LAB of 10 ^th November 2017. The appellant appealed that decision by way of an internal appeals process operated by the LAB, but the LAB, by letter of 22 ^nd January 2018, rejected the appeal.

8 . Arising out of this refusal, the appellant made a further complaint to the Ombudsman (the “Second Complaint”). The Second Complaint was rejected by the Ombudsman in a letter dated 6 ^th March 2018. This letter sets out a summary of the Second Complaint, the response of the LAB to that complaint, the analysis of the Ombudsman and the conclusion of the Ombudsman which was to reject the Second Complaint. The letter was sent to the appellant by Mr. Adam Kearney, the third named respondent, on behalf of the Ombudsman.

9 . By return email dated 7 ^th March 2018, the appellant requested a review of that decision of the Ombudsman. This request for a review was rejected by a letter from Mr. Traynor dated 20 ^th March 2018, in which he explained that, since the subject matter of the Second Complaint had been dealt with previously by the Ombudsman, there would be no review of the decision of 6 ^th March 2018. In stating this, Mr. Traynor referred to the file reference quoted in the letter of 3 ^rd December 2015, to which we have referred above, being file reference 056/15/1531. This file related to the First Complaint. We mention this because, as will become...