Pascal Hosford v Minister for Social Protection

• Jurisdiction: Ireland
• Judge: Mr. Justice Seamus Noonan
• Judgment Date: 06 February 2015
• Neutral Citation: [2015] IEHC 59
• Docket Number: [No. 805 JR/2013]
• Court: High Court
• Date: 06 February 2015

Hosford v Min for Social Protection

JUDICIAL REVIEW

BETWEEN

PASCAL HOSFORD

APPLICANT

AND

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENT

[2015] IEHC 59

[No. 805 JR/2013]

THE HIGH COURT

Civil Service – Unlawful reassignment – Improper motive – Applicant seeking a declaration that he was unlawfully reassigned – Whether applicant”s claim is an abuse of process

Facts: The applicant, Mr Hosford, is a higher executive officer in the Department of Social Protection and a deciding officer under the Social Welfare (Consolidation) Act 2005. In August, 2009, the applicant was appointed as section manager in the Scope Section of the Department. In September, 2013, the applicant was transferred from this position to another position within the Department. The applicant alleged that the transfer was directed by the respondent, the Minister for Social Protection, for an improper purpose and he brought judicial review proceedings seeking a declaration from the High Court that the reassignment was ultra vires and unlawful. The applicant identified that purpose as being to discipline him for upholding the law and prevent him from interfering further in the perpetuation of unlawful policies by the respondent. The applicant alleged that the circumstances of the transfer amounted to a public rebuke to and humiliation of him, which was defamatory and caused great damage to his reputation and standing. The respondent submitted that she has the statutory right to transfer officers within her department at her absolute discretion; such transfer is a purely administrative action which does not engage any rights the applicant enjoys under the Constitution or European Convention on Human Rights. She argued that in view of the seriousness of the applicant's allegations, he carries a heavy burden of proving them and they are unsupported; the onus of proof remains on the applicant and where averments are made and contradicted on affidavit, that burden remains undischarged in the absence of cross-examination. She accepted that a transfer could in theory be challenged if the evidence established that it was capricious or for an improperly punitive purpose but nothing in the applicant's case established that. She contended further that the merits of the applicant's transfer are not a matter for the court, which cannot act as an appellate tribunal from the decision of the respondent. She submitted that the transfer complained of had now expired, that there was no complaint about the applicant's current position and that his claim was therefore moot. She submitted that there was no evidence of the applicant having suffered any financial or other loss. She said that the applicant's allegation that his reputation and prospects were somehow damaged was entirely undermined by the fact of his subsequent transfer to an important post. The respondent submitted that the reality of the applicant”s claim was that he was seeking to use his transfer as a platform to ventilate his views on the law relating to so called proprietary directors and attempt to cause embarrassment to the respondent as he had been threatening since 2012; this is a clear abuse of process.

Held by Noonan J that the applicant”s allegations were unsupported by any evidence other than his own opinion; his views were entirely contradicted by the respondent”s evidence and the applicant had not sought to cross-examine any of the deponents. Noonan J held that the conflicts in the evidence on both sides could not be be resolved by the court in the absence of cross-examination. On the other hand, Noonan J held that the respondent”s reasons for the transfer were entirely valid and legitimate. He held that there was no evidence that the applicant had suffered any detriment whatsoever. It seemed to Noonan J that the applicant had embarked on a crusade to champion the public interest in proving that his view of the law on a particular topic is correct. On more than one occasion during the course of the hearing, he invited Noonan J to make determinations regarding the status of proprietary directors for PRSI purposes. Noonan J concluded that the respondent”s submission in that respect was well-founded and that the applicant seeks to abuse the process of the court to ventilate issues that are of no relevance to the proceedings.

Noonan J held that he would dismiss the application.

Application refused.

SOCIAL WELFARE CONSOLIDATION ACT 2005 S299

Mr. Justice Seamus Noonan

1 The applicant is a higher executive officer in the Department of Social Protection ("the Department") and a deciding officer under the Social Welfare (Consolidation) Act 2005. In August 2009, the applicant was appointed as section manager in the Scope Section of the Department. On the 23rd September, 2013, the applicant was transferred from this position to another position within the Department. The applicant alleges that the transfer was directed by the respondent for an improper motive and he brings the within judicial review proceedings seeking,inter alia, a declaration that this reassignment was ultra vires and unlawful. The applicant appeared in person.

2 The applicant, who is a qualified certified accountant, commenced his career in the civil service in 1977 in the Comptroller and Auditor General's Office. In 1981, he was transferred to the Revenue Commissioners and in 1983, to the Department of Posts and Telegraphs. In or around 1985, the applicant was transferred to the Department of Social Welfare. On the 4th June, 1987, the applicant was offered a permanent post of higher executive officer subject to the completion of a form of acceptance which was duly signed by the applicant on the 5th June, 1987 and provides as follows:

"I am prepared, if appointed to the post of higher executive officer in the Department of Social Welfare, to perform any duties which may be assigned to me from time to time by direction of the Minister for Social Welfare appropriate to my new appointment."

3 Since then, the applicant has worked in different sections of the Department and in or about July 2009, the applicant was transferred to the Scope Section of the Department. That section is headed by a principal officer and below him or her, an assistant principal officer. Next in seniority is a higher executive officer, formerly the applicant, who is responsible for managing a number of executive and clerical staff. The function of Scope Section is to determine the employment status of individuals for the purposes of their Pay Related Social Insurance liabilities and entitlements under the relevant social welfare legislation. The applicant was also appointed as a deciding officer for this purpose under s. 299 of the Social Welfare (Consolidation) Act 2005.

4 It would appear that not long after the applicant commenced in the Scope Section, an issue arose as to the appropriate classification of individuals working in companies of which they were directors and shareholders and in particular, whether in certain circumstances...