Redahan v Minister for Education

• Jurisdiction: Ireland
• Judge: Gilligan J.
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IEHC 271
• Court: High Court
• Docket Number: [2001 No. 1434P]
• Date: 29 July 2005

[2005] IEHC 271

THE HIGH COURT

[No. 1434P/2001]

REDAHAN v MIN FOR EDUCATION & ORS

BETWEEN

PATRICK REDAHAN

PLAINTIFF

AND

MINISTER FOR EDUCATION AND SCIENCE AND JOHN DOHERTY, MICHAEL DENNING, JAMES BLAND, EAMON CORKERY, KATHLEEN CONEFREY, PETER CASSIDY, MICHAEL O'ROURKE, SEAN LYNCH, LOUIS MCENTYRE, GERRY BRADY, LIAM FAUGHNAN AND BY ORDER MICHAEL MACNAMEE

DEFENDANTS

RSC O.19 r28

RSC O.34 r2

RSC O.56 r4

RSC O.124 r1

MCCLATCHY NEWSPAPERS v CENTRAL VALLEY TYPOGRAPHICAL UNION NO 46 1982 459 US 1071 686 F 2D 731

HOGAN & ORS v ST KEVINS CO & PURCELL 1986 IR 80 1987 ILRM 17 1986/3/838

MCSTAY v ASSICURAZIONE GENERALI SPA & MAGUIRE 1989 IR 248

FORDE ARBITRATION LAW & PRACTICE 1994

ARBITRATION ACT 1954 S36

ARBITRATION ACT 1954 S38

ARBITRATION ACT 1980 S2

SWEENEY v MULCAHY 1993 ILRM 289 1993/5/1452

ARBITRATION (INTERNATIONAL COMMERCIAL) ACT 1998 S12(1)

ARBITRATION (INTERNATIONAL COMMERCIAL) ACT 1998 S3

STEWART ARBITRATION: COMMENTARY & SOURCES 2003

ARBITRATION (INTERNATIONAL COMMERCIAL) ACT 1998 PART III

SIRROS v MOORE & ORS 1975 QB 118 1974 3 WLR 459 1974 3 AER 776

ST JOHN SUTTON & GILL RUSSELL ON ARBITRATION 22ED 2003 154

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

MANNING v SHACKLETON 1996 3 IR 85 1997 2 ILRM 26 1998/8/2580

ARBITRATION ACT 1996 S29(1) (UK)

SUTCLIFFE v THACKRAH & ORS 1974 AC 727 1974 2 WLR 295 1974 1 AER 859

ARENSON v CASSON BECKMAN RUTLEY & CO 1977 AC 405 1975 3 WLR 815 1975 3 AER 901

CAHN & SCHIRO v INTERNATIONAL LADIES GARMENT UNION & ORS 311 F2D 113

COREY v NEW YORK STOCK EXCHANGE 691 F2D 1205

MOND v BERGER & ORS UNREP DODDS-STREETON 3.5.2004 2004 VSC 150

LENDON v KEEN & ANOR 1916 1 KB 994

ARBITRATION:

Arbitrator

Domestic arbitration - Immunity - Whether arbitrator immune from suit - Negligence - Bad faith - Whether arbitrator immune from suit in absence of allegation of bad faith - Whether statutory immunity of arbitrator included domestic arbitrations - Whether arbitrator should be joined as a party to proceedings to set aside or remit award - Whether Rules of Superior Court permit arbitrator to be joined in such proceedings - Functus officio - Whether consistent with doctrine of functus officio to permit arbitrator be joined as party to such proceedings - Arbitration Act 1954 (No 26), ss 36 and 38 - Arbitration (International Commercial) Act 1998 (No 14), s 12(1) - Rules of Superior Courts 1986 (SI 15/1986), O 56, r 4 and O 124, r 1 - Arbitrator discharged from prceedings (2001/1434P - Gilligan J - 29/7/2005) [2005] IEHC 271; [2005] 3 IR 64

Redahan v Minister for Education and Science

Facts: The plaintiff was the successful applicant for the position of Assistant Principal. The unsuccessful candidates for that position appealed the decision to appoint the plaintiff. Those appeals were adjudicated upon and allowed by the thirteenth named defendant, who had been appointed to act as arbitrator pursuant to an agreement contained in a circular letter generated by the first named defendant. Consequently, the plaintiff's provisional appointment was terminated and he instituted proceedings seeking as against the thirteenth named defendant certain declarations, an order remitting the appeal to arbitration and damages for negligence and/or breach of duty. Thereafter the thirteenth named defendant sought an order discharging him from those proceedings.

Held by Gilligan J. in discharging the thirteenth named defendant from these proceedings:

1. That having regard to the provisions of Order 56 rule 4 RSC, it was not necessary for the thirteenth named defendant to be a party to these proceedings for the purposes of obtaining the declaratory relief and order remitting the appeals to arbitration as sought by the plaintiff.

2. That the arbitration agreement contained in the circular letter fell within the terms of section 2 of the Arbitration Act, 1980 and was governed by the provisions of the Arbitration Act, 1954 as amended. Accordingly, the thirteenth named defendant was acting as an arbitrator in an arbitration governed by the 1954 Act as amended and consequently he was acting in a quasi judicial capacity sufficient to attract immunity from suit at common law in the absence of having acted in bad faith, which it was conceded not to have been the case.

Reporter: L.O'S

1 JUDGMENT of Gilligan J. delivered the 29th day of July, 2005.

2 This matter comes before the court by way of a notice of motion in which the thirteenth named defendant, Michael MacNamee, seeks the following reliefs.

3 1. An order discharging the thirteenth named defendant from these proceedings.

4 2. Further or in the alternative an order pursuant to O.19, r.28, striking out the plaintiff's claim against the thirteenth named defendant herein for damages in negligence on the ground that the plaintiff has no such cause of action against the said defendant and the said claim is frivolous and vexatious.

5 3. Further or in the alternative an order pursuant to O. 34, r.2 directing that there is a question of law arising in the plaintiff's proceedings against the thirteenth named defendant herein which should be tried as a preliminary issue or raised for the opinion of this Honourable Court by way of special case or as otherwise directed and that the within proceedings against the thirteenth named defendant be stayed pending the outcome.

6 4. Further or other relief.

7 5. An Order providing for the costs of and incidental to the proceedings and the application herein.

1. Factual Background

8 The thirteenth named defendant who is a Barrister-at-Law was appointed arbitrator in relation to a matter involving the appointment of a school vice principal pursuant to an agreement as reflected in a circular letter, generated by the first named defendant, known as CL15/97 which said circular letter regulates the appointment of teachers to posts of responsibility in community and comprehensive schools, prescribes the means by which appointment are to be made, and sets out strict criteria as the basis of assessment of candidates. CL15/97 also provides for an appeal procedure whereby an unsuccessful candidate is permitted to challenge the decision of the selection committee to appoint a successful candidate. Such appeals are referred to an arbitrator who is jointly appointed by the teachers and management unions and whose terms of reference are set out in CL15/97.

9 The plaintiff in these proceedings was the successful applicant for the position of Assistant Principal at Moyne Community School. The appointment was made on the 21st October, 1999, subject to the approval and sanction of the first named defendant and there being no successful appeals against the decision of the selection committee. There were appeals by the unsuccessful candidates and the thirteenth named defendant was appointed as arbitrator pursuant to CL15/97 to decide on those appeals and the appeals were allowed.

10 In accordance with CL15/97, the first named defendant instructed the Board of Management to terminate the provisional appointment of the plaintiff who then instituted the within proceedings in February, 2001. The plaintiff obtained an order that the thirteenth named defendant be joined to the proceedings on 15th February, 2002, but the proceedings were not served on the thirteenth named defendant until some time after the 15th January, 2003. The motion grounding these proceedings was instituted on 22nd October, 2003.

2. Preliminary Issue û Delay

11 The thirteenth named defendant contends that notwithstanding that the plaintiff obtained an Order that he be joined to the proceedings on 15th February, 2002, the amended proceedings were not served upon him nor was he notified of their existence by the plaintiff or his legal advisers, until the 15th January, 2003. While the progress of these proceedings has not been entirely satisfactory, I do not consider that the general background circumstances would merit an order being made on this ground to the effect that the proceedings be struck out as against the thirteenth named defendant. The thirteenth named defendant has accepted in his affidavit that he was aware of the proceedings as he had been informally advised that the matter was in for hearing and had arranged for counsel to maintain a watching brief in respect of the matter.

3. Principal Issues

12 The plaintiff's claim, as sought as against the thirteenth named defendant, is for a declaration that he exceeded his jurisdiction as arbitrator, a declaration that his decision was without jurisdiction and/or ultra vires, an order remitting the said appeal to arbitration pursuant to CL15/97, and damages against the thirteenth named defendant for negligence and/or breach of duty. The plaintiff's principal complaint is the thirteenth named defendant accepted appeals outside what it is claimed is a mandatory time limit provided by CL15/97 and that such appeals were considered at an oral hearing at which the plaintiff was not allowed participate. The plaintiff thus claims that the decision to exclude him from the oral hearing was in breach of his contract of employment, natural justice and his constitutional rights.

13 This application by the thirteenth named defendant arises from the plaintiff's claim for declaratory relief and injunctive relief and for damages in negligence as against the thirteenth named defendant. The thirteenth named defendant seeks an order discharging him from these proceedings and an order striking out the plaintiff's claim for damages in negligence as against him on the ground that the plaintiff has no such cause of action. Further and in the alternative, if unsuccessful in seeking these reliefs, the defendant seeks an order that there is a question of law arising in the plaintiff's proceedings which should be tried as a preliminary...