Seamus Mallon v The Minister for Justice, Ireland, and the Attorney General

JurisdictionIreland
JudgeMr Justice Maurice Collins
Judgment Date15 May 2024
Neutral Citation[2024] IESC 20
CourtSupreme Court
Docket NumberS:AP:IE:2022:000140
Between
Seamus Mallon
Appellant
and
The Minister for Justice, Ireland, and The Attorney General
Respondents

[2024] IESC 20

O'Donnell C.J.

O'Malley J.

Hogan J.

Collins J.

Donnelly J.

S:AP:IE:2022:000140

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Unapproved
No redactions required

JUDGMENT of Mr Justice Maurice Collins delivered on 15 May 2024

BACKGROUND
1

The Office of the Sheriff is “ one of great antiquity”, dating in England from before Norman times. 1 In Ireland, as in England, the sheriff discharged a wide variety of functions, including the enforcement of court judgments. However, in the 19 th century responsibility for the execution of judgments ceased to be that of the “ high sheriff” and became vested in

under-sheriffs” who in turn delegated the carrying out of the actual work of executions to bailiffs. 2
2

Following independence and the establishment of the new court system by the Courts of Justice Act 1924, it was decided that county registrars should be responsible for the execution of court decrees. Accordingly, the Court Officers Act 1926 abolished the office of high sheriff (section 52), provided that no appointments would be made to the office of under-sheriff after the passing of that Act (section 54(1)) and provided for the transfer of the functions of under-sheriff to the relevant county registrar once the office of under-sheriff became vacant in each county or county borough (section 54(2) & (3)).

3

However, by the time that the office of Dublin under-sheriff became vacant in 1945, it was evident that it would not be practical to impose the additional burden of the functions of sheriff on the Dublin County Registrar. As a result, the Oireachtas enacted section 12 of the Court Officers Act 1945 (hereafter “ Section 12” and the “ 1945 Act”). The net effect of Section 12 was that the Minister for Justice (“ the Minister”) could continue to appoint sheriffs. As a result, sheriffs continue to operate in Dublin City and County and in Cork City and County. Those sheriffs are responsible for the execution of all civil judgments, including the enforcement of orders for possession. Outside Dublin and Cork, county registrars retain that function. 3

4

In addition, Section 12 has been utilised to appoint sheriffs whose sole responsibility is the collection of revenue debts (that function being taken back from the relevant county registrar for that purpose). Although the term is not to be found in Section 12 (which simply refers to the appointment of a person to be “ the sheriff of the county or county borough”) such sheriffs are colloquially referred to as “ Revenue sheriffs.”

5

In January 1987, the Appellant (“ Mr Mallon”) was appointed “ Revenue sheriff” for Cavan and Monaghan. His letter of appointment states that his “ single responsibility” was “ for the execution of certificates of tax liability under section 485 of the 1967 Income Tax Act” (now section 962 of the Taxes Consolidation Act 1997). 4

6

Section 12(6) of the 1945 Act provides ( inter alia) that the office of sheriff shall be non-pensionable and shall be held at the will and pleasure of the Government (section 12(6)(a))

and that “ the age of retirement from the office of sheriff shall be seventy years” (section 12(6)(b)). Section 12(6)(g) provides that “ the conditions of employment of every sheriff” shall be determined by the Minister for Finance. 5
7

There is no provision in Section 12 (or elsewhere) for the extension or variation of that statutory retirement age. Mr Mallon was born in May 1952 and so on his appointment (aged 34) he was aware that he would be required to retire as sheriff when he reached the age of 70 in May 2022, at which point he would have held the office for 35 years.

8

Revenue sheriffs are not paid a salary. Instead, they are paid an annual retainer. As of 2021, that retainer was €25,630. An additional retainer as designated receivers of fines in the sum of €7,500 was also payable as of 2021. 6 In addition to those retainer fees, sheriffs receive fees by reference to the recoveries they make in respect of tax liabilities. Those fees are calculated in accordance with the scale of fees set out in fees orders made from time to time, currently the Sheriff's Fees and Expenses Order 2005 (SI 644/2005) and the Fines (Payment and Recovery) Act 2014 (Fees) Order 2016 ( SI 549/2016). 7 From this income, Revenue sheriffs must provide the necessary clerical and other staff for the execution of their functions and discharge all relevant expenses. 8

9

At the time of his appointment, Mr Mallon was a practising solicitor in private practice. He was entitled to remain in practice while holding the position of Revenue sheriff and did so. He continues in practice now. Nothing in the terms of his appointment required Mr Mallon to devote himself full-time to the work of Revenue sheriff. There appears to be some dispute between the parties as to the precise employment status of the sheriff, but it is not necessary to resolve that dispute here. 9 Whatever may have been Mr Mallon's employment status qua Revenue sheriff, what is relevant is that he was able to continue in private practice as a solicitor throughout the period from his appointment to his retirement at age 70 and, since his retirement as sheriff, is once again free to devote himself full-time to his profession should he wish to do so.

10

In July 2020, the Sheriffs' Association – a representative body of which Mr Mallon was a member – made a submission to the Minister urging the amendment of Section 12(6)(b) so as to increase the retirement age for sheriffs. The submission identified a number of factors said to support such an amendment, including the fact that the retirement age for coroners had recently been increased from 70 to 72, pursuant to section 6 of the Coroners (Amendment) Act 2019, the impact of the COVID Pandemic on the earnings of sheriffs, and the fact that sheriffs were not entitled to any pension on retirement. The submission also suggested that maintaining the existing retirement age of 70 would be inconsistent with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“ the Employment Equality Directive” or “ the Directive”) and would involve treating sheriffs less favourably than coroners, which, it was suggested, would be “ an act of discrimination in itself”.

11

On 20 April 2021, a response was sent on behalf of the Minister indicating that “ approval beyond the age of 70 is not forthcoming.” The email stated that the Department of Public Expenditure and Reform had explained that the standard compulsory retirement age in the public service had been consolidated “ to the greatest extent possible, at the age of 70” following the enactment of the Public Service Superannuation (Age of Retirement) Act 2018. That, it was said, represented current Government policy and was “ a position which [the Department of Public Expenditure and Reform] seeks to implement in a consistent manner in order to protect the integrity of the policy.” That is said by Mr Mallon to be a reviewable decision but that is disputed by the Minister.

12

On 19 July 2021, Mr Mallon obtained leave to bring judicial review proceedings challenging the lawfulness of the mandatory retirement age provided for in Section 12(6). The primary reliefs sought by him were as follows:

“i. An Order of Certiorari … quashing the decision dated 20 th April 2021 of the … Minister for Justice … insofar as the said decision purports to do the following:

(a) Requires the Applicant to retire from his position as Sheriff on reaching the age of seventy (70) years on [ ] May 2022;

(b) Fails to properly consider the need for a legislative amendment to Section 12 of the Act of 1945 to ensure compliance with the provisions of [the Directive] and in the context of the interpretation of that Directive by the Court of Justice of the European Union.

ii. A Declaration … that Section 12(6) of the Act of 1945 is incompatible with European Union law as expressed in that Directive and that the said section is thus void and of no legal effect”. 10

13

The grounds on which these reliefs are sought are set out in detail in the Judgment of the High Court and are addressed further below. In essence, Mr Mallon contends that the mandatory retirement age in Section 12(6)(b) is objectively discriminatory on the grounds of age and that there are no or no sufficient objective and reasonable grounds capable of justifying it. It is also said that the mandatory retirement age for sheriffs is unlawfully discriminatory when compared with the mandatory retirement for coroners following the enactment of the Coroners (Amendment) Act 2019.

14

The Minister opposes the claim. She makes a number of preliminary jurisdictional objections. First, she contends that the communication of 20 April 2021 was not a justiciable decision amenable to judicial review. It was the 1945 Act, rather than the Minister, that required Mr Mallon's retirement and any amendment of the Act was, the Minister said, a matter for the Oireachtas and not for her. Secondly, it is said that Mr Mallon's complaint of discrimination should properly have been pursued by way of complaint to the Workplace Relations Commission (“ the WRC”) pursuant to the 1998 Act rather than by way of judicial review proceedings. As to the substance, the Minister's essential contention is that there is ample justification for the mandatory retirement age of 70 and that the position of coroners is materially different to that of sheriffs.

15

The proceedings came for hearing before the High Court (Phelan J) on 21 and 22 June 2022. The proceedings were heard on affidavit, without oral evidence.

THE HIGH COURT JUDGMENT
16

Phelan J delivered a comprehensive judgment on 5 October 2022 ( [2022] IEHC 546).

17

She...

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