Smith v The Office of the Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 11 February 2020
• Neutral Citation: [2020] IEHC 51
• Docket Number: 2019 No. 183 CA
• Court: High Court
• Date: 11 February 2020

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 28(3) OF THE EQUAL STATUS ACT 2000 (AS AMENDED)

BETWEEN

OLUMIDE SMITH

APPELLANT

AND

THE OFFICE OF THE OMBUDSMAN

ADAM KEARNEY

BERNARD TRAYNOR

PETER TYNDALL

RESPONDENTS

[2020] IEHC 51

Garrett Simons J.

2019 No. 183 CA

THE HIGH COURT

CIRCUIT APPEALS

Racial discrimination – Legal aid certificate – Findings of fact – Appellant seeking to set aside the findings of fact of the Circuit Court – Whether the findings of fact made by the Circuit Court were unsupported by evidence, unreasonable or based on an incorrect interpretation of documents

Facts: The Legal Aid Board decided to refuse a legal aid certificate to the appellant, Mr Smith. That decision gave rise to a series of complaints on the part of Mr Smith. An initial complaint was made to the first respondent, the Office of the Ombudsman. That complaint was dismissed. The Office of the Ombudsman found that the Legal Aid Board had not acted unfairly in refusing the legal aid certificate. Mr Smith next made a complaint against the Office of the Ombudsman to the Workplace Relations Commission. Mr Smith alleged that the Office of the Ombudsman had discriminated against him on the grounds of his race. This complaint was dismissed, at first instance, by the Workplace Relations Commission, and subsequently dismissed on appeal by the Circuit Court. Mr Smith sought to appeal the decision of the Circuit Court to the High Court. The appeal, as formulated, sought to set aside the findings of fact of the Circuit Court.

Held by Simons J that, having noted that under the relevant legislation the appeal to the High Court was confined to an appeal on a point of law only, and having had regard to the principles governing an appeal on a point of law, as set out by the Supreme Court in Stokes v Christian Brothers High School Clonmel [2015] IESC 1, he was satisfied that there was no basis for saying that the findings of fact made by the Circuit Court were unsupported by evidence, unreasonable or based on an incorrect interpretation of documents. Simons J held that the Circuit Court properly applied the evidential test as required under s. 38A of the Equal Status Act 2000 (as amended). Simons J held that the Circuit Court was entitled to conclude, on the evidence presented, that Mr Smith had failed to establish even a prima facie case of discrimination.

Simons J held that Mr Smith’s appeal to the High Court pursuant to s. 28(3) of the 2000 Act (as amended) would be dismissed. Simons J held that the complaints against the respondents would be treated as one “complaint” and that this judgment and order applied to all of the respondents. Simons J affirmed the order of the Circuit Court of 18 April 2019.

Appeal dismissed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 11 February 2020

INTRODUCTION

1 This matter comes before the High Court by way of an appeal from the Circuit Court. The procedural history is complex, and is set out in more detail under the next heading below. For introductory purposes, it is sufficient to note that these proceedings have their genesis in a decision of the Legal Aid Board to refuse a legal aid certificate to Mr Smith (the appellant herein). That decision has given rise to a series of complaints on the part of Mr Smith. An initial complaint was made to the Office of the Ombudsman. That complaint was dismissed. The Office of the Ombudsman found that the Legal Aid Board had not acted unfairly in refusing the legal aid certificate.

2 Mr Smith next made a complaint against the Office of the Ombudsman to the Workplace Relations Commission. (It should be explained that in addition to what might be described as its “employment law” jurisdiction, the Workplace Relations Commission also determines claims of discrimination under the Equality Act 2000 (as amended). Mr Smith alleged that the Office of the Ombudsman had discriminated against him on the grounds of his race. This complaint was dismissed, at first instance, by the Workplace Relations Commission, and subsequently dismissed on appeal by the Circuit Court.

3 Mr Smith now seeks to appeal the decision of the Circuit Court to the High Court. Under the relevant legislation, the appeal to the High Court is confined to an appeal on a point of law only. It is necessary to emphasise this from the outset of this judgment in circumstances where the appeal, as formulated, seeks to set aside the findings of fact of the Circuit Court. The High Court only has a very limited jurisdiction to review findings of fact on an appeal on a point of law.

PROCEDURAL HISTORY

4 The procedural history leading up to this appeal to the High Court is complex. It may assist the reader in understanding the (limited) issues which arise on the appeal were I to rehearse the key events in the chronology. In particular, it is necessary to explain that Mr Smith has, in fact, made two complaints to the Office of the Ombudsman, one in each of the years 2015 and 2018, respectively.

5 Mr Smith had been involved in various family law proceedings during the period 2013 to 2019. During this time, Mr Smith had made a number of applications to the Legal Aid Board for assistance in respect of those proceedings. It seems that a legal aid certificate had been granted in 2015, but that this was subsequently terminated. The precise circumstances in which the certificate came to be terminated are disputed: the Legal Aid Board contends that it revoked the certificate, whereas Mr Smith contends that he voluntarily terminated the certificate.

6 In or about the same time, Mr Smith had also sought assistance from the Legal Aid Board in respect of intended judicial review proceedings before the High Court, which would challenge certain maintenance orders that had been made by the District Court in the context of the family law proceedings. It seems that the District Court orders had been appealed, unsuccessfully, to the Circuit Court, and that consideration was being given by Mr Smith to the institution of judicial review proceedings before the High Court. In the event, however, the Legal Aid Board refused to grant a certificate in respect of the judicial review proceedings. Mr Smith contends that he made a complaint to the Office of the Ombudsman in 2015 arising out of the refusal of the Legal Aid Board to grant him a certificate of legal aid in respect of the potential judicial review proceedings ( “the first complaint”). As explained presently, the Office of the Ombudsman relies on the fact of this first complaint having been investigated and dismissed as a reason not to carry out a review in relation to the second, more recent complaint made by Mr Smith in 2018.

7 The precise nature of the first complaint made to the Office of the Ombudsman in 2015 is unclear. The only document before the court in relation to this first complaint is a letter of 3 December 2015 which rejects an internal appeal which Mr Smith had made against the initial decision to reject the first complaint. Neither the Office of the Ombudsman nor Mr Smith has put forward any additional material. It seems that the original file may have been mislaid within the Office of the Ombudsman. I return to discuss the significance of the first complaint at paragraph 93 below.

8 Mr Smith made a further application for a legal aid certificate in 2016. The Legal Aid Board ultimately made a decision on 10 November 2017 to refuse Mr Smith's application for legal aid. The stated reason for the decision is as follows.

“Having regard to section 28(4)(b) of the Civil Legal Aid Act 1995 the Board is refusing Legal Aid.

The reason for this decision is:

Section 28(4)(b) the Board may refuse to grant a legal aid certificate if it is of the opinion that … the applicant has on a previous occasion obtained legal aid or advice within the meaning of the Scheme or under this Act in respect of another matter and has, without reasonable explanation, failed to comply with the terms on which such legal aid or advice was granted.

You had previously obtained a Legal Aid Certificate for Divorce Proceedings with another Law Centre of the Board. A letter dated 2nd June 2015 issued to you to inform you that the Board had intended to terminate your Legal Aid Certificate (Record No. 1753488). The decision was reviewed and the decision to terminate was taken on 24th August 2015.

The matter at hand for which you have applied for at the Law Centre (Jervis Street) is the same and Section 28 (4) (b) must apply to this application because the Legal Aid Certificate was terminated.”

9 The letter then goes on to inform Mr Smith of his right of appeal. It seems that an appeal was submitted against the decision, and that the Appeal Committee of the Legal Aid Board, at a meeting in December 2017, upheld the refusal of legal aid on the same grounds and for the same reasons as the initial decision. The Appeal Committee's decision was communicated to Mr Smith by letter dated 22 January 2018.

10 (As an aside, it should be noted that Mr Smith has explained in the course of his oral submissions to the High Court that the Legal Aid Board made a subsequent offer of a legal aid certificate on 27 November 2018. A copy of same has been exhibited. The precise circumstances in which this change in position on the part of the Legal Aid Board came about have not been explained. At all events, it cannot form part of the case against the Office of the Ombudsman to say that the Legal Aid Board issued a legal aid certificate several months after the Office of the Ombudsman had concluded its role).

11 Mr Smith made a complaint to the Office of the Ombudsman in January 2018 in respect of the Legal Aid Board's decision to refuse him a legal aid certificate. The complaint was assigned to a case officer, and an initial decision was communicated to Mr Smith by letter dated 6 March 2018. This initial decision was to the effect that the complaint...