Stephens v Archaeological Development Services Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 21 December 2010
• Neutral Citation: [2010] IEHC 540
• Date: 21 December 2010
• Court: High Court

[2010] IEHC 540

THE HIGH COURT

[No. 10492 P /2008]

Stephens v Archaeological Development Services Ltd

BETWEEN

KATHERINA STEPHENS

PLAINTIFF

AND

ARCHAEOLOGICAL DEVELOPMENT SERVICES LIMITED

DEFENDANT

SHERRY v PRIMARK LTD T/A PENNYS & GROSVENOR CLEANING SERVICES LTD 2010 1 IR 407 2010 2 ILRM 198 2010/47/11796 2010 IEHC 66

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S3(A)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S4

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S11

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S12

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S17(3)

PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 S17(1)(B)(ii)(III)

BERBER v DUNNES STORES LTD UNREP SUPREME 12.2.2009 2009/5/1131 2009 IESC 10

PICKERING v MICROSOFT IRL OPERATIONS LTD 2006 17 ELR 65

UNFAIR DISMISSALS ACT 1977 S7

UNFAIR DISMISSALS ACT 1977 S7(2)

UNFAIR DISMISSALS ACT 1977 S7(3)

UNFAIR DISMISSALS (AMDT) ACT 1993 S6

UNFAIR DISMISSALS ACT 1977 S15

UNFAIR DISMISSALS (AMDT) ACT 1993 S10

UNFAIR DISMISSALS ACT 1977 S15(2)

UNFAIR DISMISSALS ACT 1977 S15(3)

DUBLIN CORP, STATE v EMPLOYMENT APPEALS TRIBUNAL & MOONEY UNREP GANNON 20.10.1986 1986/6/511

STATE, FERRIS v EMPLOYMENT APPEALS TRIBUNAL & ROYAL LIVER FRIENDLY SOCIETY UNREP SUPREME 10.12.1984 1984/6/2138

PARSONS v IARNROD EIREANN/IRISH RAIL 1997 2 IR 523 1997 ELR 203 1997/11/3548

QUIGLEY v COMPLEX TOOLING & MOULDING LTD 2009 1 IR 349

EASTWOOD & ANOR v MAGNOX ELECTRIC PLC 2005 1 AC 503 2004 3 WLR 322 2004 3 AER 991

JOHNSON v UNISYS LTD 2003 1 AC 518 2001 2 WLR 1076 2001 2 AER 801

MALIK & MAHMUD v BANK OF CREDIT & COMMERCE INTERNATIONAL SA (IN COMPULSORY LIQUIDATION) 1998 AC 20 1997 3 WLR 95 1997 3 AER 1

RSC O.19 r1

RSC O.19 r3

RSC O.20

RSC O.19 r27

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2ED 2005 CHAP 5

RSC O.19

LAC MINERALS LTD v CHEVRON MINERAL CORP OF IRELAND & ORS 1995 1 ILRM 161 1994/11/3344

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691

PRACTICE AND PROCEDURE

Strike out

Application for order striking out matters in statement of claim - Application that claim be struck out on basis that claim before Employment Appeals Tribunal - Application for court to decline jurisdiction as prior authorisation from Injuries Board not obtained - Whether plaintiff should have first applied to Injuries board - Definition of âÇÿcivil action' - Whether bona fide intended to claim relief in respect of other cause of action not for purpose of circumventing operation of section - Intention to claim injunctive relief Whether plaintiff debarred from proceeding in both High Court and Employment Appeals Tribunal - Jurisdiction of tribunal - Serving of plenary summons prior to discharging of employment contract - Absence of plea of wrongful dismissal - Whether pleadings in accordance with rules of court - Sherry v Primark [2010] IEHC 66, (Unrep, O'Neill J, 19/3/2010); Berber v Dunnes Stores [2009] IESC 10, (Unrep, SC, 12/2/2009); Pickering v Microsoft Ireland Operations Ltd [2006] 17 ELR 65; State (Dublin Corporation) v Employment Appeals Tribunal (Unrep, Gannon J, 20/10/1986); State (Ferris) v Employment Appeals Tribunal (Unrep, SC, 10/12/1984); Quigley v Complex Tooling and Moulding Ltd [2009] 1 IR 349; Eastwood v Manox Electric plc [2004] 3 WLR 322; Johnson v Unisys Ltd [2003] 1 AC 518; Mahmud v Bank of Credit and Commerce International SA [1997] 3 All ER 1; Lac v Chevron [1995] 1 ILRM 161 and Riordan v Ireland (No 5) [2001] 4 IR 263 considered - Unfair Dismissals Act 1977 (No 10), ss 7 and 15 - Rules of the Superior Courts 1986 (SI 15/1986), O 19, rr 1 and 3 and O 20 - Personal Injuries Assessment Board Act 2003 (No 46), ss 3 and 4 - Proceedings stayed pending EAT; statement of claim to be amended (2008/10492P - MacMenamin J - 21/12/2010) [2010] IEHC 540

Stephens v Archaeological Development Services Ltd

The plaintiff was employed by the defendants, an archaeological consultancy firm, from 1997 to 2008. The plaintiff alleged that in August 2007 she was in a meeting with the company's owners where a discussion took place involving the possibility of a Mr Stephen Ryan, the company's former financial controller, being re-hired. Assurances were made that this wouldn't be completed without the plaintiff's consent and that he would not be put in a superior position to her within the company. In September 2007, Mr Ryan was appointed as the Chief Executive Officer which the plaintiff claimed contravened the agreement.

The plaintiff subsequently took a leave of absence due to illness. When she attempted to return to work in October 2008, she claims Mr Ryan would only consent to her return if she complied with a number of onerous and unlawful conditions including an undertaking as to future conduct. Whilst negotiations were ongoing between the parties as to this new arrangement, she claims her salary was abruptly discontinued and the plaintiff subsequently issued proceedings. The defendant's brought a motion in November 2009 seeking to strike out the plaintiff's statement of claim on the basis that the matter was currently before the Employment Appeal Tribunal or alternatively for the court to decline jurisdiction on the basis that there was no prior authorisation granted for the proceedings by the Injuries Board as the claim amounted to wrongful dismissal with damages for personal and psychological injury pursuant to s. 3 of the Personal Injuries Assessment Board Act 2003 ("the 2003 Act"). The plaintiff on the other hand stated that the proceedings initially were intended to seek injunctive relief to facilitate her return to work and then evolved into the type of case alleged by the defendants but this development does not require the prior authorisation as stated.

Held by Mac Menamin J that s. 4 of the 2003 Act outlines how the intention of the plaintiff at the initiation of proceedings in pursuing the claim should be the main consideration when deciding whether the claim falls within the obligations outlined in s. 3. The defendants had highlighted how a letter from the plaintiff's solicitor in November 2008 had outlined there may have been a claim for wrongful dismissal forthcoming along with injunctive relief but this was held to be only an option being expressed. The evidence favoured the plaintiff overall that injunctive relief had been pursued when proceedings commenced.

In terms of the claim before the Employment Appeal Tribunal, the plaintiff contended that the proceedings there were entirely separate. Her cause of action here was for physical and psychological injury as a result of her treatment whilst she was on sick leave but still employed and was therefore separate from the unfair dismissal case. This was accepted by Mac Menamin J. It was directed that these proceedings were to be stayed until there was an outcome from the Employment Appeal Tribunal with the statement of claim being redrafted accordingly to ensure the two causes of actions didn't overlap.

Proceedings stayed until conclusion of the related case before the Employment Appeal Tribunal.

1 JUDGMENT of Mr. Justice John MacMenamin delivered the 21st day of December, 2010

2 1. By notice of motion dated the 9 ^th November, 2009, the defendant seeks, in summary:-

3 (i) An order pursuant to the Rules of the Superior Courts striking out matters in the plaintiff's statement of claim said to be unnecessary, scandalous, or which would tend to prejudice, embarrass or delay a fair hearing of the claim;

4 (ii) Alternatively, in order that the entire statement of claim be struck out on the grounds that the pleadings, inter alia, by reason of the plaintiff pursuing her claims in the Employment Appeal Tribunal as well the High Court therein amounting to an abuse of process, or are vexatious;

5 and/or

6 (iii) An order that this Court decline jurisdiction to hear the matter pleaded in the claim as no prior authorisation for the proceeding was granted by the Injuries Board.

7 2. To understand what follows it is necessary to deal with the background to the claim in some detail. It must be emphasised that what follows do not constitute findings of fact, but rather the evidential framework of the procedural issues which arise herein. The precise basis for the reliefs claimed are outlined specifically in the judgment.

8 3. The plaintiff commenced her employment with the defendant on or about the 5 ^th December, 1997. She was employed as an Operations Manager, a position which she held up to her cessation of work on or about the 17 ^th October, 2008. The defendant company is a small one engaged in archaeological consultancy work.

9 4. It appears that the plaintiff enjoyed a relatively close relationship with the company's owners. It is said a meeting took place between them in August, 2007, they discussed the possibility that Mr. Stephen Ryan, a former member of staff (previously the company financial controller), might be rejoining the company. The plaintiff pleads that at this meeting she was assured - and it was agreed - that Mr. Ryan would not be put in a position superior to her own, and that any such appointment would not be made without her consent.

10 5. The plaintiff claims that in breach of this agreement, Mr. Ryan was appointed to the post of Chief Executive Officer in September, 2007. The plaintiff says that thereafter the Chief Executive engaged in a campaign of intimidation and harassment which placed her future employment in question.

11 6. Late in 2007, the plaintiff was diagnosed with breast cancer. She was on sick leave for upwards of one year. This continued until the 10 ^th October, 2008. On the 17 ^th October, 2008, a meeting took place between herself and Mr. Ryan. The plaintiff pleads that Mr. Ryan imposed a number of onerous and unlawful conditions on her return to...