Teaching Council of Ireland v MP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 15 December 2017
• Neutral Citation: [2017] IEHC 755
• Docket Number: [2017 No. 196SP],[2017 No. 196 SP]
• Court: High Court
• Date: 15 December 2017

IN THE MATTER OF SECTION 47 OF THE TEACHING COUNCIL ACTS 2001 - 2015 AND

IN THE MATTER OF A REGISTERED TEACHER AND

ON THE APPLICATION OF THE TEACHING COUNCIL OF IRELAND

BETWEEN

TEACHING COUNCIL OF IRELAND

APPLICANT

AND

MP

RESPONDENT

[2017] IEHC 755

[2017 No. 196SP]

THE HIGH COURT

Employment – S. 47 of the Teaching Council Acts 2001-2015 – Practice & Procedures – Suspension from register of teachers – Award of costs – Departure from normal rule

Facts: The respondent sought an order for costs against the applicant/council in relation to an application made by the council under s. 47 of the Teaching Council Acts 2001-2015. The applicant contended that normal rule of 'cost should follow the event' should have been applicable in the present case as the council ultimately decided not to pursue the suspension application. The Council contended that it was a regulatory body entrusted with the discharge of certain functions in the public interest and the imposition of costs would have interfered with its ability to function.

Mr. Justice Kelly P dismissed the respondent's application. The Court held that the normal rule was not applicable in the present case as the reason for the council to not to proceed with the application was the lack of evidence. The Court found that the council had appropriately sought the suspension of the respondent. The Court noted that the applicant was a regulatory body that had discharged public function and if unnecessary costs would be imposed on such a body, it would not function appropriately for fear of imposition of costs.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 15th day of December, 2017.

Introduction

1 This judgment deals with an application for costs sought against the applicant (the Council). The respondent (MP) seeks those costs in respect of an application made by the Council pursuant to s.47 of the Teaching Council Acts (2001-2015) (the Act) to suspend his registration as a teacher. It is the first time that such an application has been made.

2 Section 47 insofar as it is relevant provides:-

'(1) Where the Council is satisfied that it is in the public interest, the Council may, in relation to a registered teacher, apply to the High Court for an order that during the period specified in the order his or her registration shall be suspended.

(2) An application under this section may be made in a summary manner and shall be heard otherwise than in public.

(3) The High Court may, on an application being made to it under this section, make such interim or interlocutory order (if any) as it considers appropriate.

(4) Following a decision under this section by the High Court, the Council shall, as soon as practicable, by notice in writing, inform the teacher, the Minister and, where the teacher is employed as a teacher, his or her employer, of the decision.'

3 In order to understand how the application comes to be made it is necessary to set out the background to the case.

Background

4 The Council is a statutory body established under the Act. It exercises regulatory functions over teachers. For that purpose it maintains a register of teachers. MP is a teacher registered on the register.

5 On 21st March, 2017 the Council received a complaint from the headmaster of the school where MP had been employed. The complaint related to allegations made by two students in respect of the conduct of MP.

6 Student A alleged that he had been drinking one evening with MP. He alleged that during the evening MP made a sexual advance towards him. He also alleged that both he and student B had been brought by MP to his private home for a weekend on three occasions. Student A also alleged that he drank alcohol on a regular basis and also smoked 'weed' with MP.

7 Student B made his own separate allegations that he regularly drank substantial quantities of alcohol and smoked 'weed' in MP's house. He alleged that this occurred at least three times per week.

8 Student A declined to make a complaint against MP when requested to do so by the Garda.

9 Once these allegations were made to the school authorities they took action. MP was suspended on full pay pending the outcome of an investigation to be conducted by the school.

10 The actual complaints of the students were much more detailed than what I have set out but it is not necessary to recite that detail for the purposes of this judgment.

Disciplinary hearing

11 MP's employer, having suspended him on full pay on 29th November, 2016 proceeded to a disciplinary hearing which took place on 22nd December, 2016. MP attended that hearing and made submissions. In all, seven allegations against MP were considered by the disciplinary hearing.

12 Four allegations were found to be substantiated and findings were made that each of those allegations constituted gross misconduct on the part of MP. One allegation was not upheld. There was insufficient information on the other two allegations to make a finding.

13 MP, having been found to be guilty of gross misconduct, was dismissed with immediate effect.

14 On foot of the findings the headmaster made a formal complaint to the Council on 21st March, 2017.

Action by the Council

15 Ten days later, MP was written to and informed that a meeting of the Executive Committee of the Council would be held on 10th April, 2017 where consideration would be given to an application being made to this court to suspend him from the register of teachers pursuant to s.47 of the Act.

16 At MP's request the meeting of 10th April, 2017 was adjourned until 24th April, 2017. An undertaking not to teach during the period of adjournment was given by MP.

17 On 24th April, 2017 the Council's Executive Committee (to which the Council's function of deciding whether to apply to the High Court under s.47 of the Act had been delegated) met. MP did not attend but was represented by solicitors.

18 The Executive Committee of the Council had before it the complaint from the headmaster of the school together with supporting documentation which included copies of statements from students A and B as well as statements provided by MP to the school during its disciplinary investigation. Some admissions were made by MP in the course of those statements but not in respect of the most serious aspects of the allegations.

19 Written and oral submissions were made to the Executive Committee of the Council and an undertaking was proffered by MP that he would not teach in any recognised school for the following three months in order to allow the Council's Investigation Committee time to undertake its investigation.

20 Having regard to the material before it, the Executive Committee, notwithstanding that undertaking, decided that it was appropriate to make an application to this court pursuant to s.47 of the Act.

21 It is common case that the Council's director did not contact either student A or student B in advance of the s.47 application.

These proceedings

22 On 28th April, 2017 these proceedings were commenced. They were made returnable for 8th May, 2017 and came on for hearing on 16th May, 2017.

23 On that occasion MP offered a voluntary undertaking in the following terms to the court.

'(1) Not to teach or seek to teach in any school, recognised or otherwise, whether in this jurisdiction or in any member state of the European Union;

(2)To consent to the applicant making a notification of the terms of this order to the relevant bodies (competent authorities) identified under the EU Directive 2005/36/EC, as amended by Directive 2013/55/EU.'

24 That undertaking was acceptable to the Council and the court and was given until further order of the court.

25 Legal argument took place concerning the entitlement of the Council to notify the complainant to it, i.e. the school, of the undertaking so given. I determined that there was no entitlement to notify the complainant since it was no longer MP's employer.

26 Legal argument also took place concerning obligations that might arise under s.19 of the National Vetting (Children and Vulnerable Persons) Act 2012 but that issue was resolved by the Council undertaking in the following terms to the court that:-

'(a) Advance reasonable notification will be given to the respondent solicitors should the applicant decide in the course of its investigation that the statutory obligations of s.19 of the National Vetting (Children and Vulnerable Persons) Act 2012 are applicable and it decides to inform the National Vetting Bureau of this matter.

(b) Should the aforesaid investigation be determined in favour of the respondent the applicant will give notification of same to all relevant parties even if there is no express statutory obligation to do so.'

27 The order also permitted the Council to respond frankly and honestly to any inquiry received from any individual or body regarding the registration status of MP and to communicate to the persons inquiring the terms of the undertaking provided by him. I also gave liberty to MP to file an affidavit and apply if it were to be alleged that there were delays on the part of the Council in progressing with the investigation against him.

The Investigation

28 It is common case that the Council has been in correspondence with the parents of student A and student B. Both students reside outside the jurisdiction. That correspondence commenced on 15th August, 2017. Thereafter there was correspondence seeking to ensure that both would attend at the inquiry in order to give evidence. Notwithstanding the endeavours of the Council to persuade the students to attend, both have declined to do so. In the case of one student his father by a voicemail of 8th November, 2017 indicated that his son would not participate in the inquiry. When that information came to hand it was notified to MP's solicitor on...