Trevor Webster v Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 10 October 2013
• Neutral Citation: [2013] IEHC 449
• Court: High Court
• Date: 10 October 2013

[2013] IEHC 449

THE HIGH COURT

[No. 123P/2012]

Webster v Cmsr of An Garda Siochana & Ors

BETWEEN

TREVOR WEBSTER

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CONSTITUTION ART 40

CONSTITUTION ART 43

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

KRAMER v ARNOLD 1997 3 IR 43 1997/9/3148

SPECIALIST GROUP INTERNATIONAL LTD v DEAKIN & ANOR 2001 AER (D) 287 (MAY) 2001 EWCA CIV 777

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 32-22

SWEENEY v BUS ATHA CLIATH/DUBLIN BUS & ORS 2004 1 IR 576

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 32.98

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 3ED 2012 PARA 32.148

HENDERSON v HENDERSON 1843-60 378 67 ER 313 1843 3 HARE 100

MOFFITT v AGRICULTURAL CREDIT CORP PLC 2008 1 ILRM 416 2007 IEHC 245

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

M (S) v IRELAND (NO 1) 2007 3 IR 283 2007/41/8478 2007 IESC 11

OFFENCES AGAINST THE PERSON ACT 1861 S62

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

WOODHOUSE v CONSIGNIA PLC 2002 2 AER 737 2002 1 WLR 2558 2002 EWCA CIV 275

SUN FAT CHAN v OSSEUS LTD 1992 1 IR 425 1991/10/2412

CAHILL v SUTTON 1980 IR 269

High Court – Litigation - Judicial review - Employment - Vetting - Garda Central Vetting Unit - Non-conviction - Disclosure - Res judicata - Settlement - Henderson v Henderson - Abuse of process - Re-litigation - Right to his good name and reputation - Right to livelihood - Constitution of Ireland

Facts: In July 2009, the plaintiff applied to Kilkenny County Council ('the Council') to participate in a competition for employment as a retained fire fighter attached to Urlingford Fire Station. The plaintiff was ranked first out of fifteen applicants, and he was subsequently offered the job subject to satisfactory medical reports, references, training and Garda vetting. However, on the 2nd February 2010, the Garda Central Vetting Unit ('the Unit') furnished to the Council a 'Garda Vetting Disclosure' containing details 'recorded against' the plaintiff of seven offences with which the plaintiff had previously been charged with. It also stated that the result of each charge was ultimately non-conviction. On the 9 ^th February 2010, the Council wrote to the plaintiff advising him that they would not be processing his application any further. The plaintiff initiated judicial review proceedings challenging that decision of the Council, but they were subsequently settled on the 22 ^nd February 2011 with both parties agreeing that an independent third party would be appointed to investigate the plaintiff"s application for the position of a full-time retained fire fighter. That independent investigation was conducted and it concluded with a decision to uphold the Council"s decision to discontinue the plaintiff"s application.

The plaintiff"s solicitors then wrote to the Unit on the 14th July 2011, asking for confirmation that 'details of any non convictions or pending charges against' the plaintiff would not be disclosed in any future applications for Garda vetting in relation to the plaintiff. They later asked the Unit for an undertaking that they would not do so. When this was not forthcoming, the plaintiff initiated proceedings arguing that 'the current Garda Vetting Procedure' breached the constitutional rights of the plaintiff; in particular, the plaintiff"s right to his good name, reputation and his right to livelihood. The defendants brought an application for the proceedings to be struck out on the basis that they were in breach of the terms of settlement. It was also said that the proceedings were res judicata and in breach of the rule in Henderson v. Henderson.

Held by Laffoy J that the defendants were not entitled to have the proceedings struck out on the basis they were in breach of the terms of settlement of the 14 ^th July 2011. It was said that as part of the settlement, the plaintiff had agreed not re-litigate the issues in the judicial review proceedings. However, that was not to say that the plaintiff could never again take any action against the defendants in relation to the Garda Vetting process. In regards to the res judicata ground, it was held that because the issues which had been raised in the judicial review proceedings against the defendants were not the subject of any judicial determination or decision in the judicial review proceedings, the plaintiff was not precluded by operation of the doctrine of res judicata from prosecuting these proceedings.

In terms of the Henderson v Henderson point, it was said that that rule applied where a new issue is raised which was not decided in previous proceedings, but is one which the court determines could and should have been brought forward in the previous proceedings. The basis of the rule was said to be because it was in the public interest to ensure litigation did not drag on forever with successive proceedings. On a consideration of the issues in this case and the judicial review proceedings, it was held that the action being taken by the plaintiff in relation to the Garda Vetting process could and should have been determined previously, and that to allow the plaintiff to proceed would be an abuse of process. The application to strike out the plaintiff"s proceedings was, therefore, granted on that ground.

1 Judgment of Ms. Justice Laffoy delivered on 10th day of October, 2013.

Background

2 1. There is no factual controversy as to the background to these proceedings or the factual basis of the defendants' application, to which this judgment relates, to have the proceedings struck out.

3 2. In July 2009 the plaintiff applied to Kilkenny County Council (the Council) to participate in a competition for employment as a retained fire fighter attached to Urlingford Fire Station, which was a permanent position. His application was successful to the extent that, at the conclusion of the interview process, he was informed by the Council that he had been ranked first out of the fifteen candidates on a panel for the position at Urlingford and would be selected for the position subject only to satisfactory medical reports, references, training and Garda vetting. The plaintiff provided satisfactory medical reports and references. The problem at the core of these proceedings has arisen out of the Garda Vetting disclosure process which ensued and which is a non-statutory process.

4 3. On 23 ^rd September, 2009, the plaintiff signed a declaration in a "Garda vetting application form" presented and signed by the Council authorising An Garda Síochána to furnish to the Council "a statement that there are no convictions recorded against me in the Republic of Ireland or elsewhere, or a statement of all convictions and/or prosecutions, successful or not, pending or completed, in the State or elsewhere as the case may be". On 2 ^nd February, 2010, the Garda Central Vetting Unit (the Unit) furnished to the Council a "Garda Vetting Disclosure" containing details "recorded against" the plaintiff of seven offences with which the plaintiff had been charged and in relation to which he had appeared in court on various dates in 2004, 2005 and 2007 and also recording that the "court result" on foot of each charge was non-conviction. On receipt of that information, the Council decided not to proceed with the appointment of the plaintiff to the position at Urlingford Fire Station. That decision was reflected in a letter of 9 ^th February, 2010 from the Council to the plaintiff informing him that the Council would not be in a position to process his application any further. That decision gave rise to judicial review proceedings.

The judicial review proceedings

5 4. By order of the Court (McMahon J.) dated 1 ^st March, 2010, the plaintiff was given leave to apply for judicial review in proceedings entitled "Trevor Webster, applicant, and Kilkenny County Council, the Commissioner for An Garda Síochána, Ireland and the Attorney General, respondents" under Record No. 2010/226 J.R. (the judicial review proceedings). In the judicial review proceedings the plaintiff sought various reliefs against the Council, for example, an order of certiorari quashing the decision refusing to process his application for the post at Urlingford Fire Station.

6 The plaintiff also sought certain declaratory reliefs against the other respondents (the State respondents), including declarations that -

7 (a) the State respondents "in maintaining, distributing and relying on certain records of non conviction touching upon the [plaintiff] have failed to vindicate the [plaintiff's] right to his good name and reputation; and

8 (b) that the "maintenance, distribution and reliance by the [State] respondents on records of non conviction constitutes a failure to vindicate the [plaintiff's] constitutional rights, is unreasonable, irrational and contrary to the provisions of natural and constitutional justice."

9 5. The plaintiff was given leave to apply for relief by way of judicial review on the various grounds set forth in Paragraph E of the statement grounding the application for leave. One of the grounds set out in Paragraph E was as follows:

"That the [plaintiff's] rights pursuant to the Constitution of Ireland and the European Convention on Human Rights have been breached and/or not been vindicated."

10 6. The judicial review proceedings came on for hearing on 22 ^nd February, 2011. Having been at hearing for about two hours, the proceedings were settled and terms of settlement (the terms of settlement) in writing were executed on behalf of the parties on that day. The terms of settlement, in essence, comprised the following three elements:

11 (a) There was agreement between the plaintiff and the Council that an...