Vincent Gormley and Others v Minister or Agriculture, Food and Marine

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 14 October 2013
• Neutral Citation: [2013] IEHC 459
• Docket Number: [No. 608 J.R./2013]
• Court: High Court
• Date: 14 October 2013

Gormley & Scott v Minister For Agriculture

BETWEEN

VINCENT GORMLEY AND JAMES SCOTT

APPLICANTS

AND

MINISTER FOR AGRICULTURE, FOOD AND MARINE

RESPONDENT

[2013] IEHC 459

[No. 608 J.R./2013]

THE HIGH COURT

PRACTICE AND PROCEDURE

Contempt

Application for leave to issue motion to commit respondent for contempt - Undertaking - Judicial review proceedings - Responsibility of Minister - Mutual mistake - Whether appropriate to order committal - Whether undertaking nullity by reason of mutual mistake - Carolan v Minister for Defence [1927] IR 62 and Re Article 26 and the Employment Equality Bill 1997 [1997] 2 IR 321 considered - Mespil Ltd v Capaldi [1986] ILRM 373 applied - Rules of the Superior Courts 1986 (SI 15/1986), O 44 r 3 - Ministers and Secretaries Act 1924 (No 16), s 2 - Public Service Agreement 2010-2014 - Constitution of Ireland 1937, Arts 28.4.1 and 28.4.2 - Leave refused (2013/608JR - Hogan J - 14/10/2013) [2013] IEHC 459

Gormley v Minister for Agriculture, Food & Marine

Facts: These proceedings concerned an application made pursuant to O. 44, r. 3 of the Rules of the Superior Courts for leave to issue a motion to commit the respondent for contempt of court. It was alleged by the applicants that the respondent had breached an undertaking given to the Court on the 30^th July 2013 during the course of judicial proceedings, whereby the respondent promised that, for the time being, no appointments would be made to particular posts being advertised by the Department. Both of the applicants worked within the respondent”s department, but by a letter dated the 15^th March 2011, they were informed that their posts were surplus to requirements. As a result, the applicants sought to be redeployed within the civil service and they relied on the Public Service Agreement 2010 – 2014, which generally gave priority to staff members who were to be redeployed when filling vacancies; however, such a redeployment wasn”t realised. In November 2012, the Department sought applications for seven posts of Assistant Agricultural Inspectors by way of open competition. The applicants applied but they were informed that they did not hold relevant honours degrees. On the 12^th April 2013, the Department advertised the same positions by way of internal competition. The applicants again applied but they were again deemed ineligible for the positions. The applicants subsequently challenged their alleged ineligibility.

A conciliation conference was scheduled before the Labour Relations Committee on 19th August, 2013, but when the respondent refused to refrain from filling the seven posts pending the outcome of the dispute, judicial review proceedings were initiated by the applicants. An undertaking was subsequently given by the respondent on the 30th July 2013 promising to refrain ‘…from selecting or appointing [a] person or persons to the AAI posts advertised pursuant to the internal competition for such posts advertised on 12th April, 2013, or otherwise.’ It was undisputed that the respondent subsequently filled three of the seven vacancies from the external competition panel. It was the respondent”s argument that the undertaking related to appointments from the internal panel only meaning he was free, therefore, to make appointments from the external panel.

Held by Hogan that it would be inappropriate to grant the relief sought against the respondent in either his personal capacity or in his corporate persona as a corporation sole. The respondent himself had no personal involvement in the appointments process as it was handled solely by staff within the Department; therefore, to grant the relief sought would have been to make the respondent criminally responsible for the actions of Department staff. It was said that in circumstances such as the present, a declaration to the effect that the respondent (or his officials) had breached a court order would generally be sufficient.

On consideration of the submissions that were made before the Court, it was held that it was clear that there had been a fundamental misunderstanding between the parties: the applicants had believed that the undertaking extended to appointments from both the external and internal competition panels; the respondent had believed that it only applied to the internal competition panel. On a reading of the undertaking itself, it was said that its particular wording accommodated both interpretations. Relying on the case of Mespil Ltd v. Capaldi [1986] ILRM 373, it was held that in such circumstances, there had been no true understanding between the parties; therefore, beyond the element of the undertaking that had been understood by both parties (i.e. not to appoint candidates from the internal competition), the settlement was a nullity by reason of mutual mistake. On that basis, it was held that there would be no declaration to the effect that the respondent (or his officials) had breached a court order.

RSC O.44 r3

MINISTER & SECRETARIES ACT 1924 S2

CONSTITUTION ART 28.4.1

CONSTITUTION ART 28.4.2

CAROLAN v MIN FOR DEFENCE 1927 IR 62

ARTICLE 26 & EMPLOYMENT EQUALITY BILL 1997, IN RE 1997 2 IR 321

MESPIL LTD v CAPALDI 1986 ILRM 373 1984/5/1522

Mr. Justice Hogan

1 This is an application pursuant to O. 44, r. 3 of the Rules of the Superior Courts seeking to leave to issue a motion to commit the Minister for Agriculture, Food and the Marine for contempt of court. The applicants contend that the Minister has breached an undertaking given to this Court on 30^th July, 2013, in the course of judicial review proceedings to the effect that no appointments would be made to particular posts then being advertised by the Department.

2 These judicial review proceedings arise in the following way. The applicants are both technical agricultural officers who are employed by the Department in Co. Galway. Both applicants hold a BSc in Rural Development and the second applicant holds a Masters qualification in rural environmental conservation and management. While both applicants were informally advised that their present posts were surplus to requirements in July 2009, they were only formally advised of this by letter dated March 15^th, 2011.

3 The Public Service Agreement 2010-2014 ("the Croke Park Agreement") provides for mechanisms whereby surplus staff within a given Department may be deployed within the civil service. Staff so redeployed are generally entitled to priority under the terms of that Agreement save where special skills are required. For various reasons, however, the applicants were not in fact so redeployed.

4 In November 2012 the Department sought applications for seven posts of Assistant Agricultural Inspectors ("AAI") by way of open competition. The application form required that applicants hold an honours degree in Agricultural Science or its equivalent. Although the applicants maintain that their degree qualifications must be regarded as equivalent for this purpose, they were rejected by letter dated 30^th January 2013 on the ground that they did not satisfy "the essential requirements" as outlined in the application form.

5 The applicants were naturally disappointed with this and arranged for their trade union to engage with the Department regarding their status and redeployment. To this end there was much correspondence and several meetings took place between the parties. One practical suggestion which was made was that the Department was holding internal competitions for these positions to which the applicants might also apply. Such a competition was advertised on 12^th April, 2013, and interviews for these positions were held on 3^rd July, 2013. But for the undertaking tendered in these proceedings, seven candidates would have been selected for the internal competition panel.

6 The applicants had - very understandably from their perspective - applied for these internal posts. They were crestfallen to learn by letter dated 24^th June, 2013, that they were again deemed ineligible for these positions. A critical feature of the proceedings is the claim advanced by the applicants that their exclusion from the internal competition on this ground is unfair and arbitrary.

7 While a conciliation conference of this dispute was scheduled before the Labour Relations Committee on 19^th August, 2013, nevertheless by mid-July, however, the patience of the applicants was wearing somewhat thin when it transpired that the Minister...