Yap v Childrens University Hospital Temple Street Ltd

• Jurisdiction: Ireland
• Judge: MR. JUSTICE FRANK CLARKE,MR. JUSTICE CLARKE
• Judgment Date: 01 June 2006
• Neutral Citation: [2006] IEHC 308
• Docket Number: [2006 No. 1013 P]
• Court: High Court
• Date: 01 June 2006

[2006] IEHC 308

THE HIGH COURT

1013P/2006

YAP v CHILDRENS UNIVERSITY HOSPITAL TEMPLE STREET LTD

DUBLIN

SUFFIN YAP

Applicant

and

CHILDREN'S UNIVERSITY HOSPITAL TEMPLE STREET LIMITED

Defendant

MULLARKEY v IRISH NATIONAL STUD CO LTD 2004 ELR 172 2004/32/7390 2004 IEHC 116

CARROLL v BUS ATHA CLIATH / DUBLIN BUS 2005 4 IR 184 2005 ELR 192

BARLOW & ORS v FANNING & UNIVERSITY COLLEGE CORK 2002 2 IR 593 2003 1 ILRM 29 2002/3/572

BUPA (IRL) LTD & ANOR v HEALTH INSURANCE AUTHORITY & ORS 2006 1 IR 201 2006 1 ILRM 308 2005/6/1301 2005 IESC 80

EMPLOYMENT

Interlocutory injunction

PRACTICE AND PROCEDURE

Parties

Contract of employment - Entitlement to be paid pending trial of action - Circumstances in which court will interfere to force continuation of contract of employment -Whether at interlocutory stage court could make order requiring employer to pay employee - Whether court could make order fixing terms of employment - Carroll v Bus Átha Cliath [2005] IEHC 1, [2005] 4 IR 184 considered - Injunction refused (2006/1013P - Clarke J - 1/6/2006) [2006] IEHC 308, [2006] 4 IR 298

Yap v Children's University Hospital

The plaintiff, who was employed by the defendant made a large number of allegations regarding the manner in which the hospital was operated and the plaintiff refused to work, alleging that the circumstances in which she would be required to work were not proper. The plaintiff sought an interlocutory injunction directing the defendant to pay salary and associated benefits to the plaintiff pending the trial of the action and also make relevant contributions into the plaintiff's pension. There was a second motion before the court, in which Dr. Treacy, who was clinical director of the National Centre for Inherited Metabolic Disorders, sought to be joined as a notice party in the proceedings on the basis of an interest in the proceedings which she contended for.

Held by Clarke J. in refusing both applications:

1. That notwithstanding the fact that the plaintiff had made out an arguable case as against the hospital, so long as the controversy remained between the parties it was not possible for the court to make an order requiring the plaintiff to return to work and consequently it was not possible to direct the defendant to pay the plaintiff's salary in the intervening period.

2. That despite the fact that the clinical director's actions and positions might well arise in the course of the hearing, those considerations were outweighed by the court's obligation to restrict private proceedings to the parties chosen by the plaintiff and accordingly the clinical director ought not to be joined as a party to the proceedings.

Reporter: L.O'S.

1 APPROVED JUDGMENT OF MR. JUSTICE FRANK CLARKETHURSDAY, 1ST JUNE 2006

2 JUDGMENT WAS DELIVERED AS FOLLOWS BY MR. JUSTICE CLARKE ON THURSDAY, 1ST JUNE 2006:

3 MR. JUSTICE CLARKE: There are two motions before the Court. In the first motion the Plaintiff seeks firstly an interlocutory injunction requiring that the Defendant hospital pay salary and associated benefits pending trial and also make relevant contributions into the Plaintiff's pension. The second order sought in that application, which is not controversial, seeks, in effect, case management to ensure an early trial of the hearing, and it would appear that all parties agree that that is a course that should be followed. When I finish delivering this judgment, I will discuss with the parties how that might best be achieved. Therefore, so far as that motion is concerned, the issue in controversy is as to whether an injunction of the type sought be granted.

4 The second motion is one in which Dr. Eileen Treacy, who is the clinical director of the National centre for inherited Metabolic Disorders, seeks to be joined as a notice party in the proceedings on the basis of an interest in the proceedings which she contends for. That application is also controversial and is dealt with in this judgment. I propose dealing with the interlocutory application fist.

5 The Plaintiff is a consultant pediatrician with a special interest in metabolic diseases who is employed by the hospital as a consultant under what is known as the consultants Common contract. In the affidavits which have been filed to ground this application, she makes a large number of allegations regarding the manner in which the hospital has operated both, it would seem, at the administrative and clinical level. It is impossible at this stage to reach any conclusion as to the validity or otherwise of the contentions which are made. It its important to note that, as in all interlocutory applications that are tried on affidavit, the court is being asked to make an interim or interlocutory order pending a full trial, and it is only in cases where either the Plaintiff has made out no case, or indeed on some occasions where the Defendant has made out no defence, that the Court is entitled to make assumptions about how the ultimate proceedings will be resolved. I should therefore say that I can reach no conclusions on the affidavit evidence either to the effect that the Plaintiff will necessarily lose so far as her factual contentions are concerned or equally that she will necessarily win. Suffice it to say that she has made out an arguable case as against the hospital, and if her evidence is accepted, clearly there might well be findings concerning the way in which aspects of the hospital was run so far as she was concerned, which would be favourable to her.

6 But it is also necessary at this stage to consider what the legal consequences of any such findings might be. Even if the Plaintiff at trial persuades the court that, largely speaking, her allegations are true, the Court would be faced with very complex and difficult legal questions as to what the appropriate remedy would be. That she might well be entitled to damages would hardly be controversial in the event that she were to succeed. But in the course of the these proceedings she seeks a whole range of declaratory and injunctive relief, and again without expressing any view as to whether any such relief could or could not be granted, there are certainly significant legal issues that would arise.

7 In substance the Courts have been reluctant to make orders which amount to specific performance of a contract of employment for very good reason. It is not the function of the courts to deal with the day-to-day operation of contracts of employment, and the Courts would be required to almost act in an industrial relations role if the Courts were to make orders as to precisely how contracts of employment were to work. Therefore there are very limited circumstances in which the court will intervene to force a continuation of a contract of the employment particularly where there is a serious controversy.

8 It seems to me that the limited circumstances in which the courts have intervened in the past can in the main be grouped under a number of narrow headings. Firstly, there have been a small number of cases where the issue between the parties was what I might describe as technical rather than going to the relationship between employer and employee, such as redundancy and the like where the employer had no complaint against the employee and the employee had no complaint against the employer but there was a technical question as to how the employee should be treated so far as redundancy or allied matters was concerned. In those circumstances there have been a limited number of cases where the Court has continued a contract of employment but clearly on the basis that there was no difficulty in implementing such order on either side.

9 There have also been a limited number of the cases, some of which referred to in argument before me in this case, which concern circumstances where persons may be entitled to be paid even though they are not working. As that is a key issue in this case, it seems to me...