Supporting Documents:

THE SUPREME COURT

DETERMINATION

Between:

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal delivered on the 18th July, 2016, and from the resulting Order of that Court made on the 18th July, 2016, and perfected on the 19th July, 2016.

2. Sarah Comiskey, referred to as “the applicant”, seeks leave to appeal to this Court from the said judgment of the Court of Appeal.

3. The Employment Appeals Tribunal is referred to in this determination as “the Tribunal” or “the respondent”. 4. Sean Conlan is referred to as “the First Named Notice Party”. Cathy Shevlin, the claimant in the underlying unfair dismissal proceedings before the respondent, is referred to as “the claimant” or “the Second Named Notice Party”.

Jurisdiction:

5. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° of the Constitution and many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

6. Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History:

Employment Appeals Tribunal Proceedings

7. The background to this application lies in a claim for unfair dismissal brought by the claimant against the First Named Notice Party, who was then a T.D, before the Employment Appeals Tribunal. At the material time there were three people involved in the relevant work place with the third being the applicant, who was also employed by Mr. Conlan as his Parliamentary Assistant. The applicant was not a party to the dismissal claim, nor did she give evidence at the hearing.

8. The determination of the Tribunal was issued on the 12th February, 2015.As part of the background, it discussed the context in which the claimant worked, and in so doing referred to the applicant by her initials “SC”, and also described her as the “fiancée and Parliamentary Secretary” of Mr. Conlan. Having set out that the claimant was certified unfit for work from the 24th September, 2012, due to work-related stress, the Tribunal criticised the fact that during this period the First Named Notice Party sent to her a letter which at least in part had a threatening tone. As part of the determination it went on to say that “it was inappropriate for [Mr. Conlan] to be corresponding with the claimant at all during this period as the cause of her work related stress lay with both [Mr. Conlan] and SC. All correspondence in relation to the issues with SC should have been postponed until she, the claimant, was certified fit to return to work.” The reference to SC was intended to refer to the applicant. The Tribunal held for the claimant and awarded her €25,000, but it is the description and alleged finding in relation to the applicant which are of relevance to this determination.

High Court Judicial Review

9. By Notice of Motion dated the 21st May, 2015, the applicant sought judicial review of the determination of the Tribunal on the basis that the above reference impacts on her constitutionally protected right to a good name and on her career as a barrister. She sought a declaration that the Tribunal had exceeded its jurisdiction and/or erred in law in wrongly, improperly and unnecessarily making her readily identifiable in its determination, and in making a finding of fact that the cause, or part of the cause, of the claimant’s work-related stress lay with the applicant. The applicant further sought orders that the said portions of the Tribunal’s determination be redacted forthwith.

10. In support of such application the applicant submitted, inter alia, that no evidence had been put before the Tribunal that she was Mr. Conlan’s fiancée; that the case had not been made that she was the cause of the claimant’s work-related stress; that the Tribunal did not have jurisdiction to make a determination of work-related stress in an unfair dismissals claim; and that she was not a party to the Tribunal proceedings; that she was not given notice thereof; that she was not present at the hearing; and that she was not given an opportunity to reply.

11. The leave application for judicial review was held before the High Court (O’Malley J.) on the 7th July, 2015. It was submitted on behalf of the applicant that the actions of the Tribunal constituted a breach of fair procedures and natural justice, that she was the only person in a position to bring the application and that she ought to have been entitled to have a right to reply and refute a finding of fact which could cause her reputational damage. O’Malley J. ruled that the applicant did not have locus standi to quash a finding of fact in a case to which she was not a party, or to bring the application in circumstances where she was not a party to the Tribunal proceedings.

12. The Court disagreed with the applicant’s contention that this was an unusual case, stating that findings of fact are regularly made against witnesses who are not a party to the case and who have no comeback against a finding that they disagree with. As a general principle, courts and tribunals make findings against one or other of the parties in a case every day, which may include findings being made in relation to persons who are witnesses or who are not witnesses. If every such person being aggrieved could bring judicial review proceedings and claim to be entitled to a part in the hearing, the principle of finality of litigation would be in doubt. Accordingly, O’Malley J. dismissed the application.

Judgment of the Court of Appeal

13. By Notice of Appeal dated the 24th August, 2015, the applicant appealed to the Court of Appeal, seeking to set aside the order of O’Malley J. and to obtain in lieu thereof the reliefs that she had originally sought in the High Court. Each member of the court (Ryan P., MacMenamin and Finlay Geoghegan JJ.) delivered a separate ex tempore judgment on the 18th July, 2016.

14. Ryan P. held that the impugned reference was made in the context of the Tribunal dealing with the letter above referred to, and was merely part of the background story which ultimately gave rise to the unfair dismissal claim. He described it not as a finding, but as an incidental explanatory comment. The learned President stated a person may suffer stress by virtue of disagreements with another person, which person is not thereby guilty of misconduct simply because of such an exchange. In this case he said that the comment could not be regarded as a finding of wrongdoing or as reflecting adversely on the applicant. He stated that it is within the Tribunal’s remit to hold that a person was suffering from stress and that a person is not entitled to overturn part of an award of the EAT merely because there is some reference to him or her in the decision. The obligation to provide reasons for a decision requires that courts and tribunals be free to mention persons who are not a party to the proceedings, and there is no remedy for this where the reference is reasonable, necessary and proportionate.

15. MacMenamin J. held that the case must be determined in accordance with the test for locus standi in Cahill v. Sutton [1980] I.R. 269. The learned judge noted the unique circumstances of the case and stated that he did not think that any fair-minded person would draw adverse inferences from the observations in the determination. He continued:-

“It is not a reflection on her good name or character or her capacity to act as a barrister or as a potential employee, either here or elsewhere, it is merely an explanatory comment made in circumstances where there might be a myriad of explanations for why there might be “work related stress”. It arose in a particular situation. I think that the observations which I make are entitled to be put on the record in vindication of the appellant’s good name.”

17. The Court therefore dismissed the appeal on the grounds, inter alia, that there was no adverse finding in the Tribunal’s determination.

Application for Leave:

18. The applicant seeks leave to appeal to this Court from the decision of the Court of Appeal. The applicant maintains that the comment in the decision of the Tribunal is a damaging finding of fact made against her, on permanent and public record, and that it is capable of and in fact has already materially affected her right to a good name pursuant to Article 40.3.2° of the Constitution.

19. The applicant states that the issue of whether the impugned text was harmful or damaging was not heard or ruled in the High Court, and only arose for the first time in the Court of Appeal. She states that if it had arisen she would have been in a position to substantiate her claim that she has been substantially prejudiced by virtue of media and online records of the Tribunal’s determination, and to give evidence of same. The applicant states that the said media reports were directly cited as a material consideration in a law firm’s rejection of her employment application thereto, and that she will continue to suffer ongoing harm to her good name and her right to earn a living in the absence of a judicial remedy.

20. The applicant submits that the decision sought to be appealed involves a matter of general public importance. She submits that the judgments of the High Court and Court of Appeal set down a principle that a statutory decision-making body is entitled to make an adverse finding of fact against the good name and reputation of private person who was neither present at nor party to the proceedings, nor on notice of the possibility of the adverse finding being made, nor provided without a right of reply, and that such a person does not have recourse to judicial review for want of locus standi. She submits that it is a matter of general public importance for this Court to determine whether private persons are precluded from challenging such decisions.

21. The applicant further submits that she has been denied justice, fair procedures and the rule of law, and that it is in the interests of justice that an appeal be granted. If leave is not given, she will permanently be denied justice in respect of a most serious infringement of her constitutional right to her good name and reputation. She states that she has been portrayed as a person with a propensity to engage in bullying or anti-collegial behaviour. No justification has been given by the Tribunal for why the offending text was not simply expunged, redacted or deleted.

22. Through a letter from the Chief State Solicitor’s Office dated the 31st August, 2016, the respondent indicated that it has not partaken in these proceedings and confirmed that it will not seek to participate in the applicant’s application to the Supreme Court, in line with usual practice and in accordance with relevant authorities. By letter from her solicitor dated the 7th September, 2016, the Second Named Notice Party herein communicated that she is not partaking in these proceedings and will not seek to participate in the applicant’s application.

23. Accordingly, no grounds of opposition or reasons therefor have been put forward in opposition to the application. Nonetheless, the application falls to be determined in the usual manner in accordance with the criteria set out in Article 34.5.3° of the Constitution.

Decision:

24. At the level of principle, it is the case that since the passing of the Thirty-third Amendment to the Constitution a party’s former right to appeal from the High Court to this Court is no longer the situation. Rather the right of appeal is now to the Court of Appeal. Therefore this is now the fundamental appellate structure operating within and governed by our Constitution. Whilst the vast majority of cases will reach finality at that point, there is provision for a further appeal to this Court, but only in those cases where by virtue of their significance or effect they can meet the constitutional threshold.

25. That threshold has two elements to it, but both have in common the absolute necessity for a successful applicant to show that the issue raised is of such importance that the overall administration of justice demands a third level appeal on that issue. Several Determinations of this Court have at a particular level indicated what requirements are necessary to this end. All emphasise that matters falling short of this must end at the Court of Appeal stage. This is one such case.

26. The application presently under consideration is, as stated, from the decision of that Court. In the documentation submitted, several grounds have been advanced which the applicant alleges satisfy either or both of the constitutional requirements. All such grounds have in common the fundamental complaint of the applicant which is that the reference in the Tribunal’s determination constitutes a finding of fact against her, with resulting reputational damage to her good name and professional career.

27. However, it is abundantly clear from each judgment of the Court of Appeal that the reference in question, as properly read and understood, cannot bear the meaning as alleged. This is now the only and indeed is the conclusive interpretation of that reference and, accordingly, the fundamental basis of her original complaint no longer exists. Moreover, the Court individually and collectively emphasised that her reputation remains intact and has not in any way been adversely affected by such a reference.

28. Accordingly, as the factual cornerstone of these proceedings has ceased to exist, it is impossible to see what utility there would be in a continuation of this litigation. On that basis alone, the application must be refused. It is therefore unnecessary to consider any other matter.

29. Consequently, it cannot be said that either requirement of the constitutional threshold has been met.

30. Accordingly, leave to appeal to this Court is refused.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.