Neutral Citation no. [1999] 1889

Ref:    

NICE2748

 

 

 

Judgment: approved by the Court for handing down

Delivered:

04/02/99

(subject to editorial corrections)

 

 

 

            IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                            QUEEN'S BENCH DIVISION (CROWN SIDE)

 

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           IN THE MATTER OF AN APPLICATION BY BRIAN McKENNA

                                                FOR JUDICIAL REVIEW

 

 

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NICHOLSON LJ

 

            By this application Mr Brian McKenna seeks judicial review of the decision of the Fair Employment Tribunal to refuse to state a case for the opinion of the Court of Appeal arising out of the Tribunal's dismissal of the applicant's complaint of unlawful discrimination.  Leave was granted by Kerr J on 19 June 1988.

            The background to the application is that on 16 June 1995 Mr McKenna who was a mechanic in the DSO Works Section at Pennyburn of Derry City Council applied for the post of Chargehand Mechanic in the section.  He was interviewed for the post on 4 July 1995 by Mr Peter Sidebottom, Manage of Personnel Services, Mr Alex Hamilton, Contracts Manager and Mr Raymond Hargan, Supervisor.  He was informed by letter dated 11 July 1995 that his application for the post was unsuccessful.  The post was offered to and accepted by Mr Andrew Adams, another mechanic in the same section.  There were three mechanics in the section.

            The applicant then complained to the Fair Employment Tribunal on 20 December 1995 on the grounds of religious and political discrimination by Derry City Council and Mr Sidebotton, that the discrimination occurred on 4 July 1995 and that he first knew about it on 27 November 1995.

            The complaint was heard by the Fair Employment Tribunal at Belfast on

27-31 October and 4-5 December 1997.  The Tribunal gave a written decision on 7 January 1998 rejecting the complaint.  By application dated 13 February 1998 Mr McKenna's solicitors requested the Tribunal to state a case for the opinion of the Court of Appeal on the questions posed by that requisition.  By decision dated 11 March 1988 the Tribunal declined to state a case and on 7 May 1988 the applicant sought leave to apply for judicial review of the decision not to state a case.  Leave was granted on 19 June 1988.

            The application for judicial review was heard on 19 October 1998.  Mr Treacy appeared for the applicant.  Mr C M Lavery QC and Mr O'Donoghue appeared for the respondent.  The applicant's solicitors, by their letter dated 13 February 1998 had requested a case stated on the following matters:-

1.         Whether the Tribunal gave proper reasons for its decisions.

2.         Whether a reasonable Tribunal properly directed as to the facts and the law could properly have concluded that the respondent had discharged the evidential burden.

3.         Whether the findings of the Tribunal were against the weight of the evidence.

4.         Whether the Tribunal erred in failing to make findings of fact on essential matters (as to which the Tribunal is referred to the written submissions of the applicant).

5.         Whether the Tribunal erred in failing to draw any inferences from undisputed matters of fact (see written submissions on behalf of applicant).

6.         Whether the Tribunal erred in failing to take into account relevant matters or to draw adverse inferences from the evidence of Mr Sidebottom (as to which see written submissions).

7.         Whether the Tribunal erred in failing to draw any adverse inferences from the flawed procedures and breaches of the Code of Practice.

8.         Whether the Tribunal erred in finding that the applicant had not been unlawfully discriminated against.

            The Tribunal unanimously declined to state a case for the reasons set out in their decision of 17 March 1988.  In their opinion the applicant's requisition to the Tribunal was an attempt to re-open most of the facts found by the Tribunal and did not become questions of law by alleging that the Tribunal had erred in law in reaching its factual conclusions.

            The Tribunal gave its reasons for refusing to state a case in respect of each of the matters raised by the applicant's solicitors.

 

Question 1

            Whether the Tribunal gave proper reasons for its decision.

            The Tribunal declines to state a case on this question as it does not disclose an identifiable question of law. The Tribunal gave reasons in its decision for finding that the applicant was not unlawfully discriminated against by the respondent.

 

 

Question 2

            Whether a reasonable Tribunal properly directed as to the facts and the law could properly have concluded that the respondent had discharged the evidential burden.

            This question is attempting to re-open the evidence and facts found by the Tribunal.  The decision of the Tribunal is final on matters of fact and to state in these terms that the Tribunal had come to an improper conclusion does not disclose a question of law.

 

Question 3

            Whether the findings of the Tribunal were against the weight of the evidence.

            This question is posed in similar terms to that in questions 1 and 2 and the Tribunal does not accept that it is a valid question of law.  It declines to state a case on this question unless and until it is ordered to do so.

 

Question 4

            Whether the Tribunal erred in failing to make findings of fact on essential matters (as to which the Tribunal is referred to the written submissions of the applicant).

            The parties both presented written submissions to the Tribunal at the conclusion of the case and made further oral submissions in relation to these.  Both submissions were helpful to the Tribunal and were considered in detail before coming to its decision.  Merely to state that the Tribunal "is referred to the written submissions of the applicant" is not sufficient to make this a question of law to be considered by the Court of Appeal.  The Tribunal, having considered the written submissions, made findings of fact on the essential matters before it.

 

 

Question 5

            Whether the Tribunal erred in failing to draw any inferences from undisputed matters of facts (see written submissions on behalf of applicant).

            The Tribunal declines to state a case on this question as it encompasses in general terms the applicant's written submissions and does not rely on any particular undisputed fact which would give rise to a possible point of law on the question of perversity.  The Tribunal declines to state a case on this question unless and until it is ordered to do so.

 

Question 6

            Whether the Tribunal erred in failing to take into account relevant matters or to draw adverse inferences from the evidence of Mr Sidebottom (as to which, see written submissions).

            The Tribunal considered the evidence of Mr Sidebottom in considerable detail when coming to its conclusions and decision.  This was considered in paragraphs 2, 4, 5 and 7 of the Tribunal's decision and also considered any written submissions of both the applicant and the respondent.  The Tribunal does not consider that a question of law has been identified and declines to state a case on this question.

 

Question 7

            Whether the Tribunal erred in failing to draw any adverse inferences from the procedures and breaches of the Code of Practice.

            The Tribunal declines to state a case on this question as it does not disclose any identifiable question of law.  The Tribunal did consider the breaches of the Code of Practice as set out by both parties and concluded, in paragraph 4, that it did not draw an inference from the conversation held outside the interview situation.  The Tribunal is not prepared to state a case on this question unless and until it is ordered to do so.

 

Question 8

            Whether the Tribunal erred in finding that the applicant had been unlawfully discriminated against.

            This is not a question of law on which the Tribunal will state a case but is merely an attempt to have a re-hearing on the facts.  As no identifiable question of law has been posed on this question the Tribunal declines to state a case unless and until it is ordered to do so.

            The skeleton argument on behalf of the applicant advanced the following points:

            The Tribunal erred in law in that it:

(a)        failed to take account of certain relevant matters, namely:

            l         the evidence of Mr Sidebottom (a member of the Selection Panel) as to his state of knowledge of the successful candidate and the effect of this evidence on the rest of his testimony;

            l         the report of the internal investigation carried out by Mr Keanie (Town Clerk and Chief Executive) as a source of factual conflict and previous inconsistent statements by the members of the interview panel;

            l         the applicant's evidence as to the conversation between Mr Adams and Mr Hamilton (a second member of the Selection Panel) and his evidence as to what was said to him before the interview commenced.

(b)       misinterpreted the applicant's submissions in relation to the reason for the appointment and;

(c)        made certain findings of fact which were not supported by the evidence given, namely;

            l         that the assessment sheets completed by the interviewers showed that the two candidates gave very similar interview performances.

            l         that the assessments at interview put the successful candidate and the applicant on a par.

            The skeleton argument fleshed out in detail the allegations made against Mr Sidebottom and the Council's Internal Investigation, the alleged failure of the Selection Panel to do justice to the applicant's evidence and the allegation that the applicant's submissions had been misunderstood.  It criticised the Tribunal's findings of fact in detail.

            It was contended that there was an arguable case that:

(a)        The Tribunal disregarded a number of relevant issues in coming to its decision, namely:

            (i)        Mr Sidebottom's evidence as to the state of his knowledge of the successful candidate;

            (ii)       Mr Keanie's Internal Investigation including statements given by each of the three interviewers which were inconsistent with the evidence given to the Tribunal and;

            (iii)      Certain aspects of the applicant's evidence.

(b)       The Tribunal misunderstood the applicant's submission on the reason for the successful candidate's appointment and;

(c)        As a result of the above considerations a number of the Tribunal's findings of fact were deficient as against the weight of the evidence.

(d)       In addition, the finding that the applicant and the successful candidate performed similarly at interview was against the weight of the evidence.

Reference was made to the decision of Carswell LJ in Re Limavady Council's Application (1994) 5 NIJB at 48.

            In view of the fact that there was an inter partes hearing before Kerr J and no issue was raised about delay in bringing proceedings by way of judicial review at that stage I propose to say nothing about that issue.

            Mr Treacy supplemented his skeleton argument by contending that Kerr J had in effect held that there was an arguable case and, therefore, there should be a case stated.  In my view Kerr J, by giving leave, indicated that the Judge hearing the Judicial Review would have to decide whether the Tribunal should be ordered to state a case.  Otherwise the Judicial Review hearing would be pointless.  Mr Treacy also cited R (Gallagher Ltd v McKee [1983] NI 116 at 119, 122 and 124.

            He stated that where the grounds of application were perversity of findings, the applicant must show an arguable case on the grounds of perversity.  I am prepared for the purposes of this judgment to accept this as the appropriate test but I am not to be taken as approving this test.

            He referred to the necessity for giving proper reasons for the decision of the Tribunal and argued that the Tribunal failed to deal with the principal controversial points.  He cited Levy v Marrbale & Co Ltd [1984] 1 CR 583 at p. 587 and several passages from Harvey's text book on Employment Law.  He also referred to De Smith (5th ed.) p. 466.

            He complained that the Tribunal dealt with Mr Sidebottom's state of knowledge about the successful candidate in one short paragraph, in which reference is made to the fact that Mr Sidebottom went to the same church as the successful candidate.  The Tribunal heard the evidence, had the written submission of both parties and was entitled to conclude that the allegations made against Mr Sidebottom in this context merited peremptory dismissal of them.  Apparently he recognised the successful candidate because he sat near him in church.  But there was no evidence that he had ever spoken to him.  On his assessment sheet he referred to the successful candidate as Drew Adams, instead of Andrew Adams and said that he thought he had gathered this from Mr Hargan, who was Adams' supervisor.  It is clearly to be inferred from the Tribunal's findings that they gave no weight whatsoever to the insinuation of bias on the part of Mr Sidebottom and in my view they were fully justified.  By no stretch of the imagination could they be said to have been `arguably' perverse in deciding to ignore this material.

            The internal investigation did provide the sort of inconsistencies which one would expect from honest men, doing their best to recall what happened.  The Tribunal properly dealt with the case based on the evidence before them not based on any other investigation.

            The details of the internal inquiry were made available to the applicant so that witnesses for the respondent could be cross-examined out of their statements made to the person conducting the internal inquiry.  Inconsistencies could be highlighted and the Tribunal could take them into account.  There are no grounds for supposing that they did not do so.  But it would have been wrong to treat the internal inquiry as a separate entity.  All three persons interviewed as members of the Selection Panel gave evidence before the Tribunal and cross-examination of them took place.

            To suggest that the Tribunal failed to understand the proposition that the Council were uncomfortable with the fact that the appointment of the applicant would mean that three Catholics, Mr Hargan, Mr Moore and the applicant would be in charge of three Protestants and, therefore, a Protestant should be selected as charge-hand is to insult their intelligence.  In any event there is no basis for such a theory to be found in the evidence.

            Mr Sidebottom agreed in evidence that the applicant was told at an early stage that his capabilities as a mechanic would not be called into question.  But as the post was a chargehand's part, it would be insulting the intelligence of the applicant to suggest that he failed to realise that, although his capabilities as a mechanic were not in question, one of the issues which the selection panel had to face was whether one of the other two mechanics who were interviewed was a better mechanic or more suitable to oversee the mechanics in the DSO.

            The two Catholics, Mr Hargan and Mr Moore, who were going to have to work with the mechanics and with their chargehand had had no doubt but that the selected candidate was the better mechanic and Mr Hargan had no doubt that Mr Adams was the more suitable candidate.  Mr Adams would have had a powerful case for discrimination against him if he had not been selected and had called them to give evidence in his favour.  The conversation between Mr Adams and Mr Hamilton, if it took place, had nothing to do with the appointment and the Tribunal were entitled not to decide an irrelevant issue.

            Mr Treacy then dealt with his skeleton argument, the written submissions and paragraph 2 at p. 279 of the papers.  The tribunal was entitled to find that Mr Sidebottom had made up his mind about the merits of the candidates before he spoke to Mr Moore. There is nothing else in paragraph 2 which warrants comment.  There is nothing in the skeleton argument or the written submissions which assists the applicant in showing that there was an arguable case that the decision of the Tribunal was perverse.

            Mr Lavery QC's helpful skeleton arguments and submissions confirmed me in this conclusion.  I am surprised that Legal Aid was granted for this application.  But as so much effort was put into the case on behalf of the applicant I do not consider it appropriate to criticise anyone on the applicant's side of the case.  He had his case presented as ingeniously as it could be with so little material.  In my view legal aid should not be granted in a case of this kind unless the Committee consider that there is a reasonable likelihood of success.

            The application is dismissed.


            IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

                            QUEEN'S BENCH DIVISION (CROWN SIDE)

 

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           IN THE MATTER OF AN APPLICATION BY BRIAN McKENNA

                                                FOR JUDICIAL REVIEW

 

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                                                           JUDGMENT

 

                                                                    OF

 

                                                       NICHOLSON LJ

 

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