Mr. Stephen Cawley & Mr. James McCarthy (Represented by the Equality Authority) V Ha'penny Bridge Inn (Represented by Mason, Hayes & Curran)
Conclusions of the Equality Officer
The death of the respondent's main witness and co-owner of the Halpenny Bridge Inn has led the respondent's legal representative to argue that significant prejudice has been caused to the respondent by being deprived of a witness of critical importance and the delay in bringing the case for hearing. The respondent claims that a fair hearing could not take place in the circumstances. The respondent accepts that the case law1 raised is not directly analogous since in the instant case the complainants cannot be criticised in any way for the delay in progressing this claim.
The facts in issue relate to the second aspect of the audi alteram partem rule: that a person should have the necessary facilities to put forward the best possible case. A quasijudicial forum enjoys a certain degree of latitude in applying the rules of constitutional justice. The main authority in this regard is Kiely v Minister for Social Welfare (No.2), where Henchy J stated "Tribunals exercising quasi-judicial functions are frequently allowed to act informally- to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures and the like- but they may not act in such a way as to imperil a fair hearing or a fair result."2
A similar approach was adopted by Keane J in Mooney v An Post, stating "the concept [of natural justice] is necessarily an imprecise one and what its application requires may differ significantly from case to case. The two great central principles - audi alteram partem and nemo iudex in causa sua - cannot be applied in a uniform fashion to every set of facts."3 The nature of the inquiry being undertaken will dictate the stringency of the demands of constitutional justice in a particular case. This is reflected in the statement of Barron J in Flanagan v UCD that "matters of a criminal nature must be treated more
1 AIBP v Montgomery, Unreported, Supreme Court, 31st July 2002, at pages 10-11 of the judgment.
2 (1977) IR 276, 281.
3 (1994) ELR 103,116.
seriously than matters of a civil nature but ultimately the criterion must be the consequences to the person concerned of an adverse verdict."4
Keane CJ in AIBP v Montgomery, in finding that the case should be struck out because of the delay of the respondents, he held that Kelly J in the High Court had attached insufficient weight to the fact that a witness was now dead and would be unable to confirm the defendant's account of events. The evidence of the deceased was regarded as critical to the defendant's case as it concerned an "issue of central importance".5
In the instant case the incident took place on 17/2/2001. The respondent was notified of the incident on or around 31/3/2001. By the time the respondent's representative responded to the Equality Authority's approaches on 13/6/2001, Mr. O'Shaughnessy had already undergone major heart surgery and was convalescing. He subsequently died in October 2002. While the respondent was notified within five to six weeks of the incident I am satisfied that their representative would have encountered some immediate difficulties in getting instructions. In any event, Mr. O'Shaughnessy was not available to answer the allegations of discrimination being brought against the respondent, and consequently against him personally as the person who asked the group to leave. I am also satisfied that Mr. O'Shaughnessy should be regarded as critical to the respondent's case as his evidence concerned an "issue of central importance", i.e. the reason behind the refusal of service. The "consequences to the person concerned of an adverse verdict" for the respondent in this case would be to identify Mr. O'Shaughnessy as having discriminated, with its consequential impact on his good name, without him having been afforded an opportunity to defend himself. It is entirely possible that an oral presentation of his evidence might have been compelling. It is also agreed by parties that any delay in progressing the case, and therefore any prejudice arising, cannot be blamed on the complainants. The presentation of the complainants' evidence was compelling but it must be noted that there was no counterbalancing direct evidence from the person who took the decision and asked them to leave. The "consequences to the person concerned
4 (1988) IR 724, 731.
5 Unreported, Supreme Court, 31st July 2002, at pages 10-11 of the judgment.
of an adverse verdict" in respect of the complainants is that they would lose what may have been a viable complaint in other circumstances.
The potential unfairness to the respondent on the one hand and the potential unfairness tothe complainants on the other have led me to conclude that it is not possible to reach a fair result on the facts of this case. I am satisfied that as the respondent and Mr.O'Shaughnessy in particular will never have the opportunity or facility to present a defense the potential unfairness to them is the greater. I am satisfied that to issue a decision against the respondent in these circumstances would be to "imperil ......a fair result" in contravention the ruling of Henchy J in Kiely v Minister for Social Welfare (No.2). On that basis, I am satisfied that it is not possible to make a finding of discrimination in this case.
Decision DEC-S2004
I find that the respondent did not discriminate against the complainants on 17/2/2001.
Bernadette Treanor
Equality Officer
26 April 2004