Complainant

Respondent

Parties

Olumide  Smith

An unnamed Barrister at Law

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00036324-001

08/05/2020

This is one of a number of complaints made by the complainant arising from proceedings in the courts.

The respondent identified for this complaint is a barrister but is not named and referred to only as the barrister of a named client.

He or she was listed as one of nine respondents.

These comprised a financial services business, a health care provider, two named individuals and a firm of solicitors which is named four times. It appears all of these were parties to legal proceedings involving the complainant.

While there is a reference to discrimination and victimisation no breach of the Act has been particularised.

The section of the ES1 form where a complainant is requested to identify the grounds on which the complaint is being taken has been left blank.

A series of questions are addressed to all respondents and relate in general to compliance with equality. They di not disclose any specific breach of the Act.

The complaint was forwarded to the respondent using only the format set out on the complaint form viz; the instructed Barrister of [named client] in a particular court on a specified day in February 2020 (giving details).

It was sent to the address of the firm of solicitors which is also named as a respondent.

The respondent in this case was listed as one of nine respondents.

As noted above, these comprised a financial services business, a health care provider, two named individuals and a firm of solicitors which is named four times. It appears all of these were parties to legal proceedings involving the complainant.

No breach of the Act has been alleged. The section of the ES1 form where a complainant is requested to identify the grounds on which the complaint is being taken has been left blank.

As noted this case concerns the actions of an unnamed barrister. There is no reason to believe that the notice of the complaint has ever reached the person against whom it was made and for whom it was intended. It is hard to see how it could be and a complainant has some obligation to identify and provide contact details for a respondent.

The position regarding judicial immunity has been well set out in a number of related decisions and it is not necessary to repeat it here. (See, for example ADJs 9069, 9102, 1105 and 14549).

Suffice to say that in those decisions it was found that judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. A Judge in exercising judicial decision making is immune from suit.

The conduct of proceedings in a court and the decision-making function of that role is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended.

Leaving aside the critical omission that the complainant has not sufficiently identified either the respondent or an alleged breach of the Act, even had he done so the principle of judicial immunity extends to barristers acting in a court case, subject to a number of exceptions such as mala fides or impropriety, neither of which is alleged in this complaint.

This immunity is necessary, among other reasons to ensure that cases determined by a judge in court are not subsequently re-opened through the ‘back door’ of proceedings against counsel who are officers of the court. This appears to be the intention of the complainant in this case.

The following appears in ‘The Equal Status Acts 2000-2011, 2012 edition, Judy Walsh, Blackhall Publishing, at page 43:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

Section 22 of the Equal Status Act 2000 as amended provides,

‘that the Director may dismiss a claim at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.’

The (admittedly  unspecified) conduct which is the source of this complaint relates to the conduct of court proceedings, and taken with the failure to identify a respondent or an alleged breach of the Act I find that this claim is misconceived as it is incapable of achieving the desired outcome and the matter complained of is not a service as defined under the Act. 

Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived.

Therefore, I find that the complaint is misconceived and dismiss the complaint.

For the reason set out above Complaint CA-00036324-001 is dismissed.

Misconceived, immunity