Complainant

Respondent

Parties

Olumide  Smith

Mary Kelly

Act

Complaint Reference No.

Date of Receipt

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

CA-00028067-001

04/04/2019

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

CA-00029058-001

11/06/2019

This is one of a large number of complaints made by the complainant against judges, the Courts Service, and others, and in this case against an employee of the Courts Service.

As to the detail of the specific complaint against this specific respondent it is to be found within a complaint against five respondents in total, including a judge, the Courts Service, the respondent, and her employer.

In that regard, it has been gleaned to the best extent possible from the extensive submissions made, most of which are not related to this respondent at all.

Mr. Smith complains that his case against a former employer was struck out in his absence on  March 23rd  2019. He attributes blame for this to the respondent, the Court Registrar.

He also complains that he was asked to vacate the front row of seats in the Court no 6 on 2nd April2019.

He alleges that this was threatening and intimidating behaviour by Mary Kelly, the High Court Registrar.

As part of the complaint, he set this out as follows in a submission to the WRC.

‘I hereby document the following [interesting] events that occurred today:

1. Despite that I handed to the Court 6 Registrar on the 12th Day of December 2018 two complete Books of evidence, the Presiding Judge in Court 6 informed me today that the Court's copy of my Discovery Notice of Motion dated 5th Day of November 2018 in his possession was missing a page and he requested for my file copy which I handed him today.

2. At the end of the Hearing today, I requested from the Court 6 Registrar for my file copy of the said Discovery Notice of Motion. The Court 6 Registrar left the Court Room for consultation and on her return she informed me that the Presiding Judge decided to hold on to my file copy of the said Discovery Notice of Motion until I provide him another copy.

3. The Court 6 Registrar attempted to hand me back Book 1 of 2 of my Book of evidence which I submitted on the 12th Day of December 2018 however I declined receiving from her my said Book of evidence which I submitted to her in the presence of the Presiding Judge in Court 6 on the 12th Day of December 2018.’

He also appears to complain about the manner in which a complaint was struck out and an issue related to seating arrangements.

The Courts Service (CSOI) is not the respondent, but it made the following submission in respect of this and related complaints.

Mr Smith's claim relates to the manner in which the respondent; a Court Registrar acted on the instructions of the Presiding Judge in Court proceedings.

The respondent was at all times, as Registrar, acting on the instructions of, and under the direction of the presiding Judge.

Judges are, under the Constitution, independent in the exercise of their judicial functions and, as the Courts Service understands the position, may not be the subject of investigation under the Equal Status Act 2000 in respect to same.

In the circumstances Mr Smith's claim would appear to be misconceived and, under Section 22(1) of the 2000 Act, dismissible accordingly.

Mr.Smithcomplainsthathiscaseagainsthisformeremployerwasstruckoutinhisabsenceon23th March2019.HeblamesthisontheHighCourtRegistrar. The casewas scheduledforTuesday2nd April 2019 in the High Court.

Every Thursday,all such casesinthenon-jurylistforthe followingweekarementionedinacallovercourt.(Acallovercourtisusedforcase management, for example toensure that all parties are ready to go ahead and to deal withany preliminary issues that may have arisen.)

There was a callover court on Thursday 23rd March 2019 at which this case was for mention.  Mr. Smith did not attend. 

As it happens the other side didnotattend either and in the absence ofboth parties, the case was struck out.There is a permanentnoticeintheLegalDiarynotifyingalllitigantsthattheymustattendthiscalloverthe Thursdaybeforethe case is listed.

This applies to all litigants and cannot be described as discrimination, harassment, or victimisation.

In his second complaint Mr. Smith complains that he was asked to vacate the front row of seats in the Court no 6 on 2nd April 2019. He alleges that this was threatening and intimidating behaviour by the respondent, the High Court Registrar.

In all courtrooms the front row of seats is reserved for the parties to the current case and their legal  representatives. In the High Court, where there are likely to be both junior and senior counsel present for both sides, the two front rows are reserved for the parties to the current case and their legal representatives.

The respondent’s behaviour was not threatening or intimidating, and she was correct in asking Mr. Smith to move from those seats at a time when his case was not being heard. Mr. Smith was treated exactly the same as any other litigant in these circumstances.

The complaint is made against this respondent arising from the conduct of court proceedings, as can be clearly seen for his correspondence from the Courts Service.

Arising from direct complaints made against members of the judiciary in other cases (and indeed associated with this complaint) the complainant has also sought to fix various other parties as respondents, whether as ‘employers’ of the judge in question (in some cases other judges), in others, the Courts Service (whether as a judge’s employer or otherwise), and in this case specifically an employee of the Courts service named in the complaint.

The complainant has offered only very limited explanation as to why he has done so.

This gives rise to a number of issues.

The first is what, if any breach of the Act is alleged against this respondent. The complaints which have been extrapolated from the various extensive submissions of the complainant can be seen above.

One is a matter for which the respondent has no personal responsibility and in respect of which no alleged, even prima facie breach of the Act can be discerned.

Another is an entirely trivial matter of the complainant being asked not to occupy a reserved seating area.

But, in general, it is clear that they all relate to the conduct of court proceedings.

The complainant has relied (in other cases) upon the Equal Status Acts 2000-2015 to ground his complaints against various judges who the complainant states

is a person, organisation, company who provides goods, services or facilities

and that when providing that service he was discriminated on the ground of race.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

In its submission, the CSOI noted that the respondent was at all times, as Registrar, acting on the instructions of, and under the direction of the presiding Judge.

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 CSOI (above) further submitted that as the matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, this claim is misconceived as it is incorrectly based in law and that the exercise of judicial decision making is immune from suit.

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 alleged conduct which is the subject of this complaint relates to the conduct of a Court hearing.

I find therefore that judicial decision making and the related conduct of court proceedings do not constitute 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 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.”

I further find therefore 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. 

In that regard, I endorse the comments of the Courts Service of Ireland above.

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 complaints.

For the reasons set out above I find that complaints CA-00029058-001 and CA-00028067-001 are misconceived and they are both dismissed

S22, Misconceived, judicial immunity