Complainant

Respondent

Parties

Olumide  Smith

The Employer of 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-00028072-001

04/04/2019

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

CA-00029060-001

11/06/2019

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

This complaint is related to one of those which was made against an employee of the Courts Service, and is also made against her employer, the Courts Service.

As to the detail of that complaint against that employee it is to be found within a complaint against five respondents in total, including a judge, the Courts Service, the named employee (the subject of ADJ 21395) and this respondent, her employer.

In that regard, while the complaint against the employee was gleaned to the best extent possible from the extensive submissions made, no specific complaint has been made against this respondent.

Mr. Smith complains that a case against his former employer was struck out in his absence on 23t March 2019. He attributed blames for this on 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 April 2019. He alleges that this was threatening and intimidating behaviour by 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) accepts that it is the employer of the person named in ADJ 21395

Mr Smith's claim against the employee named in ADJ 21395 related to the manner in which she, (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. Smith complains that his case against his former employer was struck out in his absence on 23t h March 2019. He blamed this on the High Court Registrar.

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 Mary Kelly, 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 employee’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 and is related to the conduct of an employee of the Courts service during court proceedings, as can be clearly seen from the complainant’s correspondence with the WRC.

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 the employer of an employee of the Courts service (as well as that employee in a separate case).

The complainant has offered no 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 against its employee can be seen above.

One is a matter for which that employee had no personal responsibility and in respect of which no alleged, even prima facie breach of the Act can be discerned. How then can some liability attach to the named respondent in this case?

Another was an entirely trivial matter of the complainant being asked not to occupy a reserved seating area, which, according to the respondent was a purely administrative arrangement that applied to any person attending the court.

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 employee 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 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.

It follows, as a matter of law and logic, that if the employee against whom a separate complaint was made, and on which this one is based, committed no breach of the Act (and, as that complaint was found in ADJ 21395, to be misconceived), then this consequential complaint is likewise misconceived

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 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.

For the reasons set out above I find that complaints CA-00029060-001 and 28072-001 are misconceived and they are both dismissed.

Equal Status, Misconceived complaints, S 22 ESA