Complainant

Respondent

Parties

Olumide  Smith

The Courts Service (An tSerirbhis Chuirteanna)

Act

Complaint Reference No.

Date of Receipt

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

CA-00006352-001

28/07/2016

The complainant alleges that a judge named as a respondent in a related complaint subjected him to racial harassment, discrimination and victimisation by virtue of certain words she used in addressing him on July 15th, 2016, in the course of Court proceedings.

It will be noted that the respondent in this case is the Courts Service.

Full details of the allegations are set out in the complaint form, specifically in Form ES 1 which is attached to the complaint.

The complaint relates to comments made by the judge in July 15th, 2016 and questions she asked related to his nationality.

The complainant states that this means he has been discriminated against by a person, organisation company who provides goods, services or facilities contrary to the Equal Status Act, 2000.

He has made no submission on how the named respondent in this case is liable for these actions.

In its reply to notification of the complaint the Courts Service of Ireland made the following points.

The Courts Service (against whom a series of complaints have been made) is not the Judge’s employer.

All judges, including the named respondent are judicial office holders appointed by the President of Ireland in accordance with Bunreacht na hÉireann (The Constitution of Ireland).

Without commenting on the allegations made by the complainant judges are independent in the exercise of their function under the Constitution and in its submission may not be the subject of proceedings under the Equal Status Act 200 in respect of the exercise of those functions.

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, as amended. This claim is misconceived as it is incorrectly based in law.

Furthermore, the exercise of judicial decision making is immune from suit.

The complaint is made against this respondent arising from the actions of a Judge in the course of her conduct of court proceedings.

In addition to direct complaints made against members of the judiciary 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 including this, the Courts Service (whether as the judge’s employer or otherwise is not clear), and others.

The complainant has offered no explanation as to why he has done so. The complaint material has simply repeated the original complaint against the judge in question and then selected a respondent, or more than one respondent, as it were at random.

He has offered no evidence nor made any submission as to what liability he is attaching to this respondent for the initial actions of the judge about which he complained.

This gives rise to a number of issues.

The first is the obvious one which flows from the above; what, if any, breach of the Act is alleged against this respondent.

The second is whether this respondent can be said to have some associated or vicarious liability for the acts complained of in the original complaint.

The third is, even if there was some positive answer those questions, whether any such alleged, associated liability can arise in respect of complaints (the original complaints against a judge) where no breach of the Act arises.

To look at that question first the complainant relies upon the Equal Status Acts 2000-2015 to ground his original complaints against the Judge 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.

It was necessary to deal by way of a preliminary issue as to whether the complaint against a judge would be properly within jurisdiction. If it is not then, it follows as a matter of logic and law that the complaint against this respondent is misconceived, regardless of the answer to the first two questions above.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaints against the Judge 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.

As will be seen above, in its reply to notification of the complaint the Courts Service of Ireland made the following points, among others.

 All judges, including the named respondent are judicial office holders appointed by the President of Ireland in accordance with Bunreacht na hÉireann (The Constitution of Ireland).

Without commenting on the allegations made by the complainant judges are independent in the exercise of their function under the Constitution and in its submission may not be the subject of proceedings under the Equal Status Act 200 in respect of the exercise of those functions.

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, as amended. This claim is misconceived as it is incorrectly based in law.

Furthermore, the exercise of judicial decision making is immune from suit.

In Kemmy v Ireland [2009] IEHC 178 the principle of Judicial Immunity and its purpose was comprehensively addressed:

'This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.'"

In Desmond & Anor v. Cornelius Riordan [2000] 1 I.R. 505, at p. 507, Morris P. stated:

"It is, in my view, well settled that the immunity from suit enjoyed by the judiciary exists not for the benefit of the judge but for the benefit of the community as a whole. This immunity is perceived to be necessary and desirable so that a judge may perform his functions the better, freed of concern that in the course of performing his duties he may defame a third party and be required to be answerable to that party in damages."

31.

(Endorsed by Geoghegan J., in the Supreme Court in Beatty and Beatty v. the Rent Tribunal and Anor [2006] 2 I.R. (S.C.), 191, at 212 where he said: "The immunity of judges is based on public policy considerations.")

32.

In an earlier case, Macaulay & Company Limited v. Wyse-Power [1943] 77 I.L.T.R. 61 at 63, McGuire J. held that:

"The people were entitled to have the opinion of a judge without fear of his words being challenged elsewhere. It was salutatory and beneficial privilege."

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 relate to the conduct of a Court hearing.

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. The 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.”

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. 

This complaint relying upon the Equal Status Acts to lodge a complaint arising from the actions of a Judge related to alleged unfair treatment during a Court hearing therefore was found not to be within jurisdiction in the original complaints.

It follows therefore that any purported consequential complaint in respect of a matter which is not within jurisdiction is also misconceived, to add to the fact that no case has been made out why the current respondent should be considered a valid party. 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.

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

As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss complaint CA-0006352-001, and determine that I have no jurisdiction to investigate and adjudicate on the matter.

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

Judicial immunity. Equal Status