Complainant

Respondent

Parties

Olumide  Smith

The President of the High Court, The Hon. Mr. Justice Peter Kelly

Act

Complaint Reference No.

Date of Receipt

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

CA-00011871-001

24/05/2017

The complainant has made a separate complaint which is the subject of a decision in ADJ 9069 that the judge named in that complaint, the Hon. Mr. Justice Seamus Noonan, subjected him to conduct which was a breach of the Equal Status Act on  March 3rd 2017, in the course of High Court proceedings.

He also makes criticisms of the conduct of a hearing on February 23rd and 24th 2017.

Full details of the allegations are set out in the complaint form, specifically in Form ES 1 which is attached to the complaint and which it is not necessary to set out for the reasons which follow below.

He has now complained against the current respondent as he holds the position of President of the High Court.

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.

The complainant alleges that the judge named in the original complaint Hon. Mr. Justice Seamus Noonan, subjected him to racist harassment, discrimination and victimization on March 3rd 2017, in the course of High Court proceedings.

It further includes criticism of that judge for failing to comment on a defendant as he would have wished or to properly interpret a Council Directive of the European Union and various other matters and alleged failures which are detailed there.

He also makes criticisms of the conduct of a hearing on February 23rd and 24th 2017.

He does not specify what he alleges against the current respondent.

The complaint is made against the respondent in his capacity as a President of the High Court and the complaints arise from interactions during hearings in which the respondent had no involvement. The case was heard by another judge.

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;

A preliminary issue arises as to whether the complaint is properly within jurisdiction.

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

The President of the High Court (the current respondent) is not the employer of Mr Justice Noonan (the subject of the original complaint and the decision in ADJ 9069).

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

Judges 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 (in which the respondent had no involvement anyway) 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, not only is the exercise of judicial decision making is immune from suit but the current respondent had no involvement of any sort in the matters set out in the complaint.

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.'"

30.

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."

In addition, not only is the exercise of 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 was the subject of the complaint in ADJ 9069 occurred during a Court hearing (again noting, although it is hardly necessary to do so) that the current respondent had no role in the proceedings.

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 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. 

I find that I have no jurisdiction to investigate this complaint as the matters complained of are not properly before me.

This complaint, relying upon the Equal Status Acts to bring an action against a Judge related to alleged unfair treatment during a Court hearing in which he had no involvement, is not properly before me.

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.

As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss complaint CA-00011871-001, 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, Complaint misconceived