Complainant

Respondent

Parties

Olumide  Smith

The Courts Service

Act

Complaint Reference No.

Date of Receipt

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

CA-00018898-001

30/04/2018

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

CA-00028065-001

04/04/2019

The complainant made a complaint against a judge arising from court proceedings which is the subject of ADJ-14549.

He made another complaint arising from the same set of facts against ‘the employer’ of the named judge which is the subject of ADJ-14546.

This complaint, again grounded on the same set of facts, is against the Courts Service of Ireland.

The original complaint related to various actions of a District Court judge in the course of court proceedings on March 13th, 2018

He makes a second, similar complaint about the Judge’s actions on November 18th. 2014.

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

He does not say how the current named respondent is associated with the original acts complained of, or any other alleged breach.

In its reply to notification of the complaint the Courts Service of Ireland made the following points in relation to the question as to whether a judge is employed, in the sense of having an employer etc.

The Courts Service is not the  employer of a judge. The reason is that all judges are judicial office holders appointed by the President of Ireland in accordance with Bunreacht na hÉireann (The Constitution of Ireland).

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 his conduct of court proceedings.

Arising from various 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, 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. None has been specified.

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 is 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 pointed out that it is not the Judge’s employer, and that 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).

It continued, that 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 2000 in respect of the exercise of those functions.

Finally, the Courts Service submitted that 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 and that 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."

 (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.")

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. 

I find therefore that, if the initial act complained of is immune from suit, it follows therefore that any purported consequential complaint in respect of a matter which is not within jurisdiction is also misconceived.

In the absence of any wrongdoing being specified in respect of the named respondent or any case having been made out as to why the current respondent should be considered a valid party I must find that I have no jurisdiction to investigate this complaint as the matters complained of are not properly before me.

In that regard, I endorse the comments in the submission 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 complaint.

This complaint relying upon the Equal Status Acts to bring an action arising from the actions of a Judge related to alleged unfair treatment during a Court hearing 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 complaints CA-00018898-001 and CA-00028065-001 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