ECJ ruled against applicant in 10-year-old case


HIGH COURT JUDGMENT:Patrick Kelly -v- National University of Ireland Dublin

High Court

Judgment was given by Mr Justice Hedigan on May 9th 2012.


A finding of the European Court of Justice was found to be unfavourable to the applicant.* The High Court decided against imposing a Wunder order on the applicant.


The case began in 2002 when the plaintiff, Patrick Kelly, made a claim of discrimination on gender grounds because he was not offered a place for a Masters in Social Science degree in UCD. He was offered a provisional place in August 2002, which he refused.

He told the court that when he was interviewed for a place on the course he was treated rudely. He complained to the Equality Tribunal, which did not uphold his claim, and he then appealed this decision to the Circuit Court. In 2007, while waiting for this case to be heard, he sought from UCD copies of applications and scoring sheets for the 49 other candidates. This was refused by the Circuit Court.

Mr Kelly appealed this decision to the High Court. In the course of this hearing he sought to have four questions referred to the European Court of Justice (ECJ) for ruling. *

When the matter came back before the High Court the plaintiff sought to have journalists attached and committed for contempt of court for their reports on the ECJ decision, which was refused, and to have Mr Justice McKechnies ruling on the confidentiality of the documents set aside. It was found there was no basis for this application.

In April 2012 he made an application that Mr Justice Hedigan should recuse himself from hearing the case on the basis of an apprehension of bias on his part, based in part on his earlier comment: “The waste of public money expended upon this all but pointless set of proceedings is also scandalous.” Mr Kelly objected to the fact that at a hearing on March 12th 2012 Mr Justice Hedigan had criticised the plaintiff, comparing his posting online of abusive material about Mr Justice McKechnie to the actions of a “petulant child.”

Rejecting this, the judge said that “the reasonable observer would be outraged by the abusive material placed on the internet by the plaintiff concerning the judge who had given a decision unfavourable to him and would very likely be of the view that the Court did not go nearly far enough in comparing his actions to those of a petulant child.”


Referring to the ECJ ruling, he said: “It is quite clear that each finding of the European Court of Justice is unfavourable to the applicants case.

“The one exception is the Courts finding that it cannot be ruled out that a refusal of disclosure by the defendant, in the context of establishing facts (from which it may be presumed that there has been direct or indirect discrimination) could risk compromising the achievement of the objective pursued by Article 4 (1) of Council Directive 97/80 of its effectiveness. However, it is for the national court to determine in this matter in accordance with national law. The answer to the first question states that in assessing this, the national court must take into account the rules governing confidentiality.”

He pointed out that Mr Justice McKechnie had already made a provisional finding that UCD did not have to provide this documentation in unredacted form.

“There is nothing in the ruling of the European Court of Justice that could give grounds for changing the provisional decision of McKechnie J,” he said

Mr Justice Hedigan than considered whether a restraining order, normally called a Wunder order, preventing the plaintiff from further applications to court, should be imposed. “This court is … concerned that the processes of the court are being abused and that valuable Court time is being wasted,” he said. “Having spent considerable time hearing this matter and reading the pleadings, it seems to me that the dispute between the parties does not arise above the level of hurt feelings.”

He said there were grounds on which the court would be justified in making a restraining order, but he accepted assurances from the plaintiff he would make no further applications in the matter, apart from an appeal on a point of law from the Circuit Court.

The full judgment is on

Marguerite Bolger SC and, instructed by John J McDonald Co, for UCD; the applicant represented himself. 

* This article was edited on July 24th, 2012.