Machinery for taking decisions affecting rights must provide for fair procedures

P. J. McEvoy (plaintiff) v The Prison Officer Association (defendant).

Constitution - Personal rights - Natural and constitutional justice - Whether implied into agreement by which plaintiff held an honorary position - Vote of no confidence resulting in loss of office - Whether there was a breach of the requirement s of natural and constitutional justice.

The High Court (before Mr Justice McCracken): judgment delivered 11 March 1998.An agreement setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. This principle applied where the decision taken resulted in the loss of an honorary position of prestige or importance.

Mr Justice McCracken so held in declaring that a motion of no confidence in the plaintiff taken by the national executive council of the defendant, which resulted in the plaintiff ceasing to hold the office of president of the defendant and which damaged the plaintiff's reputation and prevented him from holding office in the future, was made in breach of the requirements of natural and constitutional justice and in awarding the plaintiff damages.

Rex Mackey SC and Cormac O Dulachain BL For the plaintiff; Frank Clarke SC and Ann Kelly BL for the defendant.

Mr Justice McCracken said that the plaintiff resided at a meeting of the national executive council of the defendant. Toward the end of the meeting, the discussion became heated. The plaintiff purported top close the meeting and left. In fact, the meeting continued with the vice chairmen of the defendant presiding and a vote of censure addressed to the plaintiff was passed.

At a subsequent of the council in October 1992 a motion of no confidence in the plaintiff, of which the plaintiff had prior notice, was moved. When the plaintiff asked for the reasons for the proposal to be supplied to him in writing , and that he be given an opportunity to make representations, the proposer said that the basis of his motion was the handling of meetings by the plaintiff as chairman. I spite of the plaintiff's objections, a vote was taken and the motion was carried.

The constitution of the defendant provided for such a vote of no confidence in rule 62 and in that rule it was provided that if the vote were carried as against any member of the administrative council, that member should cease to be a member of the administrative council and of the national executive council forthwith and should not be entitled to attend and subsequent meetings of the administrative council or of the national executive council.

There was no express provision on the conduct of a meeting at which such a vote is proposed or as to the rights of the person in respect of which such vote is proposed. Mr Justice McCracken said that it was implicit in the constitution and was accepted by the parties that the effect of a vote of no confidence was that an office-holder ceased to hold an office under the constitution.

By the time the hearing of the action, the plaintiff's term of office would have expired in any event. The plaintiff had stood for the same office at the next election and had been defeated.

The plaintiff argued that the conduct of the meeting and the way in which the vote of no confidence was dealt with was contrary to the principles of natural justice. The defendant argued that the rules of natural justice did not apply to a vote of no confidence under rule 62. The constitution contained further rules dealing with a complaint of misconduct which complied with the requirement of natural and constitutional justice. Furthermore, the defendant argued that the rule 62 procedure did not require and finding of wrongdoing.

Mr Justice McCracken said that while that was so, there was no doubt that it was an extremely serious matter for the plaintiff. The position of president of what was in fact the trade union for prison officers was a very prestigious one, and one carrying considerable responsibility. The vote had seriously jeopardised and prospect the plaintiff may have in obtaining another elected post in the defendant and was a somewhat public criticism of his administrative abilities.

Mr Justice McCracken said that the law on this matter was governed by the principle in Glover v BLN[1973] IR 388 in which it was held that the principles of natural justice applied to a termination of a contract of employment in the same way as they applied to the holder of the office. The same principles applied to the holder of a n honorary position such as the president of the defendant, because of the importance of the post and the effect on the office holder if his office is terminated. In Glover v BLN, Mr Justice Walsh stated that public policy and the dictates of constitutional justice required that statutes, regulations and agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures, and he further stated that it was unnecessary to decide in that case to what extent that contrary can be provided for by agreement between the parties as the agreement in question did not seek expressly or by implication to exclude the right if any of the parties to fair procedures.

Mr Justice McCracken said that the constitution in the present case did not seek to exclude fair procedures in relation to rule 62 and that rule undoubtedly set up machinery for taking decisions which affect the rights of members of the administrative council. Th ere was no doubt that the right of the plaintiff to participate as president in the affairs of the defendant was aright came within the ambit of comments of Mr Justice Walsh in Glover V BLN.

Mr Justice McCracken said that it was quite clear that the requirements of natural of constitutional justice were not complied with at the meeting in October, notwithstanding the protests of the plaintiff. He had no opportunity to prepare any form of rebuttal, as indeed he did not know what he had to rebut. Accordingly, the plaintiff was entitled to succeed . As regards the vote of censure passed at the meting in July, that was not a matter provided for in the constitution and it had no effect on the plaintiff's constitutional position within the defendant., The plaintiff was not entitled to relief in relation to that meeting.

In relation to damages , Mr Justice McCracken rejected the arguments of the defendant that in order to obtain damages for breach of constitutional rights, the plaintiff has to show either negligence or mala fides. While he did not agree with the plaintiff that damages did not equate with those which would be awarded in the defamation proceedings, there was no doubt that the plaintiff's reputation has suffered to some degree and that he had also suffered some considerable mental distress as a result of the events. In reality, he could not stand for office again and while this caused him no financial loss, it was deserving of compensation. Mr Justice McCracken awarded the plaintiff £10,000 damages and declined to make any declaration as to the validity of the resolution as it would be of no benefit to the plaintiff and could cause problems for the defendant. The only declaration made was one to the effect of the motion of no confidence removing the plaintiff from office as president of the defendant was passed contrary to the requirement of fair procedures and to the dictates of natural and constitutional justice.

Solicitors: Brophy Solicitors (Dublin) for the plaintiff; Peter O'Boyle & Co (Dublin) for the defendant.