The High Court has determined that the Circuit Court hearing of a hotel discrimination appeal brought by members of the Traveller community was unfair in circumstances where the presiding judge was overly-interventionist and conducted a large part of the examination of the witnesses.
Delivering judgment for the High Court, Mr Justice Barry O’Donnell confirmed: “In all the circumstances it was clear to this court that even if the learned judge was focused on endeavouring to hear and conclude the WRC appeal expeditiously the objective impression of the hearing was that it was unfair.”
Background
The applicants were members of the Traveller community and recipients of the Homeless Assistance Payment (HAP) at the time of the events complained of. In September 2018, the family was declared homeless for the purpose of the Housing Act 1988 and required emergency accommodation.
A community welfare officer sought to assist the family in obtaining emergency accommodation, approaching the Charleville Park Hotel in Co Cork, a hotel operated by the respondent.
The hotel, having stated that it had no availability, refused to honour a booking made online by the applicants using a debit card, on the basis that a credit card in the name of a guest was required at the time of check-in.
The applicants brought a claim as against the respondent before the Workplace Relations Commission (WRC) for discrimination based on their HAP recipient status and later expanded same to include claims of discrimination based on their status as members of the Traveller community.
An adjudication officer (AO) of the WRC found in favour of the applicants, directing the respondent to pay compensation and to revise its credit card policy so that it did not infringe the Equal Status Act 2000.
The respondent appealed to the Circuit Court.
The appeal was heard before the Circuit Court on 18 October 2022, following which an ex tempore judgment was delivered allowing the appeal, vacating the order of the AO and making no order as to costs.
The applicants subsequently commenced two sets of proceedings — an appeal on a point of law pursuant to s.28(3) of the 2000 Act, and the judicial review proceedings before Mr Justice O’Donnell. It was determined that only the judicial review proceedings issued by the mother and son of the family should proceed.
The applicants complained that the Circuit Court judge acted in breach of natural and constitutional justice and/or that his order was unreasonable.
In particular, the applicants alleged that the judge gave no explanation of the legal basis and reason for his orders and acted ultra vires by imposing a burden of proof not provided for in the 2000 Act, by departing from Order 57A of the Circuit Court Rules in failing to have regard to relevant documents and by finding that the minor applicants could not experience discrimination by virtue of their age.
Finally, the applicants alleged that the judge was biased, over-interventionist and failed or refused to have regard to the material before him.
The High Court
Preliminary issue
The High Court firstly addressed the question of whether it should entertain the judicial review proceedings in light of the statutory appeal brought separately by the applicants.
Having heard the parties’ submissions, Mr Justice O’Donnell considered that the pursuit of an available statutory appeal should be “the default option” and noted that there is scope on appeal to incorporate the issues typically arising in judicial review proceedings.
Nonetheless, the judge was satisfied that very significant issues in relation to the fairness of the procedure before the Circuit Court arose which, as per Koczan v. Financial Services Ombudsman [2010] IEHC 407, went to the integrity and fairness of the Circuit Court proceedings.
The court also considered that if relief was refused in the judicial review proceedings based on the existence of the statutory appeals, the applicants would be deprived of any substantive hearing on the issues raised, finding inter alia that “the confusion over which remedy to pursue — which must be solely attributed to the applicants — is not a sufficient justification to exercise my discretion to refuse relief in these proceedings”.
Substantive issues
Mr Justice O’Donnell highlighted at the outset: “A judge, inter alia, is fully entitled to ask questions for the purposes of clarifying issues and also to intervene for the purposes of ensuring that the hearing is conducted within proper parameters for the pleaded issues.”
The court first addressed the claims that the Circuit Court judge used the term “itinerant” in respect of the applicants and commented repeatedly on the female applicant’s appearance.
Having considered inter alia the test for objective bias in O’Callaghan v. Mahon[2008] 2 IR 514, Mr Justice O’Donnell determined that “the language used by the learned judge was inappropriate and derogatory, even if that was not the intention… However, the question is whether the language used is sufficient to ground a finding of bias. In light of the authorities cited above, the court is not persuaded that the language used — particularly when viewed in light of the hearing as a whole — can lead to a finding that there was pre-judgment, or a partiality motivated by a pre-existing bias which contaminated the hearing.”
Turning to the interventions on part of the Circuit Court judge, the High Court found that the judge “excessively intervened in the examination and cross examination of witnesses to the point that he gave the appearance of having entered the fray to a substantial extent”.
Mr Justice O’Donnell noted that “the judge initiated and effectively took over her examination in chief. Of the first 63 questions asked, only six questions were asked by Ms O’Reilly’s counsel. At that point, despite having conducted the bulk of the questioning — and therefore deciding on the course of inquiry — the learned judge expressed considerable scepticism that the burden of proof had been discharged.”
The court continued: “The learned judge continued to interrupt counsel and made observations suggesting that he had not heard evidence that Ms O’Reilly felt discriminated against, despite the fact that he had conducted the preponderance of questioning to that point, and then moved to interrogating the submissions.”
Mr Justice O’Donnell concluded that the hearing was objectively unfair, highlighting: “The evidence for the respondent was given by the managing director of the respondent, Mr McDonagh. Strikingly, all of the questions in his examination in chief were asked by the learned judge, and most were leading questions directed towards explaining and justifying the position adopted by the hotel.”
Conclusion
Accordingly, the High Court quashed the Circuit Court’s decision and orders and ordered that the appeal from the WRC should be remitted to the Circuit Court to be dealt with by a different judge.
O’Reilly & Anor v Atlantic Troy Limited [2024] IEHC 541
