The High Court has proposed an order requiring Fergal O’Connell to obtain leave before bringing any further proceedings against SOLAS about the 2013 Safe Pass Scheme. For other proceedings against SOLAS, its servants, agents, officials or employees, the proposed order requires him to give 14 days’ written notice. The court also proposed that proceedings issued without complying with the order be treated as void, with SOLAS not required to respond.
The ruling by Ms Justice Emily Egan followed SOLAS’s application for an Isaac Wunder order, which would restrict future litigation. SOLAS sought a general restriction or, alternatively, a restriction focused on challenges to the Safe Pass Scheme. The judge rejected the general restriction as disproportionate, and said no specific restriction was needed for the replacement 2019 scheme, which O’Connell had said he did not intend to challenge.
The judgment recounted earlier disputes over construction safety and certification schemes. O’Connell succeeded in 2015 in obtaining a declaration that SOLAS could not require additional practical assessments when renewing certain CSCS and QSCS registration cards. The court stressed that this decision concerned skills-based schemes and did not determine the legal validity of the Safe Pass Scheme, which it described as a safety-awareness course.
O’Connell’s 2017 proceedings included attempts to obtain injunctions against the 2013 Safe Pass requirements. An interim injunction was discharged after the court found relevant matters had not been disclosed. Later applications were dismissed, and the substantive case was dismissed after the court found he lacked standing to challenge the training programme, while also ruling that SOLAS had statutory power to provide training. In 2018, a further challenge to the 2013 scheme was struck out as an abuse of process under the rule in Henderson v Henderson. The Court of Appeal later refused extensions of time to appeal orders in the 2017 and 2018 cases.
Justice Egan found that the litigation history showed features relevant to restricting vexatious proceedings, including repeated attempts to obtain similar interim relief, the carrying of issues into later cases, and unpaid costs. But she said a future challenge to the 2013 scheme could not be assumed to be without reasonable grounds or bound to fail. A 2017 email obtained by O’Connell through a freedom of information request in 2020 appeared to record doubt about the renewal requirements’ legal validity, although the judge said its substantive impact was likely limited. Any new challenge could face arguments including delay, time limits, mootness and abuse of process.
The court’s proposed order is not a final order on costs. The judge said she would hear the parties on matters arising from the proposed order and costs.