The Supreme Court has declared that the Government’s 2009 decision to dismiss Patrick J Kelly as Harbour Master in Killybegs was tainted by objective bias because Minister Coughlan attended the meeting at which the decision was made. The Court left the question of the final remedy for a further hearing and directed the parties to file written submissions.
The ruling, delivered on 15 April 2021, followed the Court’s 30 March judgment allowing Mr Kelly’s appeal against the Court of Appeal decision, which had upheld the High Court’s refusal of relief. The appeal concerned a dismissal following a disciplinary process that began in 2004. An investigation found gross misconduct and recommended dismissal. The Civil Service Appeal Board upheld two findings and supported dismissal on one of them.
The five Supreme Court judges gave differing reasons in the appeal judgment. Two judges concluded that the minister’s involvement tainted the Government’s decision through objective bias. Other judges expressed broader concerns about the process, while one rejected the challenges to the investigation and appeal procedure and found no evidence of bias in the Government process.
The parties disagreed on what should follow. Mr Kelly argued that the Court should quash the dismissal decision and that the matter could not then be remitted to the Government. He also sought declarations concerning his status and claimed entitlement to arrears of pay, increments and a pension. The respondents argued that the investigation’s gross misconduct finding remained in place and proposed that the Court make only a declaration of bias, leaving any consequences to be addressed later. Alternatively, they argued the matter could be remitted if the decision were quashed.
The Court said the remedial questions were extensive and had not been fully argued. It declared the 2009 decision tainted by objective bias and ordered written submissions on whether it could refrain from quashing the decision, whether it could remit the matter if it quashed it, the effect of the declaration on the decision and Mr Kelly’s status, and whether it could make declarations about status, salary, increments or pension. The submissions may be refined at case management. The ruling did not itself quash the decision, remit the matter or determine those claimed entitlements.
The Court awarded Mr Kelly 50% of his costs in each court up to and including the hearing on 13 April 2021. It said the costs of further proceedings and any further hearing would be dealt with separately.