The High Court deferred a request to refer questions about EU equality law to the European Court of Justice, saying it was premature until the court heard an appeal over access to records from a University College Dublin course selection process.
Mr Justice William McKechnie delivered the judgment on 14 March 2008. Patrick Kelly sought the reference while appealing a Circuit Court refusal to order disclosure of application materials and interview scoring sheets from candidates for a postgraduate social work course.
Kelly had applied to UCD for the 2002–04 course and was told in March 2002 that he had not been offered a place. He complained to the Equality Tribunal, alleging gender discrimination. An Equality Officer concluded in November 2006 that he had not established prima facie discrimination. Kelly appealed that decision to the Circuit Court; that substantive appeal had not yet been determined.
The judgment said 93 candidates were interviewed, 87 women and six men. The 50 highest-ranked candidates received immediate offers. Kelly was ranked 65th and placed on a waiting list; UCD later offered him a place, which he declined after being accepted onto an equivalent course at Trinity College Dublin. Kelly’s case was that he was better qualified than the least-qualified woman offered a place in the first round. These were his allegations, not findings by the High Court.
He sought applications, attached documents and scoring sheets for 49 candidates whose records UCD had retained. UCD said it retained application material only for candidates who started the course and that other candidates’ material had been destroyed in March 2006. The Circuit Court refused disclosure in March 2007, and Kelly appealed that refusal to the High Court.
Kelly asked the High Court to refer four questions, including whether EU directives entitled an applicant alleging sex discrimination in access to vocational training to information about other applicants’ qualifications. The High Court held that it was the final-instance court on the disclosure appeal and that the questions raised potentially relevant issues of EU law. It did not decide whether the course was vocational training or whether the requested documents had to be disclosed.
The court ruled that the reference request was premature. It first needed to hear the disclosure appeal and determine whether domestic law required the records to be produced; if disclosure were ordered, an EU reference might serve no purpose. The court therefore deferred final determination of the reference request until the appeal process. It added, as an obiter observation, that a reference might be appropriate if disclosure were refused. The judgment did not determine either the disclosure appeal or Kelly’s substantive discrimination appeal.