The High Court has refused all relief sought by a man who challenged a District Court ruling on the burden of proof in his alleged race discrimination case against a public house. The court held that he could not pursue a standalone judicial review after instructing his lawyers not to proceed with the District Court action and before any evidence was heard.
The applicant, a member of the Traveller Community, said he was refused service at a pub on 28 January 2022 because it was “regulars only”. He alleged that the refusal was racial discrimination prohibited by the Intoxicating Liquor Act 2003. Those allegations were not determined in the High Court judgment.
At the start of the District Court hearing on 28 June 2023, the applicant sought a ruling that the burden of proof would shift if he established a prima facie case of discrimination. He argued that this was required by the EU Race Equality Directive, although the 2003 Act contains no express provision for shifting the burden. He also sought a protective costs order and asked the District Court to refer a question of law to the High Court.
The District Court refused those applications and declined an adjournment. After a short break to take instructions, the applicant’s counsel told the court that he would not proceed until he had received advice from senior counsel. No evidence was called. The District Court struck out the action and awarded costs to the publican.
In the High Court, the applicant sought to quash the District Court ruling and obtain declarations concerning the State’s alleged failure to properly transpose the Directive into Irish law. The State respondents objected that he was not entitled to bring the judicial review after withdrawing his underlying action. The first respondent did not participate in the High Court application.
Mr Justice Barr held that a party who receives an adverse ruling during a trial must ordinarily continue the case and challenge the eventual judgment by appeal or judicial review. Because the applicant withdrew his claim before evidence was heard, the preliminary ruling no longer had practical legal effect and could not be challenged separately. The judge also held that the refusal to adjourn or state a case was within the District Court judge’s discretion.
The High Court further concluded that, with no live proceedings against the publican and no appeal from the District Court order, the applicant lacked standing to pursue declarations about the State’s transposition of the Directive. It did not decide the underlying discrimination allegation or determine the merits of the transposition argument. All relief in the notice of motion was refused. The parties were given two weeks to make written submissions on the final order, costs and other matters, and the case was listed for mention on 30 July 2024.