The High Court has refused John O’Donnell’s application to join Hugh McElvaney’s judicial review as a notice party, finding he had not met the legal test of being directly affected by the proceedings.
Mr McElvaney’s case challenges the Standards in Public Office Commission’s handling of a preliminary inquiry under the Standards in Public Office Act 2001. He seeks orders that would prevent the Commission from taking further steps or making a determination in his case, along with declarations about the inquiry and the Commission’s procedures. Those are claims in the underlying proceedings; this judgment did not decide them.
Mr O’Donnell argued that the outcome could affect his reputation and that the cases shared issues. His own investigation arose from a complaint by the Cathaoirleach and Chief Executive of Donegal County Council following an RTÉ programme broadcast in December 2015. The judgment records that he contended he had been entrapped by a journalist and that the reporter had not been called for cross-examination.
The Commission opposed joinder, arguing that Mr O’Donnell was not directly affected by the outcome of Mr McElvaney’s case. It also said joinder could delay or increase the cost of its investigation into Mr O’Donnell. The court noted that Mr McElvaney took a neutral position on the joinder application.
Mr O’Donnell had previously objected before the Commission to proceeding without the undercover reporter as a witness. The Commission rejected that objection, concluding that the reporter’s absence did not prejudice him and that there was insufficient basis to stop the investigation. It said the inquiry was not a criminal trial and that Mr O’Donnell could give evidence and call witnesses if he chose. The High Court’s judgment concerns only whether he could join Mr McElvaney’s judicial review.
Justice MacGrath held that an interest in the case, including a possible reputational effect, did not establish that Mr O’Donnell would be directly affected in his legal rights or obligations. The court found no basis to conclude that either success or failure in Mr McElvaney’s challenge would directly affect those rights or obligations. The application for joinder was refused.