The High Court dismissed a self-employed shotfirer’s challenge to the certification of other shotfirers, ruling that his judicial review proceedings were brought outside the permitted period. The court also found he lacked standing to seek the reliefs, but did not decide whether his challenge to the certification process would succeed.
In a judgment delivered on 26 April 2013, Mr Justice Michael Peart said Fergal O’Connell had raised concerns about shotfirer assessments with FÁS in June 2009. He had also contacted the Health and Safety Authority and the Minister for Labour Affairs. After an internal investigation, FÁS told him in July 2011 that it considered the approved trainers and assessors competent and the resulting qualifications valid.
O’Connell sought to challenge the validity of construction and quarry shotfirer assessments where practical assessments had been supervised by someone without a QSCS Shotfiring registration card. He argued that the relevant regulations required such supervision. The judgment records that, when the quarry rules took effect in November 2009, nobody in Ireland held that card. FÁS allowed suitably experienced and qualified instructors to provide training, and obtained legal advice that the absence of the card did not invalidate assessments or awards if candidates met the required standard.
The reliefs O’Connell sought included declarations that affected assessments, certifications and registration cards were invalid, orders for cards to be surrendered, and an injunction against further assessments and certifications in breach of the regulations. The judge said the precise reliefs were unclear.
The respondents argued that the proceedings should be dismissed because of delay. The judge said the grounds for the challenge had arisen by November 2009 at the latest, and possibly in June 2009. Even using a July 2011 meeting as the point when the grounds arose, O’Connell waited about 10 months before applying for leave to bring proceedings. He had not applied to extend time or given a reason for the delay. The court dismissed the application because it had not been commenced within the permitted period.
The judge also held that O’Connell had no standing to seek the reliefs: he held the relevant certificates himself, and his own courses had not been affected by the alleged defects. Although he said O’Connell’s concern about competing with people he considered unqualified was not enough to establish standing, he made no finding on whether the underlying case would succeed. The application for judicial review was dismissed.