Appendix FF

No. 2

O. 58, r. 18(1)

SUPREME COURT

Respondent’s Notice

s

Supreme Court record number / S:AP:IE:2016:000043

[Title and record number as per the High Court proceedings]

THE GARDA REPRESENTATIVE ASSOCIATION
AND
AMY BOURKE / V / THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM
Date of filing / 31st March, 2016
Name of respondent / THE GARDA REPRSENTATIVE ASSOCIATION AND AMY BOURKE
Respondent’s solicitors / MARTIN MORAN & CO.
Name of appellant / THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM
Appellant’s solicitors / THE CHIEF STATE SOLICITOR

1. Respondent Details

Where there are two or more respondents by or on whose behalf this notice is being filed please also provide relevant details for those respondent(s)

Respondent’s full name /
  1. THE GARDA REPRESENTATIVE ASSOCIATION
  2. AMY BOURKE

The respondent was served with the application for leave to appeal and notice of appeal on date
1st April, 2016
The respondent intends :
to oppose the application for an extension of time to apply for leave to appeal
X / not to oppose the application for an extension of time to apply for leave to appeal
X / to oppose the application for leave to appeal
not to oppose the application for leave to appeal
X / to ask the Supreme Court to dismiss the appeal
to ask the Supreme Court to affirm the decision of the Court of Appeal or the High Court on grounds other than those set out in the decision of the Court of Appeal or the High Court
Other (please specify)

If the details of the respondent’s representation are correct and complete on the notice of appeal, tick the following box and leave the remainder of this section blank; otherwise complete the remainder of this section if the details are not included in, or are different from those included in, the notice of appeal.

Details of respondent’s representation are correct and complete on notice of appeal: / X

Respondent’s Representation

Solicitor Martin Moran
Name of firm / Martin Moran & Company
Email /
Address / 12 Stephens Lane
Dublin 2 / Telephone no. / 016640560
Document Exchange no. / 109037
Fitzwilliam
Postcode / D02RK33 / Ref.
How would you prefer us to communicate with you?
X / Document Exchange / E-mail
Post / Other (please specify)
Counsel
Name / Feichin McDonagh, S.C.
Email /
Address / Distillery Building
145-151 Church St
Dublin 7 / Telephone no. / 018174523
Document Exchange no.
Postcode
Counsel
Name / Caroline Cummings, BL
Email /
Address / Distillery Building
145-151 Church St
Dublin 7 / Telephone no. / 0868365423
Document Exchange no.
Postcode

If the Respondent is not legally represented please complete the following

Current postal address
Telephone no.
e-mail address
How would you prefer us to communicate with you?
Document Exchange / E-mail
Post / Other (please specify)

2. Respondent’s reasons for opposing extension of time

If applicable, set out concisely here the respondent’s reasons whyan extension of time to the applicant/appellant to apply for leave to appeal to theSupreme Court should be refused

3. Information about the decision that it is sought to appeal

Set out concisely whether the respondent disputes anything set out in the information provided by the applicant/appellant about the decision that it is sought to appeal (Section 4 of the notice of appeal) and specify the matters in dispute:
  1. The Appellant makes reference to the stated reason in the judgment of Kearns P for considering departing from the normal rule in respect of costs as being due to the “lateness of the discovery” made by the Minister and the Appellant states in the notice of appeal that the Minister was not late in making discovery. The reference made by the learned trial judge to discovery was made on the 17th October, 2014. However this factual inaccuracy was corrected prior to any decision being taken by the learned trial judge in relation to costs on the 24th October, 2014 and had no bearing on the determination taken by the learned trial judge. It was irrelevant to the issue of costs and is not a “relevant fact” as contended by the appellant.
  1. The substantive hearing was heard on the 8th, 9th and 10th September, 2014 (not over the course of two days on 9 and 10 October, 2014 as stated by the Appellant).
  1. Voluntary discovery was sought from the Appellant by letter dated the 6th May, 2014. The appellant refused to provide voluntary discovery. A motion issued and was made returnable to the 27th June, 2014. Written submissions were filed on behalf of the respondent. On that date the appellant agreed to provide discovery. It was only on close examination of the discovery provided that the involvement of Shay Cody, General Secretary of ICTU was revealed together with the inconsistencies in the timeline of the decision making process contended for by the appellant.

4. Respondent’s reasons for opposing leave to appeal

If leave to appeal is being contested, set out concisely here the respondent’s reasons why:
In the case of an application for leave to appeal to which Article 34.5.3° of the Constitution applies (i.e. where it is sought to appeal from the Court of Appeal)-
*the decision in respect of which leave to appeal is sought does not involve a matter of general public importance
*it is not, in the interests of justice, necessary that there be an appeal to the Supreme Court
In the case of an application for leave to appeal to which Article 34.5.4° of the Constitution applies (i.e. where it is sought to appeal to the Supreme Court from the High Court)-
*the decision in respect of which leave to appeal is sought does not involve a matter of general public importance
*it is not, in the interests of justice, necessary that there be an appeal to the Supreme Court
there are no exceptional circumstances warranting a direct appeal to the Supreme Court.
  1. The High Court (Peart J.) heard the application brought on behalf of the respondents herein for injunctive relief on the 3rd and 11th April, 2014. In his judgment delivered on the 7th May, 2014, the High Court refused the injunctive relief sought. On the 16th May, 2014, the High Court (Peart J.) awarded the costs of the application to the appellant. In principle the decision on the injunction application did not fall into that category of interlocutory applications covered by Order 99 rule 4(A) where a costs order should have been made in favour of either party.
  1. On the 10th February, 2016, the Court of Appeal varied the High Court order (Peart J.) which had awarded the costs of the application for injunctive relief to the Appellant in circumstances where the Court of Appeal accepted that the injunction application had proceeded on an incorrect premise, in that highly relevant information had not been revealed to the High Court Judge.
  1. The discretion vested in the courts to depart from the rule that costs follow the event for special cause is well settled. There is no issue of law which is to be litigated in this appeal.
  1. The appeal in relation to a discretionary costs order does not give rise to a matter of general public importance restricted as it is to the exercise of a lawful discretion by a court for special cause.
  1. It is not necessary in the interest of justice that there be a further appeal in relation to a discretionary costs issue, determined on its own facts.
  1. It would appear that the Appellant has only filed the appeal in relation to costs in response to the substantive appeal filed by the Respondents herein. It is contended on behalf of the Appellant that the appeal has been filed (out of time) by reason of the “timing” of the service of the notice of appeal filed by the GRA [Record No. 2016/32]. This reinforces the view that the prosecution of this appeal is not motivated in order to pursue an interest of justice or that it could otherwise be regarded as being of general public importance as if that were so, its filing would not have been contingent on or influenced by other factors.
*delete where inapplicable

5. Respondent’s reasons for opposing appeal if leave to appeal is granted

Please list (as 1, 2, 3 etc in sequence) concisely the Respondent’s grounds of opposition to the ground(s) of appeal set out in the Appellant’s notice of appeal (Section 6 of the notice of appeal):
  1. The learned trial judge in the substantive case in the High Court determined for special cause, that costs ought not follow the event but ought to be awarded to the Appellants. The learned trial judge was entitled on the facts of the case and the manner in which the Respondent/ Appellant met the case to exercise his discretion in this way.
  1. The learned trial judge in the High Court correctly held that the Appellant had failed to comply with his duty of disclosure and/ or candour in respect of the case.
  1. The Court of Appeal dismissed the cross appeal in relation to the decision of the trial judge on the costs of the substantive application and held that it was open to the trial judge on the facts to exercise his discretion on costs in the manner he did for the reasons he gave.
  1. There was a significant issue in the case about the context in which and the reasons for the decision by the Minister to execute a volte face in relation to his representation to the Appellants that An Garda Síochána would not be included in the new public service sick leave scheme in the first instance.
  1. In her first affidavit, Louise McGirr, on behalf of the Respondent, did not fully set out what had happened. Neither did she disclose all the considerations which had been taken into account initially in making the decision to exclude an Garda Síochána or in making the decision to include an Garda Síochána in the new public service sick leave scheme. [This is dealt with at paragraph 31 onwards in her affidavit.] She referred to a number of factors, ostensibly taken into account but did not accurately or candidly set out the operative factors in the decision making process engaged in by the Minister, despite that being her avowed intent. On the contrary she successfully created the impression that the Minister/ DPER had carefully considered the existing injury at work schemes in AGS when they had not, she gave the impression that the Chief Medical Officer was consulted prior to the decision being made which he was not, and crucially she made no reference to the threats received from Shay Cody, General Secretary of ICTU, which impacted so significantly both on the timeline for decision and on the decision itself. The omission could not have been accidental.
  1. The AppellantMinister had sought to have the Garda Representative Association, and then the High Court (Peart J.) believe that the decision to include An Garda Síochána in the relevant sick leave regulations was taken on the 5th December, 2013 following a proper consideration of all relevant factors. Serious concerns having been raised by the Discovery documentation, highlighted by the General Secretary of the GRA by affidavit in late August 2014, it was only on receipt of the final affidavit of Louise McGirr sworn on the 4th September, 2014, (mere days before the substantive hearing) that it became apparent that the decision was in fact taken on the 4th December 2013, and that the ‘relevant factors’ previously said to have been considered transpired to be either non-existent at the time the decision was taken on the 4th December 2013 (e.g. the email of the Chief Medical Officer) or only available days or weeks later (e.g. details of an occupational injury scheme for An Garda Síochána). She averred at paragraph 17 of her final affidavit that between 3.31pm and 3.45 pm, the Minister’s advisor confirmed that the Minister had confirmed to him that AGS were to be included in the Regulations. This was manifestly, and primarily if not exclusively, as a result of the threat from Shane Cody.
  1. The learned trial judge (Kearns P.) was entitled on the facts of the case and having regard to the manner in which the Appellantmet the case, to exercise his discretion in this way. The learned trial judge held that the Minister had failed to comply with his duty of disclosure and/or candour in respect of the case.It was only through the process of discovery that the sequence of events leading up to the volte face by the Minister in respect of the inclusion of An Garda Síochána in the general public service wide sick leave scheme became less opaque. Even then, it was only with the final affidavit sworn by Louise McGirr on the 4th September, 2014, that it was revealed that the decision was actually taken by the Minister on the 4th December, 2013 and not on the 5th December, 2014, and on a different basis to that which had previously been claimed.
  1. The Court of Appeal have correctly held that the learned trial judge was entitled on the facts to exercise his discretion in this way.
  1. In light of the above, it was open to the Court of Appeal to vary the High Court order (Peart J.) (which had awarded costs to the Appellant of the unsuccessful injunction applicant in circumstances where the injunction application had proceeded on an incorrect premise, in that relevant information was not revealed to the High Court) so as to include those costs in the costs of the proceedings, thereby allowing those costs to the Respondents.

Name of counsel or solicitor who settled the grounds of opposition (if the respondent is legally represented), or name of respondent in person:
Feichin McDonagh S.C.
Caroline Cummings

6. Additional grounds on which decision should be affirmed

Set out here any grounds other than those set out in the decision of the Court of Appeal or the High Court on which the Respondent claims the Supreme Court should affirm the decision of the Court of Appeal or the High Court:
Are you asking the Supreme Court to:
depart from (or distinguish) one of its own decisions? / Yes / X / No
If Yes, please give details below:
make a reference to the Court of Justice of theEuropean Union? / Yes / X / No
If Yes, please give details below:
Will you request a priority hearing? / Yes / No
If Yes, please give reasons below:

Signed:______

(Solicitor for) the respondent

Please submit your completed form to:

The Office of the Registrar to the Supreme Court

The Four Courts

Inns Quay

Dublin

This notice is to be lodged and served on the appellant and each other respondent within 14 days after service of the notice of appeal.