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In the recent case of Dillon v Board of Management of Catholic University School [2016 IEHC 674] Justice Twomey was asked to consider a challenge by way of Judicial Review to a finding by the Board of Management of the Respondent of 24th February 2015 whereby it was found that the applicant had engaged in inappropriate behaviour towards a student by calling him a “little bitch”.Ultimately the applicant was issued with a final written warning from the school dated 21st April 2015. Under the terms of the final written warning letter it was to expire after 12 months thus by 21st April 2016 the warning would have expired.

The parties on suggestion from the High Court had engaged in mediation before the resumption of the current hearing which proved unsuccessful. Jusitice Twomey noted that “…..this was a particular disappointment, since it appeared to this Court that this was a case that was suitable for resolution with the help of an independent objective mediator“.

The applicant sought orders of certiorai quashing the original finding of the Board of Management dated 24th February 2015 and the final written warning dated 21st April 2015.

The Court observed that the proceedings were first heard by the Court on 28th June 2016 which was two months after the expiry of the final written warning which raised the question of whether judicial review of the final written warning might not be available on the grounds of mootness or de minimis non curat (i.e. the law does not concern itself with small matters”.The Court observed that

Relative to the truly shocking sexual and physical abuse that occurred in the State’s schools, and which is to this day still the subject of litigation in these courts, it is clear that name calling by the applicant of AB is a minor matter………While this Court could not condone any teacher calling a pupil a ‘little bitch’ (as alleged against the applicant), nonetheless it should also be borne in mind that the use of coarse language is something which would, regrettably, be used by pupils on a daily basis in our school yards

Justice Twomey observed that the High Court was being asked to intervene to quash a final written warning even though it had already expired. He concluded that Judicial Review should not be available in this case on two grounds:

(1) Mootness

The Court relied on the decision of O’Donovan v De La Salle College [2009] IEHC 163 which involved the expulsion of a pupil from school who, although having enrolled in another school, sought an order of certiorai quashing the original decision to expel him. Hedigan J stated:

On an application for a judicial review, the High Court will not exercise its supervisory jurisdiction in vain. This much is clear from decisions such as Minister for Labour v. Grace [1993] 2 IR 53 and Barry v. Fitzpatrick [1996] 1 ILRM 512. In the latter decision, the Supreme Court upheld the finding of Keane J. to the effect that “an order of certiorari, once it ceases to have any effect, is a pointless exercise and one which no court should undertake.

Of interest Justice Twomey noted that the student in the De La Salle case would have the school expulsion order on his file and this was a decisive factor in Hedigan J in deciding that the dispute at issue in that case was not moot however he noted however in this case the final written warning had been removed from the applicant’s file and therefore judicial review of the decision of 24th February, 2015, and the final written warning of 27th March, 2015, should not be available to the applicant on the grounds of mootness.

(2) De Minimis

Here the Court relied on the case of Murtagh v The Board of Management of St. Emer’s National School [1991] 1IR 482. Here an eleven year old pupil was suspended for three days after writing the words “Noleen Bitch Rooney” about a teacher in the school. The Supreme Court held that the suspension was not amenable to judicial review and Hederman J observed:

A three day suspension of a pupil from a national school either by the principal or the board of management of that school is not a matter for judicial review. It is not an adjudication on or determination of any rights, or the imposing of any liability. It is simply the application of ordinary disciplinary procedures inherent in the school authorities and granted to them by the parents who have entrusted the pupil to the school.

A three day suspension for an admitted breach of discipline would be no more reviewable by the High Court, than for example, the ordering of a pupil as a sanction to stay in school for an extra half hour to write out lines, or to write out lines while he is at home.

Hedigan J therefore concluded that….”…….like the three day suspension of a pupil in the Murtagh case for a pupil calling a teacher a ‘bitch‘, the final written warning of a teacher who allegedly called a pupil a ‘bitch‘ is not a matter that is amenable to judicial review…….It logically follows from this conclusion that the decision which led to the final written warning, namely the upholding by the Board of Management of the complaint of name calling against the applicant on the 24th February, 2015, is also not a matter amenable to judicial review, applying the same de minimis principle”

(3) Scarce Public Resources Being Unnecessarily Wasted

Hedigan J referred to the Supreme Court case of Tracey v Burton [2016] IESC 16 where MacMenamin J observed that court time was a scarce public resource and in particular that:

“Court time is not solely the concern of litigants, or their legal representatives. There is a strong public interest aspect to these issues.”

The Court also noted that Judicial Review was a discretionary remedy. Hedigan J stated that the Court must take into account considerations other than the applicant’s subjective views of his treatment including (a) the doctrine of mootness (b) the de minimis principle and (iii) scarce court resources.

In conclusion Hedigan J stated that the applicant’s complaints were not amenable to Judical Review and application was refused.