Kieran Gould (plaintiff) v Michael McSweeney, Susan Greene, Pat O'Sullivan, Brendan Hayes, James O'Driscoll, Liam Daly, Harry Jennings, Dan McCarthy, Pat McCarthy (defendants)
Equity - Application for declaration that decision suspending the plaintiff from participating in the game of bowls for two years was invalid - Whether decision in breach of natural and/or constitutional justice - Whether objective bias - Whether such decision a judicial review matter.
The High Court (Mr Justice Smyth); judgment delivered January 23rd, 2007.
The courts must not interfere officiously in the affairs of private associations. When considering what can be regarded as fair, a court must consider those procedures most suitable to that particular organisation or association. Allegations of bias in relation to decisions reached must be referable to the deciding person or persons. It is not for the court to supplant any penalty that has been imposed on the basis of proportionality, when it is clear that a variety of penalties was considered, and one decided upon by the body authorised by its rules to do so. Sports organisations do best to resolve differences under their own governing codes, rather than to resort to courts of law.
The High Court so held in dismissing the plaintiff's claim.
Tim O'Leary, SC, and Pearse Sreenan, BL, for the plaintiff; Patrick J McCarthy, SC, and Paul Christopher, BL, for the defendants.
Mr Justice Smyth commenced his judgment by setting out the factual background to the plaintiff's case. The plaintiff was for many years, prior to June, 2006, keenly interested in the sport of road bowling, and a member of Ból Chumann na hÉireann. He had won numerous championships throughout his sporting career, and had represented Ireland at international level.
The subject matter of the plaintiff's claim concerned events surrounding a senior championship match, which took place on May 28th, 2006. This was the Cork County quarter-final.
On that day, the plaintiff won his match, and was due to continue on to the semi-finals scheduled for June 11th, 2006. However, as a result of reports regarding the plaintiff's conduct on the day of the quarter-final, the executive committee of Ból Chumann na hÉireann reached a decision on June 7th, 2006, to suspend the plaintiff for two years from participating in the game of bowls under the auspices of Ból Chumann na hÉireann. Upon application by the plaintiff, Miss Justice Laffoy, by order dated June 16th, 2006, restrained the defendants from allowing the playing of the final of the Cork County championship scheduled for June 18th, 2006. The plaintiff then brought his claim seeking a declaration that the decision of the executive committee was invalid, as it was reached contrary to the rules of natural and constitutional justice; in particular, that it was contrary to the principles of audi alteram partem and nemo judex in causa sua.
Mr Justice Smyth continued to set out the events surrounding the match on May 28th, 2006. Present at the match on that day was Mr Brendan Hayes, a steward and also the secretary of Ból Chumann na hÉireann. Before the match began, Mr Hayes gave each of the contestants a bowl to play a practice shot. Mr Justice Smyth remarked that there were some 3,000 people gathered for the match which was due to start at 1:30pm, and that, from this point on, there were discrepancies as to the detail between the events recollected by the plaintiff and the steward. Mr Justice Smyth, therefore, opted to rely on the evidence and report of the referee, Mr Willie Murphy, due to his impartiality and his proximity to the actual events. Mr Justice Smyth noted the contents of Mr Willie Murphy's affidavit wherein there were averments to the effect that some of the plaintiff's bowls hit parked cars that were positioned in a lay-by, some 60-80 metres ahead of the start line. Further to this, the referee observed that one of the plaintiff's bowls narrowly missed a gentleman in a wheelchair, and that, when both contestants were asked to move further down the road, the plaintiff refused to do so and was abusive to the steward.
In all, the referee was of the opinion that the plaintiff's shots were dangerous and that somebody could have been hurt. Mr Justice Smyth further noted the evidence of Mr Finbar Aldworth, chairman of the referees committee, who was present on the day, and observed Mr Brendan Hayes warning the plaintiff to desist from taking practice shots when there were people on the road. He, too, observed the plaintiff abusing the steward.
Mr Justice Smyth remarked that, on the face of this evidence, and preferring the evidence of the steward on the balance of probabilities, he was satisfied that the plaintiff's conduct was dangerous and unsafe. However, Mr Justice Smyth was also of the opinion that the referee exercised a common-sense judgment in allowing the match to proceed, in circumstances where around 3,000 people had gathered and substantial bets had been placed on the outcome. Following the events of that day, Mr Brendan Hayes wrote a report, dated May 29th, 2006, to the chairperson of Ból Chumann na hÉireann.
Following this, a letter was sent to the plaintiff notifying him of, and inviting him to, attend at a meeting of the executive committee of Ból Chumann na hÉireann. This letter outlined to the plaintiff the possible sanctions open to the committee in considering his alleged breach of discipline. The plaintiff then responded to that letter on May 31st, 2006, when he handed a manuscript letter to Mr Brendan Hayes, which was addressed for the attention of Ból Chumann na hÉireann and especially Mr Willie Murphy. The content of this letter offered an apology for any offence caused on the day of the quarter-final.
Having set out the background to the case, Mr Justice Smyth examined the disciplinary meeting itself, and more importantly the reasons and various factors considered by the executive committee in reaching its decision to suspend the plaintiff from playing in competitions for two years. The first point of note was the number of persons present at the meeting, and the number who did not have a vote.
It was further noted that neither Mr Brendan Hayes, the steward, nor Mr Willie Murphy, the referee, voted. Mr Justice Smyth outlined that, in considering the transcript of the meeting, he did so mindful of the fact that this was an amateur sporting organisation, made up of lay people, whose relationship in law is governed by contract, as expressed in the Constitution and the safety regulations. Also noted was the plaintiff's own evidence that he was familiar with the rules and regulations of Ból Chumann na hÉireann, whilst protesting that he never received a written copy of the said rules.
Mr Justice Smyth remarked that, despite this protest, at no point did the plaintiff raise these concerns at the meeting, and, further, on the face of the plaintiff's letter of apology, it appeared that he accepted that there were legitimate safety concerns raised by Mr Brendan Hayes.
Mr Justice Smyth said that the plaintiff's first point of objection was the fact that he was prejudiced by not having sight of the reports before the committee in advance of the meeting.
However, Mr Justice Smyth found as fact that no such prejudice existed, given that the plaintiff was notified in writing of the meeting and the charges/complaints being made against him.
Mr Justice Smyth found as fact that whilst the plaintiff was entitled to be represented at the meeting by a person who was a member of the association, the plaintiff's request to be represented by a member of the legal profession was refused. However, Mr Justice Smyth noted that the plaintiff had not advised the meeting that he had a solicitor and five witnesses on the premises, outside the meeting room. The meeting then began with both the report of the referee and the steward being read out in full in the presence of the plaintiff and his representative, Mr Tom Hayes, who was another member of Ból Chumann na hÉireann. When invited to respond to the reports, the plaintiff chose not to do so.
The plaintiff was then afforded an opportunity to ask questions. Mr Justice Smyth noted that the plaintiff's representative proceeded to ask a number of written questions which, in his view, may have been drafted with the benefit of legal advice. It was further noted that the plaintiff was not afforded an opportunity to cross-examine witnesses. However, Mr Justice Smyth found that at no point was this concern raised in the meeting. Mr Justice Smyth noted the line of questioning adopted by the plaintiff's representative at the meeting, having considered the evidence of Mr Edward O'Driscoll, honorary legal adviser to Ból Chumann na hÉireann. Mr Justice Smyth said that the questions asked were somewhat at variance with the plaintiff's previous letter of apology, and could well lead one to a view that the letter was insincere. Indeed, the plaintiff did not attempt to deny any of the assertions put to him at the meeting. Further to this, Mr Justice Smyth commented on the plaintiff's failure to call any witnesses, and added that a more common sense approach would have been to indicate the presence of such witnesses, when asked if he wished to respond to the reports before the meeting.
Counsel on behalf of the plaintiff submitted that there was an inequality of arms at the meeting, given that the plaintiff was not permitted to be represented by a solicitor, while Mr Edward O'Driscoll, who was both a solicitor and the honorary legal adviser, was present at the meeting. However, Mr Justice Smyth stated that Mr O'Driscoll did not take part in the voting decision, nor did he represent either party. Mr Justice Smyth was of the view that the extent of his involvement at the meeting was as an impartial legal advisor.
Mr Justice Smyth found that Mr Edward O'Driscoll did not represent either party to the issue, but properly drew the attention of the committee to the relevant issues upon which they had to make a decision.
Mr Justice Smyth said that a final consideration of note concerned the affidavit of Susan Greene, chairperson of Ból Chumann na hÉireann. Mr Justice Smyth observed that it is Ból Chumann na hÉireann, itself, that bears the cost of the insurance for all such events, and that, almost without exception, it is Ból Chumann na hÉireann that is sued in the event of an injury caused by a player and not the individual player who threw the bowl.
Ms Greene advanced this as a reason for treating any incident of alleged indiscipline or breach of the rules of safety very seriously. Mr Justice Smyth concluded his review of the meeting and reasons considered and found all reasons advanced to be proper and reasonable considerations the voting members were entitled to take into account in coming to their decision.
Mr Justice Smyth considered the case law advanced by each side, and was minded to follow the dictum of Costello J in Doyle v Croke (High Court, May 6th, 1988, unreported) where it was held that "the courts must not interfere officiously in the affairs of private associations, and when considering what procedures can properly be regarded as fair it must consider procedures which would be appropriate to the type of organisation or association which is to adopt them, and the nature and scope of the decision to which they relate". Mr Justice Smyth stated that this dictum should apply in the instant case.
Mr Justice Smyth summarised the plaintiff's claim insofar as the plaintiff claimed a breach of the principles of natural justice and a breach of both maxims nemo judex in causa sua and audi alteram partem. In relation to the former maxim, it was submitted by counsel for the plaintiff that, as Mr Brendan Hayes was the chief complainant and actively involved in the committee's discussion which led to a decision, the decision was vitiated by apparent, if not objective, bias.
However, Mr Justice Smyth was of the view that, ultimately, it was the referee who made the final decision with which the plaintiff failed to comply, and that, in his capacity as secretary of Ból Chumann na hÉireann, Mr Brendan Hayes had certain duties separate and distinct from those he had as a reporting steward, such as taking minutes of meetings and the keeping of all books.
It was further remarked that, although it would have been preferable had Mr Brendan Hayes absented himself, there was nothing inherently wrong in his participation in the meeting in his capacity as honorary secretary, particularly as he did not vote.
Mr Justice Smyth stated that this was not a case of judicial review, as were so many of the cases opened to the court, nor was it a case of "public rights". He further noted that Mr Brendan Hayes was not the person who decided as to whether the plaintiff had transgressed the rules, nor did he decide the nature and extent of the penalty. Mr Justice Smyth added that, in his judgment, the issue of bias must be referable to the deciding person or persons, and that, in the instant case, there was no evidence of this; neither the steward nor referee participated in the decision arrived at by vote on a show of hands. Mr Justice Smyth further commented that the reasons for the decision were clearly the breach of the rules alleged, and that it was not for the court to interfere with the penalty imposed, when it was clear that a variety of penalties were considered and one decided upon by the body authorised by the rules to do so. In considering the latter maxim, audi alteram partem, Mr Justice Smyth held that any such argument failed in light of his earlier findings of fact.
Mr Justice Smyth concluded that sports organisations do best to resolve differences under their own governing codes, rather than to resort to courts of law.
Issues of natural justice are important, but the substance of matters rather than their form are important in seeking to resolve internal disputes in such organisations and recourse to the courts should be a last resort, and only in the rarest of cases.
Mr Justice Smyth declined the relief sought and vacated the order of June 16th, 2006.
Solicitors: Murphy & English (Cork) for the plaintiff; P.J. O'Driscoll (Cork) for the defendants Michèle Rayfus, barrister
• The next Law Report will appear on April 16th.