“Even though the following historical context does not influence the outcome of the legal issues raised in this appeal, it would leave an unexplained void in this judgment unless mention was made of the long-running and antagonistic, if not downright bitter, controversy which has surrounded the appellant's dispute with University College Dublin”.
These are the words of Mr Justice William M. McKechnie in the Irish Supreme Court, on 1st June 2017, in his judgment of Patrick Kelly v The Information Commissioner.
This judgment is the most recent, publicly available determination in a dispute over gender discrimination that has spanned 17 years. The sprawling web of complaints and litigation has reached dizzyingly high levels of the Irish justice system and has even, at one point, been referred to the European Court of Justice (ECJ) in Luxembourg. In a 2013 High Court judgment, Mr Justice John Hedigan, described the saga of litigation as a “sad and sorry tale of interminable, highly complex applications, most of which were found to be groundless.”
The underlying dispute, which, at the time of publication, remains ongoing, concerns Patrick Kelly and an application which he submitted in December 2001 for the Masters in Social Sciences (Social Worker) Mode A course in University College Dublin (UCD).
“The basis, among others, for his complaint was Mr Kelly’s assertion that he was ‘more qualified than the least-qualified female applicant’ for the course, and that UCD's initial decision not to offer him a place on the course was gender-based.”
In February 2002, Mr Kelly was interviewed for a place on the course by Elaine Wilson, now a lecturer in UCD, and Gabriel Kiely who had a key role in establishing the first Irish professional training course in social work at UCD. Scoring cards used by the interviewers, released online by Mr Kelly, showed that he received 46 marks out of a possible 100. While he scored well for holding a Second Class Upper Honours Degree (2.1) and for his presentation, notes recorded by the interviewers show that they considered Mr Kelly to have been “unclear about what the core values of social work are” and that he “was not able to discuss any social work theory in context of practice”. Ultimately, Mr Kelly was ranked 65th of a total 93 candidates.
Although he did not secure a place on the Masters course in March 2002, Mr Kelly was offered a ‘provisional’ spot on the course in August 2002. By this point, however, Mr Kelly had already opted to “ventilate his grievance”, as McKechnie J described, by making a formal complaint of gender discrimination to the Director of the Equality Tribunal under the provisions of the Equal Status Act 2000.
The basis, among others, for his complaint was Mr Kelly’s assertion that he was “more qualified than the least-qualified female applicant” for the course, and that UCD's initial decision not to offer him a place on the course was gender-based. In addition to this, he also alleged that he experienced some rudeness at the interview.
“In the same hearing, Mr Kelly sought the recusal of Hedigan J for, among other things, referring to Mr Kelly as a ‘petulant child’ for posting material online which Hedigan J described as ‘scandalously abusive’ of Justice Kechnie.”
In September 2006, the Equality Tribunal decided that Mr Kelly had failed to establish a prima facie* case of discrimination on the grounds of gender - a decision which Mr Kelly would appeal to the Circuit Court days later. However, in January 2007, before the appeal could be heard, Mr Kelly sought unredacted documentation from UCD relating to the applications and scoring sheets of 49 candidates whose applications had been retained by the university. In July 2008, the High Court held that, in accordance with Irish law, those applications were confidential in nature and could not be released.
Having previously stated that a reference to the ECJ may be appropriate if the documents could not be released, McKechnie J referred 5 questions to the Luxembourg court in 2010, including one submitted by representatives of UCD. Answers given by the ECJ, considered by the High Court in May 2012, did not require disclosure of candidates’ applications under EU.
In the same hearing, Mr Kelly sought the recusal of Hedigan J for, among other things, referring to Mr Kelly as a “petulant child” for posting material online which Hedigan J described as “scandalously abusive” of Justice Kechnie. Mr Kelly alleged that Hedigan J was biased, having previously stated that “[the] waste of public money expended upon this all but pointless set of proceedings is also scandalous.”
“The Irish Times article itself also referred to a previous attempt, ultimately refused by the High Court, by Mr Kelly to have journalists jailed for contempt of court for their reports on the ECJ decision.”
Hedigan J stated in the proceedings that he was “strongly inclined...to make a broad restraining order permanently staying these proceedings both in this court and in the Circuit Court”. UCD were content to accept an undertaking from Mr Kelly not to make any further interlocutory* applications in the Circuit or High Court against the university, its employees or a named solicitor for UCD. While UCD later successfully sought a restraining order against the plaintiff in January 2013, this Isaac Wunder Order would eventually be overturned by the Court of Appeal in May 2017.
It was at a juncture in April 2012, however, that a new branch of litigation involving Mr Kelly spouted. In the 12 months from April 2012, in an effort to obtain the candidates’ information, Mr Kelly submitted 7 requests for information to the university under the Freedom of Information Act 1997. None of these requests were successful, either at first instance or at the internal review stage. He then sought to have his requests reviewed by the Information Commissioner, who informed him in September 2013 that she was discontinuing the reviews on the basis that they constituted vexatious behaviour. Mr Kelly appealed these decisions to the High Court, where, in October 2014, Ms Justice Iseult O’Malley held the court had no jurisdiction to consider the appeal.
Kelly subsequently appealed to the Court of Appeal, which upheld the High Court’s ruling in November 2015, and to the Supreme Court, where, in June 2017, McKechnie J stated that Mr Kelly relied heavily on a precedent “which in any event is not binding on either the Court of Appeal or this Court.” In the context of interpreting domestic legislation, McKechnie said, he did not find many of Mr Kelly’s case law submissions “to be of any real assistance” and dismissed the appeal.
In 2012, Mr Kelly submitted a complaint to the Press Ombudsman in response to an article published in The Irish Times ‘Law Matters’ online section. The article contained a synopsis of an High Court judgment delivered by Mr Justice John Hedigan. Kelly complained that the article, the title of which stated that the European Court of Justice had ‘ruled against’ Mr Kelly, was inaccurate and did not include the obiter dicta* nature of some of the judge’s comments.
Following the complaint, The Irish Times offered to publish a clarification and corrected the inaccuracies complained of. “The action that the newspaper undertook,” according to a decision of the Press Ombudsman, “and the further action it offered to take, were not acceptable to the complainant.” Mr Kelly was not successful in his subsequent appeal to the Press Council of Ireland, which reaffirmed the decision of the Press Ombudsman.
The Irish Times article itself also referred to a previous attempt, ultimately refused by the High Court, by Mr Kelly to have journalists jailed for contempt of court for their reports on the ECJ decision. Refusing the application, Hedigan J stated that “freedom of speech and freedom of the press should not be limited more than is necessary to prevent a real prejudice to the administration of justice.”
After 17 years, the appeal against the decision of the Equality Tribunal that there had been no gender discrimination has yet to be dealt with substantively. In his 2013 judgment, Hedigan J noted that “[vast] amounts of court time here in Ireland and in Luxembourg have been expended” and that “[immense] costs on the part of the defendants have been incurred.” Representing himself throughout the dispute, both Hedigan J and McKechnie J have referred to the “enormous effort, energy and talent which Mr. Kelly had obviously put into each application”.
According to correspondence released by Mr Kelly, the case was last listed for hearing in Dublin Circuit Court on 20th December 2018 but was postponed due to the “pressure of work” Judge Linnane had been experiencing.
Since at least 2013, Mr Kelly has regularly documented his legal journey by posting online correspondence with the courts, the names and faces of lawyers involved in the case and copies of documents relevant to the proceedings.
*Prima facie means on the first impression, or being accepted as correct until proved otherwise
*Obiter dicta refers to comments made by a judge which express their opinion but do not form the essential part of a decision and are therefore not legally binding.
* An interlocutory injunction is a court order to compel or prevent a party from doing certain acts pending the final determination of the case.
This article was amended at 3.10PM on Friday 22nd March 2019 to:
- Reflect that the title of the proceedings referred to in the first paragraph was amended in October 2017 by the Registrar of the High Court and the Registrar of the Court of Appeal to read “Patrick Kelly v Information Commissioner” instead of “Patrick Kelly v Information Commissioner and University College Dublin, National University of Ireland”.
- Correct a misstatement in paragraph seven which alleged that the Mr Kelly's claim on the basis of gender discrimination was dismissed in 2012. The claim is ongoing.