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Cite as: [1999] 1 ILRM 445, [1998] IESC 63

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McEvoy v. Prisoner Officers' Association [1998] IESC 63; [1999] 1 ILRM 445 (18th December, 1998)

AN CHÚIRT UACHTARACH
(F)
THE SUPREME COURT
O’Flaherty J.,
Lynch J,
Barron J.,
(80/98)

BETWEEN:
P.J. McEVOY
Plaintiff/Appellant
.V.

THE PRISON OFFICERS ASSOCIATION
Defendant/Respondent

[Judgments by O'Flaherty and Barron JJ; Lynch J. concurring]

Judgment delivered on the 18th day of December, 1992, by O’Flaherty J.

1. Mr. P.J. McEvoy was elected President of the Prison Officers Association (hereinafter “the Association”) on 6th March, 1992. The Association operates under a Constitution, the most up-to-date edition of which is that of April, 1990.


2. On 29th July, 1992, Mr. McEvoy presided at a meeting of the National Executive Council of the Association. Under the heading “any other business” the conduct of a prison officer, who was also assistant general secretary of the Association, was called in question. According to the evidence of Mr. McEvoy, the meeting got “very hot” and acrimonious. Mr. Noel Doyle, who did not agree with the accusations that were being made against the assistant general secretary, left the meeting. The plaintiff decided to “close” the meeting. He said in evidence at the trial:-


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“I informed all the people that I was closing the meeting because of what had occurred. Tempers were very high at that point and it was a calculated decision I made in the best interests of the executive when people were shouting abuse at each other.”

3. Mr. McEvoy then left the meeting, but the Vice President took charge. It appears that the climate cooled down and the meeting was brought to an orderly conclusion.


4. In the course of the resumed meeting a “vote of censure” was passed on Mr. McEvoy, seemingly arising on his decision to “close” the meeting.


5. Mr. Denis McGrath, who is general secretary of the Association (a paid official) wrote to Mr. McEvoy on the 4th August, 1992, as follows:-

“I am to inform you that following your decision to walk out of the National Executive Council meeting on 29th July last, the National Executive Council meeting continued and a vote of censure was passed against you because of your action.

Clarification is required regarding your present position.”

6. To that letter Mr. McEvoy replied on 19th August, 1992, as follows:-


“I refer to your letter dated 4th August, 1992, and wish to confirm that as Chairman of the National Executive Council I closed the meeting on the 29th July, 1992.

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As my present position - I was elected by the membership as President of the [Association] ... it is my intention to carry out my responsibilities.”

7. Mr. McGrath replied on the 31st August:-


“When you vacated the chair at the National Executive Council meeting on the 29th July, 1992, you purported to adjourn the meeting, not close it. As I advised at the meeting you did not have the authority to adjourn the meeting in that manner, and accordingly the Vice President took the chair until the business of the meeting concluded.”

8. A meeting of the Council was scheduled for 29th October, 1992, and, prior to that, on the 20th October, 1992, a member of the Council, Mr. Peadar Tumulty, notified the general secretary that he intended to propose a vote of no confidence in Mr. McEvoy under Rule 62 of the Association’s Constitution.


9. As set forth in the judgment of the learned High Court judge (McCracken J.) of 18th March, 1998:-


“At the meeting on 29th October it was proposed that the agenda be altered so that the vote of no confidence in the plaintiff would be taken as the first item. The plaintiff objected to this, and a vote was taken as a result of which it was agreed by fourteen votes to three to alter the normal agenda so that the vote of no confidence took precedence. The general secretary told the meeting that he had taken legal advice as to how to proceed with the vote of no

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confidence, but when the plaintiff sought to know what the legal advice was, he was refused this information. The vote of no confidence was then proposed, and the plaintiff asked for the reasons for the proposal to be supplied to him in writing and that he be given an opportunity to make representations. The proposer said only that the basis of his motion was the handling of meetings by the plaintiff as Chairman, and made no further allegations. In spite of the plaintiff’s objections, a vote was then taken and the vote of no confidence was passed.”

10. Rule 62(a) of the Association’s Constitution provides that “if the National Executive Council decides by a two-thirds majority of its members present and entitled to vote to pass a vote of no confidence in any member of the Administrative Council, that member shall cease to be a member of the Administrative Council and of the National Executive Council forthwith and shall not be entitled to attend any subsequent meetings of the Administrative Council or of the National Executive Council.”


11. Mr. McEvoy was a member of both the Administrative Council and the National Executive Council and, therefore, came within Rule 62. It is accepted on both sides that the effect of a vote of no confidence is that the officer in question would automatically cease to hold office.


12. Mr. McEvoy’s essential complaint, at trial and before us, was that the rules of natural and constitutional justice were not observed which would


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require that a proper charge should have been formulated in relation to him; he should have been given an opportunity to meet that charge and defend it in any way that he thought right.

13. The essential submission advanced by counsel for the Association is to say that the rule in question deals with the policy and “political” decisions that the Association may take from time to time. In contrast, there are specific rules dealing with how a charge of misconduct should be dealt with under Rules 95 et seq. They embody the safeguards that are now accepted as commonplace for a hearing to comply with the rules of natural and constitutional justice. But counsel for the Association submits that this was a matter of the internal working of the Association; Mr. McEvoy, as Chairman of the meeting, had closed or adjourned the meeting. Mr.Tumulty, in proposing his motion, said that the reason for putting down the vote of no confidence in Mr. McEvoy was that he did not agree with the way Mr. McEvoy had presided over meetings, and the way he had conducted them.


14. This case does not turn on the duties and obligations of a chairman of a meeting whether of a union, club, or other such association: much lore on this subject it to be found in the judgment of Megarry J. in John .v. Rees [1970] Ch. 345. It is conceded that Mr. McEvoy may have been within his rights to “close” or adjourn the meeting (I am not clear that there is any difference


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between these two concepts) but, equally, as counsel for the Association contends, the members might take the view that he was not right in the action that he took and that would entitle them to put down a vote of no confidence in him.

15. The learned trial judge concluded that it was an extremely serious matter for Mr. McEvoy if his colleagues on the Council said that they had lost confidence in him as President. The position of President was a very prestigious one, and one carrying considerable responsibility. He considered that the law on this matter was governed by the principles set out in Glover . v. B.L.N. [1973] IR 388. He went on to hold that it was quite clear that the provisions of natural or constitutional justice were not complied with at the meeting of 29th October, notwithstanding the protests of the plaintiff. He was given no opportunity to prepare any form of rebuttal, as indeed he did not know what he had to rebut.


16. The learned trial judge adjudged that the plaintiff was entitled to damages (no other form of relief was available to him since time had passed so that he could not be restored to the position that he had held) and he awarded a sum of £10,000 damages.


17. The notice of appeal by the Association is confined to two grounds:-


“1. The learned trial judge misdirected himself in law in holding the defendant was obliged to comply with the requirements

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of fair procedure and/or the dictates of natural and constitutional justice in considering and passing a motion of no confidence in [Mr. McEvoy] pursuant to Rule 62 of its Constitution.

2. If the [Association] was obliged to comply with the requirements of fair procedures and/or natural and constitutional justice, the learned trial judge misdirected himself in law in holding that damages was an appropriate remedy for any failure by the defendant to comply therewith.”

18. It seems to me that there is a dichotomy between what is provided in Rule 62 which really concerns the policy of the Association: did the members agree with the President or did they not, and the rules dealing with alleged misconduct by any member of the Association. Provided there is no mala fides - and that is not suggested in this case - then it seems clear that Rule 62 is totally different from what is envisaged where there is an allegation of misconduct and which is governed by the provisions of Rule 95 et seq .


Mr. Ó Dulacháin addressed to us what, at first encounter, appears to be a very attractive submission which is that Rule 62 also covers paid officers of the union and he asked whether a summary procedure, such as is contended for in the application of Rule 62, could be said to apply to such an officer and he

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referred us to Stevenson v. Road Transport Union [1977] ICR 893; Roebuck . v. National Union of Mineworkers (Yorkshire Area) [1977] ICR 573; Breen v. A.E.U. [1971] 2 QB 175 as well as Lawlor .v. Union of Post Office Workers [1965] Ch 712. The short answer to that submission, however, must be that most likely any paid officer will have a separate contract of employment with his union or association and that would have to be dealt with if there were any attempt to remove summarily such an official from any particular office.

19. In the case of such a person as the President of a union or association such as this, or of a club, then the rules must form the contract between the various members. Such a contract will lay down how the affairs of the particular group should be conducted. In general, in the absence of mala fides or some disregard of the rules, the affairs of such a group should not be subject to judicial review.


20. It should be stated, in any event, that the reason given for proposing a vote of no confidence in Mr. McEvoy was that there was disagreement with the way that he conducted meetings. There was a plausible case for that; it would surely have been better if he had adjourned the meeting of 29th July, 1992, for some short length of time, to allow tempers to cool down. I make this comment not to attempt to judge the merits of the matter in any sense but


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simply to point out that the actions by those who supported the vote of no confidence were manifestly bona fide.

21. Since I decide the matter on the point of principle as regards the application of Rule 62, then there is no necessity to consider the question of damages because it does not arise.

22. I would allow the appeal.



THE SUPREME COURT
O’Flaherty J.
Lynch J.
Barron J.
80/98
P.J. McEVOY
Plaintiff/Appellant
V.

THE PRISON OFFICERS ASSOCIATION
Defendant/Respondent

JUDGMENT delivered on the 18th day of December 1998 by BARRON J.

23. I agree with the judgment of the President of the Court.


24. In the case of a private body like the respondent matters of internal management are for it. In the present case, the procedure required by


(2)

25. Rule 62 was followed. Of course, such procedures must be fair. What is required is that the resolution should be put before a properly convened meeting of those entitled to attend. Each person present including the person concerned should be entitled to speak and to be heard. Provided that the majority act bona fide in the sense that they are acting in the interest of the Association and not in accordance with some private agenda, they have done all that the rule requires of them either expressly or by implication.


Glover v. BLN [1973] IR 388 does not place an officeholder in any special position. While the plaintiff succeeded on that ground in the High Court, this was not decided on appeal, the majority regarding the issue as a question of the proper construction of the contract of employment. This in turn was not dependent upon the office of the person concerned. So

(3)

here as a matter of construction of the rules as a whole no enquiries such as was contended for on behalf of the plaintiff was required.

© 1998 Irish Supreme Court

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URL: http://www.bailii.org/ie/cases/IESC/1998/63.html