High Court: Applicant out of time to challenge refusal to register her as a teacher

About this case:

• Citation:
  [2021] IEHC 712
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment in the case, Mr Justice Garrett Simons held that the applicant was well out of time to bring the judicial review proceedings. In so ruling, the court rejected the excuses for the delay made by the applicant, which included a data access request, the applicant’s health, the availability of counsel and the Covid-19 pandemic.

Background

The applicant was registered with the Teaching Council as a post-primary teacher. In 2019, she applied to be registered as a teacher for the subjects Religious Education and Civil, Social and Political Education (CSPE).

However, the Qualifications Panel noted that the applicant’s qualifications were directed at adult learning and did not cover the teaching of children between 12 and 18 years old. The Panel also noted that the applicant had already worked in a post-primary setting, but that this was mainly in the sphere of guidance counselling. It was said that the applicant did not “bridge the gap” for post-primary qualifications.

The reports of the advisors to the Panel indicated that pedagogy and andragogy were not interchangeable and that it was essential for the proper Initial Teacher Education qualification to be attained.

The decision was reviewed by the Registration Review Group, which adopted the decision of the panel. The applicant was notified of the decision on 4 June 2019. The solicitor acting for the applicant indicated on 18 June 2019 that judicial review proceedings would be instituted. However, these proceedings only issued on 27 July 2020.

Prior to issuing the proceedings, the applicant made a data access request under the GDPR to the Teaching Council. This request was made on 26 August 2019, nine days before the end of the three-month limit to take judicial review proceedings. The Council replied to the request on 4 November 2019.

Further, the solicitor also wrote to the Council on 26 August 2019 outlining that junior and senior counsel were on vacation and were not in a position to issue proceedings within the three-month limit. As such, it was indicated that an extension of time would need to be sought by the applicant. The Council replied that they would contest the application fully and that the time limits of the Rules had to be strictly complied with.

The matter eventually came before the High Court on 27 July 2020, when leave was sought. It was directed that the Council should be put on notice of the application. The notice of motion seeking leave to apply for judicial review issued in October 2020 and the matter was heard in November 2020.

In seeking to explain the delay, the applicant relied on her decision to await the outcome of the data access request. She also relied on her poor health and the unavailability of counsel during the relevant period. Further, she attributed some of the delay to the emergency lockdown measures which took place in March 2020 and said that the judicial review application could only have been properly made from mid-July onwards.

High Court

The court began by outlining Order 84 Rule 21 which provides for the three-month time limit to bring judicial review proceedings. The court said that it was contrary to the public interest in good administration to allow stale claims to be brought against decision-makers.

It was also held that an applicant who fails to bring proceedings within the time limit must provide “good reasons which explain and objectively justify the failure to make the application within the time-limit, and which would justify an extension of time up to the date of institution of the proceedings” (M. O’S. v. Residential Institutions Redress Board [2018] IESC 61).

The court held that the GDPR data request did not justify the extension of time. The court said that the applicant did not require the historical documents from the Council to formulate her claim and was “fully armed with all relevant documentation necessary” on 4 June 2019.

The court held that an applicant is not entitled to delay bringing judicial review proceedings while they assemble every document which might be relevant. In any event, the applicant was guilty of unreasonable delay in making the request, being just nine days before the time-limit ended.

While the court was sympathetic to the applicant’s ill-health, it was held that the stress and anxiety that she suffered was mainly after the judicial review application had been made in July 2020 and media reports were published.

Further, the court did not accept the excuse relating to the unavailability of counsel. The court held that there was no convention that the three-month limit was suspended during the summer vacation. The court also said it was factually incorrect that barristers were unavailable during this period because there were always some barristers who would be available. The court noted that judges also regularly heard applications during the summer.

The grounds of challenge were not legally complex and that numerous barristers would have been competent to draft proceedings. Further, this only represented a small portion of the thirteen-month delay in any event, with all barristers being fully available in October.

Finally, the court rejected that the lockdown from March 2020 justified an extension of time for the proceedings. Judges were available to hear applications throughout the period, the court said. It was therefore “simply incorrect” that the applicant could not have made the application before July 2020. The court noted that the pleadings and affidavits were only finalised on 23 July 2020, so it was clear that the applicant had not been ready to move before then.

The court also pointed out that the applicant was “hopelessly out of time as of mid-March 2020” in any event.

Conclusion

The court refused to extend time and the application for leave was refused. The court said that none of the factors represented a good reason to extend time and all were within the control of the applicant’s legal advisors.