High Court: SOLAS not entitled to impose reassessment for the renewal of drilling registration cards

About this case:

• Judgment:
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In response to submissions on behalf of SOLAS that the man was a “serial litigant”, Mr Justice Richard Humphreys criticised counsel for SOLAS and emphasised that a litigant being unsuccessful in past proceedings did not mean that the next set of proceedings must also be dismissed.

Background

The Court heard that Mr Fergal O’Connell provided drilling and blasting services to contractors engaged in construction and quarrying in Ireland and the U.K. over the past twenty years.

Prior to 2008, there was no statutory requirement for persons engaged in “shotfiring” to be in possession of particular qualifications. A requirement to hold a registration card in order to engage in shotfiring was introduced by the Safety, Health and Welfare at Work (Quarries) Regulations 2008, and also included in the Safety, Health and Welfare at Work (Construction) Regulations 2013.

The regulations require the Further Education and Training Authority, An tSeirbhís Oideachais Leanúnaigh agus Scileanna (hereafter SOLAS), to issue registration cards in compliance with Directive 2005/36/EC on the recognition of professional qualifications.

The regulations specify the “requirement” (singular) for the grant of registration cards, which amount to possession of the appropriate FETAC awards (now QQI awards under the Qualifications and Quality Assurance (Education and Training) Act 2012) or corresponding awards from another Member State.

Such FETAC awards are granted on “completion” of training as set out in each schedule.

Mr O’Connell completed the appropriate training, obtained the appropriate FETAC awards, and was then issued with registration cards under the 2008 and 2013 regulations having completed the sole “requirement” in that regard.

Justice Humphreys acknowledged that while under s.18(a) of the Interpretation Act 2005, “singular includes plural and vice versa, that section cannot apply where the context otherwise requires, as such an approach would remove the entitlement of the legislature to refer meaningfully to singular or plural quantities at all… Reading “requirement” as “requirements” is nonsensical where only one requirement is expressed”.

It was further conceded by SOLAS, that the FETAC awards obtained by Mr O’Connell were not time-limited.

However, the registration cards issued to Mr O’Connell are limited in time to a five-year period.

Just before the hearing, SOLAS adopted a revised policy whereby a card holder would have to self-certify that he or she had the appropriate experience to renew the card, in particular that he or she had engaged in at least six blasting operations within the previous two years.

SOLAS would then audit such self-certifications; and a card-holder not able to meet the experience requirement as laid down by SOLAS would be required to be reassessed.

Mr O’Connell objected to being required to so self-certify as to his experience for the purposes of renewing the card, and essentially contended that the card was an acknowledgement of a qualification, rather than a mechanism for ongoing supervision of the competence of the card holder.

Relief sought

Justice Humphreys summarised the substantive issue to be a claim for a declaration that Mr O’Connell was entitled to a continuing registration card.

He added that this asserted entitlement rested on two propositions:

Justice Humphreys was satisfied that there was nothing in the regulations making the qualification dependent upon post-award ongoing experience, self-certification, auditing, or continuing assessment. Such a requirement would be a major restriction of the rights of the qualification-holder, and would tend to limit or impair the freedom of movement inherent in the single market in the context of mutual recognition of EU qualifications.

Acknowledging that Mr O’Connell was “not benefiting from free movement”, Justice Humphreys was satisfied that the regulations did not put a domestically-qualified individual at a disadvantage by comparison to a person exercising EU law rights.

Further, while directive 2005/36/EC envisages possible provision for “lifelong learning”, it does so in terms that are not suggestive of conditionality on the exercise of EU rights, and in any event no provision for such ongoing education has been made in the case of the 2008 and 2013 regulations.

Ongoing education and continuous or regular assessment had to be distinguished in any event.

Procedural Objections

Dismissing all of the procedural objections raised on behalf of SOLAS, Justice Humphreys said that he was “doing only moderate injustice” to say that Counsel for SOLAS “second-best point” was that Mr O’Connell “was a bit of a serial litigant”.

Justice Humphreys emphasised that “just because someone has unsuccessfully brought one set of proceedings in the past does not mean that his or her next set of proceedings must also be dismissed”.

Order

Justice Humphreys granted Mr O’Connell a declaration that SOLAS was not entitled under the Safety, Health and Welfare at Work (Quarries) Regulations 2008, or the Safety, Health and Welfare at Work (Construction) Regulations 2013, to impose as a condition of renewing his registration cards, a requirement that Mr O’Connell either self-assess or be assessed or reassessed in relation to having undergone any particular practical experience since the previous grant or renewal of the card concerned.