THE HIGH COURT
			No. 1998 13005P
BETWEEN				
DAVID  LONERGAN
			Plaintiff
-and-
GEORGE SALTER-TOWNSHEND, THE IRISH COUNCIL FOR PEOPLE WITH DISABILITIES AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
			DEFEndants

Judgment of Mrs Justice Macken delivered on the 9th  day of February, 1999

	This is an application by the Plaintiff for interlocutory relief in which the Plaintiff seeks the following, namely reinstatement into the post of Chief Executive Officer of the Second Defendant, the resumption of payment of his salary from the purported termination date and an injunction to restrain the second and third Defendants from appointing any other person to the post of Chief Executive Officer, all pending the hearing of the action.
	Effectively the Defence of the second Defendant at  interlocutory stage, is that there is no fair issue to be tried, on the basis (a) that the Plaintiff was never appointed to the post of Chief Executive Officer of the second Defendant, (b) that the relationship which he had with the second Defendant was that of Consultant, paid on a week to week basis, (c) that that Consultancy  was terminated lawfully, (d) that even if he had a different status he was a probationer, (e) that as such a probationer the second Defendant was entitled to terminate or not appoint the Plaintiff to the post of Chief Executive, and (f) that the law does not require  the second Defendant in relation to the Plaintiff’s probationary employment to be bound by the Rules of Natural or Constitutional Justice insofar as these relate to prior notice, or an opportunity to be heard, etc.  
	The third Defendant, who effectively funds the operation of the second Defendant, at this stage points to the fact that, regardless of whether or not the Plaintiff establishes a fair issue to be tried, the third Defendant has put in place a Steering Committee which is in fact carrying on the Management Business of the second Defendant (including the business previously carried on by the Chief Executive Officer), and that it would not be in the interests of the second Defendant to have the Plaintiff reinstated in those circumstances.  Both the second and the third Defendants in any event say that damages are an adequate remedy.
	In order to understand the strength of the arguments made by all of the parties, it is necessary to set out the background to  this dispute.  Before I set that out however, I should say that the First Defendant was Joined by the Plaintiff to represent the second named Defendant, and I will return to this matter in due course, since it too forms part of the claims in the Notice of Motion served by the Plaintiff.
	The second Defendant is a Council, effectively representing a number of voluntary bodies throughout the Country, and  established to look after and promote awareness of disablement in the population, and the interests of disabled persons.  It is not unlike a number of other Councils set up or established to promote interests of  particular segments of the community, but it does not have the status of an incorporated body established pursuant to statute.  It is funded by voluntary donations, but substantially by subvention from the third named Defendant as part of a programme, to ensure that the interests of this particular segment of the community are promoted.
	There is a Board of the Council.  I do not know the exact membership of the Board. It is clear from Minutes of certain Board Meetings that  certain other persons appear to have observer status at Board Meetings, not always having a vote (although on some occasions they do appear to have  voted).
	In 1997 the second Defendant, through an outside recruitment agency, advertised the post of Chief Executive Officer.  The Plaintiff was among those who applied for the position but was, at that time, unsuccessful. It appears to be common case that he was ranked next to the successful  candidate at the time.  The successful candidate was then appointed to the post of Chief Executive Officer.  The position did not work out. From September of 1997 the Plaintiff kept in touch with the then Secretary of the second Defendant who in April 1998 asked  the Plaintiff if he would be interested in taking on the position of Chief Executive Officer when it became vacant in May.  He indicated that he would. 
	The Plaintiff gave evidence (and this is not disputed) that when he was asked if he would commence work in May of 1998, he was studying and requested that this be postponed until July of 1998, but was told that he would have to start immediately.  He therefore agreed to do so, and it appears to be common case that he started work in or around the 22 May 1998.  He was told verbally that he would enter a consultancy arrangement initially for a period of six weeks, and the second Defendant has exhibited a letter addressed to the Plaintiff (which the Plaintiff does not recall receiving) which supports his understanding.  I do not at present find anything of significance in the fact that the letter was written but not apparently received.
	The Plaintiff was set certain tasks which he appears to have set about complying with in the initial period and at the same time  a draft contract was prepared by the second Defendant's legal advisors. This was prepared in a most timely manner by the Solicitors, and was sent with a letter from the Defendant’s Solicitors also dated the 22nd May to the then Secretary of the Council, under cover of a private and confidential letter.  The Solicitors suggested, again quite correctly, that there might be certain additional terms which the Council or the Plaintiff or other Members of the Board might wish to insert. 
	No such suggestions were made by any Member of the Board, or by the Secretary, or indeed by the Plaintiff, and therefore no second draft became necessary.  Rather, the agreement was sent to the third Defendant, for its approval, some time in June 1998. It was eventually returned by the third named defendant, approved, some time in September, 1998 or perhaps late August.  In the meantime it would appear that  the Plaintiff continued to be paid the same amount of money as he had been paid pursuant to the consultancy arrangement which existed from the 22nd May 1998. 
	Before I turn to consider other matters relating to the claim, I should point out some of the salient features of the Agreement as drafted and  approved by the third Defendant, but before doing so, I draw attention to the fact that on the 13th June, when the Board met and considered, inter alia, the  Agreement, it was decided that Board Members would have an opportunity of objecting to the terms of the Agreement within seven days of the agreement being received by them.  It is unclear whether this was to be after it had been approved by the third Defendant or prior to that, but since the third Defendant’s approval appears to be key (being the pay master), I think the Agreement  would first have to have the approval of the third Defendant.  However I do not have to reach a concluded view on this point, but this appears to me to be a logical sequence.
	The salient features of the Agreement as originally drafted, and which are relevant to a consideration of the matters before me, include the following:

	1.	It is expressed to be made between the Irish Council of People with Disabilities, who is described as “the employer” and the Plaintiff, who is described as “the executive”;
	2.	It provides for a probationary period of “approximately” five months.  But what is important in the context of the probationary period is that the Consultancy period is, under Clause 2.2 of the Agreement, to be “reckoned” as part of the probation period.

	3.	According to the same clause 2.2, if the Agreement is extended after the probationary period, then the Agreement continues for a period of two years. 

	4.	Under the duties imposed, the Plaintiff is obliged to obey the reasonable directions of the Board.  There is no mention in Clause 3.3 of a Management Committee, but the Plaintiff is to be answerable under Clause 3, in effect,  to the Chairman (Clause 3.1.6) presumably so that the Chairman in turn can report fully to the Board.  
	
	5.	Combined with the Terms of Clause 8 of the Agreement, the Plaintiff clearly was to report directly to the Board, and was to liaise with the Chairman.

	6.	The payment scheme under the Agreement was to be at £47,000 plus, payable monthly in arrears, and to be revised in accordance with the alterations in salary of a principal officer in the Civil Service. 
	7.	It is unclear from the terms of the Agreement whether the payment was to commence after the initial consultancy period of approximately six weeks, or only after the full probationary period.  The terms of Clause 2 speaks of “appointment” initially for a probationary period with a possibility of extension thereafter, and Clause 4.1 speaks of payment (£47,000+ per annum), “during the appointment”.  Clause 2.2 includes the consultancy period within the probation.  However again for the purposes of this interlocutory application I do not have to come to any final view on the true and correct interpretation of these clauses of the Agreement.
	8.	Clause 6 of the Agreement provides for holidays during the “appointment”,  (i.e. including during a probationary period, which again includes the consultancy period) with particular reference to the extent of holidays payable during the commencement year, and the termination year.

	9.	Under Clause 9 a Committee known as the “Human Resources Committee” was to establish a “formal appraisal system, and monitor the performance of the Chief Executive Officer”, and that Committee was also to supervise any disciplinary matters. 
	10.	Clause 11 covers Termination, which is by reference to the general terms and conditions of employment which are described in the Schedule as those of the Irish Council of People with Disabilities.
	Having regard to these matters, I now turn to the further facts which may be relevant.  It is unclear from the evidence precisely who, when, or by what means the consultancy arrangement was extended as it allegedly was.  The first named Defendant deposes that following the conclusion of the initial consultancy period Mr. Lonergan “continued to be retained by the Board in a consultancy capacity”.   He also says that at a meeting of the Board held on Saturday the 13th June, it was agreed that the Plaintiff would be retained as Chief Executive Officer for a probationary period of six months, subject to the approval of the third Defendant, and the subsequent approval of the second Defendant.  
	I have looked at the Minutes of the 13th June which have been furnished to the Court.  I  want to comment on the Minutes furnished.  When these Minutes were first opened, it seemed to me that the copies which had been exhibited were neither signed, nor otherwise bore any indication that they had been subsequently proposed for acceptance, passed or approved.  Further, when the initial copies of minutes of one of the crucial meetings, that of the 26th September, was not very legible and a more legible copy was furnished to Court (which was duly exhibited in a Supplemental Affidavit), it became clear that there were two sets of Minutes of the Meeting of the 26th September.  However for the purposes of this application for interlocutory relief, I proposes to accept the Minutes as they stand, and I now turn to the Minutes of the 13th June.  
	I have to confess that I cannot find the claimed decisions recorded in the minutes which have been exhibited.  So it seems to me that there is a fair issue to be tried as to whether or not he was engaged under a service agreement or under a continuous consultancy, and insofar as there is a dispute about this, it seems to me that it cannot be resolved at interlocutory stage.  
	It is  important to try to assess what the Defendants thought of the Plaintiff prior to the crucial dates of meetings in September and October.  To do so it is necessary to go back to the Board meeting of the 13th June.  At that meeting it is clear that the consultancy period which commenced on the 22nd May was considered, as well as the  Plaintiff’s work to that date.  
The following is an extract from the Minutes:
	“The Chair proposed that the Board accept Dave Lonergan as CEO subject to appointment after 3 Days and prior to 6 months.”  

	This was seconded by another board member and is followed by the word “unanimous”.  I take it that this means that the proposal was put and was passed.  It seems clear at least for the purposes of interlocutory relief that, after the agreement was approved by the Department and after the board members did not object within the suggested seven days given to them to do so, the agreement was in place.  It is true that there is the opposite argument, namely, that only the Board actually sitting and considering the position after it had approval of the third defendant, could appoint,  and that until then, no agreement was in place.  I cannot, of course, decide on the rights or wrongs of those conflicting points at this stage.  The Plaintiff was clearly considered by the Board to be acceptable.  After the 13th June and prior to the 26th September I find no Board resolution which suggests the Plaintiff was then acting in an unacceptable manner.
	An issue arises in relation to the Plaintiff’s status as an employee, or rather as to whether or not he was employed on a probationary basis.  It is contended for by the second Defendant that even if the service agreement could be deemed to have come into operation, that a service agreement itself provided that the Plaintiff would be employed on a probationary basis initially, and it is quite clear that Clause 2.2 of the agreement indicates "approximately 5 months", but there is no indication as to the precise date on which this was to commence.   So it seems to me that the second Defendant's argument that an issues arises as to whether or not the Plaintiff was on probation during the particular period in question is also a reasonably fair issue to be tried, but not an issue that can be determined at interlocutory stage, because it requires further consideration of the precise arrangements entered into which are not adequately reflected in the minutes, and in respect of which  I have no conclusive evidence.
	Moreover, an issue arises as to whether, as a mere probationer, the Plaintiff is not entitled to invoke the Rules of natural and/or constitutional justice.  This is a serious  contention on the part of the second Defendant, as is the subsidiary argument that it is sufficient for that defendants to be able to establish that there was justification for his removal, but no requirement to advise the Plaintiff in advance of the grounds for the same.  I am  not satisfied on the  authorities cited that the matter is beyond doubt.  Some at least of these are based on the provisions of the Civil Service Regulation Act 1956, which deals with "established civil servants", who are hired and fired at the will of the Government.  The Plaintiff is not and never was a civil servant.
	During the summer of 1998 a dispute arose.  This concerned payment of salary to another staff member of the second defendant, who for the purposes of this application, should not be named.   There appeared to be some irregularity as  to the manner of payment to that staff member and this was queried, inter  alia, by the Plaintiff.  Matters continued, without the issue of the salary being disposed of and without the Plaintiff’s contract being signed.  In the meantime the Plaintiff continued to act as Chief Executive Officer, liaising also with the  third named Defendant, who eventually appointed an audit team to look a t the finances of the  second Defendant.
	I mention the dispute, not because it is the cause of the  removal of the Plaintiff, but to  suggest that  it appeared to be a type of catalyst for the eventual rather acrimonious  meetings which commenced on the 26th September.  At the Board meeting on that date – and again I have to query the minutes – both the salary question and the Plaintiff’s position were considered.  When I look a t what are put forward as the official minutes, there was no actual termination of the consultancy agreement or of the Plaintiff’s employment.  What the Board stated to  the Plaintiff was that the position of the CEO has to go before the Management Committee “before his contract will again take  effect."  What precisely is meant by these words is unclear.
	In the course of that  meeting there is reference to a Management Committee and it seems clear from the minutes that that committee existed.  It was agreed that it would be expanded, and four additional members were appointed to it.  It is also unclear whether under the  constitution of the  Board, such a subcommittee must in turn be made up of members of the board, or  whether  others may be member of it.  It is  equally unclear when the Management Committee was established.  The Board, under the temporary constitution, was entitled to devolve its powers, but there is no evidence before me that it ever did  so.   An  issue arises therefore as to whether the Plaintiff could lawfully be fired by the Management Committee.
	However,  on the 5th October a Management Committee  meeting took place, at which it was proposed  by one member that the Plaintiff’s consultancy agreement be terminated with effect from “close of business today.”  The minutes record that this proposal was followed by a ”deafening silence”.  The proposal was eventually voted on and carried.  The Plaintiff was then effectively out of his office and his position as Chief Executive Officer.
	Immediately after the meeting of the 5th October the Plaintiff wrote asking for  reasons for his purported dismissal, and for clarification  of other matters, and indicated that until  all the questions raised had been  answered he considered himself still in the employ of the Council.  It would appear that letter was not answered.
	There is one final set of minutes of the Board which I should consider before dealing with the submissions made on the part of the Plaintiff and the Defendants, and these are the minutes of the 30th October.  They are very lengthy minutes, (at least 14 pages), and the version of the minutes exhibited originally with the first named Defendants first Affidavit, are noted ‘’Edited by Sean Leamy’’, and are headed as being a "draft copy".  In the supplemental affidavit of the first named Defendant, minutes of the 31st October are furnished as being the definitive version of the minutes, and again for the purposes of this interlocutory application, I deal with the minutes on that basis.  It is of course unsatisfactory that two different versions of minutes appear.   Although there are two sets of minutes, the following salient matters are recorded in the minutes, in one or other version:

	1.	The Board realised on the 26th September, that they had no time left, and put the management committee in place to make quick decisions to progress the constitution and elections and to take any remedial action required.
	2.	The minutes record that several other meetings of the Management Committee took place, and an investigation began, that there were meetings on the 28th September (2) on the 29th September (2), on the 30th September (2), on the 31st (sic) September, and again on the 4th October.  There were also apparently two meeting s of the Management Committee on the 5th October.
	3.	It is recorded that the Plaintiff was engaged on a consultancy basis at an agreed fee of £6,500 for an initial period of six weeks, and that at a Board meeting held on the 13th June, this (consultancy) was extended for a further period, and ‘’on expiry’’ it became ‘’an arrangement’’ and that he would be paid on a week to week basis.
	4.	On the 5th October, he was advised that his services were no longer required, and the consultancy arrangement was terminated.
		A series of allegations are then set out in the Minutes of the 30th   October, concerning Mr. Lonergan, and for the purposes of this interlocutory application I do not have to consider these, but will return to them when I deal with the legal argument put forward by the second named Defendant.
	5.	There is a note recorded that the third named Defendants representative when informed of these last points, considered them to be trivial.
	6.	There was a proposal that the Board should endorse the decision of the Management Committee, and after some debate as to whether sufficient information was available, a vote was taken endorsing the decision taken by the Management Committee, and 
	7.	The minutes record that there were eight people in favour of the reasons for termination.  I should pause there to comment that there were eighteen people in attendance, of whom two are described as "staff", and I take it that they do not have a vote at the meetings.  The minutes do not record any persons voting against, but on the basis of sixteen people being in attendance, it is unclear whether eight people abstained or eight people voted against, because the minutes do not record this.  They simply record “favour, eight”.  
	8.	The version of the minutes of the 30th October exhibited to the first named Defendants Supplemental Affidavit are identical in the following regard.  On a separate Motion proposed, there were seven persons recorded as being in favour of the proposal, two against the proposal, and six abstentions, although in other parts of the minutes it is recorded that there are sixteen persons present.  I am not in a position to decide the accuracy or otherwise of the minutes, and I recite them only for what they are worth for the purposes of the interlocutory application.

	Against the foregoing background, which I have set out in considerably more detail than would normally be the case, the application was brought, and in the course of the proceedings, several affidavits were filed on behalf of the Plaintiff, and on behalf of the first and second Defendants, but no affidavit was filed by the third named Defendant, or on his behalf.
	It is clear from the affidavit evidence that a number of issues arise for consideration and I have mentioned some of these.  I have to consider this application for interlocutory relief, as is submitted by Mr. Keane on behalf of the Plaintiff, on the basis of the several well established principles which have been adopted into Irish Law, since as early as the decision in Campus Oil v Minister for                      (1984) I.R. 1  (which in turn adopted the English decision in American Cyanamid v Ethicon (1973) A.C.,  in which the principles were first enunciated in a pithy and discrete manner. They may be summarised in the following terms, namely, that for a Plaintiff to succeed in an application for interlocutory relief, he must establish:
 	(i)	That there is a serious issue to be tried;
 	(ii)	That damages would not be an adequate remedy; and
 	(iii)	That the balance of convenience favours the granting of an injunction, rather than its refusal.
	These, of course, do not, strictly speaking, repeat what was said either in American Cyanamid, or in Campus Oil, because the principles are stated in a more sophisticated manner, but I use these shorthand terms to describe what must be established by the Plaintiff.  Insofar as the first of these is concerned, over the years a preferable description has come to be used, namely, that the Plaintiff must establish that there is a “fair” issue to be tried.  This avoids the difficulties which arise with the use of the word “serious”, which tended to give the impression that the Plaintiff had to establish that he had a case which was very strong.  It is only where all of the requirements above are evenly balanced between the parties,  that the Court considers the final principle enunciated by Diplock, L. in the American Cyanamid case, comes into consider the relative strengths and weaknesses of the claims made by the Plaintiff and the Defendant.  In the present case, I do not consider that I have to reach any view as to the strength or weakness of the Plaintiff’s case, and I look now to see the extent to which  issues have been established as being a fair issues to be tried.  It seems to me that one of the issues to be considered is whether or not the Plaintiff was in fact employed by the second Defendant pursuant to a Contract of Employment in terms of the service agreement which was prepared  by its solicitors or whether he was at all  times employed under a consultancy  agreement.  I  find he has made a fair issue to be tried on this.
	The second defendant has contended that, even if the Plaintiff was employed  on the agreement which was approved by the third named defendant, he cannot enforce this against the second council, because it is an unincorporated body.  Again, I think that matter could not be decided at interlocutory stage.  But I would comment that it seems to me very odd that the second named defendant is described at all times in the agreement as the "employer".  I greatly suspect it pays its  employees, returns PRSI and PAYE in its own name, and in all respect operates as an employer.  It comes to  court represented by solicitor and counsel and if there were any doubt about its status as defendant, I would be prepared to accept  the Plaintiff’s nomination of the first defendant as a representative defendant.  But a fair issue arises on this, as onthe "probation" point.  I do not accept the contention on the part of the  second defendant that there is no fair issue  to be tried.  
	In the circumstances, I now turn to the question of damages, and as to whether they are an adequate remedy for the Plaintiff.  The Plaintiff has said, uniquivocably, that he is dependent on his  salary to meet general day to day expenses.  This is denied on behalf of the  second defendant but countered very strongly  by the Plaintiff and also by a third party who has denied, again strongly, the statements ascribed to her in affidavits sworn on behalf of the second defendant.  I make no final finding on this aspect, but consider that on  balance I am satisfied that the evidence of the Plaintiff supports his contention as to damages.
	It is contended for on the part of the second named Defendant that there is a separate and important legal issue to be considered in the context of this aspect of the case, namely that a different legal approach is taken when the interlocutory relief is, in effect, to force an employer to  take back his employee or to continue to pay his salary.  Mr. Horan points to the long line of authorities which support his contention that this is not permissible.  He accepts that it has been the case that the court has granted such relief, but he points out that the cases on which Mr. Keans for the Plaintiff relies are all "exceptional" cases, and that this case is not.
	It seems to me therefore that I must look at these to see whether the court is entitled,  notwithstanding a finding that a fair issue has been established, to grant the relief sought. The cases all  arise from disputes as to re-instatement and/or payment of  salary.  The first of these is Fennelly v Azzicurazzioni Generali, an unreported decision, but a note of the judgment  indicates that the then President of the High  Court stated, in relation to these  employment  cases:
	“I have approached the case on the basis that the courts have laid down as a general principle that they will not give specific performance of an employment contract.  But this general principle is subject to exceptions... .  As to whether the Plaintiff is able  to bring himself within the  exception to the rule I do not have to express a concluded view.” 
	Having indicated that it would be some time before the hearing of the action, he continued:
	“In the meantime the Plaintiff will be left without a salary and nothing to live on. The situation in which he finds himself would be nothing  short of disastrous.  It seems to  me in that situation that the balance of convenience is in the Plaintiff’s  favour.”
	It is suggested by the second named Defendant that this case was exceptional, and so it was.  However, in subsequent cases, the  same relief has been granted, and I  now turn to these. In the first of them, upon which both the  Plaintiff and the second named Defendant rely, the court also ordered the payment to the Plaintiff of his salary see Boland v Phoenix Shannon (1994) ILRM.  While the facts of that case were quite different, the manner in which this aspect of the relief sought was dealt with followed the same order as in the Fennelly case.
	The  next case in time is the case of Phelan v Bic Biro (1995) ILRM    .  Again the President of the High Court recognised the long established principle in employment cases, but it is noteworthy that, notwithstanding that the Plaintiff would not be destitute, he granted interlocutory relief.
	Similarly in the case of Harte v Kelly (1994) ILRM   , Laffoy, J. granted an injunction on the basis that it would be unjust to leave the Plaintiff with only half his salary.  The court stated:
	“The rationale upon which the relief is granted is that it is unjust to leave a person who alleges he has been wrongfully dismissed without  his salary pending the  trial of the action and  merely with a prospect of an award of damages.  The entitlement to such an order is not limited to situations where the Plaintiff can establish that he will face penury if such an order is not made.”
	This case also followed the decision of Mr. Justice Keane in Shortt v Data Packaging (1994) ILRM in which similar orders were made.  I should mention that this case was also cited with approval in the Phelan v Bic case, supra.
	Having regard to these matters and to the evidence which has been adduced, I find that the Plaintiff has established that he is likely to suffer irreparable loss and damage if he were deprived of his salary.  No evidence has been tendered to me that, on this aspect, any of the defendants would suffer irreparable loss or damage. 
	However, there is  another relief sought, namely, the reinstatement of the Plaintiff as chief executive officer.  On that issue, the Plaintiff has given little evidence that irreparable loss or damage would be caused to him.  No evidence at all has been adduced by the  second named defendant to the effect that such loss or damage would be suffered by them if an order were made.  Although the third defendant did not file an affidavit, it was submitted on his behalf that a steering committee is now in place.  It is, in effect, carrying out the  work which would have been carried out by the  Plaintiff.  It is also clear that the Plaintiff at this  time does  not enjoy the wholehearted support of all members of the Board (a factor which is distinguishable from some of the other cases).  It is equally fair to say of course that he might well do so had he been given an opportunity to meet the allegations made against him.
	Having regard to the foregoing I think it appropriate that I should make the following orders:
	1.	An Order requiring the second named defendant to continue to pay the Plaintiff his salary at the same  rate as he had been receiving prior to his dismissal or termination, and from the 5thOctober.  In that regard, as I do not know the precise paying arrangements existing between the second and third named defendants, I will make it a term of the order that the third named defendant will take such steps as may be necessary by way of funding to ensure that such salary is paid;

	2.	An order restraining the second and third named defendants from appointing any other person to the position of chief executive officer of the second named defendant pending the hearing of the action;

	3.	An order that the Plaintiff may continue these proceedings against the first named defendant as a representative of the unincorporated body known by the second named defendant's title;
	Having regard to the matters set forth above, I do not consider it appropriate to make  an order reinstating the plaintiff, save that, in return for the continuation of his salary, I will direct that he may be requested by the new steering committee to carry out work of a nature ordinarily done by the CEO of the second named defendant, and if he is not requested to carry out such work, this will not in any way affect his entitlement to  be paid his  salary until the hearing of the action.