Connors v Feshea & Ors (Approved)

Factual and Procedural Background

On 28 January 2022, the Plaintiff attended a public house owned and operated by Company A. The Plaintiff, a member of the Traveller Community, was refused service by a barman on the basis that the premises served "regulars only." The Plaintiff alleged this conduct amounted to racial discrimination prohibited under the Intoxicating Liquor Act 2003 (ILA 2003).

The Plaintiff initiated proceedings in the District Court seeking redress under the ILA 2003. The Plaintiff also sought judicial review to quash a ruling by the District Court Judge made at the outset of the civil trial on 28 June 2023, which refused to apply a reversal of the burden of proof in discrimination cases as required by the Race Equality Directive (2000/43/EC). Additionally, the Plaintiff sought declaratory reliefs against the State respondents for alleged failure to properly transpose the Directive into Irish law.

The District Court hearing included preliminary applications by the Plaintiff for (a) reversal of the burden of proof, and (b) a protective costs order. The District Court Judge refused these applications, declined to state a consultative case to the High Court, and when the Plaintiff’s counsel indicated instructions not to proceed with the hearing, struck out the Plaintiff’s action and awarded costs to Company A.

Legal Issues Presented

1. Whether the Intoxicating Liquor Act 2003 can be interpreted to provide for a reversal of the burden of proof in racial discrimination cases, consistent with Article 8 of the Race Equality Directive.
2. Whether the State respondents failed to properly transpose the Race Equality Directive into Irish law, thereby entitling the Plaintiff to declaratory relief.
3. Whether the Plaintiff was entitled to bring judicial review proceedings challenging a preliminary evidential ruling made during the District Court civil trial after having withdrawn the substantive action.
4. Whether the District Court erred in refusing to grant a protective costs order in the discrimination proceedings.

Arguments of the Parties

Appellant's Arguments

• The District Court Judge erred in law by ruling that the ILA 2003 does not provide for a reversal of the burden of proof in racial discrimination cases, contrary to the requirements of the Race Equality Directive and the Equal Status Acts.
• In the absence of such provision in the ILA 2003, the State respondents failed to properly transpose the Directive into Irish law, justifying declaratory relief against them.
• The court should apply principles of equivalence, effectiveness, and harmonious interpretation of EU law to interpret the ILA 2003 as including a reversed burden of proof.
• The court should grant a protective costs order so that each party bears their own costs, consistent with practice in similar discrimination cases before the Workplace Relations Commission (WRC).
• The Plaintiff contended that judicial review was available to challenge the preliminary ruling despite withdrawal of the substantive action.

Respondents' Arguments

• The ILA 2003 postdates the Race Equality Directive and does not include a burden of proof reversal provision; if the legislature intended such a provision, it would have enacted it.
• The Plaintiff was not entitled to judicial review of the preliminary ruling because he had instructed his lawyers not to proceed with the action, effectively abandoning the case.
• The normal rules on costs should apply; protective costs orders are not warranted under the District Court Rules or the Legal Services Regulation Act 2015.
• The application for judicial review was premature and procedurally inappropriate as the Plaintiff did not continue the trial to final judgment or appeal the ruling.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Salinas de Gortari v Smithwick (No. 2) [2000] 2 IR 553	Judicial review permitted with court adjournment to allow for challenge of procedural ruling during ongoing proceedings.	Distinguished as involving an adjournment granted by the trial court, unlike the present case where no adjournment was granted.
Re National Irish Bank (No. 1) [1999] 3 IR 145	Right to silence is not absolute; trial of standalone preliminary issue and appeal possible.	Found not relevant as that case involved a standalone preliminary issue trial, unlike the unitary trial here.
Dillon v Director of Public Prosecutions [2008] 1 IR 383	Judicial review not premature where constitutional rights are at risk prior to determination.	Not persuasive here since the Plaintiff abandoned the trial and did not pursue the action to judgment.
Curtis v Attorney General [1985] IR 458	Locus standi for constitutional challenge where there is real or imminent danger of adverse effect.	Referenced for locus standi principles but not supporting judicial review of preliminary ruling after withdrawal.
Henderson v Henderson (1843) 3 Hare 100, 67 ER 313; Munnelly v Hassett & Ors [2023] IESC 29	Rule preventing relitigation of matters already decided or effectively abandoned.	Applied to bar further proceedings by Plaintiff after withdrawal of the initial claim.

Court's Reasoning and Analysis

The court first addressed the preliminary objection that the Plaintiff was not entitled to bring judicial review proceedings challenging a preliminary evidential ruling made during the District Court trial after having instructed his counsel not to proceed with the substantive action. The court held that once a party obtains an adverse ruling during a civil trial, that party must continue with the action and, if aggrieved by the final judgment, may appeal or seek judicial review thereafter. Abandoning the action to challenge a preliminary ruling by standalone judicial review is procedurally improper and would disrupt the orderly administration of justice.

The court found that the preliminary ruling on the burden of proof ceased to have legal effect once the Plaintiff withdrew from the trial and no evidence was heard. Consequently, the Plaintiff lacked standing to challenge the ruling separately.

The court also found that the District Court Judge was entitled to refuse the Plaintiff’s application for a protective costs order and to decline to state a consultative case to the High Court, as these decisions fell within the Judge’s discretion and were made within jurisdiction.

Regarding the substantive issue of whether the ILA 2003 provides for a reversal of the burden of proof in racial discrimination cases, the court noted that the statute does not contain such a provision despite postdating the Directive. The court accepted the District Court Judge’s view that it was not empowered to impose a statutory provision absent from the legislation, even if the Directive requires it.

Finally, the court held that the Plaintiff cannot pursue declaratory relief against the State respondents for alleged failure to transpose the Directive properly, as there was no live case or controversy ("lis") given the Plaintiff’s withdrawal and the absence of any ongoing proceedings.

Holding and Implications

The court REFUSED ALL RELIEFS sought by the Plaintiff in the notice of motion.

The direct effect of this decision is that the Plaintiff’s judicial review application challenging the District Court ruling on burden of proof and the alleged failure to transpose the Race Equality Directive is dismissed. The Plaintiff’s civil action against Company A was struck out following withdrawal, and no further proceedings arising from the events of 28 January 2022 may be brought due to the rule in Henderson v Henderson. No new precedent was established beyond confirming procedural principles regarding the proper course for challenging preliminary rulings within civil trials and the limits of judicial review in such contexts.