Ognjenovic v Commission for the Regulation of Utilities (Approved)

Factual and Procedural Background

The Plaintiff, an electrical contractor and qualified electrician, raised concerns that between June 2018 and October 2018 his former employer, Company A, improperly submitted Completion Certificates certifying electrical installations purportedly inspected by the Plaintiff, which he disputes. The Plaintiff commenced and later settled proceedings against Company A. Subsequently, the Plaintiff initiated proceedings against the Defendant, a statutory regulatory body responsible for electrical safety regulation, seeking declaratory orders, mandatory relief, and damages under multiple headings. The Defendant applied to strike out the Plaintiff's proceedings, arguing that many claims were public law claims that should have been pursued via judicial review and were time-barred, and that other claims lacked a reasonable cause of action or pleaded damage.

Legal Issues Presented

1. Whether certain reliefs sought by the Plaintiff amount to public law claims requiring judicial review procedures and are thus time-barred.
2. Whether the Plaintiff has disclosed a reasonable cause of action in relation to claims for damages, including negligence, breach of warranty, breach of statutory duty, misfeasance in public office, breach of legitimate expectation, and constitutional and human rights breaches.
3. Whether the Plaintiff’s data protection claims under the General Data Protection Regulation 2016 and the Data Protection Act 2018 disclose a reasonable cause of action and have a reasonable prospect of success.
4. The scope of the Defendant’s statutory duties regarding oversight of the designated supervisory body and whether the Plaintiff’s claims for mandamus relief are properly brought.
5. The proper application and interpretation of the jurisdiction to strike out claims under Order 19, rules 27 and 28 of the Rules of the Superior Courts.

Arguments of the Parties

Defendant's Arguments

• The claims seeking declaratory relief regarding the conformity of Completion Certificates with statutory Criteria are public law claims that should have been brought by judicial review and are out of time.
• Many of the Plaintiff’s claims do not disclose a reasonable cause of action, including claims for damages where no loss or damage is pleaded.
• The Plaintiff's requests for mandamus relief to compel the Defendant to direct the designated supervisory body to inspect and audit records are an abuse of process as the Defendant has no such duty or the matter is subject to judicial review time limits.
• The Plaintiff’s data protection claims are either moot or unsupported because the Defendant and the designated supervisory body have provided all relevant data and do not have access to certain data held by the former employer.
• The reliefs sought under certain sections of the Data Protection Act 2018 relating to law enforcement are inapplicable to the case context.

Plaintiff's Arguments

• The claims are primarily data protection actions, which are tortious in nature and subject to a six-year limitation period rather than the shorter judicial review period.
• The Defendant owed statutory and common law duties to ensure the Plaintiff’s Qualified Certifier Number was used only in relation to installations he inspected and certified.
• The Defendant, as data controller, has an obligation to procure and provide all personal data relating to the Plaintiff, including data held by the former employer.
• The Plaintiff contended that the Defendant has discretion to undertake or direct inspections and audits of records held by the designated supervisory body.
• The Plaintiff agreed to amend claims regarding emotional distress to claims of concern and clarified that no material loss was claimed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tucker v. The Property Registration Authority of Ireland [2024] IEHC 491	Summary of principles governing strike out jurisdiction under Order 19, rule 28 and inherent jurisdiction.	The Court adopted the summary of principles emphasizing the high threshold for strike out and the need to take the Plaintiff’s claim at its highest.
Barry v Buckley [1981] IR 306	Distinction between applications under the Rules of Superior Courts and inherent jurisdiction to strike out.	Clarified that claims bound to fail on the facts as pleaded are vexatious and subject to strike out.
O'Donnell v. Dun Laoghaire Corporation [1991] ILRM 301	Requirement to comply with procedural rules for judicial review and limitation periods.	Supported the Court’s conclusion that public law claims must comply with judicial review procedures and time limits.
Hosford v Ireland [2021 IEHC 133]	Procedural requirements and time limits applicable to judicial review claims.	Reinforced the necessity of adhering to judicial review procedures for public law claims.
Muldoon v. Minister for the Environment [2023] IECA 61	Judicial review procedural requirements and limitation periods.	Supported the Court’s approach to strike out public law claims brought outside the judicial review time limits.
Shell E&P Ireland Ltd v. McGrath [2013] 1 IR 247	Judicial review cannot be bypassed by bringing plenary proceedings seeking similar relief.	Confirmed that the Plaintiff’s attempt to avoid judicial review time limits by using plenary proceedings was impermissible.
Kelly v Hennessy [1995] 3 IR 253	Requirement to plead damages in negligence claims.	Supported striking out the Plaintiff’s negligence claim for failure to plead any loss or damage.
Larkin v. Dublin County Council [2008] 1 IR 391	Elements required for a negligence claim, including damage.	Reinforced the necessity of pleading damage for negligence claims.
Hegarty v Mercy University Hospital [2011] IEHC 435	Requirement of damage in negligence claims.	Supported the dismissal of claims lacking pleaded damage.
Walter v. Crossan Homes [2014] 1 IR 76	Requirement to plead damage in negligence claims.	Supported the Court’s striking out of claims without pleaded damage.
Collins v FBD Insurance plc [2013] IEHC 137	Tort of breach of statutory duty requires pleaded damage.	Supported striking out breach of statutory duty claims absent pleaded loss or damage.
Kennedy v. Law Society (No. 4) [2005] 3 IR 228	Ingredients required to plead misfeasance in public office, including bad faith and damage.	Supported striking out misfeasance claims lacking pleaded bad faith and damage.
Watkins v. Home Office [2006] UKHL 17	Requirement of pleaded loss or damage in misfeasance claims.	Reinforced necessity of pleading damage for misfeasance in public office claims.
Glencar Exploration v Mayo County Council [2002] 1 IR 84	Ingredients of a claim for breach of legitimate expectation.	Supported striking out claims lacking clear pleaded legitimate expectation elements.
Keohane v Hynes [2014] IESC 66	Scope of court’s review of documentary evidence on strike out applications.	Guided the Court’s assessment of documentary evidence and pleadings in strike out context.
Salthill Properties Ltd v. RBS [2009] IEHC 207	Distinction between documents central to claims and those merely illuminating facts.	Informed the Court’s approach to documentary evidence on strike out.
Scotchstone Capital Fund Ltd. v. Ireland [2022] IECA 23	Principles governing inherent jurisdiction and strike out applications.	Provided detailed principles guiding the Court’s exercise of strike out jurisdiction.

Court's Reasoning and Analysis

The Court carefully considered the application to strike out under Order 19, rules 27 and 28 of the Rules of the Superior Courts, applying established principles that strike out jurisdiction is to be exercised sparingly and only where it is clear the Plaintiff cannot succeed. The Court accepted the Plaintiff’s pleaded facts at their highest but also allowed limited assessment of documentary evidence and legal principles to determine whether the claims disclose reasonable causes of action or are bound to fail.

Regarding the reliefs seeking declarations about the conformity of Completion Certificates with statutory Criteria, the Court found these to be public law claims that should have been brought by judicial review. The Plaintiff commenced proceedings well outside the three-month judicial review limitation period, no extension was sought, and no satisfactory explanation for delay was provided. Consequently, these claims were struck out as an abuse of court process.

Claims concerning the Defendant’s oversight duties of the designated supervisory body were similarly characterised as public law claims subject to judicial review time limits and were struck out for the same reasons.

The Plaintiff’s claim for an order directing the Defendant to compel the designated supervisory body to inspect and audit records was identified as an order of mandamus requiring exercise of statutory discretion. As with other public law claims, the limitation period had expired, and no extension was sought. This claim was also struck out.

Claims for damages for negligence, breach of warranty, breach of statutory duty, misfeasance in public office, breach of legitimate expectation, and breaches of constitutional and human rights were examined. The Court found that the Plaintiff failed to plead any recognisable loss or damage, an essential element for these claims. The breach of warranty claim lacked any pleaded contractual relationship. The misfeasance claim lacked allegations of bad faith. The legitimate expectation claim was unclear and unsupported by pleaded facts. The constitutional and human rights claims did not identify specific rights breached. Accordingly, these claims were struck out for failing to disclose reasonable causes of action or having no reasonable prospect of success.

The Court considered the Plaintiff’s data protection claims under the GDPR and the Data Protection Act 2018. Unlike other torts, data protection claims may proceed for non-material damage. The Court noted the Plaintiff’s lack of clarity but was not satisfied that the data protection claims were bound to fail or frivolous. The Defendant’s assertion that all data had been provided raised factual issues better suited for trial. However, references in the pleadings to provisions of the 2018 Act relating to law enforcement processing were inappropriate and required deletion.

The Court directed the Plaintiff to amend the statement of claim by striking out the reliefs found to be unsustainable and removing references to inapplicable statutory provisions. The Court also observed that the case might be more appropriately dealt with in lower courts and invited the parties to consider this possibility.

Holding and Implications

The Court STRUCK OUT the reliefs sought at paragraphs (1), (2), (3), (4), (5), (10), (11), (12), (13), (15), (16), and (17) of the prayer for relief, and ordered the Plaintiff to delete references to sections 90, 91, and 92 of the Data Protection Act 2018.

The data protection claims at paragraphs (6) through (9) and (14) remain to be determined at trial. The Court’s decision significantly narrows the scope of the Plaintiff’s case, excluding claims that are public law in nature brought out of time, and claims lacking pleaded damage or proper legal foundation. No new legal precedent was established. The Court also provisionally treated the Defendant as the successful party for costs purposes but stayed any costs order pending final determination of the proceedings.