The Supreme Court has rejected an appeal application from Prof Philip Nolan over the High Court’s refusal of an injunction that would have prevented Science Foundation Ireland (SFI) from dismissing him as director general while his legal case is ongoing.
The former member of the high-profile National Public Health Emergency Team (Nphet) asked the top court to allow him to bypass the intermediary Court of Appeal, which is scheduled to hear his case next month.
Three Supreme Court judges determined that Prof Nolan did not show “exceptional circumstances” to justify a so-called leapfrog appeal.
The judges said that central to his requested appeal was whether a “no-fault” dismissal contract clause can be used to circumvent constitutional justice requirements that arise when misconduct has been alleged.
Prof Nolan’s legal team maintain that SFI should have held a formal disciplinary hearing so he could challenge a claim of inappropriate behaviour. The State-funded research agency contends no fair procedures were required as he was not dismissed for alleged misconduct but for poor performance pursuant to his contract terms.
Whether or not it is permissible to invoke a contractual power to dismiss someone against a backdrop of misconduct allegations is a question of “general public importance”, Prof Nolan argued in his appeal application. He also submitted that, as an employee and statutory office holder, the circumstances of his dismissal have visited “grave personal and professional damage” upon him.
He said he should be permitted to skip over the Court of Appeal for various reasons, including urgency and because the lower court may not resolve the constitutional issues at play.
SFI opposed his application, arguing he raised no issue of general importance to the public.
Its legal team, comprising senior counsel Mark Connaughton, barrister Shelley Horan and McCann Fitzgerald solicitors, submitted that the law in this area is well settled.
Mr Justice Brian Murray, Mr Justice Maurice Collins and Ms Justice Aileen Donnelly said appeals relating to pretrial orders will only on rare occasions meet the constitutional threshold for a Supreme Court appeal and in “even rarer” cases justify “leapfrogging” the Court of Appeal.
They found no apparent urgency to the matter, as Prof Nolan’s appeal has been scheduled for October 16th in the lower court.
The judges noted there are contested facts underlying the claim, and these have yet to be resolved via a full High Court trial.
In refusing to grant a lengthy pretrial injunction to Prof Nolan last June, the High Court’s Mr Justice Rory Mulcahy found he was not sacked for misconduct and there was no requirement for fair procedures. He held that the provisions of his contract permitted the dismissal.
Five senior staff members had made protected disclosures involving claims against Prof Nolan.
An inquiry into the allegations found there was no bullying or breach of corporate governance but concluded he engaged in inappropriate behaviour and this could ground allegations of gross misconduct. Prof Nolan strongly denies this charge and claims issues arose because senior management was resisting reform.
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