Professor Philip Nolan is appealing a judge’s refusal to extend an injunction preventing his dismissal from Science Foundation Ireland (SFI) and is proceeding with his wider High Court claim.
Mr Justice Rory Mulcahy on Thursday discharged his earlier order that for five weeks secured Prof Nolan’s director general position with the State-funded research agency.
He rejected an application from Prof Nolan’s lawyers seeking a variation of this order: that, pending his appeal, SFI would be restrained from treating him as dismissed from his employment for the purpose of a specified legal provision. The judge said this request can be addressed by the Court of Appeal.
SFI asked to be awarded its legal costs, but Mr Justice Mulcahy agreed with Padraic Lyons SC, for Prof Nolan, that the issue of legal fees should follow the outcome of the substantial trial of the case.
This was justified because the issues that were central to the preliminary injunction application will remain central at full trial, he said.
If Prof Nolan succeeds in his overall case, it might be unjust for him to have to pay for this failed application, the judge added.
Earlier, Mr Lyons, instructed by Daniel Spring & Co Solicitors, said his client intends to appeal the judge’s decision of last June 21st refusing to grant an injunction that would have lasted until his case concludes.
Counsel noted the judge had said in his ruling that Prof Nolan had to mount a “formidable hurdle” to meet the injunction threshold of establishing he had a “strong case likely to succeed at trial”. He said the judge had also made clear he could not decide on conflicts of fact in the pre-trial application.
The judgment said the picture of the dismissal changed decisively when SFI submitted affidavits to the court saying the dismissal was not due to misconduct but because of dysfunction within the organisation, said Mr Lyons. There were no board minutes or notes to support this asserted basis for termination, he added.
“A different picture may well emerge, on the court’s analysis, at the trial of the action,” Mr Lyons submitted.
SFI’s senior counsel, Mark Connaughton, instructed by McCann Fitzgerald solicitors, asked the court to discharge the earlier injunction and refrain from making any variation of the order. He said the plaintiff “clearly failed” to establish a strong case likely to succeed at trial and failed in the second limb of the legal test.
The judge discharged his earlier injunction and adjourned the High Court case to December for an update on progress in sharing documents in preparation for the full trial. Prof Nolan’s injunction appeal application is likely to come before this date.
In refusing to grant the injunction two weeks ago, Mr Justice Mulcahy said the director general contract permitted the SFI board to dismiss Prof Nolan “for no reason at all”.
The key question for the court was whether Prof Nolan was dismissed for misconduct, and therefore entitled to fair procedures, notwithstanding SFI’s claim the termination came pursuant to his contract terms.
The judge said the dismissal letter “left significant doubt” about the basis for termination, but the SFI sworn statements to the court “make clear” its contention it did not dismiss for misconduct.
Mr Justice Mulcahy said the SFI board gave some reasons for the dismissal which are “no doubt connected” to disruption following claims made against Prof Nolan by five senior staff members last December.
Prof Nolan may be able to show at full trial that this was, in substance, dismissal for misconduct, but the current evidence does not establish this, the judge said.
Prof Nolan received a letter of dismissal last May 27th in the wake of a barrister’s investigation into the claims made last December. The probe made no findings against the director general but concluded he engaged in inappropriate behaviour and this could ground allegations of gross misconduct.
Prof Nolan strongly rejects this charge and argues he should have been allowed to contest this via a disciplinary process. However, no disciplinary process was invoked over this before he was dismissed.
SFI says Prof Nolan was not owed fair procedures because he was dismissed pursuant his contract terms after presiding over a period of dysfunction.
Prof Nolan has been appointed CEO-designate of Research Ireland – a planned merger of SFI and the Irish Research Council
