129. More recently, in Podariu v Veterinary Council of Ireland [2018] 3 IR 124, the Court of Appeal revisited the law in relation to the circumstances in which acquiescence and estoppel by conduct, can be said to confer jurisdiction on a statutory tribunal. In that case, the Veterinary Council had purported to deal with an additional complaint, which had not been referred to it by the Preliminary Investigation Committee. Delivering the judgment of the court, Hogan J described the principle of estoppel by conduct in the following way at para. 38:
"The law in relation to estoppel by conduct is illustrated by a trilogy of leading Supreme Court decisions from the 1970s: In re Green Dale Building Co. [1977] I.R. 256, Corrigan v. Irish Land Commission [1977] I.R. 317 and The State (Byrne) v. Frawley [1978] I.R. 326. It is quite clear from these cases that an entirely new jurisdiction cannot be created by estoppel. Thus, for example, a decision of the Medical Council purporting to sanction a veterinary surgeon would be wholly void and ineffective, even if the veterinarian in question had somehow submitted to the jurisdiction of that council. It is likewise clear that the District Court cannot exceed its own geographical limitations by purporting to deal with offences which had not been the subject of a complaint made within the appropriate District Court district. In O'Malley v. District Judge Kelly [2015] IECA 67, (Unreported, Court of Appeal, 27 March 2015) this court accordingly held that the District Court had no jurisdiction in such cases and quashed the ensuing convictions, the acquiescence of the applicant in the entire procedure notwithstanding."
130. However, the court went on to note that the statutory provisions which provided for the referral of complaints to the Fitness to Practice Committee, by the Preliminary Investigation Committee, was primarily designed as a protection for the veterinary surgeon. The court held that there had been sufficient acquiescence on the part of the applicant to the addition of complaint number 17 at the hearing before the FTPC. He was deemed to have waived the protection of the statutory provisions which existed for his benefit. He was thus precluded from challenging the validity of the FTPC decision to permit such an amendment to the notice of inquiry. The applicant was held to be estopped by his conduct from challenging or impugning the validity of the FTPC decision to permit the additional complaint to be added to the original complaints. He was deemed by his acquiescence to have waived the statutory provisions which existed for his benefit.
131. In light of these principles, I do not regard the argument advanced by the respondent as being well founded for the following reasons: first, for acquiescence to give rise to an estoppel by conduct, it must take place where the person who is said to have acquiesced in the process, has full knowledge of all relevant facts, and with such knowledge, has made a decision to participate in the process.
132. In this case, the applicant did not know that the respondent did not have much of the requisite information when it decided to commence the inquiry. The applicant, not unreasonably, assumed that the respondent had obtained the relevant information so as to establish the admissibility of the complaints, when it decided to commence the inquiry. The absence of any request for such information prior to being told that an inquiry would be commenced, does not constitute knowledge or acquiescence in the inquiry proceeding in the absence of that essential information.
133. Secondly, I accept the submission made on behalf of the applicant, that the applicant was obliged by the DPA 2018, to cooperate with the respondent. Thus, the significant engagement which the applicant had with the respondent since receipt of the Slovenian complaint in September 2022, does not constitute a waiver by the applicant of compliance with the necessary criteria for admissibility of a complaint.
134. I hold that by its engagement with the respondent in the period prior to the decision to commence the inquiry on 23 October 2023, the applicant did not acquiesce in the complaints being the subject of an inquiry, without the necessary criteria for admissibility being met.
Principle of Mutual Trust and Duty of Sincere Cooperation.
135. The respondent's submission under this heading has been summarised earlier in the judgment. The court does not accept the proposition that the mere receipt by the respondent of complaints from the CSAs in six countries, obliged it under the principle of mutual trust and duty of sincere cooperation, to reach the conclusion that the necessary criteria had been examined and had been found to have been in existence by the CSAs concerned.
136. There is no evidence, save perhaps in relation to the Greek complaint, that the CSAs concerned had examined the admissibility of the complaints. In other words, there is nothing to suggest that the CSAs, with the exception of the Greek SA, had sought mandates from the data subject to the complaint being lodged on their behalf by a consumer agency. Nor was there any evidence that they had satisfied themselves that the consumer agencies concerned had complied with the requirements for representative bodies as set down in Art. 80(1) of GDPR 2016.
137. In other words, in the absence of anything to suggest that any vetting or screening of the complaints for admissibility, had been carried out by the CSAs, the respondent could not rely on the principle of mutual trust and the duty of sincere cooperation, to make the assumption that such screening or assessment had been carried out, or that the forwarding of such complaints constituted evidence that the requisite criteria had been complied with.
138. The principle of mutual trust and the duty of sincere cooperation, only provides that one state agency must assume that a state agency in another state has complied with its obligations under EU law. In this case, the obligation on the CSA was not to handle, or consider, the complaint; it was merely to pass it on to the respondent as LSA for such investigation and determination as it considered appropriate. Thus the respondent could not assume under this principle, that the CSAs had found the complaints admissible. Accordingly, I reject this submission.
The Argument based on Rowland v An Post.
139. The respondent submitted that the present application should be refused on the basis of the decision of the Supreme Court in Rowland v An Post [2017] 1 IR 355. In that decision, the Supreme Court had held that for disciplinary inquiries within the employment context, ordinarily, a court should not interfere with an ongoing process unless the court was satisfied that it was clear that the process had gone wrong; that there was nothing that could be done to rectify it; and that it followed that it was more or less inevitable that any adverse conclusion reached at the end of the process, would be bound to be unsustainable in law: see decision of Clarke J (as he then was) at paras 11 - 14.
140. It was submitted that in the present case, it could not be said that the process had gone irremediably wrong. Any concerns that the applicant had in relation to the admissibility of the complaints against it, could be addressed in the context of the inquiry which had only just begun by virtue of the notice of commencement dated 23 October 2023. It was submitted that in these circumstances, the court should follow the decision in the Rowland case and should decline to intervene in the inquiry at this stage.
141. The court accepts that the statement of principle set down by the Supreme Court in the Rowland case has been applied in many subsequent cases. The court also accepts that in Murphy v Commissioner of An Garda Siochana [2023] IECA 92, the Court of Appeal held that the principles enunciated in the Rowland case, are applicable to judicial review proceedings.
142. In reaching its conclusion as to whether it is appropriate for this court to intervene in the inquiry process which has been commenced by the respondent, the court is of the view that it must have regard to the fact that in many of the previous cases, such as in the Rowland case itself; and in the following cases: Becker v The Board of Management of St Dominic's School [2006] IEHC 130; Student A.B. (A Minor) v Board of Management of a School [2019] IEHC 255; Ivers v Commissioner of An Garda Siochana [2022] IECA 206, the processes that were sought to be injuncted, concerned disputes between an individual and his employer, or between individual students and their schools.
143. In the present case, the court is dealing with an inquiry of an altogether different nature. The inquiry which the respondent proposes to hold into the complaints lodged on behalf of the six complainants, constitutes an inquiry into a systemic process utilised by the applicant at the account creation stage. Thus, it is much wider than an inquiry of a disciplinary or other nature, between an individual and another entity, be it an employer, or a school.
144. The court accepts the evidence given by Mr McHale in his affidavit sworn on 16 January 2024, as to the level of time and manpower that has been expended by the applicant in dealing with the requests for further information that have issued from the respondent to date. The court also accepts his evidence that if the inquiry is to proceed, the applicant will have to incur very significant further expense and deployment of manpower to deal with the subject matter of the complaints: see paras 81 - 85. In addition, as already noted, the court accepts that in order to deal with the complaints the subject matter of the inquiry, the applicant may be required to divulge a significant amount of confidential information. The court also accepts that the very holding of an inquiry, with the possibility of the imposition of very significant fines at the conclusion thereof, may require the applicant to make an announcement to the markets, with a consequential adverse effect on its share price.
145. In these circumstances, the court is satisfied that notwithstanding the principles set down in the Rowland case, the present case falls into the category of cases where it is appropriate for the court to intervene in the process at this stage, given that the holding of the inquiry itself will have significant adverse effects for the applicant. Accordingly, the court rejects the submission made on behalf of the respondent, that having regard to the principles set down in the Rowland case, the court should decline to intervene in the inquiry at this stage.
Subsequent Evidence Establishing Jurisdiction.
146. Since the issuance of the notice of commencement, and also subsequent to the institution of these proceedings, a substantial amount of evidence has been provided to the respondent which establishes that mandates had been signed by each of the complainants authorising the relevant consumer agencies to lodge complaints on their behalf.
147. A substantial volume of documentary evidence has also been provided which establishes that each of the consumer agencies meet the criteria for the representative bodies, as laid down in Art. 80(1) of GDPR 2016.
148. It is not necessary to set out the precise dates on which each piece of evidence came into the possession of the respondent. Broadly speaking, the relevant material was received by the respondent in the period December 2023 to February 2024.
149. The respondent submits that it is permissible for the court to have regard to this further evidence, when examining the question of fact, as to whether the respondent had jurisdiction to make the decision to commence the inquiry, that it made on 23 October 2023.
150. In support of the proposition that the court can have regard to fresh evidence when examining the issue of jurisdiction, the respondent relied on the decision in R v Secretary of State for the Environment [Ex P. Powis] [1981] 1 WLR 584, where Dunne LJ, delivering the judgment of the English Court of Appeal, stated as follows at p.595:
"What are the principles on which fresh evidence should be admitted on judicial review? They are ... (2) where the jurisdiction of the Minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error: see De Smith's Judicial Review of Administrative Action, 4th Ed, [1980] at pp. 140, 141 and cases there cited..."
151. In Sweetman v An Bord Pleanála [2021] IEHC 16, the applicant was permitted to make the case that the Board did not have jurisdiction to grant planning permission to the entity which had applied for planning permission, being An Bradán Beo Teoranta, because it had not been furnished with consents from all relevant landowners, enabling that party to make the planning application, as required by Reg. 22(2) of the planning regulations. As it was a jurisdictional issue, the applicant was allowed to call fresh evidence on it and was allowed to make the argument that the Board lacked jurisdiction, even though that argument had not been raised by it at the appeal hearing: see paras. 25 and 26.
152. In Reid v An Bord Pleanála [2021] IEHC 230 Humphreys J endorsed the decision that had been given in the Sweetman case. He looked at the circumstances in which fresh evidence can be admitted in judicial review proceedings. He held that the court can admit fresh evidence when the issue goes to jurisdiction: see paras. 30-32.
153. I accept the submission made on behalf of the respondent that in looking at the question of whether the respondent had jurisdiction to make the decision that it did on 23 October 2023, the court can have regard to the evidence that has come to hand in the course of these proceedings.
154. That evidence clearly shows that the necessary mandates had been signed by the complainants prior to the time when the decision to commence the inquiry had been taken by the respondent. The evidence further establishes that at all material times, the consumer agencies satisfied the criteria for representative bodies, which are capable of lodging complaints on behalf of a complainant, as required by Art. 80(1) of GDPR 2016.
155. I hold that as the necessary facts giving rise to jurisdiction on the part of the respondent, were de facto in existence at the time when the decision to commence the inquiry was made by it, the respondent had jurisdiction to make that decision.
156. While I have held that the respondent ought to have obtained evidence of the existence of these facts, prior to making its decision; the existence of the required criteria at the date of the making of the decision to commence the inquiry, which facts have been established by evidence that has subsequently come to hand; which evidence shows that such facts were in existence at the time when jurisdiction was assumed by the respondent; that is sufficient to establish that the respondent de facto had jurisdiction to issue the notice of commencement. It is also sufficient to resist the applicant's application to have the notice of commencement set aside.
157. Even if I am wrong in that conclusion, I accept the submission made on behalf of the respondent that as the granting of relief by way of judicial review is a discretionary remedy, the court should not grant the reliefs sought by the applicant in this case, due to the fact that the necessary criteria showing that these complaints are admissible, being now to hand; it would be futile to make an order striking down the notice of commencement, as the respondent would simply issue a fresh one immediately. As the conduct of the inquiry has been stayed voluntarily while these proceedings have been pending before the court, there is no prejudice to the applicant in allowing the original notice of commencement to continue.
Further Grounds Raised in the Amended Statement of Grounds.
158. There are two further matters on which it is necessary to reach a determination. First, insofar as the applicant has sought in its amended statement of grounds to have a declaration that the respondent has acted ultra vires by including within the inquiry, complaints that fall outside the temporal scope of the notice of commencement; this primarily relates to the French complaint. The applicant maintains that this account was opened in 2014, meaning that it falls outside the temporal scope of the inquiry. The account holder is adamant that she opened the account in 2022, meaning that it comes within the temporal scope of the inquiry.
159. The respondent is entitled to resolve that conflict in the course of the inquiry. Accordingly, I am not satisfied that the French complaint should be struck from the notice of commencement.
Submission that the Complaints are an Abuse of Process.
160. The second matter is in the following terms: the applicant has argued that subsequent evidence and investigations by them, have revealed that certain of the complainants are employees within the consumer agencies, which have submitted the complaints on behalf of the complainants.
161. The applicant relies on the decision of the Belgium DPA in its decision of 24 January 2024, in case bearing reference number 22/2024, relating to an alleged non-compliant cookie banner. In that case, the Belgium DPA found that the complainant was in fact an intern, who had been working in the consumer agency, which had brought the complaint on her behalf. Furthermore, it transpired that she had been directed as part of her duties while working with the consumer agency, to visit the website and examine the cookie banner in respect of which the complaint was lodged.
162. The Belgium DPA held that in these circumstances, there was no spontaneous nature to the visit to the website that had been conducted by the complainant in her position as an intern with the consumer agency. It was held that the necessary genuine consent on her part to the bringing of a complaint on her behalf by the consumer agency, was missing. The Belgium DPA held that the consumer agency was acting, not as an agent on the basis of Art. 80(1) of the GDPR, but as a complainant on the basis of Article 80(2). As the Belgium Government had deliberately chosen not to implement Art. 80(2), the complaint was deemed inadmissible: see paras. 51-55 and 59-60.
163. The applicant further argues that when one looks at the account history in relation to a number of the accounts in this case, it is apparent that the accounts once opened, where hardly used at all; suggesting that they were opened solely, or primarily, for the purpose of making the complaints the subject matter of these proceedings.
164. In essence, it is submitted that because a number of the complainants appear to be employees of the consumer agencies, which have lodged the complaints and having regard to the account history, the complaints are in effect an abuse of process, as a means of enabling the consumer agencies to make the complaints on their own behalf, notwithstanding that Art. 80(2) has not been implemented in Irish law.
165. These arguments have only been made subsequent to the notice of commencement, because the relevant information was only provided to the applicant in the affidavits filed on behalf of the respondent in the course of these proceedings.
166. No application has yet been made to the respondent to deem the complaints inadmissible, as being an abuse of process, on these grounds. This is because the inquiry was voluntarily stayed pending the outcome of these proceedings. Accordingly, there is, as yet, no decision of the respondent on any such application, so the issue does not fall for consideration in these judicial review proceedings.
167. If the applicant wishes to make that application to the respondent, it can do so. It will be for the respondent to decide what procedure it will adopt to determine that application, if and when it is made. The respondent may decide to deal with it as a preliminary matter, or it may decide to deal with it as part of the inquiry that it has commenced.
168. If the applicant makes such an application to the respondent, and if it is aggrieved with the decision of the respondent on how it proposes to deal with that application, they can take whatever steps they regard as necessary at that stage.
Proposed Order.
169. For the reasons set out herein, the court would propose to make the followings orders:
(a) The court will set aside the notice of commencement dated 23 October 2023, insofar as it relates to the Czech complaint;
(b) save as indicated at (a) above, refuse the reliefs sought by the applicant in its notice of motion and in its amended statement of grounds.
170. As this judgment is being delivered electronically, the parties will have two weeks within which to furnish brief written submissions of not more than 1,000 words, on the terms of the final order and on costs and on any other matters that may arise.
171. The matter will be listed for mention at 10.30 hours on 5th November 2024 for the purpose of making final orders.
BAILII: