Supreme Court allows appeal dismissing claim for damages against Attorney General for non-renewal of State Solicitor appointment.

THE SUPREME COURT

Record No 56/01

Murphy J

Geoghegan J

Fennelly J

Between:

Charles Coonan

Plaintiff

AND

The Attorney General, Ireland

Defendants

Judgment of Mr Justice Francis D Murphy delivered the 29th day of May, 2001.

Charles Coonan, the above named Plaintiff (Mr Coonan), was appointed as State Solicitor for the area of North Kildare/ Wicklow in

August, 1974, upon the terms of a document described as “Conditions of Appointment” dated the 14th day of August, 1974. The first

paragraph of that document was expressed in the following terms:-

“1 The State Solicitor shall be entitled to hold the office of State Solicitor for the above area until he shall attain the age of 65

years but, provided that he is then in good health, the age of retirement may be extended by the Attorney General, with the

concurrence of the Minister for Finance, to any age not exceeding 70 years. The State Solicitor shall be removable at any

time, by order of the Government made on the certificate of the Attorney General, for misconduct, incapacity, neglect of

duty, physical or mental infirmity, or any other cause which, in the opinion of the Attorney General, would render him unfit to

perform the duties of a State Solicitor. The certificate of the Attorney General in respect of any of the aforesaid matters shall

be binding on the State Solicitor. The appointment will carry no right to pension or compensation on termination.”

Unquestionably it had been the invariable practice before 1974 and for at least 20 years thereafter for a year by year extension to be

granted up to the age of 70 years to any State Solicitor who applied for it. Mr Coonan was well aware of that practice.

On the 14th of January, 2000, Mr Coonan, who would attain the age of 65 years on the 5th November, 2000, applied for renewal. He

met with the Chief State Solicitor in the same month who told him he was not going to be renewed after the age of 65 years. The

Attorney General on the 5th February, 2000, in accordance with a change in policy, made a decision that no extension should be

granted. On the 18th February, 2000, the Director of Public Prosecutions informed Mr Coonan that there would be no extension and

by letter dated the 7th of March 2000 the Chief State Solicitor gave formal notice to that effect.

On the 4th October, 2000, Mr Coonan instituted plenary proceedings claiming a declaration that he was entitled to continue as State

Solicitor for the area to which he had been appointed and an injunction restraining the Defendants from appointing any person as

State Solicitor in his place. In addition to other relief, Mr Coonan claimed damages for breach of contract.

In the statement of claim delivered on the 13th November, 2000, Mr Coonan having asserted the material facts to which I have

referred went on to say:-

“7 The plaintiff is and remains state solicitor for the area of North Kildare/ Wicklow and at all material times hereto relied upon

the conditions of his appointment and the terms both expressed and implied of his appointment and the practice heretofore in

respect of extensions to state solicitors appointed by way of similar conditions of appointment. The plaintiff has acted to his

detriment and loss in the legitimate expectation that his appointment would be extended pursuant to his conditions of

employment until he attained 70 years of age.

8 The defendants have in breach of the conditions of appointment and the terms expressed and implied therein failed to

extend the plaintiff’s employment having been lawfully called upon so to do by the plaintiff pursuant to his conditions of

appointment.”

The defence might be summarised by saying that the Defendants admitted the facts alleged in the statement of claim but denied the

inferences and conclusions of law drawn therefrom. In particular the Defendants contended that the conditions of appointment

conferred on the Attorney General “a lawful discretion” to extend the Plaintiff’s age of retirement with the concurrence of the Minister

for Finance to any age not exceeding 70 years: that such discretion had been exercised lawfully to extend the Plaintiff’s age of

retirement up to and including the 31st January, 2001, but no further. In the reply delivered on the 14th December, 2000, Mr Coonan

denied (among other things) that the Attorney General had lawfully exercised the discretion aforesaid.

Because of the urgency of the matter for both the Plaintiff and the Defendants the matter was processed with commendable speed.

It was heard by Ms Justice Carroll on the 23rd and 24th of January, 2001, and she delivered her judgment on the 31st of January,

2001, in pursuance of which it was ordered that Mr Coonan was entitled to recover against the Defendants damages in the sum of

£100,000 together with the costs of the proceedings. It is from that judgment and order that the Defendants appeal to this Court.

The Defendants/Appellants submitted that no term could be inferred into the contractual relationship between the parties which

would be inconsistent with the discretion expressly conferred upon the Attorney General. It was argued - and the evidence appears

to have supported the fact - that Mr Coonan had not altered his position to his detriment as a result of the established practice

concerning extensions and consequently a claim based on estoppel could not succeed. The Appellants submitted that an issue of

legitimate expectations could not arise in what was in essence a commercial contract between the Attorney General and a solicitor

for the provision of legal services by the latter. However, the main thrust of the argument made by Counsel on behalf of the

Appellants was that nowhere - not in the pleadings, the particulars furnished or the written submissions in the High Court or this Court

- had Mr Coonan specified the nature, scope or terms of the right on which he relied. Mr McDonagh, SC, for the Appellants, pointed

out that the judgment of the learned trial Judge did not identify any such right. Mr McDonagh posed the question which was not

merely rhetorical but, in the existing circumstances, hypothetical, namely:-

“If the claims of the Plaintiff were upheld and the matter referred back to the Attorney General to make an appropriate

determination what standard, criteria or procedure would the Attorney General be required to apply or adopt?”

As the post held by Mr Coonan had been filled before Ms Justice Carroll delivered her judgment the possibility of referring the matter

back to the Attorney General was not then a realistic option. Less still could that procedure be adopted now. Nevertheless it is, in my

view, the difficulty in answering the hypothetical question which underscores the infirmity in Mr Coonan’s case.

It was conceded by Mr Condon, SC, on behalf of Mr Coonan that the word “may” in the Conditions of Appointment conferred on the

Attorney General a discretion. Rightly, in my view, Mr Condon did not seek to argue that the word “may” should be interpreted as

“shall”. What then is the limitation on the exercise of this discretion? Was it to be inferred that the Attorney General would afford

every outgoing state solicitor an opportunity of being heard in relation to the decision to extend his term of office in a procedure

analogous to that required by the decision of the House of Lords in The Council of Civil Service Unions .v. The Minister for the Civil

Service [1985] AC 374. Did the alleged rights of Mr Coonan go beyond the merely procedural? Was the Attorney General bound to

review the conduct and capacity of Mr Coonan and, if so, by reference to what standard? Did the Attorney General owe any duty to

the office holder in relation to the exercise of the contracted discretion? Mr McDonagh explored some of these possibilities but with

understandable frustration. He did not know with any degree of particularity the term which Mr Coonan claimed was implied in the

contract or the restrictions allegedly imposed on the exercise by the Attorney General of his discretion.

The learned trial Judge understandably expressed concern for Mr Coonan having regard to the impact of the Attorney General’s

decision on his career and expressed her conclusions in law in the following terms (at page 11 of the transcript):-

“I am not saying that the Attorney General could not change the policy of renewal on request, health permitting. But I do say

that he was not entitled to change this long standing custom, rule or policy, by whatever name it was called, and relied upon

by Mr Coonan, without giving adequate notice to enable him to arrange his affairs to cope with this alteration in his life plan.

The two extra months given as a conciliatory gesture were wholly inadequate.”

It is difficult to reconcile that conclusion with the discretion expressly and admitted conferred on the Attorney General by the

conditions of his appointment. It seems to me that this decision necessarily involves the substitution of an obligation for a discretion

subject to the qualification that the discretion could be restored to the Attorney General on his giving reasonable, but undefined

notice, to Mr Coonan and presumably all other State Solicitors. I cannot envisage the officious bystander postulated in Shirlaw .v.

Southern Foundries [1926] LDD 1939 2 KB 206 (and more recently by this Court in Carna Foods Ltd .v. Eagle Star Insurance (Ireland)

Ltd [1997] 2 IR 193) suggesting a provision to that effect. Less still could I envisage either party testily suppressing his intervention

with a common “Oh of course”. At the very least such a suggestion would give rise to debate and the very existence of debate would

preclude the implication of the suggested term. Nor can I see any basis on which the ill defined and inadequately explored doctrine of

legitimate expectations could be invoked so as to prevent successive Attorneys General exercising or declining to exercise the

discretion expressly reserved to them simply because a practice or pattern could be identified which indicated that for many years the

discretion had in fact been exercised one way rather than another. Even in that context the question would arise “What was it that

the office holder was led to expect?”. The much quoted case of Webb .v. The Attorney General [1988] 1 IR 353 Finlay CJ (at 384)

seems to have cast doubt upon the existence of any such right of action when he said:-

“It would appear that the doctrine of “legitimate expectation” sometimes described as “reasonable expectation”, has not in

those terms been the subject matter of any decision of our courts. However, the doctrine connoted by such expressions is

but an aspect of the well recognised equitable concept of promissory estoppel (which has been frequently applied in our

courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor

or promisor.”

It was in that context that Finlay CJ quoted with approval certain passages from the judgment of Lord Denning MR in Amalgamated

Property Company .v. Texas Bank [1982] QB 84 on which considerable reliance was placed by Counsel on behalf of Mr Coonan. In his

judgment in Wiley .v. The Revenue Commissioners [1993] ILRM 482 Mr Justice O’Flaherty repeated the observations which I have

quoted from the judgment of Finlay CJ in the Webb Case and went on to analyse the evolution of the doctrine of legitimate

expectations. In concluding that it had no application to the claim of the plaintiff to the repayment of excise duty in accordance with

certain representations made to him O’Flaherty J said (at page 494):-

“The appellant is not concerned with seeking fair procedures in the sense of submitting that he should have been heard by the

Revenue Commissioners before they changed their evidentiary requirements in relation to the granting of a refund. Rather

does he submit that he should continue to have conferred on him a substantive benefit by way of exemption in the

circumstances that he was not informed in advance of the more stringent requirements that the Revenue Commissioners had

put in place to satisfy themselves so that they could properly discharge their duty in accordance with the scheme they had

set up under the relevant legislation. It will be clear immediately that acceptance of this admission would involve a radical

enlargement of the scope of legitimate expectation. It would involve the courts saying to the administration that it was not

entitled to set more stringent standards, so that it might discharge its statutory obligations, without giving notice to anyone

who might have benefited in the past from a more relaxed set of rules. Stated thus, I believe it would involve the courts in an

unwarranted interference with the actions of administrators. Our constitutional system is based on the separation of powers

and just as the judicial organ of State requires the respect of the legislative and executive branches of Government, so must

the courts exercise proper judicial restraint.”

Even if the relationship between the Attorney General (or the Director of Public Prosecutions) and a state solicitor is to be seen as a

matter of public law to which the doctrine of legitimate expectations applied, it would seem to me that the judgment of Mr Justice

O’Flaherty would preclude Mr Coonan obtaining any substantive benefit.

At the end of the day the learned trial Judge awarded Mr Coonan a sum of £100,000 by way of damages. Of course the trial Judge

had been placed in the difficult position that Mr Coonan could not be restored to his post so that any review of his circumstances by

the Attorney General would have been meaningless. At the same time, Carroll J had received evidence that the remuneration of state

solicitors had been, or was about to be, increased to £35,000 per annum. The award of £100,000 therefore would appear to represent

effectively the full value of a claim for wrongful dismissal on the basis that the “employee” was entitled to three years notice of

termination. Indeed recognising that Mr Coonan had given evidence, that in the event of his ceasing to be State Solicitor, he would

discontinue the employment of one typist, it may be that the award represented the full amount of the loss which Mr Coonan would

sustain over a period of five years. If the notice which it was held that he was entitled to receive of any change of policy was, say,

twelve months - which would be the longest period that one could envisage as appropriate notice to determine a contract of

employment from year to year - that computation could not be justified.

Whilst I share entirely the views of the learned trial Judge as to the harshness of the decision of the Attorney General and the effect

which it had upon the understandable - if not legitimate - expectations of Mr Coonan, I do not accept that the Plaintiff has made out

a case in law to recover damages for breach of contract or otherwise against the Defendants. I would allow the appeal.