IESC 48 · Supreme Court

Murphy J.

Geoghegan J.

Fennelly J.

THE SUPREME COURT

Record No. 56/01

BETWEEN/

CHARLES COONAN

Plaintiff

and

THE ATTORNEY GENERAL AND IRELAND

Defendants

Judgment of Mr. Justice Geoghegan delivered the 29th day of May 2001

On the 14th of August 1974, the plaintiff was appointed State Solicitor for the area of north Kildare/Wicklow. As in the case of all

State Solicitors since the foundation of the State until quite recent times the plaintiff was required to sign a document under which

he agreed to accept and comply with certain specified conditions of appointment. These were the same conditions of appointment as

were invariably used. For the purposes of this appeal, it is not necessary to consider the exact legal nature of the office of State

Solicitor. Even if, for some purposes, his office might be regarded as being governed by public law (and I am expressing no opinion

whatsoever on this matter) it is the contractual terms of his appointment and matters arising therefrom which are in issue in this case

,which was an ordinary action commenced by plenary summons and not, in any sense, an application for judicial review. For the most

part in so far as the action is founded directly on contract paragraph 1 of the conditions of appointment is the relevant provision. I

think it best to set out that paragraph and then in the light of it explain what the issues between the parties are. Paragraph 1 reads

as follows:-

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

five 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 seventy 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 for any other cause which, in the opinion of the Attorney General, would render him unfit

to perform the duties of 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.”

When the plaintiff was reaching the age of sixty-five years he applied, as most of his colleagues had done over many years, for an

extension. Apart from a very minimal extension which the plaintiff was ultimately given this was refused and it was refused on the

grounds of a new policy which the Attorney General was adopting. That policy was that there would be no more extensions after the

age of sixty-five years unless there were exceptional circumstances. I do not find it necessary to set out in this judgment the history

of how this policy came about. It is sufficient to state that the policy was decided upon.

In the High Court and on appeal in this court the plaintiff essentially makes two alternative cases which are:-

(1) That once there was no problem with the plaintiff’s health there was in all the circumstances a breach of contract on the

part of the Attorney General in not granting the extension.

(2) Even if there was technically no breach of contract the Attorney General was precluded from refusing to renew by virtue of

the doctrine of promissory estoppel and/or legitimate expectation.

There is a further refinement to be made in relation to issue No. 1. The contractual issue was argued on behalf of the plaintiff in the

High Court effectively on two alternative fronts though it was never put like that. As it happens, the books of transcript from the High

Court include argument as well as evidence and it emerges from Book 1 of the transcript that Mr. Condon, S.C. opened the case on

behalf of the plaintiff on the basis that the Attorney General was contractually obliged to grant the extensions provided that there

was no health problem and that the word “may” in the first sentence of Condition No. 1 connoted merely an enabling provision

allowing the Attorney General actually to grant the extension in such circumstances. On this interpretation the Attorney General

would have no discretion. The question of the role of the Minister for Finance has never really featured and I think that it would be

accepted by all sides that it would be fiscal matters with which the Minister for Finance would be concerned and I do not think that

his role is relevant to the issue.

Mr. Ercus Stewart, S.C., also acting for the plaintiff, argued the contractual points slightly differently in his closing of the case in the

High Court. At p. 108 of Book 2 of the transcript he is reported as having said as follows:-

“What the State is alleging is that some time in 1999, they adopted a policy or a rule - the words are both used - changing it,

and I would submit, Judge, that if there was a discretion, that the discretion is clearly being ... totally being done away with,

or fettered by a general rule or policy that only in exceptional circumstances, and the two - and the word two, Judge, they

became three a few moments ago, and they are back now to two. They were related to the particular State Solicitor’s office

and the work being done at the time. You can call them three situations or two, but it is two or three. But they each relate to

the particular job, the particular office being served, and they clearly are matters of benefit to the State.”

While therefore Mr. Condon was making the bolder argument that there was no discretion left to the Attorney General, if there was

good health, Mr. Stewart was modifying that somewhat by arguing that even if the Attorney General did have a discretion under the

contract, he was not contractually permitted to adopt a policy fettering his own discretion. At the hearing of the appeal Mr. Condon

ultimately conceded that the Attorney General did have some discretion.

Carroll J., in the High Court, delivered a reserved judgment in which having referred to the evidence of a former Chief State Solicitor,

Mr. Dockery, and the State Solicitor for Limerick, Mr. Murray, who was also President of the State Solicitors Association, which was to

the combined effect that over many years renewals were more or less routine, she expressed strong adverse views as to the manner

in which the plaintiff had been treated by the State and she held in his favour. The defendants have appealed that decision to this

court. Carroll J., in her judgment, chose not to analyse what exactly the contractual terms were but preferred to base her decision on

estoppel arising out of the manner in which the Attorney General, over many years, had exercised his contractual discretion. At p. 10

of her judgment she said the following:-

“This case seems to me to fit four square within the doctrine expressed by Lord Denning M.R. in Amalgamated Property Company

Limited v. Texas Bank [1982] Q.B. 84 and referred to by Finlay C.J. in Webb v. Ireland [1988] I.R. 353:

‘Where the parties to a transaction proceed on the basis of an underlying assumption either of fact or law, whether due to

misrepresentation or mistake makes no difference, on which they have conducted the dealings between them neither of them

will be allowed to go back on that assumption when it would be unfair or unjust to allow them to do. If one of them does seek

to go back on it the court will give the other such remedy as the equity of the case demand.’

Counsel for the Attorney General, Mr. McDonagh, S.C., argued very forcefully by reference to case law that the doctrine of legitimate

expectation had no place in private law but only in public law. But in view of the fact that the Amalgamated Property Company

Limited was a private law case and not a public law case, I do not think that this issue really arises. It would seem that it was more

on the basis of estoppel than legitimate expectation that the learned trial judge came to her decision.

Mr. McDonagh also drew to the attention of the court difficulties in the way of the plaintiff succeeding on the basis of estoppel and

these are referred to in the judgment of Murphy J., but as I have formed the view that the plaintiff is entitled to succeed at any rate

on foot of his contract with the Attorney General, I do not find it necessary to consider the application of the principles of estoppel.

I return therefore to the contract. It may be at least arguable, as originally suggested by Mr. Condon, that the Attorney General was

contractually obliged to renew subject only to health problems but I am inclined to the view that that is not a correct interpretation,

having regard to the use of the word “may”. I find it difficult to follow how the word “may” in the context could connote merely an

enabling provision. In this exercise one is not construing a statute or a statutory instrument and it would be absurd to suggest that

Mr. Coonan could enable the Attorney General to do something. I am satisfied, therefore, that over and above the health question the

Attorney General does have a residual discretion which could be exercised against renewal in particular circumstances and in a

particular case. But I am in complete agreement with the more modified contractual argument to the effect that the Attorney General

was not entitled to introduce a blanket policy. When I say that he was not entitled to do so, I mean that he was not contractually

entitled to do so. Obviously, the Attorney General can have any kind of policy and, indeed, such a policy may well have been very

sensible. But he may, in any given instance, be precluded contractually from implementing it. I believe that that is the case here.

During all the years that the plaintiff was a State Solicitor he might have from time to time looked at his own contract, and if he did

so, it would have been clear to him that by the plain words of Condition No. 1 he was given, at the very least, the hope of being

considered for renewal on his own individual circumstances if he should make an application for renewal after sixty-five. It would

never have occurred to him that that discretion in the Attorney General for which he had been guaranteed in the contract would be

at the relevant time effectively removed. In order to construe Condition No. 1 in this way, I do not think that it is necessary to imply

any term. This would seem to be the natural interpretation of the express term but if it is necessary to imply a term, I would have no

hesitation in doing so. It must surely have been an attractive feature for most applicants for State Solicitorships over the years that

they would have the expectation, or at the very least, the reasonable hope that they could remain at the job until seventy. The

absence of any pension made this of considerable importance.

I am firmly of opinion, therefore, that the Attorney General has been in breach of contract and I agree with the view of the learned

trial judge that the only practical remedy now is damages. It is not entirely clear how Carroll J. arrived at the figure of £100,000, but I

think that it was a reasonable figure. She had evidence before her of the annual salary which the plaintiff was receiving, a figure in

the order of £27,000 and she had been told that a substantial increase was likely to emerge from the report of the Buckley Review

Body. That report was published shortly before the judgment and it did recommend increases which would have brought the salary, if

implemented, to £35,000. I do not think that the learned trial judge was making an exact calculation of loss of earnings. In arriving at

her figure, the learned trial judge was entitled to have regard to the earnings. While there could have been no guarantee that the

plaintiff would have been retained till seventy even if the Attorney General properly exercised his discretion, the learned judge was

entitled to weigh up the probabilities especially in the context that the Attorney General had elected to defend the action solely on

the basis of policy with no suggestion of ill health or unsuitability on the part of the plaintiff. In all the circumstances, the justice of

the case is met by the award of £100,000 and I would, therefore, dismiss the appeal.