Supreme Court dismisses appeal against dismissal due to inordinate and unjustified 29-year delay in proceedings.

The Supreme Court

Keane C.J.

Denham J.

Fennelly J.

211/99

Between:

Donal de Roiste

Applicant

and

The Minister for Defence, Ireland and the Attorney General

Respondents

JUDGMENT delivered the 19th day of January 2001 by Keane C.J.

The applicant in these proceedings was at the relevant time a lieutenant in the defence forces. He served in the Signal Corps and

was assigned to the Fourth Field Supply and Transport Company based at Custom Barracks in Athlone.

In April 1969, the applicant was interviewed by officers of the intelligence section of the army. On the 25th June 1969, the Adjutant

General wrote a letter to him in the following terms:-

“I am directed by an tAire Cosanta to inform you that an tUachtarán has, in pursuance of the powers vested in him by

s. 47(2), Defence Act, 1954 and paragraph 18(1)(f), Defence Forces Regulation A.15, retired you with effect from the 27th

day of June 1969.”

Section 47(2) of the Defence Act, 1954 provides that:-

“An officer may, for any prescribed reason, be retired by the President.”

The reasons are prescribed by the Defence Forces Regulations, A.15, the one referred to in the letter from the Adjutant General being

“in the interests of the service.”

The plaintiff in these proceedings has said on affidavit that he was given no other reason for his purported “retirement” and was

given no opportunity to make any representations. Nor, he said, was he furnished with the names of any persons making allegations

against him. He said that he had requested a court martial, if there was any charge or allegation against him, but was informed that

that was not being considered at the time. He also said that the impression was created at the time that he was associated with

subversive activities.

The plaintiff did not, however, institute any proceedings at the time in respect of his dismissal from the army. He emigrated in 1971

and went to Britain and the United States. He returned to Ireland in the mid-1980s.

In the year 1997, the plaintiff’s sister, Ms. Adi Roche, was nominated as a candidate in the presidential election of that year. The

applicant says that the events in which he had been involved in 1969 were brought up again in the media during the election

campaign and that a number of newspaper reports published at the time stated that he had been forced to resign from the defence

forces because he was a republican sympathiser. The applicant says that he thereupon took up the question of his retirement from

the defence forces with the Army Information Office, the Minister for Defence and the President of Ireland in the hope of clearing his

name and obtaining at least an honourable discharge from the defence forces, but was unsuccessful.

The applicant then applied to the High Court for leave to institute the present proceedings by way of judicial review and was granted

such leave by the High Court (Geoghegan J.) on the 23rd November 1998. In his statement grounding the application he sought

declarations that the actions of the respondents at the relevant time were in breach of natural and constitutional justice and ultra

vires the relevant statutory provisions and orders of certiorari quashing the relevant decisions of the respondents. A statement of

opposition was delivered on behalf of the respondent and the first ground raised thereby was that the applicant had been guilty of

inordinate delay in seeking to challenge the decision of the 27th June 1969, as a result of which delay the respondents had been

grossly prejudiced in their capacity to defend the applicant’s claim. The issue thus raised was tried as a preliminary issue by

McCracken J. and, in a reserved judgment delivered on the 28th June 1999, he upheld the contention advanced on behalf of the

respondents and dismissed the applicant’s claim. From that decision, the applicant has now appealed to this court.

Before I turn to the relevant law, I should refer to the facts in more detail. The applicant says that he was arrested by one of his

superior officers, Capt. Dixon, the day after he had been supervising a sale of used army equipment at Clancy Barracks, Islandbridge.

He said that he was given no reason for his arrest and was interrogated by relays of army personnel under the command of Comdt.

Gerry O’Sullivan. He said that the interrogation was oppressive and that he was shouted at, threatened and physically intimidated. He

said that he believes he may have confessed during this process of interrogation to stealing hubcaps from one of the vehicles at the

auction. Following this interrogation, he was returned to the barracks in Athlone but no charge was proffered against him. He said

that he then contacted a solicitor, Michael O’Maoileoin, who advised him to request a court martial which he did. He said that he was

further interrogated over the course of the next three or four months but that the questioning on those occasions was not so

oppressive. He was then assigned to Boyle, Co. Roscommon to the FCA, the reserve defence force, and believed at that stage that

the interrogation and the matters relating to it were now at an end.

The applicant said that the notification to him on the 27th June 1969 that he was being retired from the defence forces left him

“shocked and numbed”. He said that he was given only twelve hours to leave the barracks and that he slept in his car for a number

of nights before finding accommodation. His family, he said, rejected him because of the “shame and disgrace” brought upon him and

them. His affidavit went on

“This rejection upset me greatly and compounded the trauma of my dismissal. I say that Mr. O’Maoileoin did not act for me

nor did he institute proceedings on my behalf and I say and believe that he discontinued practising and left the country.”

The plaintiff says that the effect of his dismissal in these circumstances was that he was unable to obtain work in Ireland and was

forced to emigrate. He had only obtained temporary manual labour positions in Britain and the United States and, since his return to

Ireland, had only been working on a part-time basis on a limited wage. He also said that the trauma of his retirement had long term

psychological consequences for him and that it was only within the twelve months preceding the application to the High Court that he

had been able, with the assistance of a counsellor, to address the whole episode and its effect on his life.

In an affidavit sworn on behalf of the respondents, Comdt. Denis Murphy, said that on the 21st April 1969 a report was made to the

Director of Intelligence identifying the applicant as being engaged in activities which potentially constituted a threat to the security

of the defence forces and the safety of its members. He said that, arising from this information, the applicant was interviewed by

officers of the intelligence section of the army about subversive matters on the 25th April 1969 and again on the 28th and 30th April

1969 and that, at the second interview, the applicant admitted crucial matters relating to security which he had persistently denied

at the first interview. He said that the applicant admitted knowing and associating with people whom he was aware had been

involved, and continued to be involved, in criminally subversive activities. He said that the applicant was also allowed to submit a

statement and that, on the basis of the content of his interviews, including the matters submitted in his second interview and on the

basis of his own statement, a decision was made to recommend to the Minister for Defence that the applicant should be retired in the

interests of the service. This had been done on the 27th June 1969.

Comdt. Murphy, in his affidavit, said that three of the officers who were directly involved in the investigation of the applicant and in

making the decision which subsequently led to his retirement are now dead. He said that Col. Arthur Cullen was the Deputy Judge

Advocate General of the army in 1969, had been directly involved in the questioning of the applicant and was dead. He said that Col.

Michael Heffernan was the Director of Intelligence of the Army in 1969 and that he was ultimately responsible for deciding whether or

not members of the army were security risks or not. He said that Col. Heffernan would have been directly involved in an assessment

of the applicant’s behaviour and whether he posed a security risk. Col. Heffernan was also dead. Comdt. Murphy said that Lieutenant

General McKeown was the Chief of Staff of the Army in 1969 and, as such, would have advised the Minister that the applicant should

be retired by the President. Lieutenant General McKeown was also dead. Comdt. Murphy deposed that the deaths of these three

persons made it impossible for the respondents adequately to respond to the applicant’s claims.

In a further affidavit, the applicant said that the respondents would not be prejudiced by the fact that the three officers concerned

were dead, since Comdt. O’Sullivan was still alive. He also said that he had no recollection of meeting Colonel Cullen and that it would

be unusual for the Deputy Judge Advocate General to be involved in such an investigation. Affidavits were also filed on behalf of the

applicant by one of his colleagues in the army, Patrick Walsh and Charles McCarthy, a retired United States serviceman, who was a

friend of the applicant and who arranged employment for him when he came to the United States in 1971. Both these deponents

testified to the traumatic effect on the applicant of his dismissal from the army in 1969.

Ann Kelleher, who held university degrees in counselling, gave evidence of consultations with the applicant in May 1998. She said that

the applicant had suffered post-traumatic stress disorder on his discharge from the army in 1969, had sought the assistance of a

solicitor who disappeared and let him down and was unable to address his trauma at the time. She said that she was of the view that

with the support of his friends and partner and retired former army colleagues and the counselling she had been able to give him, the

applicant had restored his dignity and self-esteem and was now in a position to bring the matter to the courts to redress the wrong

done to him.

In a further affidavit, Dr. Fionnuala O’Loughlin, a consultant psychiatrist, exhibited a report in which she said that the applicant,

during his time in the United States, was unable to tackle his problem because of abuse of alcohol and drugs by him but that, since he

had undertaken counselling, he had been able to come to terms, to a certain extent, with what had happened and to take appropriate

steps to try and correct what had happened. She also said that the feeling which he had of not being believed over the years when

he protested his innocence would also have accounted for his inability to deal effectively with his situation.

The legal principles applicable to the issue which had to be resolved by the High Court in this case are not in dispute. They have been

explained in a number of cases in the High Court and this court, notably Rainsford .v. Corporation of Limerick (The High Court, Finlay

P.: unreported: judgment delivered 31st July 1979): O’Domhnaill .v. Merrick (1984) IR 151: Toal .v. Duignan and Others (No. 1)

(1991) 1 ILRM 135: The State (Cussen) .v. Brennan (1981) IR 181: The State (Furey) .v. Minister for Defence (1988) ILRM 89:

O’Flynn .v. Mid-Western Health Board (1991) 2 IR 223 and Primor Plc. .v. Stokes Kennedy Crowley and Others (The Supreme Court:

unreported: judgments delivered the 19th December 1995).

Those principles may be summarised as follows. The courts have an inherent jurisdiction to dismiss proceedings where the party

instituting them has been guilty of inordinate and inexcusable delay. However, even where the delay is both inordinate and

inexcusable, the court must decide whether, having regard to the facts of the particular case, the balance of justice is in favour of,

or against, its being permitted to proceed. Finally, as stated by Finlay C.J. in Toal .v. Duignan and Others (No. 1):-

“... Where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time

between the acts complained of and the trial, then if that defendant has not himself contributed to the delay, irrespective of

whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action.”

Those principles are of general application. In the case of proceedings by way of judicial review seeking an order of certiorari such as

the present, it is also well established that an applicant for certiorari may be held disentitled to relief where he has been guilty of

unreasonable delay.

It is true that in The State (Furey) .v. Minister for Justice and Attorney General, McCarthy J. said that:-

“... I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for that remedy who

can demonstrate that a public wrong has been done to him - that, for instance, a conviction was obtained without jurisdiction,

or that, otherwise, the State has wronged him and that the wrong continues to mark or mar his life.”

As the learned High Court judge pointed out, this observation was clearly obiter in the context of the particular case. In the

judgments which they will deliver in this case, Denham J. and Fennelly J. analyse the relevant law in detail. I am satisfied that, in the

light of their explanation of the relevant law, with which I entirely agree, this passage cannot be regarded as a correct statement of

the law.

A delay of 29 years, such as has occurred in the present case, is beyond argument inordinate. The applicant has attributed the delay

to the trauma he suffered as a result of being discharged from the army, leading to an inability on his part to address the situation in

which he found himself and seek the appropriate legal redress. The evidence of the counsellor and the psychiatrist, it was said, made

it clear that it was this which led to the delay in the institution of the present proceedings and that, accordingly, the delay in the

present case was excusable.

It is understandable that someone in the applicant’s position should suffer considerable trauma as a result of being discharged from

the army in circumstances which were bound to have a serious effect on his prospects in life and particularly of obtaining alternative

employment. However, that, of itself, was not a factor which justified his taking no action for nearly thirty years. Indeed, he himself

says that he did what one would have expected a person who considered himself seriously wronged to have done: he consulted a

solicitor. However, beyond saying that the solicitor at some stage, unspecified, ceased to practice and left the country, he gives no

indication as to why he took no further steps to seek legal redress: it cannot have been the effect of his dismissal and the

surrounding circumstances on him, since that did not prevent him from going to a solicitor in the first place.

It is clear, accordingly, that the delay in this case was not merely inordinate but has not been justified. There remains the question

as to whether, having regard to all the circumstances, the balance of justice requires that the action be allowed to proceed. The

learned High Court judge was of the opinion that it did not and I am satisfied that he was correct in so holding. This is not a case in

which the respondents contributed in any way to the delay and there is clear and largely uncontradicted evidence that, apart from

the considerable difficulties which would confront any party required to defend a claim after such a lengthy period, they will suffer the

specific disadvantage of having to meet the applicant’s claim without having available to them the evidence of three material

witnesses who are now dead. While the applicant says that he cannot recall being interviewed by Col. Cullen - which is hardly

surprising after such a lengthy interval - there is sworn evidence, based on the records available to the respondents, that he in fact

interviewed the applicant. Similarly, the two senior officers who, the respondents say, would have been concerned in the procedure

culminating in the applicant’s discharge, are both dead. All of these factors, coupled with the general requirement of the law that

proceedings by certiorari should be brought with reasonable expedition, lead inevitably to the conclusion that this was not a case in

which the balance of justice required that the applicant’s claim should be allowed to proceed.

I would dismiss the appeal and affirm the order of the High Court.