Judicial review application dismissed due to failure to justify 29-year delay in challenging military retirement decision.

THE SUPREME COURT

JUDICIAL REVIEW

211/99

Keane C.J.

Denham J.

Fennelly J.

BETWEEN

Donal de Roiste

Applicant/Appellant

and

The Minister for Defence, Ireland and the Attorney General

Respondents

Judgment delivered the 19th day of January 2001 by Fennelly J.

This is an appeal on a preliminary point as to whether the applicant should be allowed an extension of time to make an application for

Judicial Review commenced more than twenty nine years after the making of the impugned decision.

The applicant entered into the service of the Defence Forces as a Cadet in the Army on 7th October 1963. He was commissioned as

Second-Lieutenant on 27th February 1965 and promoted to Lieutenant on 27th September 1967. He was normally based at Custume

Barracks, Athlone, Co Westmeath, but, in April 1969 he was temporarily assigned to duties in connection with an auction of used army

equipment at Clancy Barracks, Dublin.

His service was terminated with effect from 27th June 1969. The reason given was: “Retired by the President in the interests of the

service.” This retirement was effected pursuant to section 47(2) of the Defence Act, 1954 and subparagraph 18(1)(f) of the Defence

Force Regulations A.15. He was give no military conduct assessment in the record of his service. I will refer to these events as “the

decision.”

Since the only issue before the Court is the question of delay, the Court is not concerned with the merits of the case. It is,

nonetheless, necessary to advert to the essence of the complaint made by the plaintiff in contesting the decision. In doing so, the

Court must assume, in favour of the plaintiff, but without so deciding, that he has an arguable case, but must also take into account

the matters which the respondent would normally be entitled to put forward in his defence.

On 23rd November 1998, the applicant commenced his application for Judicial Review. He sought relief under numerous headings. The

heart of his claim is that the decision is null and void and should be quashed by way of an order of certiorari. He complains of breach

of the rules of natural and constitutional justice and the absence of fair procedures from the decision-making process, refusal to

accord him the benefit of a redress of wrongs procedure under the Defence Act and, ultimately, that the applicable regulation is

unconstitutional.

The applicant swore, in his grounding affidavit, that in April 1969, after he had returned to Athlone from his duties in connection with

the auction, he was placed in close service custody arrest by his superior officer without warning and without being given a reason.

He was taken to Army Headquarters at Parkgate Street, Dublin and there placed in a locked room. He was interrogated in an

oppressive and intimidating manner. He was refused any information as to the reason for the interrogation other than that its cause

was very serious. His questioning centred, in particular, on his attendance at traditional music events usually in public bars around the

country and on those who were known to attend these events in particular, one named individual a certain Padraig O’Dwyer. The

interrogation, which went on for a number of days, was conducted by relays of army personnel, all of whom were armed, under the

command of Comdt. Gerry O’Sullivan. The latter accused him of associating with known subversive elements. The applicant feared for

his personal safety. He became confused and disorientated and lost all sense of time.

Following the interrogation, the applicant was returned to Custume barracks, Athlone, but no charge was proffered against him. He

was not told whether he was being placed in service custody. Being in doubt about his situation, he consulted a solicitor, Mr Michael

O’Maoileoin, who advised him to ask for a Court Martial, which he did, but without success.

He was questioned less oppressively, again at Army Headquarters, on a number of other occasions, over a period of months. No

specific allegations were put to him. He asked to be allowed to have his solicitor present, but this was refused. In response to his

repeated requests he was told that a Court Martial was not an option at that time. Next he was assigned to the FCA at Boyle, Co

Roscommon. He again sought, without success, redress under section 114 of the Defence Act.

On 27th June 1969, the applicant was summoned to Custume barracks where he met the commanding officer to be informed of the

decision to retire him from the Defence Forces on the basis I have already mentioned. He was given a letter dated 25th June 1969

signed by the Adjutant General, Colonel Seosamh Enfi, which stated:

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

47(2), Defence Act, 1954, and paragraph 18(i)(f), Defence Force Regulation A15, retired you with effect from the 27th day of

June, 1969."

Iris Oifigiuil, published on the same day, contained a statement over the name of the Secretary to the Government and dated 24th

June to the effect that the President had decided to retire the applicant as and from 27th June.

At that point in time, it is clear from the applicant’s case that he had been dismissed from the Army, without being given any reason

other than that he was being retired in the interests of the service. There had, however, been no Court Martial or other form of

disciplinary procedure. Although he had been interrogated and led to believe that serious matters were being investigated in which he

was suspected of involvement, he had been given no notice of the nature of any complaint against him. Although the reason for his

dismissal was ostensibly neutral, it was abundantly clear from the surrounding circumstances and above all from the absence of any

record of conduct from his discharge record that he was being discharged for discreditable reasons.

In many respects the case bears a striking resemblance to the case of State (Gleeson) v Minister for Defence [1976] I.R. 280.

Private Gleeson was discharged from the Army under a different provision, paragraph 58(r) of D.F.R. 10: “His services being no longer

required.” The circumstances disclosed that the real reason for his discharge was alleged involvement in acts of indiscipline. He was

given no reason for his discharge and had no opportunity to be heard in his own defence. The words of Henchy J have become a

classic statement of the obligations of the duties imposed on those in public authority proposing to dismiss an officeholder. The fact

that they refer to discharge from the Army makes them particularly apposite in a case such as the present:

"In my opinion, the law applicable to a case such as this is clear and well established. The requirements of natural justice

imposed an inescapable duty on the army authorities, before discharging the prosecutor from the army for the misconduct

relied on, to give him due notice of the intention to discharge him, of the statutory reason for the proposed discharge, and of

the essential facts and findings alleged to constitute that reason; and to give him a reasonable opportunity of presenting his

response to that notice."

Gleeson was, of course, still in the future at the date if the applicant’s dismissal. One of Private Gleeson’s companions, Private Furey,

who had been dismissed in similar circumstances arising from the same incident, persuaded this Court that he could apply for

certiorari as much as four and a half years after the adverse decision (State (Furey) v Minister for Defence and Attorney General

[1988] I.L.R.M. 89). The applicant, however, has waited a total of twenty nine and a half years, or twenty two years after the

decision in Gleeson and even fifteen and a half years after the decision in Furey.

The starting point from which to assess the applicant’s delay is the date of the decision in his case, namely 27th June 1969. On 23rd

November 1998, the applicant made an application ex parte to the High Court for leave to apply for Judicial Review of the decision.

The essential relief sought was certiorari of the decision. The essential ground advanced was failure to observe the rules of natural

and constitutional justice by failing to give the applicant timely notice of the reasons for the proposal to retire him or give him an

opportunity to respond. On the applicant’s account of the facts, there can be no doubt that he had a compelling case.

Leave was granted by Geoghegan J who, by his order, extended the time for the making of the application but reserved liberty to the

respondents “to argue the time point at the hearing...” On 18th February 1999, Kinlen J ordered that a preliminary point be tried as to

whether there had been inordinate and/or inexcusable delay in the commencement of the proceedings. This issue was then heard by

McCracken J, who in a judgment dated 28th June 1999, dismissed the application “not solely because of the delay in itself, but

because, in addition to such delay, there is an element of blameworthiness on the part of the applicant and the fact of possible

prejudice to the respondent.” The present appeal is from that judgment.

It is appropriate to refer further to the facts as they relate to the period following the decision. The applicant says that he was

shocked and numbed by the events, that it devastated his career and damaged him mentally and physically. His family disowned him

and his former colleagues shunned him. As to the solicitor he had earlier consulted, he merely says: “Mr O’Maoileoin did not act for me

nor did he institute proceedings on my behalf and I say and believe that he discontinued practice and left the country.” He does not

say, on the other hand, whether he actually consulted him after the making of the decision or when the solicitor left the country,

except that it was before December 1987, the time when the Applicant returned to Ireland having lived abroad.

Regarding the long intervening period the applicant complains of the traumatic effect of the decision upon him, loss of self-esteem,

lack of financial resources. Generally, he says that his life and his capacity to act were destroyed. He was unable to get work in

Ireland as his references disclosed the circumstances of his discharge from the army. He emigrated about 1971 but could obtain only

temporary manual work in Britain and the United States. He was married but the marriage broke down. He returned to Ireland

occasionally before doing so permanently in December 1987. Again he got only temporary work. Several affidavits support the

applicant’s contention of the devastating effect upon him of the decision and his inability to come to terms with it.

In 1997, the applicant’s sister was a candidate for the presidency in the presidential election of that year. He supported his sister’s

campaign, but during it the media resurrected the fact of his discharge from the army and its distressing circumstances. It was

reported in September 1997 that he had been retired from the army for being a republican sympathiser. Following this he underwent

therapy and for the first time he wrote to a number of authorities. He wrote to the president in April 1998 asking her to use

presidential prerogatives to right the wrong done to him. On 22nd May 1998 he wrote to Deputy Alan Shatter, who raised the matter

in the Dail. In the same month, he consulted Miss Anne Kelliher, a counsellor and therapist. In an affidavit, she has said:

"I am of the opinion that he broke down at the hands of his interrogators and following his dishonourable discharge from the

Army he retreated into himself. His dismissal became a public matter and his position was further compounded by being

rejected by his family. He became fixated and suffered the classic symptoms of a post traumatic stress disorder. He sought

the assistance of a solicitor who disappeared and let him down. He was unable to address his trauma or seek assistance and

his fixation left him unable to work save for the sheltered support he received by way of help from good samaritans in America

in particular. He did not get counselling and he was not believed. His rejection by the Army and the enforced isolation, in that

under security legislation his former colleagues could not communicate with him, left him bereft of family, friends and his

former fellow officers. He moved from one temporary arrangement to another living outside the mainstream of society. He

was unable to plan or commit himself to a task."

In my opinion, this paragraph encapsulates the entire of the applicant’s explanation and justification for the delay of almost thirty

years in bringing the application.

The judgment of the learned High Court judge dealt with the preliminary issue as one involving an application to strike out the

proceedings on the grounds of gross and unreasonable delay. He relied principally on cases where plenary proceedings, though

instituted within the period permitted by the relevant provision of the Statute of Limitations, were dismissed on this ground. I think,

nonetheless, that it is important to consider the case within its own proper setting of Judicial Review. Amongst other things, the

approach adopted to the burden of proof is different in such cases.

Order 84, Rule 21(1) of the Rules of the Superior Courts provides as follows:

"an application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the

date when grounds for the application first arose, or six months where the relief sought is Certiorari, unless the Court

considers that there is good reason for extending the period within which the application shall be made."

I agree with the learned High Court judge that the delay was both inordinate and inexcusable and I agree with the judgment of the

Chief Justice that the appeal should be dismissed. I agree in particular with his analysis of the prejudice to the defendant, which is

not, however, essential to my own view of the facts.

The working of the rule shows that even at the stage of the application, ex parte, for leave to seek Judicial Review, an applicant

must satisfy the court that it is being made in time, for the purposes of this provision.

The learned High Court judge cited the following passage from the judgment of McCarthy J in State (Furey) v Minister for Justice

and the Attorney General [1988] ILRM 89:

"Further, 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 has continued to mark or mar his life."

He correctly described this passage as obiter, but continued that “the fact that the Plaintiff may have been wronged by the state

authorities rather than by a private individual must be a relevant consideration.” This remark overlooks the fact that an application

for judicial review necessarily concerns in every case a decision made by a public authority in some sense and cannot relate to

wrongs committed by one private individual which affect another.

The rule requires, in the first instance, that leave be sought “promptly.” In State (Cussen) v Brennan [1981] I.R. 181, at page 196,

Henchy J approved the following passage from the judgment of Lord Denning M. R. In R v Herrod [1976] Q.B. 540:

"If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court - or any other inferior

tribunal for that matter - he should act promptly and before the other party has taken any step on the faith of the decision.

Else he may find that the High Court will refuse him a remedy. If he has been guilty of any delay at all, it is for him to get over

it and not for the other side."

Henchy J remarked: "What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari

will depend on the circumstances of the case." The rule does not, it is clear, operate in the same way as a period of limitation. It is

not expressed so as to bar a remedy and a party may, in an appropriate case, proceed by plenary proceedings. It does, nonetheless,

impose a preliminary obligation to proceed with despatch. If the application is made outside the time provided (six months in the case

of certiorari), the applicant carries a burden to furnish "good reason" which was well explained by Costello J in O’Donnell v Dun

Laoghaire Corporation [1991] ILRM 301. He was there applying the provisions of Order 84 Rule 21 by analogy in a case commenced

by plenary summons for a declaration. He said, at page 315:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in

considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective

one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in

delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O.84r.21 is on the plaintiff)

that there are reasons which both explain the delay and afford a justifiable excuse for the delay......”

The view of Costello J. that delay in making an application for judicial review requires both explanation and justification is fully

consistent with the provision of Article 84 Rule 21.

It is difficult, on the other hand, to reconcile the existence of such an obligation with the dictum of McCarthy J in Furey quoted

above. The latter appears to dispense an applicant, who is able to demonstrate that he has suffered a public wrong or other injury at

the hand of the State, from any obligation to explain delay (however long). As I have already noted, an application for judicial review

necessarily impugns a decision of a public decision-making authority of some sort. This element cannot, therefore, at least not alone,

justify denial of any effect to the time provisions of the rule regulating application for that remedy. Furey was a majority decision of

the Supreme Court which reversed the judgment of Mr Justice D’Arcy in the High Court. Griffin J. in his dissenting judgment in the

Supreme Court described the Applicant’s delay of four years as inexcusable and inordinate. He had "been unable to find any other

case in which an order of Certiorari was granted when there was delay of anything like that magnitude."

Both Griffin J. and McCarthy J. cited the earlier judgments of the Supreme Court in The State (Kelly) -v- District Justice for Bandon

and another [1947] I.R. 258 (‘Kelly’) and The State (Vozza) -v- Ó Floinn [1952] I.R. 227 (‘Vozza’). In these cases the court

discussed the discretionary character of the remedy of certiorari, the notion of an order “ex debito justitiae” and the effect of delay

or other behaviour in the exercise of discretion.

Delay (in Kelly) and lack of candour (in Vozza) were respectively discussed as potential grounds for the refusal of relief which would

otherwise have been granted.

In Kelly, the Applicant was convicted in the District Court of a fishing offence by an order bad on its face - part of the fine was

unlawfully awarded to a Garda fund. He appealed to the Circuit Court but withdrew his appeal with the result that an order was made

in that court affirming the conviction and only then subject to an Order of Certiorari fifteen months after the original District Court

conviction. Murnaghan J delivering the unanimous judgment of a Supreme Court of three judges said:-

“Where the application is made by a person other than the Attorney-General, the issue of the order is not a matter of right,

but is discretionary. In the exercise of its discretion, however, the Court makes a distinction between persons who have a

special grievance, and persons who apply merely as members of the public. In the case of persons who have a special

grievance, where there are grounds for the issue of the order, the order is granted ex debito justitiae unless the applicant

has, by his conduct, disentitled himself to relief. In the case of a conviction where the penalty is awarded in a manner not

justified by the law, the convicted person has, according to a long line of authorities, a special grievance.”

The learned judge pointed out that the applicant was affected by an order bad on its face which might lead to his imprisonment. He

was “therefore entitled to the order ex debito justitiae unless he [had] disentitled himself by his conduct”. Having noted that the

particular ground relied upon was delay, Murnaghan J. observed that there was “no doubt that delay [might] be a ground for

depriving an applicant of certiorari”. The learned judge went on to consider the actual delay, attributing much of it to the delay in

the appeal coming on in the Circuit Court, and concluding that the effective delay should be counted from the Circuit Court order

which was only some three months, which was within the six months then permitted under the rules for Certiorari.

Vozza concerned the summary conviction of an Italian national of an offence of larceny in the District Court, without his being duly

informed of his right to trial by jury. A divisional court in the High Court held that the relevant District Court orders were accordingly

made without jurisdiction, but refused relief because of what it considered to be the lack of candour of the applicant in painting an

exaggerated and unrealistic picture of the District Court proceedings.

On appeal, it was not contested that the District Court conviction was made without jurisdiction and was null and void. The decision

of the Supreme Court, where four separate judgments were delivered, is often cited as the chief authority on the question of orders

to be made ex debito justitiae and was the principal authority cited by McCarthy J in Furey.

Maguire C.J. stated at page 243:-

“While I am prepared to agree that in strictness, except where it goes as of course, the granting of an order of certiorari is in

all cases a matter of discretion, I am of opinion that in cases where there is conviction on record, made without jurisdiction,

the Court can only exercise that discretion in one way, viz. by quashing the order : see as to this Fitzgibbon L.J. in The King

(McSwiggan) v. Justices of Londonderry (1) and Sir Wilfred Greene M.R. in Rex v. Stafford Justices (2).”

and at p 244:-

“I find it difficult, however, to imagine conduct on the part of an applicant for certiorari which would disentitle him to an order of

certiorari in regard to a conviction of a crime of any sort, where it is established that it was made without jurisdiction.”

The Chief Justice then cited the judgment of Sir Wilfred Greene M.R. in Rex -v- Stafford Justices [1940] 2 K.B. 33. At p. 43 of the

report, the Master of the Rolls is recorded as saying:-

“Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in

all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, then a person aggrieved by

that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the Court in such circumstances

will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain

circumstances - I will not say in all of them, but in a great many of them - the Court, although nominally it has a discretion, if

it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a

particular way, and if a judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is

established that in deciding whether or not a particular remedy shall be granted the Court is entitled to inquire into the

conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant

the remedy sought, the case must in my judgment be one of discretion.”

The Chief Justice in Vozza went on, however, to say that he did not share the view of the High Court that the Applicant had, in fact,

shown lack of candour. Specifically, he did not think that want of candour in respect of one ground in the application for certiorari

should disentitle the applicant from a ruling on the principal ground which was unaffected by that conduct.

Lavery J. emphasised that the error in the District Court order was not one of form or of record but of a “total want of jurisdiction”. In

these circumstances he said:-

“I am satisfied to accept that in some cases a prosecutor in the position of the present prosecutor might lose his right to an

order. I confess, however, that using all imaginative powers I possess, I cannot conceive circumstances in which the order

should be refused. The distinction between an order which is of course and one where there is a discretion exercisable only in

one way seems to me meaningless.”

Kingsmill More J. observed at page 250 that:-

“The granting of an order of certiorari at the instance of a private prosecutor has always been a matter of discretion, but

where the prosecutor was a person aggrieved and the order for certiorari answered the same purpose as a writ of error, it

was granted ex debito justitiae.”

He agreed with all the other judges, as did O'Dálaigh J., that the defects, if any, in the applicant’s affidavit were not such as to

distentitle the applicant to relief. At no point did he exclude the possibility that the behaviour of an applicant might disentitle him from

relief.

Two points stand out in Vozza. Firstly, the original order was made entirely without jurisdiction. The summary trial of the applicant

proceeded without his consent. Secondly, the lack of candour with which the applicant was charged did not affect that ground of

complaint.

It is clear from a reading of Kelly, Vozza and the Stafford Justices as well as many other cases that an order of certiorari is always,

as a matter of principle, discretionary. But the nature of that discretion must be considered in two different contexts. An applicant

who is not directly affected by the legal act which he attacks can do no more than ask the court to exercise its discretion to quash

an order. Applications of this sort are rare. When the order is one to which the applicant is entitled ex debito justitiae, i.e. one which

affects him directly, that discretion can normally be exercised in only one way (i.e. in his favour). That does not mean, however, that

the behaviour of the applicant may not be such as to deprive him of his prima facie right to relief. This gives rise to a second context

for the exercise of discretion.

A close reading of Kelly and Vozza reveals that, though in each case the order was one to which the applicant was entitled ex

debito justitiae, the court considered whether delay and lack of candour, respectively, would bar the applicant from relief. In each

case, the court concluded, not that these were inadmissible grounds, but rather that they were not established on the facts of the

respective cases.

In Gleeson, Henchy J. reserved the right of the courts to consider cases according to their own circumstances and a person

discharged from the army - like Private Gleeson in that case and, presumably, the applicant in this case might “by delay,

acquiescence or other conduct los[e] his right to relief”. The normal exercise of this judicial discretion can be seen from such cases

as Solan v. DPP [1989] ILRM 491.

The complaint made by the applicant is one which, if established in a timely fashion, would (if not successfully controverted by the

respondent) entitle him to relief ex debito justitiae. He was bound, however, to apply “promptly”. Furthermore, he was bound, at least

prima facie, to apply for an order of certiorari of the decision within six months of its making and otherwise, to explain his delay and to

show that the delay was justified. In the nature of things, a short delay might require only slight explanation. The judicial review time

limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of a judicial review application.

A longer delay will require a more cogent explanation. Explicable delays have usually been a matter of months and very rarely years.

Maguire C.J. and Lavery J. in Vozza found it difficult to conceive of circumstances which would have disentitled the applicant to

relief. But, as Griffin J. noted in Gleeson, a delay even approaching the magnitude of four and a half years seems to have been

unheard of up to that time. It is reasonable to assume that the judges in Vozza would not have imagined an application being made

many years after the event.

In my view, extremely long delay, without cogent explanation and justification may in itself constitute a ground for refusing relief. The

respondent does not have to establish that he has been prejudiced though prejudice will usually be relevant. So also will the effect on

third parties as in The State (Cussen) -v- Brennan [1981] I.R. 181. It is, of course, conceivable that in exceptional circumstances

even very long delay might be explained and even justified. The respondent might, for example, be responsible for concealment or for

exercising control over relevant information or even the applicant’s own freedom of action.

I would add that I fully agree with the analysis of these principles by Denham J in her judgment.

The applicant has not, in my opinion, either explained or justified his failure to commence proceedings to challenge the decision over

such a long period of time. In particular, his evidence about his relations with the named solicitor are, at most, fragmentary. He says

he contacted him even before his discharge but his statement about post-discharge contact is ambiguous. He speaks of the solicitor

not having commenced proceedings without saying whether he was instructed to do so or even whether he, in fact, contacted him.

Miss Kelliher, in her affidavit, spoke of the solicitor having "disappeared and let him down". The facts to which the applicant has

deposed do not warrant such a conclusion. Apart from this, he seeks to explain away delay by reference to the general severe

disruption of his life, but without attempting to explain why he was prevented from instructing a solicitor or otherwise to take action.

He has come nowhere near establishing "good reason" for his delay and I would dismiss the appeal.