High Court dismisses judicial review claim that Defence Forces Tribunal exceeded its statutory terms of reference.

THE HIGH COURT

[2026] IEHC 40

[Record No. 2025/1451JR]

BETWEEN

SEÁN O’BRIEN

APPLICANT

AND

TRIBUNAL OF INQUIRY INTO ISSUES RELATING TO THE COMPLAINTS

PROCESSES IN THE DEFENCE FORCES AND THE CULTURE SURROUNDING

THE MAKING OF SUCH COMPLAINTS

RESPONDENTS

AND

THE MINISTER FOR DEFENCE AND THE ATTORNEY GENERAL

NOTICE PARTIES

JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 30th day of January 2026

Introduction

1. On 2 October 2025 the applicant applied for judicial review seeking to quash three decisions of the Tribunal respectively dated 26 March 2025, 28 April 2025 and 4 July 2025. The issue of leave was adjourned so that the matter came before the Court by way of a telescoped hearing. Subsequently, the applicant produced a draft amended statement of grounds to that which was before the court on 2 October 2025, for the purpose of ensuring that the correct respondents/notice parties were included in the proceedings. The matter was heard on 14 January 2026.

2. The applicant's complaint is to the effect that the Tribunal did not admit the applicant's representations for consideration by the Tribunal under its terms of reference encompassed in Statutory Instrument 304/2024 (“the SI”), such decision being erroneous.

3. Although initially the applicant maintained that the decision violated his right to a fair hearing under the Constitution (Article 40.3) and Article 6 of the European Convention on Human Rights, neither of such claims was pursued and the issue vis-à-vis the Constitution remained only to the effect that same should be considered in or about an interpretation of the Tribunal's terms of reference.

4. In addition, although initially the applicant asserted that the SI comprised a remedial piece of legislation and therefore required to be interpreted expansively or generously ultimately this claim was abandoned.

The Tribunal and its decision

5. The SI was brought into effect on 20 June 2024 following a resolution passed by Dáil Éireann on 24 January 2024 and by Seanad Éireann on 30 January 2024. The SI commences with a number of recitals followed by a number of resolutions.

6. In the recitals portion reference is made to the serious allegations of discrimination, bullying, harassment, sexual harassment and sexual misconduct in the Defence Forces; the

decision of the government in January 2022 to establish an independent review group (“IRG”) to examine such issues and provide recommendations on measures and strategies required to underpin a workplace-based on dignity, equality, mutual respect and duty of care for every member of the Defence Forces; noting that the IRG review was of the opinion that to identify systemic failures, if any, in the complaints processes in the Defence Forces, the establishment of a statutory fact-finding process would be the only comprehensive method of such an inquiry; and indicating that the Minister for Defence had consulted with the Attorney General and key stakeholders and observations and comments have been considered as to the terms of reference and type of inquiry.

7. Thereafter certain definitions were noted, the most important of which for the purposes of the issues between the parties being "complaints of abuse"

"'complaints of abuse' means complaints made by:

– serving or former members of the Defence Forces to the Defence Forces/Minister for Defence;

– current or former civilian employees to the Defence Forces/Minister for Defence; and

– current or former civil servants to the Defence Forces/Minister for Defence; in respect of abuse suffered by the complainant in the course of his or her training, work and/or career with the Defence Forces, or in the case of the civil servants and civilian employees, in respect of their interactions with the Defence Forces."

8. Following the various definitions, the SI went on to resolve that it is expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011 to enquire into enumerated definite matters of urgent public importance.

9. Thereafter the SI further resolved that the Tribunal is requested to report on its investigations of certain matters, such investigation thereafter set out, the most significant for the purposes of the issues in this matter being the resolution contained in paragraph (1)(b) (“Resolution 1(b)”) which provides that the Tribunal: – "shall consider complaints of abuse and complaints of hazardous chemicals advanced by serving or former members of the Defence Forces, to include members of the Army nursing service, Chaplains to the Defence Forces, civilian employees and civil servants working within the Defence Forces and civil servants working within the Department of Defence…".

The SI further provides for the making of findings and recommendations to be made as expeditiously as possible, and the Tribunal is obliged to endeavour to complete its work no later than three years from the date of its establishment.

Submissions

10. The applicant initially made written submissions and further submitted a statement of the applicant, to the Tribunal in December 2024. The essence of the applicant's argument is to the effect that his position comes within the ambit of the mandated issues to be considered when one considers the definition of "complaints of abuse". In this regard it is submitted when one looks at the three bullet points aforesaid the only sensible interpretation in respect of the first set of complainants, that is, "serving or former members of the Defence Forces to the Defence Forces/Minister for Defence”, is to the effect that included is serving or former members of the Defence Forces who make their complaints to the Defence Forces/Minister for Defence and accordingly thereafter when identifying either current or former civilian employees or current or former civil servants their complaints are also to be made to the Defence Forces/Minister for Defence. Therefore, there is no restriction on who was the employer of the relevant current or former civilian employees, or current or former civil servants provided their complaints were made to the Defence Forces or Minister for Defence in respect of their interactions with the Defence Forces.

11. In response to the initial submissions of 16 December 2024 by the applicant the Tribunal communicated in a letter of 26 March 2025 (the first impugned decision). The Tribunal indicated that from a review of the applicant's draft statement it would appear that his position falls outside the scope of the terms of reference. Such a view was based on an understanding of the definition of “complaints of abuse” meaning current or former civilian employees or civil servants to (of/within) the Defence Forces/Minister for Defence. It was indicated that based on the applicant's draft statement the applicant was never a civilian employee to the Defence Forces/Minister for Defence and was never a civil servant to the Defence Forces/Minister for Defence and on that basis the Tribunal reached the view, provisionally, that the matters in the applicant's draft statement were outside the Tribunal's terms of reference and the Tribunal therefore had no power to enquire into such matters. Finally, it was stated that if the applicant disagreed with the Tribunal's interpretation, he was asked to set out in writing the reasons why he so disagreed and to submit those reasons to the Tribunal within the following fourteen days.

12. In follow-up submissions of 9 April 2025, it was submitted on behalf of the applicant that for the Tribunal's interpretation to be correct the definition should read: – “current or former civil servants of the Defence Forces/Minister for Defence” however the word “of” does not exist. It is suggested that on the basis that the applicant was a civilian employee employed by the Minister for Justice in a facility under the auspices and control of the Minister for Defence he was a former civil servant to the Defence Forces/Minister for Defence and therefore is a qualified complainant.

13. The Tribunal responded in a letter of 28 April 2025 indicating that it had carefully considered the letter of 9 April 2025 wherein it is accepted that the word “of” does not appear in that part of the definition of “complaints of abuse”. The applicant was nevertheless referred to the provisions of Resolution 1(b) of the resolution within the terms of reference, set out at para.9 herein. As the applicant was employed as a prison officer by the Minister for Justice, he was neither a civil servant “working within the Defence Forces” nor a civil servant “working within the Department of Defence”. This status did not change because the Defence Forces provided additional security at Portlaoise Prison which was controlled and operated by the Minister for Justice. The letter concluded with: – “Accordingly, the Tribunal reconfirms its earlier view, set out in its letter dated 26 March 2026, that the matters described by Mr O'Brien in his draft statement fall outside the Tribunal's terms of reference.”

14. Following this decision the applicant changed solicitors, and the new solicitors subsequently made further submissions which culminated in a response from the Tribunal of 4 July 2025 which acknowledged receipt of several separate emails and supplementary submissions. The letter enclosed copies of the Tribunal's letters to the former solicitors together with the submissions of 9 April 2025 and indicated that from that correspondence it can be seen that the Tribunal has already given its full consideration as to whether or not the applicant is included within the ambit of the terms of reference. Reference is made to a portion of the content of Resolution 1(b) of the SI and reiterated that the applicant was not a civil servant working within the Defence Forces and therefore does not fall within the categories of persons who may advance a relevant complaint. The letter concluded with the Tribunal reconfirming its earlier review of 26 March 2026 and 28 April 2025 respectively that the applicant’s statement falls outside the Tribunal's terms of reference.

Factual background

15. The within applicant joined the Prison Service on 16 February 1980. On 12 January 1983 the applicant witnessed the shooting of a soldier by another soldier. On 18 May 1988 while the applicant was attempting to apprehend a prison inmate who was attempting to escape, shots were fired by Defence Force personnel in the vicinity of the applicant causing the applicant long-term sequelae.

16. On 23 May 1989 the Applicant’s employment with the Prison Service was terminated for absenteeism.

17. Proceedings were instituted by the applicant on 22 October 1991 against the Minister for Justice arising from the dismissal of the applicant and damages were sought in respect of the shooting incident of 1988.

18. Some 26 years after the instigation of the said proceedings the applicant attempted to progress same further however the proceedings were struck out in the High Court for delay and this strikeout was subsequently affirmed by the Court of Appeal.

19. The applicant has made complaints in respect of both the incident of 1983 and 1988 in respect of his interactions with the Defence Forces, including complaints to the Defence Forces/Minister for Defence at a time when he was either a current or former civilian employee or current or former civil servant and accordingly he asserts that he comes within the ambit of “complaints of abuse” in the definition recital of the SI.

20. The applicant has sworn three separate affidavits in respect of the within proceedings namely the grounding affidavit to the initial statement of grounds, dated 1 October 2025, his supplementary affidavit dated 12 November 2025 and his final affidavit of 15 December 2025.

21. In paras. 4 and 5 of the applicant's final affidavit aforesaid, notwithstanding that there is no application in the amended statement of grounds (or the original statement of grounds) seeking an extension of time within which to maintain the within judicial review application pursuant to O.84, r. 21 of the Rules of the Superior Courts, the potential grounds for seeking an extension of time are set out being: –

(1) it was only on receipt of the decision of 4 July 2025 that the applicant had no option but to apply for judicial review;

(2) the applicant needed to fully exhaust less dramatic routes than applying for judicial review prior to 4 July 2025;

(3) the applicant is of limited means;

(4) the applicant would prefer to address his issues to the Tribunal;

(5) if the applicant is out of time he apologises for same and indicated that he has instructed his solicitor to seek an extension of time.

Issues

22. The issues to be determined by this Court therefore are: -

(1) was the applicant out of time by 2 October 2025 when the matter first came before the judicial review list; and

(2) on a correct interpretation of the SI is the applicant's complaint included? Are the proceedings out of time?

23. As aforesaid the applicant is seeking to quash the decisions of 26 March 2025, 28 April 2025 and 4 July 2025. Demonstrably, given that the statement of grounds was filed on 2 October 2025 and the grounding affidavit of the applicant was sworn on 1 October 2025 the within proceedings did not commence prior to 2 October 2025. Accordingly, the applicant is out of time in respect of the decisions of 26 March 2025 and 28 April 2025.

24. Indeed, in submissions it is the decision of 4 July 2025 which is the focus of attention of the applicant.

25. The kernel of the decisions and relevant correspondence is set out above.

26. The content of paras. 4 and 5 of the Applicant’s Affidavit of 15 December 2025 is set out at para. 21 hereof.

27. The applicant argues that it was not until the decision of 4 July 2025 that there was a conclusive decision, and it was clear to the applicant that there was no option but to apply for judicial review. It is also argued that given that the Tribunal considered the final submissions tendered and made a decision thereafter of 4 July 2025 this demonstrates that there was an ongoing process within the Tribunal and there remained the possibility until that time of the applicant being considered included within the terms of reference.

28. In addition, it is suggested that once the decision of 4 July 2025 was to hand the application for judicial review being made on 2 October 2025 was within the time limits under O.84 of the Rules of the Superior Courts.

29. The respondent argues that the Tribunal cannot be criticised for considering the additional submissions tendered by the applicant to the Tribunal and the applicant is not entitled to continue writing to the Tribunal to seek a change in an earlier decision and thereby extend time. It is also pointed out that in fact there is no application for an extension of time before the court and the affidavit of the applicant of 15 December 2025 does not set out good and sufficient reason for an extension or that the failure to apply within the time prescribed was for reasons outside the control of the applicant.

30. The respondent relies on Arthropharm (Europe) Limited v The Health Products Regulatory Authority [2022] IECA 109 being a judgment of Murray J of the 10 May 2022. At para. 68 of the judgment it was said that time under the provisions of O.84 r.21(1) of the rules runs from when there is a formal consequence adverse to the interest of the applicant communicated. At para. 84 it is said that under the provisions of O.84 r.21(3) – (6) an application to extend time must be grounded on an affidavit by or on behalf of the applicant setting out the reasons for the failure to institute the proceedings within the time limits prescribed and in that regard must satisfy the court that there are good and sufficient reasons in the circumstances for the delay which was either outside the control of an applicant or could not have been reasonably anticipated. Under subrule 6 it is provided that nothing within the rules would prevent the court being entitled to dismiss a judicial review application if the delay has or is likely to cause prejudice to the respondent or a third party.

31. The respondent argues that prejudice is occasioned to the Tribunal as the Tribunal is tasked with reporting to the Minister as expeditiously as possible and preferably within a threeyear period. In this regard however it might be noted that this argument is, principally although give the terms of reference not exclusively, grounded on the fact that if the applicant’s understanding of the terms of reference is correct then this would enlarge the workload of the Tribunal considerably which is not an issue of delay but rather of the nature of the arguments of the applicant seeking judicial review.

32. As aforesaid there is no application currently before the court to enlarge time.

33. I am satisfied that the decision of 28 April 2025 does communicate to the applicant in a formal manner consequences adverse to the interests of the applicant and therefore time begins to run for the purposes of O.84 on receipt of the decision of 28 April 2025. In my view in these circumstances the applicant is out of time to maintain the proposed judicial review proceedings.

34. As the parties have addressed me on the substantive issue within the judicial review proceedings and on the basis that I may be incorrect in respect of the applicant’s claim being out of time I will now deal with the substantive issues within the statement of grounds. Is the applicant’s complaint within the terms of reference of the Tribunal?

35. By way of preliminary points: -

(1) the applicant objects to the respondent relying on the report of the IRG insofar as arriving at an interpretation of the extent of the matters to be considered/the intention of the legislature in the terms of reference. In this regard the applicant relies on the judgment of Haughey v Moriarty [1991] 3 IR 1; [1998] IESC 17 (para. 16) to the effect that no evidence was adduced insofar as a correct interpretation was concerned of Dáil debates and this was considered by the Court to be an appropriate position to adopt.

(2) I am not satisfied that this argument is sufficient to exclude the reliance by the Tribunal on the IRG report given that there was no reference in the terms of reference considered by the Court in Haughey v Moriarty to the Dáil debates whereas in the recitals to the SI two separate paragraphs are included relevant to the IRG namely an effective precis of the terms of reference and a precis of the outcome of the investigation. For this reason, I am satisfied that the report of the investigation of the IRG is potentially relevant in the wider context in order to ascertain the intention of the legislature as to the parameters of the terms of reference.

(3) The reliance on the Constitution by the applicant was clarified in submissions as being reliance on Article 40.3 of the Constitution insofar as the extent of documents which might give context to the intention of the Oireachtas.

(4) Given that the Tribunal is involved in an inquiry rather than being involved in the administration of justice, where no legal right is determined and no obligation is imposed (see Goodman International v Hamilton (No. 1) [1992] 2 IR 545) it is not clear how the difference in interpretation of the parameters of the terms of reference, as identified above, can be resolved between the parties having regard to Article 40.3 of the Constitution.

(5) In submissions the applicant has not pursued a claim under Article 6 of the European Convention on Human Rights and has further not pursued an argument that the SI is in the form of remedial legislation.

Interpretation

36. The parties do not disagree that the jurisprudence on the interpretation of an act of the Oireachtas or statutory instrument is dealt with principally in the judgment of the Supreme Court in Heather Hill Management Company CLG & Anor. v An Bord Pleanála & Ors. [2024] 222 (“Heather Hill”). In the events both parties rely on paras. 109 to 113 of Heather Hill dealing with the manner in which a statute might be read: -

(1) At para. 110 the Court identified from prior jurisprudence the principles of construction to be adopted. The most important port of call would be the words used, given their ordinary and natural meaning, viewed in context which may include the immediate context of the sentence, the other subsections, the other sections and the Act as a whole together with any legislation antecedent to the statute and the legislative history. The mischief which the Act sought to remedy is also relevant. In construing words in context, the court will be guided by various cannons, maxims, principles and rules of interpretation and if that exercise yields ambiguity, then the court will seek to discern the intended object of the Act and the reasons the statute was enacted.

(2) At para. 111 it was reiterated that context is critical; both immediate and proximate, certainly within the Act as a whole and in some circumstances perhaps even further than that.

(3) At para. 112 it was indicated that the literal and purposive approaches to statutory interpretation are not hermetically sealed.

(4) At para. 113 it was indicated with or without the intervention of s.5 of the Interpretation Act 2005 in no case can legislative intent be reduced to “the reflexive rehearsal of the literal meaning of words, or the determination of the plain meaning of an individual section viewed in isolation from either the text of a statute as a whole or the context in which, and purpose for which, it was enacted”.

37. In A, B & C v the Minister for Foreign Affairs and Trade [2023] IESC 10, following Heather Hill it was restated that context is critical both immediate and proximate, certainly within the Act as a whole, but in some circumstances perhaps even further than that. It was said that recent case law including Heather Hill have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. Murray J stated at para. 73 “The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting, contextualising the apparent meaning of those words.”

38. In the SI, the definition of “complaints of abuse” appears more expansive than Resolution 1(b) of the second list of resolutions.

39. In the definition section aforesaid it does appear from the first bullet point (notwithstanding that such bullet points are said to identify the complainants) that because reference is made to “serving or former members of the Defence Forces to the Defence Forces/Minister for Defence”, the Defence Forces/Department of Defence is the recipient of the Complaint, accordingly, in the subsequent bullet points referencing current or former civilian employees and current or former civil servants “to the Defence Forces/Minister for Defence” means the complaint was made to the Defence Forces/Minister for Defence rather than limiting the current or former civilian employees or current or former civil servants to those within the Defence Forces/Department of Defence.

40. On the other hand, it is clear from the wording of Resolution 1(b) of the second resolution that the Tribunal is obliged to “consider complaints of abuse advanced by serving or former members of the Defence Forces, to include… civilian employees and civil servants working within the Defence Forces and civil servants working within the Department of Defence.” Clearly this encompasses a much more narrow category of eligible complainants for which the Tribunal is obliged to enquire into than appears to be referenced in the definitions section.

41. It appears therefore that the applicant comes within the definition of “complaints of abuse” in the recital portion of the SI but does not come within the subcategory of complainants for which the Tribunal of Inquiry is obliged to consider.

42. The respondent has categorised Resolution 1(b) aforesaid as the operative obligation on the Tribunal however the applicant submits that as this provision is only one of 32 (or 40 depending on how it is counted) paragraphs within the SI it cannot otherwise confine the Tribunal. The applicant also points out that the provision does not cover employees of the Department of Defence and it is also said that the applicant had sufficient nexus of work as to be working within the Defence Forces.

Decision

43. In my view there is no reality to suggesting that the applicant was working within the Defence Forces when he was employed by the Prison Service/Minister for Justice and ultimately dismissed by the Prison Service/Minister for Justice as is clear from the proceedings he instigated in 1991 (relevant information in this regard being clear from the Court of Appeal decision in affirming the High Court order striking out the applicant's proceedings for delay, in 2022).

44. In so far as it is said that Resolution 1(b) is only one of 32 (or 40 paragraphs) within the SI and so it could not be considered the operative obligation of the Tribunal, I disagree. The paragraph is part of a resolution as opposed to a recital and clearly is encompassing a more limited category of complainants than contained in the recital definition section of the SI. As it is included in the resolution provisions it is properly categorised as an operative obligation regardless of the total number of paragraphs within the SI.

45. Other provisions in the SI in my view support the view that the inquiry was set up to examine a more narrow category of complainants (Resolution 1(b)) then within the definition section: –

(1) the Tribunal is to report to the Taoiseach and make findings and recommendations as it sees fit in relation to the matters as expeditiously as possible; the Tribunal is obliged to endeavour to complete its work no later than three years from the date of its establishment;

(2) the Tribunal is entitled to exercise discretion in relation to the extent of the evidence that it hears and will be entitled to consider that a sample of evidence of particular issues is sufficient;

(3) in the recital provision it is recorded that the IRG group was established to examine issues and make recommendations “on measures and strategies required to underpin a workplace-based on dignity, equality, mutual respect and duty of care for every member of the Defence Forces”;

(4) it is noted in the recital section that the IRG opinion was to the effect that the establishment of a statutory fact-finding process to identify systemic failures, if any, in the complaints processes in the Defence Forces represents the only comprehensive method of enquiry to resolve outstanding issues of fundamental public importance. In this regard it does appear to me relevant and appropriate to have regard to the fact that the IRG was established to examine issues relating to sexual misconduct bullying harassment and discrimination within the Defence Forces.

(5) Resolution 1(b) of the SI is the only resolution identifying the eligible complainants.

46. In my view there is a clear nexus between the IRG inquiry and the setting up of the within Tribunal. The IRG was enquiring into appropriate measures that might be taken to underpin a workplace based on dignity, equality, mutual respect and duty of care for every member of the Defence Forces. The SI was set up to pursue that agenda thereby supporting a view that it was the intention of the Oireachtas that there would be a more narrow focused inquiry or Tribunal in accordance with Resolution 1(b) aforesaid than a far more expansive inquiry if same was to be open to current or former civilian employees and current or former civil servants, regardless of where or by whom they were employed, in respect of a complaint which they might have had in respect of their interactions with the Defence Forces.

47. As there is no engagement with rights or obligations in the within Tribunal of Inquiry it does not appear to me that Article 40.3 of the Constitution contributes to an understanding of what the intention of the Oireachtas was.

48. Accordingly, I am satisfied that the Applicant has not discharged the burden on him to establish that the decision of the Tribunal expressed in its communication of 28 April 2025, and restated in its communication of 4 July 2025, that the matters described by the applicant in his statement to the Tribunal, fall outside the Tribunal's terms of reference, is incorrect.

49. In the event that the applicant's claim has been brought within time, I nevertheless refuse the reliefs sought in the amended statement of grounds for the reasons aforesaid.

Costs

50. As this judgment is being delivered electronically, I will also take this opportunity to deal with the issue of costs. In the circumstances, given the respondents have been successful, they are presumptively entitled to their costs. Should the parties have any difficulty with the proposed costs order they should file submissions of not more than 1,000 words within

7 days of this judgment being delivered.