High Court of Ireland Decisions

1. The Applicant is a member of An Garda Siochana. He joined that force in November 1986. He is a married man with one child and is aged 31. He has served as a Garda at Blackrock, County Dublin, Scotstown, County Monaghan and Carrickmacross, County Monaghan.

2. In June 1995, the Respondent invited applications from members of the force who might wish to participate in overseas missions which might arise thereafter. The Applicant applied. His application in this regard was successful. On the 3rd January, 1996, he was deployed with the United Nations Civilian Police in Cyprus. He took up duty there with 14 other members of the force who were already stationed in Cyprus.

3. The appointment of the Applicant to Cyprus took place after a careful screening process had been gone through. He was also required to pass a medical examination and attend a training course designed to equip him for this overseas service.

4. When in Cyprus, the Applicant was detailed by the Contingent Commander to take up duty in Athienou which is located in the buffer zone between Greek and Turkish Cypriots.

5. On Friday the 15th March, 1996, a reception and medal parade of the Irish Defence Force Contingent in Cyprus was held. It took place at the International Mess, Nicosia and afterwards at the Hibernian Club at U.N.P.A. Headquarters, Nicosia. Members of the Garda U.N. Contingent were invited to attend as were members of other defence forces and police contingents. The guest of honour of the defence forces who was in attendance at the function was the Minister for Defence. The Applicant was invited to attend and did so.

6. During the reception which took place in the Hibernian Club, an incident occurred. It is no part of my function at this stage of the proceedings to make any findings concerning precisely what occurred. Indeed, I am precluded from so doing. For the purposes of this application, I will accept the version of events which is set forth in the Applicant's own report dated the 16th March, 1996 and which is exhibited in the first Affidavit of Thomas Murphy. The report is on the headed paper of the United Nations Police Force in Cyprus and reads as follows:-

7. From the Applicant's own version of events, it is to be noted that he admits to foolishness and stupidity on the occasion in question, apologises to the Minister and admits to alcohol as a contributory factor to whatever took place.

8. A number of reports were prepared concerning the incident. One of these was written by Inspector Liam Conlon, a Member in Charge at the mission who was present at the reception at the club. He submitted his report to Chief Superintendent Culhane. Inspector Conlon said, in the course of his report:-

9. On receipt of this report, Chief Superintendent Culhane sent his own report to the Respondent. In it, he said:-

10. Following receipt of Chief Superintendent Culhane's report, the authorities decided to act on foot of it and to repatriate the Applicant. The Force Commander of U.N.P.A. at Cyprus was informed of this and agreed with the repatriation. The Applicant was informed that he would be repatriated on the 6th April, 1996. He was told this on the 20th March, 1996. Thereafter, he appealed against that decision but his appeal was rejected. He then attempted to appeal to the Appeals Board, which apparently sits to deal with appeals against transfers ordered by the Commissioner. The authorities took the view that the matter was not an appropriate one to be dealt with by the Appeals Board and it was rejected.

11. That exhausted any possible internal appeal mechanism which the Applicant might have and so an application was made to this Court.

12. On the 5th April, 1996, application was made to Carney J. for leave to commence these proceedings. Leave was granted. In addition, an injunction was granted restraining the Respondent until the determination of the proceedings from transferring or repatriating the Applicant from Cyprus. This application was granted ex parte.

13. Two things are to be noted concerning the Order which was made on the 5th April, 1996. The first is that, although the Applicant was granted an injunction, no undertaking as to damages appears to have been given. Secondly, and perhaps more importantly, the injunction granted restrained the Respondent from repatriating the Applicant until the determination of these judicial review proceedings. Normally, injunctive relief granted on an ex parte application is of an interim nature and imposes upon a successful applicant an obligation to apply for an interlocutory injunction on notice to the respondent within a short period of time. That did not occur in the present case. On some occasions, the Court grants what amounts to an interlocutory injunction on an ex parte application but builds into the order a proviso that the respondent restrained thereby is entitled to apply to discharge the order on giving notice to the applicant. No such entitlement was built into the Order in the present case. Indeed, even if it had been, it would, in effect, reverse the onus of proof which an applicant must normally discharge with a view to obtaining an injunction.

14. In any event, on the 24th June, 1996, the Respondent issued a Notice of Motion seeking to vary the Order of the 5th April, 1996 by deleting from it the injunctive relief. That motion came before the Court on the 1st July, 15th July, 22nd July and 29th July, 1996 and on each occasion was adjourned. It finally came for hearing on the 7th and 8th October, 1996.

15. Counsel for both parties agreed that notwithstanding the form of the Notice of Motion it was appropriate that the application should be treated as one wherein the Applicant was seeking an interlocutory injunction and the hearing proceeded on that basis.

16. Such being the case, the Applicant must demonstrate to the satisfaction of the Court that he has raised a serious or fair bona fide question to be tried at the action. He was given leave to commence these proceedings on the basis that he contended that the Respondent, in reaching the decision to transfer or repatriate him, failed to observe the principles of fair procedures, constitutional and natural justice and that the Respondent acted ultra vires the Garda Siochana (Discipline) Regulations, 1989. The Respondent contends that no reliance whatsoever is placed on the Garda Siochana (Discipline) Regulations and that the reason for repatriation is not a disciplinary matter at all. Rather, it is said, that the decision to repatriate was taken on the basis of the Applicant's lack of suitability for continued service in the United Nations mission in Cyprus. The Applicant now contends that repatriation was not open to the Respondent because of certain United Nations guidelines which he contends are applicable to his case. This is disputed by the Respondent who contends that under Section 8 of the Police Forces Amalgamation Act, 1925 the Applicant was subject to the general direction and control of the Respondent even when serving with the United Nations and that part of that control permitted the Respondent to transfer or repatriate the Applicant. Reliance, in this regard, is placed upon the judgment of Geoghegan J. in McElhinney -v- Garda Commissioner (unreported 10th May, 1995). In that case, the Judge said :-

17. It is no part of the Court's function at this stage of the litigation to try to resolve the questions of law which arise on the present application. I merely have to be satisfied that a serious issue has been raised by the Applicant. In the present case, I am even excused for making such a determination because the Respondent has conceded that the Applicant has indeed raised such a serious issue. Consequently, he has satisfied the first requirement which must be met if he is to be granted interlocutory relief.

18. Counsel for the Applicant expressly accepted that if I were to conclude that damages would be an adequate remedy for his client there could be no question of an interlocutory injunction being granted.

19. I must, therefore, examine the claim of the Applicant which he says is incapable of being compensated for by means of an award of money damages.

20. It is to be noted that nowhere in the Affidavit which grounded the application on the 5th April, 1996 is there contained any averment, even of a formal type, alleging the likelihood of irreparable loss being sustained by the Plaintiff should he be repatriated on foot of the Respondent's direction.

21. The issue of loss is first dealt with in Affidavit form at paragraph 21 of the Affidavit of Assistant Commissioner Sreenan dated the 24th June, 1996. There, he says as follows:-

22. The Affidavit in reply to this says as follows:-

23. In the final Affidavit sworn in the proceedings by Assistant Commissioner Sreenan, he says:-

24. I am satisfied on this evidence that insofar as the Applicant will suffer a loss of earnings or allowances should he be wrongfully repatriated, he can be completely compensated for those losses by an award of damages. Equally, I am satisfied that any losses which he may incur as a result of matters not deposed to on Affidavit but dealt with in his submission to Chief Superintendent Culhane which constitutes Exhibit C to Assistant Commissioner Sreenan's Affidavit, he can likewise be adequately compensated. These items include rental to be paid on the apartment in Cyprus until February 1997 and alternative accommodation pending determination of the lease in his home in Ireland. In addition, any loss sustained by being unable to effectively purchase the duty free car can also be compensated for in damages. There remains a claim in respect of a loss of reputation, character or good name as well as the inconvenience and upset which might be caused to the Applicant and his family.

25. I do not think that because the repatriation is unprecedented that that of itself gives rise to a valid claim of irreparable loss being suffered. Furthermore, it seems to me that any embarrassment or loss of character or good name has already been sustained by all that has occurred and the physical repatriation of the Applicant prior to February 1997 makes little difference. In any event, I am satisfied that if the Applicant is correct and his repatriation is unlawful, a determination by the Court to that effect will completely vindicate him. Insofar as his constitutional entitlement to his good name and reputation is concerned, I see no reason why they cannot be adequately compensated for by an award of damages. Damage to reputation as a result of libel or slander is regularly compensated in these Courts by an award of damages. Furthermore, since the decision of the Supreme Court in Meskell -v- Córas Iompair Éireann (1973 I.R. 121), damages have on many occasions been awarded in constitutional litigation. For example, in Kearney -v- Minister for Justice (1986 I.R. 116), Costello J. (as he then was) awarded damages where the Plaintiff failed to show any pecuniary or other loss arising out of an unjustified infringement of his constitutional rights by servants of the State. In Kennedy -v- Ireland [1987] I.R. 587, Hamilton P. (as he then was) awarded exemplary damages against the State where the Plaintiff's telecommunication lines had been wrongfully tapped even though they could show no loss resulting therefrom. A breach or an infringement of a constitutional right may give rise to an award of damages without proof of special damage. I see no reason why any loss which may be sustained by the Plaintiff in the present case cannot be adequately compensated for by an award of damages. In any event, as I have already said, it appears to me that much of the damage (if damage it be) has already occurred and the physical repatriation of the Plaintiff to this country will not affect that issue.

26. It is true of course that repatriation now will cause a deal of inconvenience not merely to the Applicant but also to his wife. But I must bear in mind the observations made by Geoghegan J. in the passage which I have already cited from McElhinney's case. The Applicant who joined the force was aware that he did so on the terms and conditions applicable and the Affidavit evidence demonstrates without contradiction that before taking up his posting overseas, he was " left in no doubt that, although on overseas service, he was subject to the regulation and control of the Garda Commissioner and that the Commissioner could exercise the right to repatriate him or any other member if the circumstances warranted such a course of action " (see paragraph 6 of the Affidavit of Assistant Commissioner Sreenan of the 24th June, 1996 which is uncontroverted). To use the language of Geoghegan J. he cannot invoke family reasons to defeat the legal right of the Commissioner to effect the repatriation.

27. In these circumstances, I am quite satisfied that the repatriation of the Applicant at this juncture, even if unlawful, will not give rise to any irreparable loss or damage being sustained by him. All of the losses and damage which have been averred to are, in my view, perfectly capable of being compensated for by an award of damages.

28. Furthermore, I am of the view that the calculation of those damages would not create a difficulty for the Court in excess of any other such claim which it frequently has to deal with asserting damage to reputation, good name or career prospects. Even if I am wrong in this view and the computing of such damages would be difficult, I must bear in mind what was said by Finlay C.J. in Curust Financial Services Ltd. -v- Loewe Lack Werk [1994] 1 I.R. 450 on this topic. He said (at p. 469):-

29. Turning then to the other side of the equation, I pose the question "Would damages provide an adequate remedy for the Respondent if he is enjoined from repatriating the Applicant pending trial but succeeds in his defence?". I pose this question on the assumption that the Applicant is prepared to give an undertaking as to damages. In my view, it would be impossible to assess such damages. The Respondent is under a statutory obligation to direct and control the Garda force. If he is wrongfully prevented from so doing by the grant of an injunction in the circumstances of the present case, it is difficult to see how any Court could make an assessment in money terms of the damage caused to him by being forced to keep on United Nations duties, an officer whom he considers to be unsuitable. It is the Commissioner and not the Court that is charged with responsibility by statute for the direction and control of the Garda force. In the circumstances of this case, it appears to me that damages would be a wholly inadequate way of compensating for the damage which might be caused by the grant of this injunction.

30. In these circumstances, I am satisfied that the Applicant is not entitled to an interlocutory injunction for the reasons already outlined. It is not, therefore, strictly necessary for me to consider the third hurdle which must be surmounted by an Applicant for interlocutory relief. Nonetheless, I think I ought to express my views.

31. All parties accept that the Applicant's tour of duty in Cyprus will come to an end in February 1997. The parties also are of the view (I think with justification) that it is most unlikely that the substantive hearing of this matter will take place prior to then. Accordingly, any hearing which takes place will occur only after the end of the Applicant's tour of duty in Cyprus.

32. If the Commissioner is enjoined from repatriating him prior to the end of his tour of duty, all that will remain of this case when it comes to hearing will be the interesting legal question of whether or not the Commissioner could have lawfully repatriated the Applicant. But that would be in the nature of a moot. The only live issues outstanding will be a possible claim of damages by the Respondent (which I have already concluded are impossible to quantify) and the issue of costs. The making of the determination will be of little practical benefit. Accordingly, by the grant of an injunction at this stage, the Applicant will effectively have obtained all of the relief which he might be entitled to on a full hearing if successful. But if unsuccessful on that hearing, he will still nonetheless have obtained all the practical benefits of success with nothing but detriment being sustained by the Respondent. Accordingly, it appears to me that the balance of convenience would also warrant the refusal of this injunction.

33. In the circumstances, the injunction will be refused and, for the sake of clarity, I will make an Order dissolving the injunction which is set forth at paragraph 2 of the Order of the 5th April, 1996.