High Court of Ireland Decisions

O'Leary v. Minister for Transport, Energy and Communications [1999] IEHC 49; [2000] 1 ILRM 391 (26th November, 1999)

BETWEEN

JUDGMENT of Mr. Justice Kelly delivered the 26th day of November 1999.

BACKGROUND

1. The Applicant is a former Chairman of Córas Iompair Éireann. He was appointed to that office by the Government for a term commencing on the 1st July 1994 and ending on the 30th June 1999. He ceased to hold that office on the 25th April 1995. The circumstances in which he did so are very much in issue in these proceedings. The Applicant contends that he was wrongfully dismissed. The Respondents deny this and contend that he resigned from the office.

2. Eleven months later on the 25th March 1996, McCracken J. gave the Applicant leave to apply for Judicial Review in respect of the events of the 25th April 1995. The principal relief sought is an Order of Certiorari which seeks to quash "the decision of the first named Defendant to dismiss the Applicant from his position as Chairman of Córas Iompair Éireann with effect from the 25th April 1995".

3. As this application was made long outside the period prescribed by Order 84 Rule 21 of the Rules of the Superior Courts, McCracken J. granted an extension of time for the making of the application. He did so having regard to the reason advanced at paragraphs (9) and (10) of the Applicant's grounding affidavit.

4. On the 23rd May 1996 the Respondents filed their Statement of Opposition and an affidavit in support thereof sworn by John Loughrey, the Secretary to the Department of Transport, Energy and Communications. Further affidavits were exchanged between the parties and discovery was made by the Respondents.

5. On the 14th July 1997 Smyth J. by consent ordered that the action should stand adjourned for plenary hearing and gave liberty to the Applicant to deliver a Statement of Claim within three weeks from that date with a like period being afforded to the Respondents to deliver a defence.

6. On the 8th October 1997 the Applicant delivered points of claim. Points of defence were delivered on the 9th March 1998. The proceedings then became dormant and remained so until a Notice of Intention to Proceed was served on the 23rd June 1999. This was followed by the issue of the notice of motion which falls for my consideration on this application. It was dated the 27th July 1999 and made returnable for the 18th October 1999. It came on for hearing before me on Monday the 15th November 1999.

THE PRESENT MOTION

7. The Applicant seeks leave to amend the points of claim delivered by him and relies upon the provisions of Order 28 Rule 1 of the Rules of the Superior Courts in support of that application.

8. The points of claim in their unamended form pray for the following reliefs:-

"(a) An Order of Certiorari quashing the decision of the first named Respondent to dismiss the Applicant from his position of Chairman of Córas Iompair Éireann with effect from the 25th April 1995.

(b) An Order directing the first and second named Respondents to pay the Applicant his arrears of salary and expenses.

(c) An inquiry as to damages.

(d) Damages.

(e) A declaration that the Minister or the Government in dismissing the Applicant was obliged to comply with the requirements of Section 7(4) of the Transport Act, 1950.

(f) A declaration that the Minister, in purporting to dismiss the Applicant, was bound to comply with the provisions of natural and/or constitutional justice".

9. No amendment is sought concerning the prayer in the points of claim. Rather, leave is sought to introduce a new claim into the proceedings. This is a claim of conspiracy. The Applicant wishes to include the following paragraph in the points of claim:-

"Further, or in the alternative, and without prejudice to the aforesaid, the first named Respondent and one Michael McDonell and one John Loughrey and one Michael Brennan and others, servants of the second named Respondent, conspired, with intent to injure the Applicant, to procure the dismissal of the Applicant which said dismissal occurred in the manner described in paragraph 3 above and which resulted in the loss set out at paragraph 5 above".

10. Paragraph (3) of the points of claim in their unamended form reads:-

"On or about the 25th day of August 1995 (sic) the Applicant was asked by the Minister for Transport, Mr. Michael Lowry, the first named Respondent herein to come to his office for a meeting. The Applicant attended at the Minister's office as requested. In the course of the meeting the first named Respondent purported to dismiss the Applicant from his office of Chairman of Córas Iompair Éireann or gave him to understand that he had been dismissed. The reason given by the first named Respondent for the purported dismissal was that the Government wished to revert to a management system in relation to Córas Iompair Éireann which did not involve any Chairman. The Minister indicated that the actual decision in that regard was due to be taken at a Cabinet meeting later that morning".

THE EVIDENCE ADDUCED ON THIS APPLICATION

11. In all four affidavits were filed concerning this application. Three were sworn on behalf of the Applicant and one on behalf of the Respondents.

12. The first affidavit sworn was that of Tony Rooney. This was sworn on the 1st June 1999. Although not stated expressly in the affidavit, it is clear that Mr. Rooney was a member of the Board of Córas Iompair Éireann at the relevant times. He was also the General Manager of the Berkeley Court Hotel reporting to a Mr. Michael Brennan, the then General Manager of the Doyle Hotel Group. His affidavit recounts a conversation he had with Mr. Brennan on the 25th April 1995 where,inter alia, he alleges that Mr. Brennan had received a telephone call from Mr. Michael McDonnell who is described as a senior Civil Servant at the Department of Transport, Energy and Communications expressing a wish that Mr. Rooney should vote for him (Mr. McDonnell) when he would be proposed for the position of Group Chief Executive of Córas Iompair Éireann by the Applicant's successor as Chairman at a Board meeting which was to take place on the 3rd May 1995. The affidavit goes on to allege that Mr. Brennan stated that the Secretary of the Department, Mr. Loughrey and Mr. McDonnell had arranged for the Applicant to be dismissed by the Minister and that it was most important for Mr. Rooney to vote for Mr. McDonnell when he would be proposed for the position of Group Chief Executive. Mr. Rooney alleges that he felt very uncomfortable with the proposition which was put to him. His conversation with Mr. Brennan allegedly concluded on terms where he was told that if he didn't conform he would know the consequences.

13. It is clear that this part of the affidavit recounts hearsay evidence from Mr. Brennan which Mr. Rooney would not be permitted to give at the trial of these proceedings. As Mr. Brennan is dead, this evidence could never be adduced.

14. The next part of the affidavit describes what happened at a Córas Iompair Éireann Board meting on the 3rd May 1995 when Mr. McDonnell was appointed Group Chief Executive. The following paragraph of the affidavit again recounts a conversation had with the late Mr. Brennan which would not be admissible at the trial.

15. Finally, Mr. Rooney sets forth a conversation which he had with Mr. McDonnell on the 2nd September 1995. He says that in the course of that conversation, Mr. McDonnell admitted to conspiring with Mr. Loughrey to have the Applicant fired and said that the Minister went along with their suggestion. He also says that Mr. McDonnell indicated to him that he would be doing his best to ensure that he (Mr. Rooney) would be kept on as a member of the Board of Córas Iompair Éireann.

16. He was not kept on the Board since he also departed from his directorship on the 17th November 1995. The affidavit does not disclose that he commenced proceedings in the Circuit Court in respect of this departure.

17. Two affidavits were also sworn by the Applicant's Solicitor and nothing turns on them save that in the second of them it is disclosed that at the suggestion of a Mr. Noel Kennedy, former Chief Executive of Córas Iompair Éireann, Mr. Rooney attended at the Applicant's Solicitor's on the 10th September 1998 and furnished particulars as set out in his affidavit sworn on 1st June 1999. When this information came to hand in September 1998, further investigations were directed. This affidavit also admits that when this action was consensually adjourned for plenary hearing, such was on the basis that the proceedings would not extend beyond matters raised in the Judicial Review. However, it is said that agreement was entered into in circumstances where the Applicant did not have direct evidence from any deponent to ground a claim of conspiracy.

18. The replying affidavit is sworn by Mr. Loughrey, the Secretary-General of the Department of Public Enterprise. He outlines the history of the proceedings and having set out the allegations made by Mr. Rooney against him, denies them in emphatic terms as being absolutely and totally false insofar as they affect him. Indeed, he goes further and says that the allegation made against him is senseless since neither he nor any other person could have brought about the dismissal of the Applicant as such decisions are reserved to the Government in accordance with Section 7 of the Transport Act, 1950. He animadverts upon the credibility of Mr. Rooney and then deals with the merits of the present application. In this part of the affidavit he points out the delay in bringing the original Judicial Review proceedings and says that no reason has been furnished for the inclusion of the matters which are now sought to be introduced. He also refers to the agreement (which is now admitted) as to the basis upon which the case was sent for plenary hearing. In addition, he says that the proposed claim is without legal foundation, is irrelevant having regard to the fact that the alleged conspiracy had an objective which neither he nor the other alleged participants could ever secure and that the application is grounded entirely upon hearsay.

19. Counsel for the Applicant contends that he comes within the ambit of Order 28 Rule 1 and ought to be permitted to include this claim of conspiracy. Counsel for the Respondents raised six grounds of objection. They were in the order in which they were advanced by him:-

1. Delay.

2. Alleged failure to make full disclosure.

3. Prejudice suffered by the Respondents.

4. Irrelevance of the amendment to the case being made.

5. The fact that the case had been sent to plenary hearing on the agreed basis.

6. Abuse of process and an attempt on the part of the Applicant to embarrass the Respondents.

THE RULES OF COURT

20. Order 28 Rule 1 of the Rules of the Superior Courts reads:-

"The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and in such terms as may be just, and all amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties".

21. In the present case, the Applicant seeks leave to amend what he calls his points of claim which in reality is the Statement of Claim which was directed to be delivered by Smyth J. He therefore falls within the literal definition of a pleading and the provisions of Order 28 Rule 1. But that is so only because of the consent order made by Smyth J. adjourning the matter for plenary hearing. That is a relatively unusual Order in Judicial Review proceedings. The mere fact that such an order was made does not, it appears to me, alter the character of these proceedings. They began as Judicial Review proceedings and so they remain.

22. Judicial Review proceedings are entirely different to plenary proceedings which commence by the issue of an originating document for which no leave is required. Judicial Review proceedings begin only by leave of the Court. They are subject to time limitations prescribed by the Rules of Court which are not of general application. An applicant may not attrial advance a case in respect of which leave has not been granted by the Court at the preliminary stage.

23. The Judicial Review procedure is designed so as to ensure that cases which are frivolous, vexatious or of no substance cannot be begun, hence the necessity for judicial screening at the stage where leave is sought. The procedure is also designed to ensure that a fair and expeditious trial takes place and that such trial is focussed upon the issues in respect of which the Judge, at the leave stage, felt ought to be argued, and those alone. The existence of the temporal limitation for the bringing of such claims is indicative of a desire to ensure that issues which touch upon the exercise of public authority, as Judicial Review applications do, ought to be brought on expeditiously and not allowed to go stale.

24. The Applicant in the present case has confined himself to an application for leave to amend the Statement of Claim. By so doing, he has placed himself within the literal provisions of Order 28 Rule 1. But he has avoided what in reality he ought to be seeking, namely, leave to amend the original grounds in respect of which he was given permission to seek Judicial Review by McCracken J. The test for such an application is much more stringent than that which is applicable under Order 28 Rule 1 and for good reason.

25. The test is to be found in the judgment of Costello P. in McCormack v. Garda Complaints Board [1997] 2 IR 489 where at 503-4 he said:-

"It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the court's jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents, then it seems a proper exercise of the court's power of amendment to permit the amendment rather than require the new "grounds" be litigated in fresh proceedings".

26. That appears to me to be the true test which ought to be applied to the Applicant here rather than the less stringent one which is prescribed by Order 28 Rule 1.

27. However, for the purposes of dealing with this application, I will treat the application as though it falls to be dealt with solely under Order 28 Rule 1 and without reference to the fact that these are Judicial Review proceedings. In other words, for the purposes of this case, I will treat the application as though it is made in ordinary plenary proceedings although I do not believe that that is the correct way to approach the matter.

RELEVANCE

28. It is clear that an amendment should only be permitted under Order 28 Rule 1 if it is necessary for the purpose of determining the real questions in controversy between the parties. I have already noted that no amendment is sought to the prayer in the Statement of Claim which has been delivered. During the course of argument, I went through each of the reliefs sought in that prayer with Counsel for the Applicant and he conceded that in respect of all but the last the claim of conspiracy was neither relevant nor added anything to the reliefs being sought. He suggested that the claim would have a relevance in respect of the declaration which is sought at paragraph (f) of the prayer which is to the effect that the Minister, in purporting to dismiss the Applicant, was bound to comply with the provisions of natural and/or constitutional justice.

29. For my part, I cannot see how a claim of conspiracy has any relevance to the relief sought at paragraph (f). If there was any doubt about this, it was put to flight by the concession made by Counsel for the Respondents to the effect that if the Applicant satisfied the Court at trial that he had been dismissed rather than resigned, he would have to succeed since the Minister was not competent to dismiss him; such power is reserved to the Government.

30. I am, therefore, satisfied that the addition of the conspiracy claim is not necessary for the purpose of determining the real questions in controversy between the parties. The real question is whether or not the Applicant was dismissed or resigned. If the former, it can only have been done by the Government and not by the Minister.

31. This determination is sufficient to dispose of this application. It is a determination arrived at by considering the application in the most advantageous way from the Applicant's point of view.

OTHER GROUNDS

32. If the application is considered in the manner I believe it ought to be, namely as one to amend the grounds for seeking Judicial Review, it likewise fails. Not merely is the amendment not necessary to determine the issues in suit but the case does not demonstrate any exceptional circumstances which would justify such an order being made. Furthermore, there has been substantial delay in making this application. The detailed information from Mr Rooney became known to the Applicant in September, 1998 but this application was not made until a Motion was issued on the 27th July, 1999 returnable for hearing on the 18th October, 1999. No satisfactory explanation has been given for this delay. This delay alone (in the absence of a satisfactory explanation) would be sufficient to refuse the application exceeding as it does by many months the time limited for the making of an application for leave in the first instance.

33. This application therefore fails and accordingly it is not necessary for me to consider the other grounds of objection advanced by the Respondents.

THE CONDUCT OF THESE PROCEEDINGS

34. I have already touched upon the thinking behind the Judicial Review procedure as prescribed in the Rules of Court. It is a procedure which seeks to ensure a fair yet speedy and efficient determination of relevant issues in dispute between parties. That is obviously desirable in respect of issues which touch upon the exercise of public functions. The alleged decision which is sought to be impugned occurred four years and seven months ago. The application for leave ought to have been made promptly and in any event within six months from the date when the grounds for the application first arose. It was not made until eleven months after the event. McCracken J. was obviously satisfied to extend time for the making of the application but in such circumstances it was all the moreincumbent upon the Applicant to ensure that matters would proceed with speed. He did not do so. Whilst there was some delay on the part of the Respondents it was short by comparison with that on the part of the Applicant. The defence was delivered in March, 1998 and the action has not yet been set down for trial. Delay of this type is not desirable and tends to defeat the purpose for which the Judicial Review procedure was designed. It is to be hoped that there will be no further delay in the prosecution of this claim. This application is dismissed.