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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Palmer -v- Minister for Defence & Anor [2014] IEHC 446 (16 May 2014)
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Cite as: [2014] IEHC 446
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Judgment Title: Palmer -v- Minister for Defence & Anor Neutral Citation: [2014] IEHC 446 High Court Record Number: 2013 160 JR Date of Delivery: 16/05/2014 Court: High Court Composition of Court: Judgment by: Cross J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 446 THE HIGH COURT JUDICIAL REVIEW [2013 No. 160 J.R.] BETWEEN GARY PALMER APPLICANT AND
MINISTER FOR DEFENCE AND ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Cross delivered on the 16th day of May, 2014 1. The applicant in this case is a serving private in the PDF having been born on 24th June, 1971, and has had some 23 years of unblemished experience and service in the army. 2. He was nominated in 2012 by his commanding officer to undergo a non-commissioned officer’s training course of intensive training to render him qualified for promotion to non-commissioner officer rank. He was afterwards selected by the designated staff officer of the General Office Commander of the Second Eastern Brigade. The course commenced on 30th October, 2012. Prior to the course commencing, in September 2012, the applicant underwent general preparation training so that he could satisfy the pre-course requirements and he came in to work in McKee Barracks during his days off during the summer and autumn 2012, in order to make his preparations for the course. 3. He attended a medical and was pronounced fit. 4. Upon reporting for the course on 30th October, 2012, at Casement Aerodrome, Baldonnell, he commenced the course but two days later he and two other members were called into the headquarters and asked their age by the commanding officer who advised that they were too old for the course and that a decision would be made the following Friday whether he and others over 40 years of age would return to his unit. The applicant continued on the course and on the Friday he was advised that he was being sent back to his army unit in McKee Barracks without being allowed to complete the remainder of the course. 5. The applicant says and I accept that he was greatly upset by this because he had passed all the other criteria for the course and that as a result he claims that he was really disappointed and distressed and has suffered a loss of earnings. 6. Accordingly, the applicant applied for leave for judicial review and was granted leave on 4th March, 2013, to quash the decision of the respondents of 2nd November, 2012, to remove him on age grounds from the training course and to deprive him of a place in the training course when he had already commenced work and to deny him the opportunity to complete the training course for which he had been selected. 7. The applicant further sought by way of certiorari an order to quash the entry criteria for entering onto the course for non-commissioned officers in the absence of clear and transparent and published objective justification for the age limitation therefore and further the applicant sought a declaration that his removal was unfair and unreasonable and an order of mandamus by way of application for judicial review directing that the respondents allocate the applicant a place in a future course and damage. 8. The grounds of the claim were that the decision of 2nd November, was unfair and reasonable and unlawful and in breach of the applicant’s legitimate expectation contrary to fair procedure and indeed discriminatory under the equality provisions. 9. At the hearing of the application, it was accepted that the equality provisions did not arise and though counsel for the applicant did make the case that the decision was irrational under the O’Keeffe principles the main thrust of the applicant’s case was that the applicant and had a legitimate expectation that he would be allowed to continue and that the age requirements would not be strictly applied (in this regard the applicant demonstrated that two other persons were permitted to complete a course in earlier times when over 40). It was further claimed that in the alternative of an order for certiorari that the applicant would be entitled to damages. 10. The applicant accepted the qualifying criteria for entry onto the course excluded anyone over 40. 11. The respondent contends that the decision to admit the applicant onto the course was an unfortunate administrative error. The applicant’s physical fitness is accepted but evidence was given that the applicant was not qualified by age for acceptance on the course and that the applicant at least ought to have known of the age requirements. Evidence was furnished by way of affidavit by Colonel Gerard Kerr, Medical Doctor as to the reasons why an age cut off 40 was applied for this course in that the human body deteriorates after the age of 25 and decreases in strength as a result the activity required under the non-commissioned officer’s course may not be safe for older applicants however fit they may seem to be. 12. The court heard the submissions of counsel for the applicant and the respondent and read the two affidavits of the applicant and the four affidavits of Captain Conor Connelly, the affidavit of Colonel Kerr of the Battalion Sergeant Major Lambe, the affidavit of Captain Paul O’Callaghan and Colonel Dermott Hannifin on behalf of the respondent. The Applicant’s Case 14. In Glencar Exploration Plc v. Mayo County Council (No. 2) [2002] I.R. 184, Fennelly J. stated at p. 162:-
16. Counsel for the applicant also relied upon the judgment of Denning M.R. in Amalgamated Property Company Limited v. Texas Bank Limited [1982] Q.B. 84 at p. 122:-
18. In McGrath, the applicant had been retained in the army for more than sixteen years during which he had suffered from a significant disability. The army could (as was held by Fennelly J.) have decided to reclassify the applicant medically and to discharge him at an earlier date. However, he was kept in service to the benefit of both the army and himself and in 1994, he sought an extension in order to build up his pensionable service and Fennelly J. construed what occurred as the army representing that he would be retained in service for two years evening with his existing medical classification and that he was entitled to rely on that representation. 19. The applicant relying upon these authorities and also the statement of Denning M.R. that legitimate expectation may arise whether “due to misrepresentation or mistake makes no difference” (see above), submit that the applicant had a legitimate expectation once he was accepted onto the course that he would be allowed to continue and qualify for a promotion. As a result of the legitimate expectation, the applicant is entitled to at least to some of the reliefs as claimed. The Respondent’s Case 21. The respondent also contends that the applicant knew or rather ought to have known about the age requirement. It is quite clear that any mistake in the matter is primarily the mistake of the respondents and that is not disputed. The applicant accepts that he had previously indicated to his superiors that he wanted to apply for the NCO course “before he was too old” or words to that effect. The age requirement is stipulated in the “qualifying criteria” which list a series of grades as being the minimum requirements i.e. 11424. The first “1” represents an age less than 40. The applicant’s grades started with a “2” indicating that he was at the time over 40. The difficulty for the applicant was that the applicant was abroad in 2009 when the last NCO course was made and there was no course due to the economic situation of the country in either 2010 and 2011. When the applicant applied in 2012, he was over the limit. The limit was I hold to be a matter of reasonable policy on behalf of the respondents and accordingly, the applicant was not qualified for entry to the course in 2012. The fact that he was accepted was described as very unfortunate and counsel for the respondents accepts that the respondent was very disappointed and indeed may have been humiliated as a result of being returned to the barracks. 22. The respondent further relied upon the decision of the Supreme Court in Daly v. Minister for the Marine & Ors [2001] 3 IR 513, which held, inter alia, that the mere fact of an expectation could not suffice an applicant without some context relevant to fairness in the exercise of legal or administrative powers and the notion of fairness had within it the idea that there was an existing relationship which would be unfair to alter. 23. The respondent then relied upon the decision of Wiley v. Revenue Commissioners [1994] I.R. 160, and relied upon the decision of O’Flaherty J. at p. 174:-
It will be clear immediately that acceptance of this submission would involve a radical enlargement of the scope of legitimate expectation. It would involve the Court saying to the administration that it was not entitled to set more stringent standards, so that it might discharge its statutory obligations, without giving notice to anyone who might have benefited in the past from a more relaxed set of rules.” 25. The respondent also relies upon the decision of Dunne J. in Curran v. Minister for Education and Science [2009] I.R. 300, which was held that the doctrine of legitimate expectation could be qualified by public interest considerations. That decision followed the dicta in Glencar and in other cases. What Occurred in this Case? 27. The code in the application criteria that indicates a maximum of 40 years is not clear and it is obvious that the respondents who ought to have known about the age requirements were not alert to the applicant’s failure to meet the age requirement. I accept the applicant’s affidavit evidence as to his ignorance of the age requirement. 28. The applicant accepts that there is an age requirement preventing persons being accepted on the course who are over the age of 40. I do not hold the fact that in previous years, two persons who were over 40 were accepted on and completed the course and subsequently were promoted to corporal is evidence of anything other than the respondent making a similar administrative error and in those cases not finding out about that error until after the promotions were made. 29. The first question to be asked is whether the applicant had an expectation within the meaning of Glencar and other cases that he would be allowed to continue on the course notwithstanding his age. I do not believe that the applicant has established such an expectation. The respondents made a significant error. The applicant then not realising that an error had been committed, expended some energy in preparing for the course and was two days on the course before he was told there was a problem and was approximately a working week on the course before he was removed. I do not accept that that action constitutes an expectation in any real sense. Undoubtedly, the applicant had a great hope that he would be able to complete the course and proceed to promotion and I am not satisfied that the respondent’s error created an expectation in the first place. I am not satisfied that as a result of being accepted onto the course that the applicant did any adverse to his interests or that any question of estoppel could arise. 30. It must always be remembered that the doctrine of legitimate expectation in this State stems from the decision of Webb v. Ireland [1988] IR 353, in which Finlay C.J. stated:-
32. I also accept the submission on behalf of the respondent that if I am incorrect in viewing that no expectation arose that there was certainly no legitimate expectation. The applicant was never eligible from inclusion in the course as he did not satisfy the criteria set out in the Joining Instructions. The applicant accordingly never had any legitimate expectations about the course, that he never had an expectation which was either reasonable or legitimate which is a prerequisite for the doctrine to arise. 33. If the applicant had a legitimate expectation, it would have been of an expectation that the defence forces would breach their well established and reasoned policy for imposing an age limit. I do not believe that the applicant has so demonstrated. 34. Thirdly, again if I am incorrect in the above analysis, I would conclude that the operation of a reasonable policy by the Defence Forces to apply an upper age limit can and does override any legitimate expectation the applicant might have. 35. I further hold that if insofar as it was argued (and the applicant’s argument centred on legitimate expectation), I do not find there has been any breach of fair procedures or natural justice. This was not a decision or process which would have attached the principles of fair procedures and natural justice in the first place. The applicant was wrongly placed on a course, the criteria for which he did not satisfy and was rapidly removed when this error came to light. He did not have a right to be heard in advance to the return to unit and in any event, had he been heard I do not accept that anything the applicant could have said would have altered the situation. 36. For the above reasons, I must dismiss the applicant’s case noting the high regard to which he is held in the Defence Forces and I wish him every success in this continued career there.
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