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Cite as: [2001] 2 ILRM 241, [2001] IESC 4, [2001] 1 IR 190

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De Roiste v. Minister for Defence [2001] IESC 4 (19 January 2001)

THE SUPREME COURT

KEANE C.J.

DENHAM J.

FENNELLY J.

211/9 9

BETWEEN:

DONAL DE ROISTE

Applicant

And

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

Respondents

[Judgments delivered by Keane C.J., Denham J., and Fennelly J.

JUDGMENT delivered the 19th day of January 2001 by Keane C.J.

The applicant in these proceedings was at the relevant time a lieutenant in the defence forces. He served in the Signal Corps and was assigned to the Fourth Field Supply and Transport Company based at Custom Barracks in Athlone.
In April 1969, the applicant was interviewed by officers of the intelligence section of the army. On the 25th June 1969, the Adjutant General wrote a letter to him in the following terms:-

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"I am directed by an tAire Cosanta to inform you that an tUachtarán has, in pursuance of the powers vested in him by s. 4 7(2), Defence Act, 1954 and paragraph 18(1)(/), Defence Forces Regulation A. 15, retired you with effect from the 27th day of June 1969."

Section 47(2) of the Defence Act, 1954 provides that:-

"An officer may, for any prescribed reason, be retired by the President."

The reasons are prescribed by the Defence Forces Regulations, A. 15, the one referred to in the letter from the Adjutant General being

"in the interests of the service."

The plaintiff in these proceedings has said on affidavit that he was given no other reason for his purported "retirement" and was given no opportunity to make any representations. Nor, he said, was he furnished with the names of any persons making allegations against him. He said that he had requested a court martial, if there was any charge or allegation against him, but was informed that that was not being considered at the time. He also said that the

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impression was created at the time that he was associated with subversive activities.
The plaintiff did not, however, institute any proceedings at the time in respect of his dismissal from the army. He emigrated in 1971 and went to Britain and the United States. He returned to Ireland in the mid-1980s.
In the year 1997, the plaintiffs sister, Ms. Adi Roche, was nominated as a candidate in the presidential election of that year. The applicant says that the events in which he had been involved in 1969 were brought up again in the media during the election campaign and that a number of newspaper reports published at the time stated that he had been forced to resign from the defence forces because he was a republican sympathiser. The applicant says that he thereupon took up the question of his retirement from the defence forces with the Army Information Office, the Minister for Defence and the President of Ireland in the hope of clearing his name and obtaining at least an honourable discharge from the defence forces, but was unsuccessful.
The applicant then applied to the High Court for leave to institute the present proceedings by way of judicial review and was granted such leave by the High Court (Geoghegan J.) on the 23rd November 1998. In his statement

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grounding the application he sought declarations that the actions of the respondents at the relevant time were in breach of natural and constitutional justice and ultra vires the relevant statutory provisions and orders of certiorari quashing the relevant decisions of the respondents. A statement of opposition was delivered on behalf of the respondent and the first ground raised thereby was that the applicant had been guilty of inordinate delay in seeking to challenge the decision of the 27th June 1969, as a result of which delay the respondents had been grossly prejudiced in their capacity to defend the applicant's claim. The issue thus raised was tried as a preliminary issue by McCracken J. and, in a reserved judgment delivered on the 28th June 1999, he upheld the contention advanced on behalf of the respondents and dismissed the applicant's claim. From that decision, the applicant has now appealed to this court.
Before I turn to the relevant law, I should refer to the facts in more detail. The applicant says that he was arrested by one of his superior officers, Capt. Dixon, the day after he had been supervising a salle of used army equipment at Clancy Barracks, Islandbridge. He said that he was given no reason for his arrest and was interrogated by relays of army personnel under the command of Comdt. Gerry O'Sullivan. He said that the interrogation was oppressive and that he was shouted at, threatened and physically intimidated. He said that he

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believes he may have confessed during this process of interrogation to stealing hubcaps from one of the vehicles at the auction. Following this interrogation, he was returned to the barracks in Athione but no charge was proffered against him. He said that he then contacted a solicitor, Michael O'Maoileoin, who advised him to request a court martial which he did. He said that he was further interrogated over the course of the next three or four months but that the questioning on those occasions was not so oppressive. He was then assigned to Boyle, Co. Roscommon to the FCA, the reserve defence force, and believed at that stage that the interrogation and the matters relating to it were now at an end.
The applicant said that the notification to him on the 27th June 1969 that he was being retired from the defence forces lleft him "shocked and numbed". He said that he was given only twelve hours to leave the barracks and that he slept in his car for a number of nights before finding accommodation. His family, he said, rejected him because of the "shame and disgrace" brought upon him and them. His affidavit went on

"This rejection upset me greatly and compounded the trauma of my dismissal. I say that Mr. O'Maoileoin did not act for me nor did he institute proceedings on my behalf and I say and believe that he discontinued practising and left the country."

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The plaintiff says that the effect of his dismissal in these circumstances was that he was unable to obtain work in Ireland and was forced to emigrate. He had only obtained temporary manual labour positions in Britain and the United States and, since his return to Ireland, had only been working on a part-time basis on a limited wage. He also said that the trauma of his retirement had long term psychological consequences for him and that it was only within the twelve months preceding the application to the High Court that he had been able, with the assistance of a counsellor, to address the whole episode and its effect on his life.
In an affidavit sworn on behalf of the respondents, Comdt. Denis Murphy, said that on the 21st April 1969 a report was made to the Director of Intelligence identifying the applicant as being engaged in activities which potentially constituted a threat to the security of the defence forces and the safety of its members. He said that, arising from this information, the applicant was interviewed by officers of the intelligence section of the army about subversive matters on the 25th April 1969 and again on the 28th and 30th April 1969 and that, at the second interview, the applicant admitted crucial matters relating to security which he had persistently denied at the first interview. He said that the applicant admitted knowing and associating with people whom he was aware had been involved, and continued to be involved, in criminally

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subversive activities. He said that the applicant was also allowed to submit a statement and that, on the basis of the content of his interviews, including the matters submitted in his second interview and on the basis of his own statement, a decision was made to recommend to the Minister for Defence that the applicant should be retired in the interests of the service. This had been done on the 27th June 1969.
Comdt. Murphy, in his affidavit, said that three of the officers who were directly involved in the investigation of the applicant and in making the decision which subsequently led to his retirement are now dead. He said that Coll. Arthur Cullen was the Deputy Judge Advocate General of the army in 1969, had been directly involved in the questioning of the applicant and was dead. He said that Col. Michael Heffernan was the Director of Intelligence of the Army in 1969 and that he was ultimately responsible for deciding whether or not members of the army were security risks or not. He said that Col. Heffernan would have been directly involved in an assessment of the applicant's behaviour and whether he posed a security risk. Col. Heffernan was also dead. Comdt. Murphy said that Lieutenant General McKeown was the Chief of Staff of the Army in 1969 and, as such, would have advised the Minister that the applicant should be retired by the President. Lieutenant General McKeown was also dead. Comdt. Murphy deposed that the deaths of

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these three persons made it impossible for the respondents adequately to respond to the applicant's claims.
In a further affidavit, the applicant said that the respondents would not be prejudiced by the fact that the three officers concerned were dead, since Comdt. O'Sullivan was still alive. He also said that he had no recollection of meeting Colonel Cullen and that it would be unusual for the Deputy Judge Advocate General to be involved in such an investigation. Affidavits were also filed on behalf of the applicant by one of his colleagues in the army, Patrick Walsh and Charles McCarthy, a retired United States serviceman, who was a friend of the applicant and who arranged employment for him when he came to the United States in 1971. Both these deponents testified to the traumatic effect on the applicant of his dismissal from the army in 1969.
Ann Kelleher, who held university degrees in counselling, gave evidence of consultations with the applicant in May 1998. She said that the applicant had suffered post-traumatic stress disorder on his discharge from the army in 1969, had sought the assistance of a solicitor who disappeared and let him down and was unable to address his trauma at the time. She said that she was of the view that with the support of his friends and partner and retired former army colleagues and the counselling she had been able to give him, the

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applicant had restored his dignity and seff-esteem and was now in a position to bring the matter to the courts to redress the wrong done to him.
In a further affidavit, Dr. Fionnuala O'Loughlin, a consultant psychiatrist, exhibited a report in which she said that the applicant, during his time in the United States, was unable to tackle his problem because of abuse of alcohol and drugs by him but that, since he had undertaken counselling, he had been able to come to terms, to a certain extent, with what had happened and to take appropriate steps to try and correct what had happened. She also said that the feeling which he had of not being believed over the years when he protested his innocence would also have accounted for his inability to deal effectively with his situation.
The legal principles applicable to the issue which had to be resolved by the High Court in this case are not in dispute. They have been explained in a number of cases in the High Court and this court, notably Rainsford .v. Corporation of Limerick (The High Court, Finlay P.: unreported: judgment delivered 31st July 1979): O'Domhnaill .v. Merrick (1984) IR 151: Toal .v. Duignan and Others (No. 1) (1991) 1 ILRM 135: The State (Cussen) .v. Brennan (1981) IR 181: The State (Furey) .v. Minister for Defence (1988) JLRM 89: O'Flynn .v. Mid-Western Health Board (1991) 2 JR 223 and Primor

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Plc. .v. Stokes Kennedy Crowley and Others (The Supreme Court: unreported: judgments delivered the 19th December 1995).
Those principles may be summarised as follows. The courts have an inherent jurisdiction to dismiss proceedings where the party instituting them has been guilty of inordinate and inexcusable delay. However, even where the delay is both inordinate and inexcusable, the court must decide whether, having regard to the facts of the particular case, the balance of justice is in favour of, or against, its being permitted to proceed. Finally, as stated by Finlay C.J. in Toal .v. Duignan and Others (No. 1):-

"... Where there is a clear and patent unfairness in asking a defendant to defend a case after a very long lapse of time between the acts complained of and the trial, then ~f that defendant has not himself contributed to the delay, irrespective of whether the plaintiff has contributed to it or not, the court may as a matter of justice have to dismiss the action."

Those principles are of general application. In the case of proceedings by way of judicial review seeking an order of certiorari such as the present, it is also well established that an applicant for certiorari may be held disentitled to relief where he has been guilty of unreasonable delay.

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It is true that in The State (Furey) .v. Minister for Justice and Attorney General, McCarthy J. said that:-"... 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 continues to mark or mar his life."
As the learned High Court judge pointed out, this observation was clearly obiter in the context of the particular case. In the judgments which they will deliver in this case, Denham J. and Fennelly J. analyse the relevant law in detail. I am satisfied that, in the light of their explanation of the relevant law, with which I entirely agree, this passage cannot be regarded as a correct statement of the law.
A delay of 29 years, such as has occurred in the present case, is beyond argument inordinate. The applicant has attributed the delay to the trauma he suffered as a result of being discharged from the army, leading to an inability on his part to address the situation in which he found himself and seek the appropriate legal redress. The evidence of the counsellor and the psychiatrist, it

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was said, made it clear that it was this which led to the delay in the institution of the present proceedings and that, accordingly, the delay in the present case was excusable.
It is understandable that someone in the applicant's position should suffer considerable trauma as a result of being discharged from the army in circumstances which were bound to have a serious effect on his prospects in life and particularly of obtaining alternative employment. However, that, of itself, was not a factor which justified his taking no action for nearly thirty years. Indeed, he himself says that he did what one would have expected a person who considered himself seriously wronged to have done: he consulted a solicitor. However, beyond saying that the solicitor at some stage, unspecified, ceased to practice and left the country, he gives no indication as to why he took no further steps to seek legal redress: it cannot have been the effect of his dismissal and the surrounding circumstances on him, since that did not prevent him from going to a solicitor in the first place.
It is clear, accordingly, that the delay in this case was not merely inordinate but has not been justified. There remains the question as to whether, having regard to all the circumstances, the balance of justice requires that the action be allowed to proceed. The learned High Court judge was of the opinion

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that it did not and I am satisfied that he was correct in so holding. This is not a case in which the respondents contributed in any way to the delay and there is clear and largely uncontradicted evidence that, apart from the considerable difficulties which would confront any party required to defend a claim after such a lengthy period, they will suffer the specific disadvantage of having to meet the applicant's claim without having available to them the evidence of three material witnesses who are now dead. While the applicant says that he cannot recall being interviewed by Col. Cullen - which is hardly surprising after such a lengthy interval - there is sworn evidence, based on the records available to the respondents, that he in fact interviewed the applicant. Similarly, the two senior officers who, the respondents say, would have been concerned in the procedure culminating in the applicant's discharge, are both dead. All of these factors, coupled with the general requirement of the law that proceedings by certiorari should be brought with reasonable expedition, lead inevitably to the conclusion that this was not a case in which the ballance of justice required that the applicant's claim shoulid be allowed to proceed.
I would dismiss the appeal and affirm the order of the High Court.

THE SUPREME COURT

JUDICIAL REVIEW

211/99

Keane C.J.

Denham J.

Fennelly J.

BETWEEN

Dónal de Roíste

APPLICANT/APPELLANT

and

Minister for Defence,

Ireland and the Attorney General

RESPONDENTS

Judgment of Mrs. Justice Denham delivered on the 19th day of January. 2001.

1. Issue

The issue on this appeal is a preliminary issue in the action and is as to delay in the commencement of judicial review proceedings. The applicant/appellant, hereinafter referred to as the applicant, brought judicial review proceedings of actions giving rise to his compulsory retirement from the Defence Forces in 1969.

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2. Proceedings

On 23rd November, 1998, upon a motion made ex parte to the court for leave to apply by way of an application for judicial review, the High Court (Geoghegan J.) ordered that the applicant's time for making the application for leave to apply for judicial review was extended to that date. However, the learned High Court judge specifically granted:

"liberty to the Respondents to argue the time point at the hearing of these proceedings".

On 18th February, 1999, the High Court (Kinlen J.) ordered that the preliminary issue be listed for hearing. The orders sought included:

"(i) An Order dismissing or staying the Applicant's claim herein on the grounds that there has been inordinate and/or inexcusable delay in the commencement of the proceedings herein

(ii) An Order determining that the Applicant's claim for Judicial Review was not made promptly and within six months of the impugned decision and that the Applicant is thereby barred or precluded from claiming the relief sought therein

(iii) In the alternative an Order setting aside the Order of this Honourable Court dated the 23rd day of November 1998 granting the Applicant leave to apply for Judicial Review.

(iv) An Order that the Applicant's claim for damages for breach of constitutional rights unconstitutional and improper removal from office abuse of process wrongful and unlawful arrest and imprisonment defamation and for damage to his good name reputation career and livelihood are for an account and for payment of monies in statute barred pursuant to the Statute of Limitations 1957 as amended by the Statute of Limitations (Amendment) Act 1991."

3. The High Court

On the hearing of the preliminary issue the High Court (McCracken J.), on 28th June, 1999, ordered that the applicant's proceedings be dismissed. McCracken J. held as follows:

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"In summary, therefore, it is my view that the Applicant, while undoubtedly having suffered a traumatic experience, has not shown that he was so affected by that experience that he was unable to issue these proceedings over such a lengthy period. He was able to work, he was able to marry and bring up a family, and indeed Dr. O'Loughlin says in her history of the complaint that the Applicant seemed to deal with the problems of alcohol and drug abuse and resolved his dependence. In the light of all these matters I do not think he has discharged the onus which is upon him to show the Court that there is good reason for extending the period within which this application should be made."

The learned High Court Judge, having analysed the provisions of Order 84, Rule 21 of the Rules of the Superior Courts, also considered cases where the Court has struck out proceedings on the grounds of inordinate and inexcusable delay. He summarised the principles as originally set down in Rains ford v. Corporation of Limerick (Unreported, High Court, Finlay P., 31st July, 1979, noted at [1984] I.R.152 as follows:

"The Courts should consider whether the delay was inordinate and whether it was inexcusable.

There are no real grounds for dismissing the proceedings if the delay has not been both inordinate and inexcusable.

The onus of establishing that the delay has been both inordinate and inexcusable lies on the parties seeking to dismiss the proceedings.

Even where the delay has been both inordinate and inexcusable, the Court may allow the proceedings to continue if on the facts it finds that the balance of justice is in favour of this course.

Consideration should be given to the extent of the litigants (sic.) personal blameworthiness for delay, even where he has acted through a Solicitor."

McCracken J. held that:

"There can be no doubt that in the present case the delay was inordinate. In my view, for the reasons given above in relation to Order 84 Rule 21, I would also hold that the delay was inexcusable. There only remains therefore, to consider whether the balance of justice is in favour of or against allowing the case to continue taking into account the extent of the Applicant's personal blameworthiness."

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On the issue of the balance of justice the learned judge, having stated that the applicant's effective dismissal from the Defence Forces must have been a very traumatic experience, especially in view of the attitude of his family, held:

"...... I do not think that there is any convincing evidence that this trauma was such as to render the Applicant incapable of issuing these proceedings, and indeed neither the psychologist nor the psychiatrist who have given evidence go this far. A couple of years after the events took place, the Applicant chose to leave the country and seek to make a new life elsewhere. I am not for a moment blaming him for taking this action but I think it points to an attitude on his part of wanting to leave the whole unfortunate experience behind him and start afresh. I think this was a deliberate choice on his part, taken at a time when he could have sought relief through the Courts. Unlike the infant cases, the Applicant was at all times personally in a position to instruct Solicitors and to issue proceedings, and did not do so for some twenty nine years. In my view he is totally blameworthy in the sense that that word is used in the judgment I have referred to. This is not to imply that he did anything wrong, but rather that he is the person responsible for proceedings not having been issued. I should also add that the Respondents cannot in any way be blamed for the delay."

McCracken J. also took into account the fact that one potential witness who could have given direct evidence of the matter had died and that two persons who could have given evidence as to the reasons behind the enforced retirement of the applicant had died also. Further, he took into account the fact that twenty nine years had elapsed since the events and that memories would be severely dimmed. He did not consider that the balance of justice required that the case be allowed to proceed. The learned trial judge distinguished the words of McCarthy J. in The State (Furey) v. Minister for Justice and Attorney General [1988] I.L.R.M. 89 at p.100 where McCarthy J. stated:

"... 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 continues to mark or mar his life."

McCracken J. concluded in relation to those words:

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"This remark was clearly obiter in the context of that case, although I fully accept that in considering the requirements of justice, the fact that the Plaintiff may have been wronged by the state authorities rather than by a private individual must be a relevant consideration. However, I would emphasis (sic.) that this was not an absolute statement that delay cannot disentitle an Applicant but rather that it should not "of itself" disentitle an Applicant. In fact, I think that this comment is not inconsistent with the principles I have quoted already and I would dismiss these proceedings not solely because of the delay in itself, but because, in addition to such delay, there is the element of blameworthiness on the part of the Applicant and the fact of possible prejudice to the Respondent."

4. Appeal and Submissions

Against that decision the applicant has appealed submitting that the learned trial judge erred.
The grounds of appeal moved by counsel were as follows:

"3. The High Court erred in failing to hold that the balance of justice lay in allowing the case continue to trial in a situation where the learned Judge found that the events were unusual that gave rise to the case.

4. The High Court erred in failing to hold that the balance of justice lay in allowing the case continue to trial in a situation where there is extensive documentation in the possession of the Respondents and not in the possession of the Applicant and where the Respondents claim that three potential witnesses have died in the intervening period and where the trial Judge accepted the Applicant's argument that only one of the three deceased witnesses give direct evidence of the matters which took place.

5. The High Court erred in law and in fact in refusing to allow the matter to proceed to trial not solely on the grounds of delay but on, inter alia, the fact of possible prejudice to the Respondent in a situation where the Respondents did not establish or prove any prejudice and where they have all the documentation in their care, management, power and or procurement and the Appellant cannot even get a copy of any statement he may have made.

6. That the learned High Court Judge erred in law in his interpretation of the judgment of the Supreme Court (the late McCarthy J) in re the State (Furey)-v- Minister for Defence and the Attorney General ILRM 89 where he said "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 and (sic.) wronged him and that the wrong has continued to mark or mar his life"which is the situation herein.

7. The learned High Court Judge erred in law in failing to give sufficient weight to the alleged public wrong aspect of the Applicant's wrong which is continuing.

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8. The High Court errect (sic.) in fact in holding that the Applicant chose to leave the country and seek to make a new life elsewhere where the evidence was that the Applicant was compelled to do so by reason of the circumstances he was put in, where he was an exile in his own country and because of the peculiar reason for terminating his career, even in exile in America the mark on his character continued to mar him there. The Judge erred in failing to take into consideration the vastness of the penalty imposed on the Applicant from which there is no relief.

9. That the learned High Court Judge erred in law and in fact in failing to take into account the impecunious nature of his circumstances where he felt himself in exile suffering a wrong in what the learned Judge accepted to be unusual circumstances in a military system where there was no direct access to legal advice and in a system where there was no legal aid and an extra-legal provision had been invoked by the Respondents against the Applicant and where he acted through a Solicitor who disappeared in suspicious circumstances and no record is available in what the learned Judge already held "even if the events were as unusual as they appear to have been in this case".

10. Further, the learned High Court Judge erred in fact in holding an element of blameworthiness on the part of the Applicant without specifying the extent of the Applicant's alleged blameworthiness for delay and erred in fact in holding that the Applicant was able to work, to marry and to bring up a family when in fact he had tried and failed.

11. The learned Judge erred in law in holding that the was not concerned with the merits of the Applicant's case save insofar as they may affect the question of delay in a situation where he held it was an unusual situation."

Written submissions were presented on behalf of both parties. Mr. Ercus Stewart, S.C., counsel for the applicant, opened Order 84 Rule 21 of the Rules of the Superior Courts and argued that there were good reasons in this case for extending the time for this application. He relied on The State (Furey) v. Minister for Defence. Counsel referred to the evidence that was before the Court that the applicant had suffered from post traumatic stress disorder. In answer to queries from the Court he did agree that the applicant had a solicitor at the time but that that solicitor had left the jurisdiction, though he did not specify when this occurred. He submitted that it was a unique case and that on the papers prima facie there was a wrong done to the applicant and that he was entitled to an order. He submitted that the delay was excusable, that it is an exceptional situation which should enable him to have a trial. That

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while there has been delay, it has been explained by the applicant and that the applicant is entitled on the balance of justice to a hearing.
Mr. Brian McGovern, S.C., counsel for the respondents, did not go into the merits of the applicant's case but said the State did not accept the facts alleged. He submitted that there was inordinate delay and that it was inexcusable. He pointed out that the applicant had had a solicitor initially which indicated that he had considered seeking legal redress. He argued that there was no evidence that the applicant could not deal with the matter initially. He submitted that the applicant had failed to show that the delay was excusable. Counsel argued that the judgment of the High Court was correct in law. Counsel referred to and relied upon Order 84 Rule 21 of the Rules of the Superior Courts and said the application was not made promptly or within six months and that no reasonable basis had been given for the Court to exercise its inherent discretion. He also argued that all the claims are statute barred. This matter was not pursued by the applicant who was essentially seeking a declaratory order in relation to his good name. Counsel for the respondents submitted that the delay in this case was so long that there could not be justice between the parties; that justice implies fairness for both parties and there would be prejudice to the respondents in these circumstances if the application proceeded.

5. Decision

5.(i) Judicial Review

The applicant is seeking judicial review of decisions made in 1969. The Rules of the Superior Courts, Order 84 Rule 21, state that an application for judicial review shall be made promptly and in any event within three months from the date when grounds for the

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application first arose or six months when the relief sought is certiorari. However, the Court has discretion to extend time if the Court considers there is good reason. The onus is on the applicant to meet the conditions. It is for the applicant to show that he has made the application promptly and within the time limit or that there is good reason to extend the time within which the application may be made. The conditions are not rigid as judicial review is a discretionary remedy. There remains in the Court an inherent discretion to be exercised according to the requirements of justice in the circumstances of each case.
Judicial review is an important legal remedy, developed to review decision-making in the public law domain. As the arena of public law decision-making has expanded so too has the volume of judicial review. It is a great remedy modernized by the Rules of the Superior Courts, 1986, and by precedent. However, there is no absolute right to its use, there are limitations to its application. The granting of leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the Court. This has been set out clearly in precedent. The first condition as to time is that the application be brought promptly. As to whether the application is prompt will depend on the circumstances. In some circumstances even if the application is brought within months of the decision being challenged it may not be sufficiently prompt. Thus in The State (Cussen) v. Brennan I.R. 181 an application made within four months of a decision was refused. Henchy J. stated, at p. 196,

"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. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari."

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This concept of delay is analysed from both the procedural and substantive aspect. The court in exercising its discretion goes further than a merely procedural analysis. In this case there are no statutory limitations and the Court exercises its full discretion.
The analysis commences with the obligation to bring the application "promptly". It is the key word which is the foundation of the process. As to whether the application is prompt will depend on all the circumstances of the case.
Judicial review is the modem proceeding which has developed from the prerogative writs. The development of these public law remedies over the last thirty years has been one of the significant growth areas in Ireland and the common law world. At a time when the state and public agencies are growing these remedies are important methods of access to the courts. As it was stated in The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381 at 392 by O'Higgins C.J.:

"The remedy of certiorari first emerged in the early years of the seventeenth century as the means by which the Court of King's Bench assumed a superintendence and control over the exercise of their jurisdiction by justices of the peace. The court was concerned that these justices would exercise their functions properly and that there would be a uniform administration of the law throughout the country. For that reason it was open to anyone - even a stranger to the proceedings - to make complaint of irregularity and to seek to have the proceedings quashed. From early on, however, the court exercised a discretion as to whether the relief should be granted.

…

From this emergence three centuries ago of the means by which the Court of King's Bench controlled the judicial process of lower courts, the remedy of certiorari has been developed and extended to reach far beyond the mere control of judicial process in courts as such. To-day it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and extension, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not

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available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of. In addition it remains a discretionary remedy."
The discretion of the Court is not absolute but exercised in accordance with principles. In reaching a decision the Court may weigh conflicting rights to achieve a balance which is just. In The State (Abenglen Properties) v. Corporation of Dublin O'Higgins C.J., at pp. 392-393 of the report discussing the nature of the discretion of the court, stated:

"This discretion remains unfettered where the applicant for the relief has no real interest in the proceedings and is not a person aggrieved by the decision: see The State (Doyle) v. Carr; [1970] I.R. 87; The State(Toft) v. Galway Corporation [1981] I.L.R.M. 439; Where, however, such applicant has been affected or penalised and is an aggrieved person, it is commonly said that certiorari issues ex debitojustitiae. This should not be taken as meaning that a discretion does not remain in the High Court as to whether to give the relief or to refuse it. There may be exceptional and rare cases where a criminal conviction has been recorded otherwise than in due course of law and the matter cannot be set right except by certiorari. In such circumstances the discretion may be exercisable only in favour of quashing: see The State (Vozza) v. O Floinn I.R. 227. In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex debitojustitiae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy."

In G. v. Director of Public Prosecutions [1994] 1 IR 374, Finlay C.J. set out matters on which an applicant must satisfy the Court. These included a requirement that the application be made promptly and in any event within the three or six months time limits provided for by Order 84, Rule 21(1), or that the Court was satisfied that there was a good reason for extending the time limit. Finlay C.J. stressed that the factors he had mentioned were not exclusive and that the Court had a general discretion. This discretion is exercised in all the circumstances of the case. Such a discretion is not exercised in accordance with an

-11-

exhaustive list of factors. It is exercised in light of the facts of a particular case. Justice is not achieved in a vacuum.

5.(ii) Facts in this case

The onus rests on the applicant to show that he has brought the application promptly. The facts were set out in the affidavits. In essence, the applicant has stated that he was so traumatised by the events of 1969 in the Defence Forces and his family's reaction thereto that he was unable to make the application to court because he was suffering from post traumatic stress disorder. In 1997 the applicant's sister was a candidate in the Presidential election and the issue of his retirement from the Defence Forces was the subject of stories in the media which publicity the applicant found traumatic. The findings of the learned High Court Judge have been set out in this judgment. I would affirm those findings of fact. There was evidence upon which he could make the determinations. The essence of the issue is whether there is "good reason" to extend the time. The onus is on the applicant to prove a good reason. This he has not done. The evidence of his conduct in 1969 and subsequent years indicates a choice, not an incapacity or inability or other good reason.

5.(iii) Words of McCarthy J

The applicant relied on the words of McCarthy J. in The State (Furey) v. Minister for Justice and Attorney General [1988] I.L.R.M. 89 at p. 100

"... I see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for the 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 continues to mark or mar his life."

-12-

The applicant submitted that the learned High Court judge had erred in his interpretation of these words of McCarthy J. These words go to the essence of the issue before the Court; the nature of the discretion of the court.
These words were obiter dicta. Further, they appear in a judgment where the delay was one of four years. That is of an entirely different magnitude to the delay in this case of 29 years.
The Rules of the Superior Courts set out a scheme which indicates a specific, short, time span within which to bring an application, whilst also retaining a discretion in the Court to allow an application if there is good reason. The discretion is rooted in the writs and common law. There have been many cases over the centuries where the nature of the discretion of the Court has been considered. In general, courts have stressed that the remedy is discretionary.
For example, in In Re Lord Listowel 's Fishery at Beale [1875] I.R. 9 C.L. 46 a reserved judgment of the Queens Bench delivered by Fitzgerald J., it was stated, at p. 49:

"It was urged that, as Lord Listowel was the party aggrieved by the decision of the Commissioners, he was entitled to the writ as a matter of right, and that the application was not one resting in the judicial discretion of the Court.

We do not agree in this proposition. The general rule is, that the writ does not go as of right, save on the application of the Attorney General, in his official capacity, on behalf of the Crown: Rex v. Clace 4 Burr. 2458, and Rex v. Eaton 2 T.R. 89. It is otherwise a matter of judicial discretion. Thus, in the case of the Mayo Presentments 14 Ir. C.L.R. 392, 401, Lefroy, C.J., says - "We are all agreed that these writs are not granted ex debito justitiae, but at the discretion of the Court, that is, a judicial discretion:" and in The Queen v. Newborough L.R. 4 Q.B. 585, 589 it is said - "It is in the discretion of the court to grant or refuse the writ and it is not a matter of right." If it was otherwise the writ could never be withheld, and yet our daily practice is that the Court grants or refuses the writ at its discretion, i.e. in the exercise of a sound judicial discretion.
The practice seems to have been so from an early period: thus in 8 Mod.R. 311, where it was contended that the Court should grant the certiorari, which was a

-13-

"writ of right", it was answered by one of the Judges - "That a certiorari was not a writ of right, for if it was it could never be denied, but it hath often been denied by the Court."

But though such is the general rule, it is equally true, that if a party directly aggrieved by the order of an inferior tribunal can show that the Court had no jurisdiction, or had in substance exceeded its jurisdiction, or was improperly constituted, the general course is to award the writ as of common right, unless the applicant has, by his conduct, forfeited that right, or rendered it inexpedient that the Court should interfere: The Queen v. The Justices of Surrey L.R. 5 Q.B. 472."
Thus, even if an applicant has suffered a grievance, his conduct will be a factor for the Court to consider; The State (Hunt) v. Circuit Judge, Midland Circuit [1934] I.R. 196. Where there is a conviction on record made without jurisdiction it is probable that the Court will only exercise its discretion one way, i.e. by granting certiorari: State (Vozza) v. O Floinn [1957] I.R. 227. However, even there factors may have to be considered, such as the conduct of the applicant and alternative remedies. As Maguire C.J. stated in the Vozza Case 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".

Implied in this statement is the necessity for the Court to consider the facts of a case in the exercise of its discretion and that even in the case of a criminal conviction there is conduct, although it is hard to imagine, which would disentitle the applicant to an order for certiorari.
Thus, the general rule is that certiorari is a discretionary remedy. However, if, for example, a conviction was made without jurisdiction the general course would be for the Court to grant

-14-

the application. There are no absolutes in the exercise of a discretion. An absolute rule is the antithesis of discretion. The exercise of a discretion is the balancing of factors – a judgment.
In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the Court may take into account factors such as; (i) the nature of the order or actions the subject of the application; (ii) the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed; (v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that proceedings relating to the public law domain take place promptly except when good reason is furnished. Such list is not exclusive. It is clear from precedent that the discretion of the Court has ever been to protect justice. When criminal convictions are in issue the matter of justice may be very clear. However, it is the circumstances of each case which have to be considered. In this case it was the actions leading to the applicant's enforced retirement from the army, in 1969, which are in issue. The learned High Court judge held that the applicant chose a solution. The applicant made a choice - he left the country. His conduct is one of the factors to consider. There has been considerable delay since the events in issue. Relevant witnesses upon which the respondents might rely in any such application are dead. The applicant's medical evidence has not met the onus of proof required. It is clear that there were facts upon which the learned trial judge could make the determination he did. I would agree with his determination and would affirm the decision.

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Further, the High Court's analysis of the obiter dicta of McCarthy J. was in accordance with precedent and reasonable. The words of McCarthy J. were short and obiter in a case with different circumstances. They do not indicate an absence of discretion in the Court. I agree with McCracken J. that the words of McCarthy J. were not an absolute statement that delay cannot disentitle an applicant, but rather that it should not "of itself" disentitle an applicant. Here is an echo of Fitzgerald J. in the Listowel Fishery case and Maguire C.J. in the Vozza case.
The general rule is that an order of certiorari is a discretionary remedy. The circumstances of each case have to be considered. The general course is to grant certiorari if, for example, a criminal conviction has been ordered in excess of jurisdiction. However, the circumstances of the case are considered by the Court in exercising its discretion and the Court has a discretion to refuse the relief if, for example, the conduct of the applicant disentitles him or her to that relief. The facts and circumstances of each case have to be considered. Whereas the applicant is in a stronger position if he has been particularly aggrieved, the Court retains its discretion in all applications. Factors which may also be relevant in a particular case are an alternative remedy and/or a pending appeal.
The actions the applicant seeks to have reviewed are serious, they did affect his life, but his subsequent conduct, the considerable delay in seeking judicial review proceedings, and the prejudice to the respondents, are circumstances forming a basis for the Court to hold that he has not shown good reason for extending the period within which the application can be made. Thus, the grounds are not delay "of itself" but involve the exercise of discretion in considering the whole circumstances of the case.

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5.(iv) Inordinate and Inexcusable delay

The High Court also considered the law relating to inordinate and inexcusable delay. Reference was made to Rainsford v. Limerick Corporation set out therein by Finlay P. This, and other cases referred to, relate to the effect of delay on the prosecution of claims. This was described by Henchy J. in 0 'Domhnaill v. Merrick [1884] I.R. 151,at p. 157, as:

"Whether delay should be treated as barring the prosecution of a claim must inevitably depend on the particular circumstances of a case. However, where, as in this case, the delay has been inordinate and inexcusable, such delay is not likely to be overlooked unless there are countervailing circumstances, such as conduct akin to acquiescence on the part of the defendant, or inability on the part of an infant plaintiff to control or terminate the delay of his or her agent. In all cases the problem of the court would seem to be to strike a balance between a plaintiff's need to carry on his or her delayed claim against a defendant and the defendant's basic right not to be subjected to a claim which he or she could not reasonably be expected to defend."

McCracken J. analysed the circumstances of this case and determined that the delay was inordinate and inexcusable, that the balance of justice was against allowing the application to continue. He dismissed the proceedings because of the delay, the element of blameworthiness of the applicant and the possible prejudice to the respondents. I would affirm these findings and determination.
The time element in judicial review proceedings requires early application to court by an applicant. This is indicated by the requirement that the application be made promptly, and in any event within three or six months from when the grounds for application arose, unless there is good reason to extend the period within which the application shall be made. This is a shorter time span than the time required in other proceedings, for example a plenary summons. Time is more of the essence, more urgent, in judicial review proceedings. Indeed in some areas of judicial review, by statutory requirement, an application must be made

-17-

within weeks. Thus, the case law relating to dismissing proceedings for lack of prosecution has some, but not great, relevance to applications for judicial review. Such cases may be helpful in analysing the reason for delay to see if it is a good reason and to achieve a just decision.
In this case, it is clear that, from both the judicial review aspect and from the point of view of other proceedings, delay defeats the applicant. These proceedings have perhaps strayed somewhat outside the judicial review application but in so doing have brought clarity to the applicant's overall situation.

6. Conclusion

For the reasons stated I would dismiss the appeal and affirm the judgment and order of the High Court.

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 and 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

[Page 2]

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 19(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

[Page 3]

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 centered, 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

[Page 4]

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 tUachtaran 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] IR 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

[Page5]

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] ILRM. 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.

[Page 6]

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 physica1ly. 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

[Page 7]

country, except that it was before December 1987, the time when t11e 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 Dáil. 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 dishonorable discharge from the Army he retreated into himself.

[Page 8]

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:

[Page 9]

"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."

[Page 10]

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] IR 181, at page 196, Henchy J approved the following passage from the judgment of Lord Denning M. R. In R v Herrod [1976] QB 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

[Page 11]

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 0. 84r.21 is on the plaintiff) that there are reasons which both explain the delay

and afford a justifiable excuse/or 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

[Page 12]

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] IR 258 ('Kelly') and The State (Vozza) -v- O Floinn [1952] IR 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

[Page 13]

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

[Page 14]

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 MR. 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 KB 33. At p. 43 of the report, the Master of the Rolls is recorded as saying:-

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"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:-

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"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'Dalaigh J ., that the defects, if any, in the applicant's affidavit were not such as to disentitle 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.

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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

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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] IR 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

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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.