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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> McGrath v. Minister for Justice & Ors [2003] IESC 29 (2 May 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/29.html
Cite as: [2003] 1 IR 622, [2003] IESC 29

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THE SUPREME COURT

Record No. 310/00

Murray, J.

McGuinness, J.

Hardiman, J.

BETWEEN

HUBERT PATRICK McGRATH

RESPONDENT/PLAINTIFF

and

THE MINISTER FOR JUSTICE, IRELAND AND THE

ATTORNEY GENERAL

APPELLANTS/DEFENDANTS

Judgment of Murray, J. delivered on the 2^nd day of May, 2003 [Nem Diss].

This is an appeal from the decision and judgment of the High Court delivered on the 9^th day of November, 2000 in which the Plaintiff/Respondent (hereafter the Respondent) was awarded damages against the Defendants/Appellants (hereafter the Appellants) consequent upon a finding of the High Court that a suspension of the Respondent by the Garda Commissioner from duties as a member of the Garda Siochana had become, at a certain point of time, unlawful because the suspension had been negligently prolonged beyond a period that would have have been reasonable. The Respondent had been initially suspended from his duties as a member of the Garda Siochana pending a disciplinary enquiry on the 15^th December, 1987. This suspension was followed by a series of events including various legal proceedings, which I refer to in more detail below, which culminated in the formal termination of his suspension on the 28^th January, 1993. The learned High Court judge found that the Appellants were in breach of a duty owed to the Respondent to deal with all matters relating to a disciplinary enquiry concerning the Respondent in an expeditious manner. He held that if they had acted expeditiously his suspension would have been brought to an end at the latest November, 1988. They were negligent in not doing so. As a consequence he awarded the Respondent damages comprising £12,199.04 special damages representing his actual financial loss and £40,000 damages for "distress, anxiety and the general disruption of his enjoyment of life" during the suspension period subsequent to November, 1988.

Background facts

The facts and circumstances preceding and leading up the present proceedings have a relatively long history. They include previous litigation between the Respondent and the Appellants in which the Respondent challenged, successfully, the procedures followed by the garda authorities for the purpose of holding a disciplinary enquiry concerning certain matters in which the conduct of the Respondent was impugned. These matters are referred to in the judgment of the learned High Court Judge and I summarise them as follows: -

In 1987 the Plaintiff was accused of criminal embezzlement, namely, that as a member of An Garda Siochana he had received monies paid to him but failed to account for those monies to his authorities. In this connection he was suspended from duty on the 15^th December, 1987. He was charged with criminal offences arising from the aforesaid allegations and returned for trial to the Circuit Criminal Court. He was found not guilty by a jury in May, 1988. At all material times during the period of his suspension he was paid a suspension allowance which was equivalent to two thirds of his basic pay in lieu of pay.

After the criminal proceedings had concluded the Commissioner of An Garda Siochana initiated the holding of a disciplinary enquiry pursuant to the Garda Siochana (Disciplinary) Regulations1971. This enquiry was concerned with the alleged misconduct on the part of the Respondent which related to the matter in respect of which he had been acquitted by the jury. The Plaintiff successfully applied to the High Court for an order of prohibition prohibiting the holding of this enquiry. In a judgment dated the 11^th September, 1989 Mr Justice Lynch made an order prohibiting the holding of an enquiry into certain alleged breaches of discipline on the grounds that it was not open to the enquiry to investigate charges of corruption or improper practice insofar as such charges constituted allegations of corruption or dishonesty in respect of which he had been acquitted by a verdict of the jury in the criminal proceedings. Lynch J. did however hold that the garda authorities were entitled to hold an enquiry into three charges dealing with the Applicant's failure to account for sums of money received in the course of his duty, provided that the breach of discipline alleged was confined to a charge of merely improper rather than corrupt practice. The High Court decision was appealed and subsequently affirmed by the Supreme Court on the 17^th July, 1990.

At the conclusion of these particular proceedings the holding of an enquiry along the lines envisaged by the order of Mr Justice Lynch was proceeded with. However, a further application for prohibition by way of judicial review was successfully made by the Applicant to the High Court. The basis for this complaint was that the duly appointed investigating officer who was carrying out the investigation into the alleged breaches of conduct on the part of the Respondent availed of and relied on statements which had originally been taken in the course of the criminal investigation which led to the prosecution in the Circuit Court. Mr Justice Lardner held that "The decisions taken by the appointing officer and the Commissioner to proceed with the enquiry seem to have been taken when they had charges before them which were too wide and material which related to a far wider scope than merely improper practices than failure to account, so that a decision at each point was taken on material which was inappropriate and wrong." Having made the order for prohibition, Mr Justice Lardner indicated that "If it is decided to proceed anew, I think the safest thing [is] for an investigating officer to be appointed and conduct an investigation limited to the allegations of improper practice and [he] should take whatever decision he decides at the end of that and for the Commissioner then to make a fresh decision. Anything short of that would be liable to run into difficulties which may not be apparent today." This decision, was delivered on the 22^nd February, 1991 and was not appealed.

The Garda Siochana (Discipline) Regulations 1989 came into force on the 1^st June, 1989 replacing the 1971 Regulations which were revoked.

Subsequent to the decision of Mr Justice Lardner the Garda Authorities formally decided to discontinue the disciplinary proceedings which had been the subject of litigation before him and to institute a new disciplinary investigation. A new appointing officer and investigating officer were appointed and the matter proceeded in accordance with the 1989 regulations.

On the 31^st July, 1991 the Respondent again initiated proceedings seeking orders of certiorari and prohibition by way of judicial review in respect of the newly initiated disciplinary investigation. In these proceedings the validity of the Plaintiffs suspension from the Garda Siochána pending the enquiry was challenged for the first time. By order dated 8^th May, 1992 Mr Justice Francis Murphy refused the Respondent's application on all grounds and allowed the cause shown. I should add that the learned High Court judge erroneously referred to Mr Justice Murphy as having granted to the Plaintiff an order of prohibition but nothing turns on this since this court on appeal did grant such an order. The decision of Murphy J having been appealed to the Supreme Court, Finlay C.J., delivering the judgment of the court on the appeal, held that it would quite unfair for the Commissioner to be permitted "now in the light of the decision of this Court" to proceed with the existing disciplinary proceedings and moreover prohibited the institution of any further proceedings in any form in respect of the events asserting that the Plaintiff was in breach of the disciplinary code. This judgment was delivered on the 26^th January, 1993.

Following that Supreme Court decision an order was made on 28^th January, 1993 by the Garda authorities terminating the Plaintiff's suspension. On the 2^nd April, 1993 the Respondent was paid the sum of £13,505.68 as being the amount which represented one third of his pay which had not been paid during the period of suspension.

The Respondents suspension from duty:

On the facts found by the High Court in these proceedings the Respondent was first suspended from duty on the 15^th December, 1987 pending the determination of the criminal charges which had been brought against him. His suspension continued until 28^th day of January, 1993 when it was terminated following the decision of the Supreme Court on 26^th January, 1993. His suspension during that period consisted of a large number of suspension orders pursuant to the Garda Siochana (Discipline) Regulations 1971 and the Garda Siochana (Discipline) Regulations 1989, each of which was effective for a period of three months. For the purpose of these proceedings the suspensory periods were treated by the parties as one continuum. Subsequent to the termination of the criminal proceedings against the Respondent, the suspension orders were at all times made pending the completion of an investigation and/or enquiry pursuant to the aforesaid regulations. There is no issue in these proceedings concerning the power as such, of the relevant authorities to suspend the Respondent from duty pending the completion of such disciplinary proceedings the point being that the suspension became unlawful at a certain point (December, 1988) as found by the learned High Court Judge by virtue of a wrongful and negligent delay on the part of the Appellants in the completion of such investigations and enquiries.

During the period of his suspensions the Respondent was paid a suspension allowance equivalent to two thirds of his basic pay as a member of the Garda Siochana. On the termination of his suspension he was paid a lump sum equivalent to one third of that pay during the entire suspension periods.

Since nothing turns in this appeal on an interpretation of the relevant garda regulations I do not consider it necessary to set out any of their provisions. Suffice it to say that where it is considered that a member of the gardaí may have committed a breach of discipline they provide for the appointment of an Investigating Officer by an officer not below the rank of Chief Superintendent (the Appointing Officer). Upon completion of the investigation the Investigating Officer sends a report to the Appointing Officer. Subsequently the Appointing Officer sends all relevant documentation to the Garda Commissioner who shall cause an enquiry to be held into the breach of discipline alleged, unless he decides not to continue the proceedings.

See Article 6 to 13 of the 1971 regulations.

Pleadings:

The Plaintiffs Statement of claim, as delivered on 8^th July, 1996, confined the Plaintiffs claim to an allegation of wrongful suspension from his duties as a member of the Garda Siochana on the 15^th December, 1987. The prayer in the statement of claim was confined to damages and other relief arising from that single allegation of wrongful suspension from duty. The transcript of the opening submissions before the High Court discloses that the learned High Court Judge expressed a view that a claim based simply on wrongful suspension is not a cause of action. In any event arising from submissions and discussions with the parties, the learned High Court Judge permitted the Respondent to serve, on the day of the hearing, an amended statement of claim adding a claim for damages for negligence, breach of duty, breach of statutory duty. The amended statement of claim served contained the additional paragraph that the suspension of the Respondent "became unjustified and unlawful immediately subsequent to his acquittal of certain criminal charges in or about the month of May, 1988". The prayer of the statement of claim then included an additional claim for damages for negligence, breach of duty and breach of statutory duty including breach of fair procedures and misfeasance of public office whereby the Plaintiff had suffered loss, damage, financial stringency and general distress. The damages, apart from general damages, concerned claims for premium payment or what might generally be called overtime, at night, weekends and public holidays plus a claim for interest for the delayed payment of these amounts and one-third of his basic pay. In addition there was a claim for damages related to a lost opportunity to purchase a house which the Respondent contended he could have purchased if he had been earning his full remuneration. This particular claim was dismissed as a head of damage by the learned High Court judge whose finding has not been appealed and need be of no further concern.

The amended defence filed by the Appellants in response to the amended statement of claim apart from asserting that the Garda Commissioner had at all times acted lawfully and within the bounds of his discretion, and pleading the usual traverses, included a plea that the Respondent's challenge to the suspension orders was statute barred pursuant to the provision of section 11 of the Statute of Limitations Act 1957.

Although the amended statement of claim contained a reference to misfeasance of public office this does not appear to been pursued before the High Court and in any event is not an issue in this appeal. Neither was there any evidence or material before the learned High Court judge to support such a contention. There was a legal issue argued between the parties as to whether the learned High Court judge was correct in permitting the Respondent to amend his statement of claim to include the claim for damages plus a claim for general damages grounded on the cause of action of negligence on the part of the Appellants. The Appellants have appealed against the High Court ruling permitting the delivery of an amended statement of claim.

Judgment of the High Court

The learned High Court judge concluded that the Plaintiff was entitled to damages by reason of "the established negligence of the Defendant". He held that the Plaintiff's suspension had become unlawful by reason of lapse of time brought about entirely by reason of the default on the part of the Appellants. The negligence he found arose from "… a failure on the part of the Commissioner or those to whom he had delegated the function of performing the appropriate duties, to carry out these duties with reasonable care." These failures took the form of (a) attempting to investigate matters which had already been the subject matter of a jury's enquiry (Mr Justice Lynch's case) (b) using statements for the purpose of the enquiry which were taken for the purpose of criminal prosecution (Mr Justice Lardner's case) and (c) seeking to conduct the enquiry and reliance upon the incorrect regulations (Mr Justice Murphy's case). This conduct, he held, constituted negligence. In coming to the conclusions which he did, the learned High Court Judge held that the enquiry pursuant to the 1971 Garda Regulations concerning the alleged misconduct on the part of the Respondent should have been conducted within a reasonable time of the conclusion of the criminal trial in May 1988. He held that if an enquiry had been conducted without the legal frailties which gave rise to the various sets of proceedings, it would have been concluded within three to six months of the trial. He therefore held that the enquiry proceeding should have been completed by in or about the month of December, 1988 and that any delay after that period was unreasonable as a consequence of which the suspension of the Respondent for any period after that date was invalid.

In finding for the Respondent on the foregoing basis, the learned High Court Judge relied on the decision of this court in Flynn –v- An Post [1987] I.R. 68 concerning the invalidity of a suspension of an employee pending an investigation of his conduct which had been prolonged for an unreasonable period of time.

He rejected the plea by the Appellants that the Plaintiff's claim was barred by the Statute of Limitations Act because the suspension having become allegedly unlawful in December, 1988 the Respondent ought to have commenced within six years of that date namely December, 1994 rather than January, 1996. In rejecting this submission the learned High Court held that it was only on the delivery of the last Supreme Court judgment in January, 1993 that the Respondent "knew that the procedures being adopted by the Defendants were improper and would be prohibited by the Courts. His cause of action in my view for a claim based upon an unlawful suspension irrespective of its merits can only have arisen when, in spite of the Defendants assertions to the contrary, the procedures were found to be flawed." Accordingly, he held the proceedings had been issued within the limitation period. He also ruled that he was entitled to permit the Respondent to amend his statement of claim, in the manner previously referred to, because it did no more than make clear the nature of the Plaintiff's complaint and no possible prejudice could result to the Appellants.

Having found that the Appellants were negligent, he found that the Respondent was entitled to be compensated for the overtime or premium time which he would have worked but for the period of invalid suspension and awarded damages, with the interest which has been lost by reason of the late payment of £12,198.04 having allowed for income tax payable. (Without admitting liability in these proceedings the Appellants conceded payment of interest related to one third of the Respondent's salary which was unpaid during the suspension period but paid on the termination of the suspension). In addition he awarded a sum of £40,000 damages for stress and anxiety and the general disruption of the enjoyment of life of the Respondent over the four year period during which he was invalidly suspended.

Issues in this Appeal

For the Appellants it was argued that the facts of the case and the evidence before the High Court did not disclose any basis upon which the learned High Court Judge could find that the Appellants were negligent. No consideration had been given to the issue of the duty of care and in particular the standard of care by which the conduct of the Appellants should be judged. In effect the learned High Court judge treated the fact that the Appellants had been made the subject of prohibition orders in the previous proceedings as constituting negligence and treated the case virtually as an assessment only. There were also other matters raised at this stage in the submissions of the Appellant concerning the nature, if any, of the duty owed by the Appellants to the Respondent, the nature of any cause of action, if any, which he had in respect of the events which occurred in relation to his disciplinary proceedings and what, if any, reliefs he was entitled to. I will refer to these again later.

The Appellants also contended that the claim of the Respondent grounded upon his alleged wrongful suspension was, in its own terms, statute barred. The Appellants also put in issue the decision of the learned trial judge to permit an amendment of the pleadings on the morning of the hearing and in effect, permit the Respondent to plead a new cause of action. Finally, it was argued that the failure of the Respondent to challenge the validity of the suspension orders in the previous judicial review proceedings which he had brought disentitled him to rely on any alleged invalidity of the suspension orders in these proceedings. In the judicial review proceedings last in time before Mr Justice Murphy and subsequently the Supreme Court the validity of the suspension orders at that time although challenged, were upheld.

Counsel for the Respondent submitted that the High Court was entitled on the facts, and as a matter of law, to find that the Appellants were negligent and liable to the Respondent in damages. The learned High Court Judge was entitled to do so on the basis of the decision of this Court in Flynn –v- An Post [1987] I.R. 69.

As regards the statute of limitations, Counsel submitted that the suspension of the Respondent was a continuing breach of his rights which continued until it was finally lifted in January 1993 which was the date upon which time began to run. He also relied on the reasoning of the learned High Court Judge that the Respondent could not have been aware of his right of action until the decision of the Supreme Court in January, 1993. Since the proceedings were commenced in 1996 they were issued within the statutory limitation period. As regard the contention that the Respondent did not have a cause of action for wrongful suspension it was submitted that this constituted a tort as well as a breach of contract and also a wrong in breach of Article 40(3)(2) of the Constitution. So far as the failure of the Respondent to challenge the validity of his suspension in previous actions except one where the validity was upheld, it was submitted that the Appellants did not rely on such a ground in their defence as filed and that neither estoppel nor res judicata had been pleaded.

Before coming to the substantive issue in the appeal from the judgement of the learned High Court Judge I would as a preliminary observation note that in the statement of claim first delivered by the Respondent, the cause of action pleaded was confined to alleging wrongful suspension of the Respondent as a member of the gardaí on 15^th day of December, 1987. The relief sought was damages for wrongful suspension and the taking of appropriate accounts and enquiries as to monies due to him. After the learned High Court judge had called in question whether wrongful suspension as such was or was not a cause of action and accorded liberty to the Respondent to amend his pleadings, the only amendment to the statement of his claim was the insertion of an additional paragraph that the Respondents suspension became unjustified immediately subsequent to his acquittal of certain criminal charges in May, 1988. Leaving aside that this remained in conflict with paragraph 2 of the statement of claim that the Plaintiff was wrongfully suspended on the 15^th December, 1987, no allegation of fact, other that of acquittal on a criminal charge, or other matter is pleaded to show the grounds relied upon to disclose the nature of the wrong or infringement of the rights alleged to have been sustained by the Respondent nor otherwise to plead a distinct cause of action as required by Order 20 , rule 8 of the Rules of the Superior Courts. It is not alleged in the body of the statement of claim for example that the Appellants were negligent let alone negligent in the carrying out of some act. It is not alleged that they had a particular duty of care and were in breach of that duty. It is only when the reliefs sought are mentioned that one finds that the damages are claimed for negligence, breach of duty etc. One could say more about the manner in which this case was pleaded both in its original and amended form but I do not intend to dwell on the point. However, one of the consequences of the rather fluid way in which the pleadings were framed seems to me that fundamental issues as the nature and scope of any duty which might be owed by the Appellants to the Respondents in the circumstances and also the nature of the remedies available to the Respondent were not argued in the High Court and not adequately addressed in argument before this court.

In the circumstances I do not consider either appropriate nor indeed necessary to address those issues. I propose instead to deal with the issue that arises directly from the basis on which the learned High Court judge decided the case namely that of the negligence of the Appellants. This finding was in turn premised on a finding that the Respondent's suspension was rendered invalid by reason of a lapse of time or delay in the completion of the enquiry.

There is no cross-appeal from the grounds upon which the High Court decided this case

Decision

In reaching his conclusion that the Appellants were negligent, the learned High Court Judge laid great emphasis on the decision of this court in Flynn –v- An Post [1987] I.R. 89 and he stated that he could see "… no distinction between the basis upon which Flynn –v- An Post was decided and the present case". With this I respectfully disagree.

I consider it necessary to examine the judgment in that case in detail. In the Flynn case the Plaintiff was an employee of An Post and was suspended from his duties on the 9^th May, 1984 on suspicion of having, among other things, stolen letters or packages in the course of post. He was informed of the reasons for his suspension and afforded an opportunity to explain his alleged misconduct. From the outset in that case the Plaintiff, through his solicitor, sought to have the disciplinary investigation and enquiry dealt with promptly or his suspension lifted. On the 17^th July, 1984 he instituted proceedings seeking, inter alia, a declaration that his suspension was void on the grounds that the person who suspended him did not have lawful authority to do so and that the suspension was contrary to natural justice. The first point arose because the suspension of the Plaintiff in that case was governed by statutory regulation which applied to the position of persons who had the status of an established civil servant prior to the operation of the national postal service being transferred from the Minister for Posts and Telegraphs to the Defendant's company.

The Plaintiff failed on that point and it is not relevant for present purposes.

On the 19^th July, 1984 the Plaintiff was charged with offences relating to interference with mail. Subsequently, in November, 1985, the Plaintiff was tried on indictment and was acquitted on all counts by the jury. Following that acquittal representations were again made to have the Plaintiff's enquiry proceed promptly. An Post declined to do this pending the completion of the disciplinary process which it decided should not proceed until the pending High Court proceedings had been disposed of. By the time the matter came on for hearing in the High Court the Plaintiff's suspension without pay had endured for quite a long time and a further issue arose between the parties as to whether the suspension of the Plaintiff without pay over such a long period of time was so unreasonable as to render the suspension invalid.

Although Henchy, J. delivered a dissenting judgment, he succinctly summed up the basis on which the Plaintiff's case was made when he stated "It was accepted by An Post in the High Court and in this court that the suspension without pay of the Plaintiff carried with it a duty of An Post, to hold, within a reasonable time, an enquiry leading to either dismissal or the raising of the suspension." He then went on to refer to the basic premise of the Plaintiff's argument "… that the fundamental requirements of Justice meant that that the uncertainty and hardship of suspension without pay be brought to a conclusion one way or another as soon as reasonably practicable."

In short, therefore, the particular circumstances of the Flynn case comprised the agreed position of An Post that they owed a duty to the Plaintiff to proceed with the disciplinary procedures in circumstances where he was suspended without pay and undergoing substantial hardship as a result and where the Plaintiff himself was actively pressing for the disciplinary matters to proceed to a conclusion notwithstanding any other considerations.

McCarthy J., who delivered the majority judgment, emphasised the hardship aspect of the case at the outset of his judgment in stating (at p. 79) "Over 2 ½ years later [after initial suspension] he remains suspended from duty, although still employed by the Respondent, and has lived on social welfare benefit and a distress fund organised by his Trade Union"

In expressing his conclusion on this issue he stated (at p. 80) "… I am satisfied that as of the date upon which the Defendant would have been ready to proceed with the formal investigation, early in August, 1984, the suspension of the Plaintiff ceased to be valid and remains invalid …. My conclusion is no more than that, in the particular circumstances of the case, the suspension, which is intended to be, as it ought to be of short duration pending a more detailed investigation and final decision, became invalid by the passage of time."

I have added the emphasis to the above citation because the particular facts and circumstances were central to his reasoning. In the course of his reasoning, McCarthy J again referred to the "… time he would remain suspended, without pay, and effectively barred from other employment" and he concluded his reasoning by stating that "… to suspend without pay any employee of the company for a period of 18 months does not appear to me to be … permissible within the constitutional framework."

There is another particular circumstance of the Flynn case to which McCarthy J referred to, namely, that the Plaintiff in that case had from the very outset pressed his employers to proceed with the disciplinary procedures in order to bring the matter to a final conclusion, one way or the other, notwithstanding that criminal and civil proceedings were pending. This was a position he maintained throughout. The Defendants for their part had defended the initial delay on the grounds that proceeding with the disciplinary investigation and enquiry could prejudice the Plaintiff's pending criminal trial and in particular his right to silence. In rejecting this defence McCarthy J. stated "Without expressing any view as to the nature of an alleged right to silence, in my judgment, if an Accused in criminal proceedings wishes to embark upon a course which may damage him in the manner suggested, it is no function of his employer, who is not the prosecutor … to protect him from the consequences of such a course. There may be circumstances in which it would be proper to postpone an investigation pending a criminal trial; I am unable to prescribe them in a case where an employee is suspended without pay and wants the investigation to proceed; …" He went on to emphasise that the Plaintiff at all times "took every step open to him, …to bring matters to a head; …" Thus, faced with the demand of the employee that the disciplinary procedures be brought to a head, there was no reason why the employers should not have proceeded with their investigations and enquiry in the ordinary way yet they had refused to do so for over a period of two and a half years while the employee suffered hardship being without pay, relying on welfare benefits and his trade union distress fund. It seems to me clear that it was these circumstances of that case which led the court to conclude that such a prolonged period of suspension was not one "permissible within the constitutional framework". It was not decided on the basis of negligence.

It is clear from the judgment of McCarthy J. that what the court found to be offensive, so to speak, in law, was the arbitrary and wanton conduct of the Defendants in refusing and failing to proceed with the completion of the investigation and enquiry where, on the one hand, there was no obstacle to or justification for not doing so and, on the other hand, where the Plaintiff had been suspended without any pay so as to give rise to severe hardship.

The circumstances of the present case are entirely different but before going onto explain why I consider this to be so I think I should refer to other questions dealt with by McCarthy J. in his judgment albeit it by obiter dicta having already concluded that the suspension ceased to be valid in August, 1984. McCarthy J did not consider it strictly necessary to consider whether the Defendants defence of subsequent delays was justified. However, in deference to the findings of the learned High Court judge, McCarthy J addressed this issue. The Defendants defended the delay subsequent to the acquittal of the Plaintiff in the criminal trial on the grounds that they felt that they could not proceed with the disciplinary investigation while the Plaintiff's High Court action was pending. McCarthy J. analysed the nature of the issues in that action and concluded that they were entirely of a declaratory nature and that there was nothing to be resolved in those proceedings which would have prohibited the Defendants from proceeding with the disciplinary matters to a final conclusion which either cleared the Defendant of the disciplinary charges or resulted in his dismissal. As regards the completion of the disciplinary proceedings against the Plaintiff, McCarthy J. declared that it mattered not "… whether or not the Plaintiff wins this action in respect of any of the different forms of relief claimed."

In the present case the prolonged suspension of the Appellant from his duties did not result in the severe degree of hardship which existed in the Flynn case. The Plaintiff was paid regularly an amount equivalent to two thirds of his pay as a garda member during the period of his suspension and it was also indicated in the course of the hearing that he was entitled to undertake part-time work compatible with his status as a member of the garda siochána, although I do not regard this latter consideration of great significance. That is not to say that the garda authorities would be entitled to maliciously, arbitrarily or wantonly delay the holding of an enquiry so as to prolong a suspension. That was not the position in this case. Although one may assume that a reduction in pay imposed a burden on the Plaintiff the degree of hardship which existed in the Flynn case is not present when considering whether in all the circumstances the delay was so unconscionable as to render the suspension invalid.

What is more important in this case is the circumstances in which the delay in holding the enquiry, and thus the prolongation of the period of suspension, occurred.

The Garda Siochána is a public authority with policing powers and charged, inter alia, with the enforcement of the law and maintenance of public peace and order. It is entirely consistent with that role and the public interest, that the Garda Commissioner has power to suspend from duty a member of a force with such important public duties pending the completion of any enquiry on serious disciplinary charges against such a member should the Commissioner, in his discretion, consider it in the best interests of the force to do so. None of this has been put in issue in these proceedings. Indeed it seems to me it would be very much contrary to the public interest if a member of the Garda Siochána were permitted to carry out his policing duties when there were reasonable grounds for conducting an investigation or an enquiry into disciplinary matters which could call in question his integrity.

Unlike the Flynn case it is not the Respondent's case that the Garda Commissioner should have proceeded with the enquiry to its conclusion notwithstanding the initial criminal proceedings or the subsequent civil proceedings. On the contrary, and again unlike the Flynn case, he sought and obtained and order of prohibition prohibiting the enquiry on each occasion from proceeding. This is not to suggest in any sense that the Respondent was responsible for the delay. That is not the issue, since delay as such is not the issue. What was in issue in the Flynn case was the nature of the conduct which led to the delay, namely, the failure and refusal of the employer to proceed with an enquiry in circumstances where the employee who, in the meantime was in a forced state of hardship, had demanded it's completion. In this case the conduct of the Appellants was quite different and related to entirely different circumstances. In the first two actions both Lynch J. and Lardner J. indicated that an enquiry could proceed. In the third action, Murphy J. upheld the holding of an enquiry and it was only when this court gave its decision in the appeal from Murphy J. that it was held a further enquiry could not proceed. At no stage did the Respondents arbitrarily or wantonly refuse to proceed with an enquiry. No delay of this nature was alleged and there was none.

At all stages the Garda Commissioner was entitled to proceed with an enquiry concerning the disciplinary charges in question until the decision of this Court on the 26^th January, 1993 and it was following that decision that the Respondent's suspension was lifted. In my view while there was an enquiry pending or disciplinary proceedings in being the Garda Commissioner, or the officer duly delegated to exercise the power, was lawfully entitled to suspend the Respondent during any period in which disciplinary proceedings were being pursued. Certainly the conclusion or closure of the disciplinary proceedings against the Respondent had been delayed by litigation between the parties. However, this cannot be regarded as amounting to wanton delay on the part of the Respondents in the sense of a refusal proceed with an enquiry when there was no obstacle to doing so.

Accordingly the fact that an enquiry of the nature involved here has been delayed by reason of litigation between the parties does not mean that steps taken for the purpose of the enquiry or other ancillary measures such as suspension pending the completion of the enquiry are rendered unlawful or invalid by reason only of the fact that the party who initiated the enquiry is ultimately found to have erred in law. Moreover, in the Flynn case McCarthy J. was very careful to examine the nature of the issues in the civil proceedings which were pending in that case which permitted him to come to the conclusion, because of their purely declaratory nature, that there was no reason why the enquiry could not have proceeded without waiting for their outcome. Implicit in his judgment, which I think is the correct position in law, is that if the proceedings did involve issues which required to be resolved before an enquiry proceeded then the employers would have been justified in delaying the holding of the investigation or enquiry pending their outcome. In this case the Appellants, faced with proceedings seeking an order of prohibition, and there may well have been interim orders made, but even so, they were in my view perfectly justified in awaiting their outcome before proceeding in each case.

In my view the decision of this Court in Flynn –v- An Post is not applicable to the circumstances of this case. It is not, in my view the law that where the holding of a disciplinary enquiry is delayed by judicial review proceedings seeking to prohibit the enquiry taking place that that alone renders unlawful a suspension pending the final determination of the enquiry. If an Applicant succeeds in the judicial review his remedy is that which is granted by order of the court. This case is somewhat unusual in the sense that there were three sets of judicial review proceedings but this does not in my view affect the position regarding the validity of the suspension of the Respondent while disciplinary proceedings were in being. I would recall that in the first two proceedings the validity of the suspension, as opposed to the holding of the enquiry was not challenged. In the third, the validity of the suspension was also challenged, for the first time, on a particular ground but this was rejected by both the High Court and this Court on appeal and the validity of the suspension was upheld. There are certainly grounds for considering whether this issue was, in those circumstances, res judicata. But since this point was not argued in the High Court I do not consider it appropriate in the circumstances of this case to address that issue.

For the foregoing reasons I conclude that the learned High Court judge was incorrect in his findings that the Appellants had acted in a manner or delayed the holding of the enquiry so as to render the suspension invalid.

Negligence

In his findings on negligence the learned High Court Judge referred to the "established negligence" of the Defendant by reason of certain conduct which he specified constituted the negligence namely:

(a) "attempting to investigate matters which had already being the subject matter of jury's inquiry (Mr Justice Lynch's case)"

(b) "using statements for the purposes of the inquiry which were taken for the purpose of the criminal prosecution, (Mr Justice Lardner's case)"

(c) "seeking to conducting the inquiry in reliance upon the incorrect regulations (Mr Justice Murphy's case)"

Although the Appellants in the course of this appeal questioned whether there was a duty of care owed by them to the Respondent of the nature alleged and in particular whether it gave rise to a cause of action in negligence, this issue was not raised in the pleadings or argued before the High Court. It received limited argument in this court and in these circumstances, I do not propose to address this issue in this case. In any event it is not, in my view, necessary to do so.

The learned High Court judge appears, on one view of his judgment at any rate, to have approached the issue of negligence on the essential premise that conduct which he considered to be negligent was the conduct which he found to have given rise to invalidity of the suspension from a certain date thus wrongfully causing the loss and distress of which the Respondent complains. Since I have already found that the Appellant's conduct was not such as to render the Respondent's suspension invalid at any stage, that would be a basis for allowing the Appellant's appeal on the issue of negligence.

The judgment of the learned High Court judge was an ex-tempore one and it may be open to the interpretation that his finding of negligence on the part of the Appellants was a separate and distinct finding. If that be so it is otherwise clear that his finding of negligence was grounded upon errors of law committed by the Appellants in the course of the conduct of the disciplinary proceedings.

Assuming, for the present purposes, that there was a duty of care, the Appellants are correct in their submission that there was no consideration given by the learned High Court judge as to the standard of care according to which the conduct of the Appellants should be assessed and what would constitute a breach of it.

The essential ingredients of the tort of negligence are the existence of a duty of care, lack of reasonable care in performing that duty and consequential damage. All the damage alleged to have been sustained by the Respondent is alleged to have resulted from the lengthy period for which he was suspended. That claim in turn is based on the premise that his suspension was wrongful and invalid from a certain point in time by reason of delay. Having held that the periods of suspension were at all times validly imposed pursuant to statutory regulation, I find it difficult to see how the period for which it endured can be considered to give rise to consequential damage arising from the length of time involved.

Furthermore in referring to "the established negligence of the Defendant" it is clear that the learned High Court Judge, in this case, proceeded on the basis that because the three errors of the Appellants in the conduct of the disciplinary proceedings, to which he referred, caused delay, and that this in itself constituted negligence. Mere causation is not enough. The onus was on the Respondent to establish a failure to exercise reasonable care by reference to a recognised duty. The Appellants were at all times exercising their functions under statutory regulation, and assuming again there was a duty of care, the rational test is whether the decision taken was one which no reasonable authority would have taken. (see Fennelly, J. in Glencar Exploration –v- Mayo County Council [No. 2] 2002 I.R. 84 at 155).

In this context no case was made by the Respondents in the High Court or in this court as to any act or default in the part of the Appellants other than the fact of all three failures referred to by the learned High Court judge in his judgment. All of those matters were the subject of judicial review proceedings. By succeeding in the judicial review proceedings the Respondent obtained his remedy. There was no other material before the court on which a finding of negligence could have been made.

The Appellants' three failures in the judicial review proceedings do not in themselves establish negligence. The Respondent relied, as indeed did the learned High Court judge, on Flynn –v- An Post, which, as I have held, does not apply to this case and was not concerned with negligence.

In my view the Respondent failed to establish any grounds upon which the Appellants could have been found negligent.

In the circumstances it is not necessary to deal with the issue concerning the amendment of the Statement of Claim or the application of Statute of Limitations Act 1957.

I would allow the appeal.

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