THE SUPREME COURT
[317/2011]
McKechnie J.
Clarke J.
Dunne J.
DONNA SFAR
APPLICANT/APPELLANT
AND
THE REVENUE COMMISSIONERS, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS/RESPONDENTS
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 16th day of March, 2016
1. Ms. Donna Sfar is a career civil servant and has been since leaving college in 1978 when she joined the Customs & Excise Section of the Revenue Commissioners. She has worked, at least for the past several years, as an Executive Officer in the VIMA (“VIES, Intrastat, Mutual Assistance”) Section based in Dundalk, Co. Louth. She holds a BA Degree and in 2006 obtained an LL.B. from a college based in London. She remains in the employment of that respondent.
2. The Revenue Commissioners are who they are and evidently are the employers of the appellant.
3. On the back of the law degree, Ms. Sfar decided to pursue a further qualification and was successful in obtaining a place on a distance education Bar Vocational Course (B.V.C.) in London with a private college named BPP. She first sought funding for this course in July, 2007, on the basis of a Circular which her employer had issued on the 14th September, 2004, and which is headed “Refund of Academic Fees Scheme” (Circular E.5907). The Revenue Commissioners, early on in what turned out to be a lengthy and voluminous exchange of inter partes correspondence, took the view, which they have ever since maintained, that she had not met the terms of the Circular, and accordingly declined to approve the funding request. Disagreeing with their interpretation and application of the Circular, the applicant ultimately instituted judicial review proceedings, from which the instant appeal arises.
4. On the 22nd March, 2010, Ms. Sfar obtained leave from the High Court (Peart J.) to issue these proceedings, in which she was given permission to seek the reliefs specified in para. (d) of the Statement grounding the Application, with the grounds therefor being those as set out in para. (e) of that statement. The reliefs sought included a number of Declarations, namely:-
“(i) that the applicant’s Bar Vocational Course was a “follow-on course” within the meaning of Circular E.5907 as it was designed to convert the applicant’s LL.B. into a professional qualification,
(ii) that the Bar Vocational Course was an Appendix A (sic) course within the meaning of the Circular,
(iii) that the Bar Vocational Course was not a post-graduate course, and
(iv) that the applicant had a legitimate expectation that a Bar Vocational Course qualified under the Circular.”
To support these Declarations, if any or all were granted, she also sought an Order of mandamus directing the respondents to reconsider her application in light of the Declarations prayed for. She moved the court on foot of a short affidavit sworn on the 8th February, 2010, and has represented herself at all stages throughout the entire process.
5. By the time the pleadings had been completed, the Revenue Commissioners had filed a replying affidavit and then a second affidavit in response to a further affidavit sworn by the applicant. This further affidavit of Ms. Sfar, filed in October, 2010, was striking for its content and length, running to over 70 pages and containing about 200 paragraphs. This is noteworthy in view of the non-disclosure finding made by the learned trial judge.
6. The application for judicial review was heard by MacMenamin J., who delivered a written judgment dated the 8th June, 2011, in which he dismissed all reliefs as claimed by the applicant. The conclusion which he reached was based on three major findings:-
(i) The existence of delay and associated material non-disclosure, together with a lack of candour in the information which she placed before the court when making the leave application;
(ii) That the respondents had at all times acted reasonably and had reasonably applied the Circular; and
(iii) That where the applicant had failed to comply with the terms of the Circular and where no clear identification of her legal complaint had been established, she had failed to meet any of the three criteria outlined by Fennelly J. in Glencar Exploration plc v. Mayo County Council [2002] 1 I.R., and thus she could not invoke the doctrine of legitimate expectation in the circumstances of her case.
7. In the Notice of Appeal dated the 28th July, 2011, the appellant questions the judgment of the High Court in a manner which can be summarised as follows:-
(i) Before she could hope to secure leave to institute judicial review proceedings, she was obliged to exhaust what she described as “alternative remedies”, which reached their end point only on the receipt by her of a letter of rejection from Mr. Joe Howley dated the 28th January, 2010. The learned judge had failed to appreciate this and his finding that January, 2009, was the cut off date was clearly erroneous both in fact and in law.
(ii) In any event, once leave is obtained without the court expressly reserving the issue of delay for further consideration at the substantive stage, that matter is at an end unless it is raised by the respondents, on whom the onus rests of establishing such delay as would disentitle an applicant to the relief claimed. This, in her view, the Revenue Commissioners did not and could not do.
(iii)The finding of lack of candour cannot be justified. Full disclosure is not always practical or efficient at the leave stage and an applicant should not be penalised for keeping matters simple in the full knowledge that both parties will have ample opportunity, as the case progresses, of fully outlining what their respective positions might be. Further, there was no evidence whatsoever that she had not acted in good faith.
(iv)The finding that the Revenue Commissioners had interpreted and applied the Circular in a reasonable way was contrary to the general principles of natural justice. Her sole aim in instituting these proceedings was to get the Revenue Commissioners “…to do its duty and make a proper determination”. That is one of the reasons why she never sought an Order of certiorari, with the other being that in any event all of the alleged decisions made by them were “nullities” and as such were not required to be quashed by court order.
(v) The learned judge was wrong in his treatment of the legitimate expectation point as her expectation of funding was at all times fuelled by the Revenue, and in particular by the terms of the Circular issued by them.
(vi)Finally, the appellant argued that the learned judge also failed to uphold and recognise the supremacy of EU law over national legislation (sic). Sanction of a fees refund was not withheld because of any breach by her of the Circular, but rather because the respondents were willing to discriminate against a non-national education provider: that is against the spirit of EU law. She added that this significant complaint of hers was unfortunately not even addressed by the learned judge in his judgment.
Submissions:
8. Of all the issues which were dealt with in the High Court and challenged in the Notice of Appeal, it is I think appropriate to deal first with the matter of delay and then, irrespective of the conclusion reached on that point, to also consider the issue of non-disclosure. Evidently, both matters are clearly associated with one another but in addition, given the personal imputation which a finding of lack of candour has for the individual in question, that issue should also be dealt with. In light of this approach, I will therefore for the moment address only the submissions on these points.
9. The appellant denies that there has been any inordinate delay in bringing her application, insisting that time should only commence as and from the date when the final decision was made, which in her case was that as communicated in Mr. Howley’s letter dated the 28th January, 2010. She relies on Finnerty v. Western Health Board (Unreported, High Court, 5th October, 1998; [1998] IEHC 143), Mulcreavy v. Minister for the Environment, Heritage and Local Government [2004] 1 IR 72, and Friends of the Curragh Environmental Limited v. An Bord Pleanála [2006] IEHC 243 in support of this proposition, and denies that any earlier threat by her to sue is in any way relevant to this issue.
10. She says that the main purpose of time limits is to prevent injustice and prejudice and as the respondents cannot establish that they have suffered either, her proceedings, in which she has made out a strong, arguable case, should be determined only on their merits. Reference was made to Michael Connors v. District Justice Sean Delap [1989] I.L.R.M. 93, Thomas White v. District Justice Gillian Hussey [1989] I.L.R.M. 109, and Garry Solan v Director of Public Prosecutions and District Justice Hubert Wine [1989] I.L.R.M. 491 in this context, but in particular she relies upon a statement by McCarthy J. in O’Flynn v. Mid Western Health Board [1991] 2 I.R. 223, where the learned judge said:-
“In principle it is right to relieve against delay in challenging an administrative decision where the delay has not prejudiced third parties.”
11. In her most detailed and impressive written submission, running to more than 20 pages, Ms. Sfar went into considerable detail on this issue and cites quite a number of other authorities. However, I do not think it necessary to travel quite that distance as I am satisfied that the summary above given does no injustice whatsoever to her overall position.
12. The respondents refer to Order 84 of the Rules of the Superior Courts (R.S.C.) and state that the period of delay in this case is well in excess of twelve months, in respect of which no explanation has been offered. Any application for a declaration or for an order of mandamus had to be made within three months from the date of the rejection by the Revenue Commissioners of Ms. Sfar’s application for a refund, which first occurred in March, 2008. In fact her threat to sue in her responding letter of the 19th April, 2008, confirms her understanding of the Revenue’s position at that time. She cannot simply keep the correspondence alive and then claim that each reply creates a new start date for the purpose of defending a delay application. In the circumstances, they say that the trial judge was perfectly entitled, and, more significantly, was correct in law, to dismiss her action on this ground.
Decision:
The Delay Point:
13. Order 84, rule 18 of the R.S.C., under the heading “Judicial Review”, insofar as relevant, reads as follows:-
These rules have in fact been altered by subsequent amendment, but such are not relevant to this case.
14. Order 84, rules 20 and 21 of the RSC are also material and provide as follows:-
“20.(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
(2) - (7) …
21. (1) 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.
(2) …
(3) …”
15. As can be seen, an application for an order of mandamus and/or for a declaration is made by way of an application for judicial review which must be moved “promptly” or in any event within three months from the date when grounds for the application first arose. The issue on this aspect of the instant appeal does not fall to be dealt with by reference to the requirement of ‘promptness’, but rather by reference to the three month period, which for its commencement depends on the existence of grounds in respect of which an application could first have been made. This is the critical date from the appellant’s point of view.
16. As is also apparent, O. 84, r. 21(1) of the RSC makes provision for extending the period within which such an application may be made: the court has power to do so for “good reason”. There has been much case law on what might satisfy this requirement, with the decision of Costello J. in O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 perhaps being still best regarded in this context. The relevant passage is to be found at p. 315 of the report, which was approved by the Supreme Court in Slattery’s Ltd v. Commissioner of Valuation [2001] 4 IR 91. However, that line of authority has not been invoked in this case. No application was made at the leave stage for such an order; incidentally, if it had been, and even if granted, this would still have left the issue open for further debate at the substantive hearing (O’Flynn v. Mid Western Health Board [1991] 2 I.R. 223, Solan v. D.P.P. [1989] I.L.R.M. 491). The reason behind the appellant’s approach in this regard is straight forward: it has always been her case that no such extension was required, as from her point of view the relevant date was the receipt by her of Mr. Howley’s letter dated the 28th January, 2010. Hence, according to this submission, the original leave application was made well within time.
Decision:
17. It should be observed at the outset that there is an inherent inconsistency in the appellant’s assessment of the underlying circumstances which has carried through into the manner in which she has framed these proceedings, and in particular the reliefs claimed. She has not at any point identified which decision(s) made by the Revenue were, in a legal sense, detrimental to her: hence a possible explanation for not seeking an order of certiorari. Yet on the other hand, she says, in her Notice of Appeal, that each decision made is in fact a nullity and, as such, no declaration to that effect or as to their invalidity is required. That, of course, is not the law. However, and notwithstanding what infirmities may exist in the appellant’s submissions, I believe that the delay issue should be considered in the context of what, ex facie, is prayed for, namely a series of declarations and an order of mandamus. It is on such basis that I propose to determine this aspect of the appeal.
18. A short passage from the decision of Fennelly J. in De Róiste v. Minister for Defence [2001] 1 IR 190 demonstrates the general necessity for expedition in moving a judicial review application. At p. 221 of the report the learned judge said:-
“The complaint made by the applicant is one which, if established in a timely fashion, would (if not successfully controverted to 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 otherwise, to explain his delay and show that the delay was justified. In the nature of things, a short delay might require only a slight explanation. The judicial review time limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of judicial review application.”
In effect, the timely pursuit of a remedy is an indispensable requirement when engaging in this type of public law proceeding.
19. Having said that, however, it is worth picking up on a point made in that judgment which is sometimes overlooked. It is that the time limits so specified in the Rules of Court cannot be regarded as limitation periods, or their equivalent, properly so called: their purpose and characteristics are quite unlike those which support limitation periods, even without a saver provision, which are frequently imposed in a statutory context. See O’Driscoll v. Law Society of Ireland [2007] IEHC 352.
20. It is unnecessary, in my view, to discuss at any length the legal nature of declarations, their origin or equitable features, when and how they developed, or the manner by which they moved from being private law remedies into the sphere of public law remedies. It is sufficient to note that the date on which time commences for seeking such an order will depend on the circumstances of any given case (Collins & O’Reilly, Civil Proceedings and the State (2nd Ed.) 131). In the instant case, I am satisfied that such date is the same date as that which applies when seeking an order of mandamus. The reasons are as follows.
21. The court has power to issue an order of mandamus in all cases where it is “just or convenient” to do so (s. 28(8) of the Supreme Court of Judicature (Ireland) Act 1877). The following extract from para. 16-22 of Hogan & Morgan, Administrative Law in Ireland, 4th Ed. (Dublin, 2010) is instructive as to when the right to seek such an order can be asserted; the authors say:-
“Any applicant for mandamus must first call on the administrative body concerned to do its duty, and this must have been refused, although there is nowadays some room for doubt whether this “formulistic approach” would be adopted in every case. The requirement that there be “a demand and refusal” has much to commend it: it makes sense that the administrative body concerned be given the chance to mend its hand before the aggrieved citizen resorts to litigation. But the courts do not insist upon this requirement where it is unsuitable or where the refusal can be inferred from the circumstances”.
I respectfully adopt this passage as representing a correct statement of the law in this jurisdiction. Accordingly, for the purposes of the time limit referred to, in O. 84, r. 21 of the RSC, I propose to adopt the “demand and refusal” approach as referred to. The question therefore on the current issue is to determine when such a refusal first occurred.
22. As appears from the correspondence, which must be reviewed at some length for this purpose, a number of issues were repeatedly contested by the parties throughout a period of over eighteen months from July, 2007, and thereafter occasionally continued, albeit with less frequency. These issues arose in the context of Circular E.5907, and the different views taken by Ms. Sfar, on the one hand, and the Revenue Commissioners, on the other, as to the meaning and application of various terms therein set out.
The Circular:
23. Confining myself to what is essential for this appeal, the following sections of the Circular become material: those covering “Qualifying Courses”, “Qualifying Conditions for Applicants”, “Follow-on Courses” and “Application Guidelines”. Under each of these headings the following should be noted:-
Section A of the Circular:
“(C) Qualifying Courses
• General Principles:
In order to be considered a qualifying course for the purposes of the scheme, courses must be
(a) Accepted by the Commissioners as relevant to the work of the organisation;
(b) …
(c) …
(d) …
• Courses accepted as relevant to employment:
For the purposes of (a) above, the courses set out in Appendix 1 are accepted as relevant to employment in Revenue and the civil service generally.
• Other Courses:
Courses not included in Appendix 1 will be considered for inclusion in the scheme on a case-by-case basis. Such applications must have the approval of the applicant’s Assistant Secretary before it can be considered by Training Branch.
All applications for postgraduate courses must also have the approval of the applicant’s Assistant Secretary. Following consideration by Training Branch such applications are forwarded by Training Branch to the Assistant Secretary, Human Resources Division for decision. If approved, the maximum refund payable is limited to a maximum of 50% of the fees paid.
(E) Qualifying Conditions for Applicants:
...
(F) Refund of Academic Fees will only be granted where:
(N) Application Guidelines:
Applications
(a) To be eligible for approval for refund of academic fees an officer must obtain prior sanction from Training Branch for the proposed course. …
(b) Initial application for refund of academic fees must be made on Form RF 1. Approval for second or subsequent years of the course must be submitted on Form RF 2.
(c) Forms RF 1 & RF 2 are available on the Training Branch Page of Revnet…
(d) Completed RF 1 Forms must be submitted prior to commencing the course and must reach Training Branch by 31 October at the latest, to be eligible for refund in the following calendar year.
(e) Completed RF 2 Forms must be submitted for second and subsequent years of a course and must reach Training Brach before 15 November to be eligible for a refund for the following year.
(f) Applications for courses not listed in Appendix 1 must also be supported by a business case, via local and divisional management, including the approval of the applicant’s Assistant Secretary. A copy of the course syllabus should also be submitted with the application.
(g) Applications for postgraduate courses must also comply with the requirements of paragraph (f) above.”
Reference should also be made to the Appendix:-
In fact there are several other courses so listed, but it is agreed that “Legal Studies” is the only relevant one.
24. Having set out the relevant terms of the Circular, it is the case that issues arose from time to time regarding whether or not some one or other condition(s) was or was not satisfied by Ms. Sfar or whether, for example, the true reason for the Revenue’s rejection was the non-availability of funds, which is also addressed in the Circular. It can immediately be said that the failure of Ms. Sfar to submit her application on the proper form RF1, which incidentally was later corrected, did not as such feature in the Revenue’s refusal to sanction a refund of fees. Neither did her failure to obtain approval prior to the commencement of the course, although in other circumstances such a failure may have far more significance. Further, whilst it is also problematic whether it could truly be said that she even submitted a syllabus for the B.V.C, as required by Section A(N)(f) of the Circular, nonetheless, if such had any continuing relevance it was only in the context of what lay at the heart of the dispute, and was not of itself a decisive factor.
25. The real point of departure therefore centred on the nature of the course being pursued by the appellant, and whether or not that course was relevant to the work of the respondents’ organisation. Ms. Sfar claimed that the B.V.C. most probably fell within the description of legal studies in Appendix 1 (which she termed Appendix A) and, accordingly, by express declaration should have been acceptable as being relevant to Revenue employment. Alternatively, she argued that it was a follow-on course and so qualified for a 100% refund (Section A(H): Circular). The Revenue did not see the course that way. As will be explained as I go through the correspondence, they did not accept either contention and regarded the B.V.C. as a post-graduate course. However, even that designation of itself, whether right or wrong, was not critical: once the course was external to the Legal Studies Course as specified in Appendix 1, any refund application was required to be supported by a business case, which had to be approved by the applicant’s Assistant Secretary. That, which the employer repeatedly called for but never obtained, was central to its evaluation of relevance for Revenue purposes.
The Correspondence:
The First Refusal: the 19th March, 2008:
26. On the 17th July, 2007, the appellant submitted her initial application together with an acceptable form of undertaking. Having discussed the nature of the course with the Dean at King’s Inns, the Revenue Commissioners were not satisfied that it fell within the phrase “Legal Studies”, as set out in Appendix 1 of the Circular. Rather, they took the view that it was a post-graduate course and therefore required to be supported under the Circular by a business case plan. It sought such a plan for the first time on the 25th September, 2007. The appellant did not agree, being of the view that her course fell within Appendix 1 and accordingly did not require to be supported by any such plan.
27. On occasions thereafter, she made the case that it could also have been considered as a follow-on course, and thus eligible for a 100% refund. These arguments were never accepted by the Revenue. That initial request for a business case plan was repeated on the 31st October and on the 18th November, 2007. Within this correspondence, it was made clear that a refund could not be considered without the receipt of such a plan. That situation was further reaffirmed by Mr. Murtagh, a Principal Officer and the appellant’s District Manager, in a letter to her dated the 7th December, 2007.
28. Correspondence continued at the beginning of 2008. On the 5th March, the appellant was pleased to note that a new Assistant Secretary had been assigned to her region, but pointed out that the approval question had not yet been resolved, which was now a matter of urgency. On the 19th March, 2008, the Training Branch, being responsible for assessing the application, wrote to her and stated:-
“Having taken advice from local and regional management I regret to inform you that the business case made by you is not considered to present a substantive business case to support your application for a refund of fees in this instance.”
That, in my view, after correspondence stretching over a period of nine months, was a clear rejection of the application as made and, consequently, must be considered as the first definitive refusal which the Revenue Commissioners made and communicated to the appellant on this issue.
29. This said letter of the 19th March, 2008, was undoubtedly interpreted by the appellant as being just that, i.e. a rejection of her application. This appears clear from her response to her Principal Officer in a letter dated the 19th April, 2008, in which she said:-
“The Training Branch has refused sanction for a refund of fees for the above course on a business plan criteria.”
Therefore, in my view, the trial court would have been entirely justified in treating that Revenue letter as a rejection of her application. This I will consider and so term as “the first rejection”.
The Second Refusal: the 21st July, 2008:
30. As the correspondence shows, the appellant continued to seek a refund by letters dated the 6th June and the 10th July, 2008. In the July letter she stated:-
“Please tell in writing the reason why I have been denied this refund.”
On the 21st July, the Training Branch again responded and concluded by saying:-
“In the circumstances a refund of fees in respect of this course cannot be approved.”
31. Running throughout all of these exchanges was a consistent position adopted by the Revenue Commissioners. They repeatedly pointed out that for the B.V.C. to be considered a “qualifying course” for the purposes of the Circular, it would have to be a course accepted by the Revenue Commissioners as relevant to the work of that organisation. In accordance with the advice obtained and disclosed to the appellant, they voiced the concern that even if the course was successfully pursued by her and even were she to obtain pupillage in England, those achievements, without more, would not permit her to practice law in this jurisdiction. Thereafter she would still have to engage with King’s Inns, which would assess her circumstances on a case by case basis, there being a high probability that she would be forced to sit further examinations in Ireland before being in a position to practice in this country. This understanding of the situation was at first disputed by Ms. Sfar, who took the view that once she had qualified in the United Kingdom, then under EU law she was entitled, as of right, to practice in this jurisdiction. However, from time to time she resiled from this absolute position, acknowledging on occasions that if she had to sit a further examination(s) in King’s Inns she would do so, but added in the process that she could speak the Irish language.
32. In any event, that letter of the 21st July, 2008, once again was treated by the appellant as being a rejection. In her reply dated the 25th July she said:-
“I am still being denied my refund of fees for the above course. I reported the matter to the Union and if this matter cannot be resolved I will seek leave for a Judicial Review in the High Court of Judge Peart or Judge O’Neill.”
She continued:-
“I also realise that before I can start to defend the rights of my future clients, I must first learn how to defend myself. I see myself as a victim here and I know I would have no trouble convincing a judge likewise. I have had a 100% success rate in all five leave for judicial review applications I have made within the last eighteen months against agencies that violated my rights.”
I point to the latter statement not in any way to adversely reflect on her court applications, but rather in support of my view that she fully realised in July, 2008, that this said letter constituted a second refusal by the Revenue of her funding request.
The Third Refusal: the 19th November, 2008:
33. On the 20th October, 2008, the appellant wrote directly to the Chairman of the Board of the Revenue Commissioners, pointing out that the Training Branch had refused sanction for approval of her course and seeking verification in writing as to “why I have suffered this detriment and on what grounds I am considered to be outside the provisions of the circulars”. In her concluding observations, she said “I have made a number of requests to my P.O. and I now feel that you are my last chance”.
34. Mr. Gerard Moran, an Assistant Secretary who was then responsible for training, replied on behalf of the Board by letter dated the 19th November, 2008. Having pointed out that she had not obtained prior sanction for the course as the Circular required, a rather redundant observation at that stage of the process, he referred to the necessity of the course being acceptable to the Revenue Commissioners. He then continued:-
“Your application for a refund of fees in respect of the Barrister course was considered by Training Branch. Having taken advice from the Dean of Law School at the King’s Inns in Dublin, it was ascertained that no participant, on satisfactory completion of this course would be in a position to practice at the Irish Bar without first undergoing some additional exams/assessments set by King’s Inns.”
He finished the letter by stating:-
“As it was considered that there were no tangible benefits for Revenue by you completing this course of study, the course was not accepted as relevant to the work of the organisation, and consequently your application was refused.”
This, in my view, must be taken as the third rejection.
The Fourth Refusal: the 27th January, 2009:
35. On the 22nd November, 2008, Ms. Sfar responded to this letter. Therein she repeated much of what was contained in previous correspondence and requested, as a matter of urgency, a reconsideration of her case. Such a review was conducted by Mr. Anthony Buckley, Assistant Secretary, who succeeded Mr. Moran as and from the 1st January, 2009; he communicated the results of that review by letter dated the 27th January, 2009.
36. In a most detailed response, he said, as was entirely obvious, that he had reviewed the full file and all of the correspondence. Although many points were dealt with, including the argument based on legitimate expectation, he focused on the necessity of the Bar Vocational Course being relevant to the work of the organisation, such being a precondition for any course qualifying under the Circular. He continued, in that context:-
“Revenue’s next consideration is to assess the relevance to the business needs of Revenue of the applicant’s pursuit of the course. In this process, account is taken of previous courses assisted, the officer’s present and likely deployment within the organisation, and the views of the office’s manager.
• You were assisted in pursuing three previous courses, and so had already benefited from the self development opportunity. It is not clear that there is a pressing need for further courses in your case.
• Your current employment does not require a specialised knowledge of law, and the advice of your managers is that there is no short-term prospect of such a deployment.
• The view of your managers is that there is no business reason for supporting you in this course of study.”
He ended by saying:-
“In conclusion, I regret that my review of the case has forced me to concur with my colleagues’ decision that a refund of fees should not be granted in this instance.”
Once more, that must be considered as the fourth rejection, and as being one given following the appellant’s request for a full reconsideration of her case.
March, 2009 - February, 2010:
37. During this period the appellant continued to engage in correspondence with the Revenue Commissioners about this subject matter. By the end of the year, namely on the 12th December, 2009, she submitted a further letter seeking retrospective sanction for the funding previously denied to her. A brief history of the application is contained in that letter and certain references are made to a legal textbook in the context of EU competition law. Following receipt of this letter, Mr. Howley, Assistant Secretary, as would be expected in correspondence with an employee, responded on the 2nd February, 2010.
38. In this reply he specifically referred back to Mr. Buckley’s response of the 27th January, 2009, and expressed the view that such letter comprehensively addressed all aspects of the funding request. Having added his endorsement to both the assessment and the conclusions reached by Mr. Buckley, he ended by saying:-
“Your claim is refused for the reasons already stated in detail in that letter, and there is no point in continuing correspondence or entering further protracted correspondence on the same issues.”
The Revenue’s position therefore remained as it had been and as had been so declared as far back as September, 2007 (para. 26 supra). Consequently, this was simply a reiteration of decisions previously made; in effect, it was a courtesy reply and no more, and certainly not a fresh adjudication on a new or different complaint.
Correct Decision:
39. When, therefore, can it reasonably be said that the appellant’s demand for a refund and the Revenue’s rejection of such demand first took place, as this is the definitive date for the purposes of O. 84, r. 21 R.S.C. I have little doubt but that a court would be justified in treating the very first refusal, as above outlined, as being sufficient to trigger the expedition requirement set out in that Order. Or the second, or the third, and most certainly on receipt of Mr. Buckley’s letter dated the 27th January, 2009. As leave was not obtained until March, 2010, it self evidently follows that the application was not made within the specified time as set out in the said Order. It is no answer to this conclusion for the appellant to rely on the 2009 correspondence, culminating in Mr. Howley’s letter of January, 2010, and say that such letter should be regarded as the “final decision”: in my view that is not so, and thus cannot be the date from which time should be calculated.
40. A similar situation arose in Finnerty v. Western Health Board (Unreported, High Court, 5th October, 1998; [1998] IEHC 143), where the applicant was informed by a letter dated the 9th April, 1994, that he did not satisfy the criteria for entry to the General Medical Services (GMS) scheme. He wrote to the Minister for Health in September, 1994, who in reply supported the respondent’s decision. Mr. Finnerty then wrote to the CEO of the Health Board on the 11th May, 1995, seeking a reconsideration; this was rejected, with the Board’s previous decision being reaffirmed. There then followed a solicitor’s letter, again contesting the decision and calling on the CEO to admit the applicant to the scheme, failing which proceedings would issue. This letter was acknowledged on the 26th June, 1995, and replied to on the 31st July, 1995: in this reply the CEO repeated what previously had been stated, namely that the applicant did not satisfy the necessary criteria for entry to the scheme. An application for judicial review was then made seeking an order of certiorari quashing the Board’s rejection “as embodied in ‘a letter of 31st July, 1995’”.
41. The learned trial judge, Carroll J., having distinguished between the various decisions made in the case, expressed the following view, on both the delay issue and the repetition point. She observed that:-
“The Applicant knew from July 1991 that his eligibility for the GMS scheme under the five year rule was in question. When he applied to enter the scheme he was refused by letter dated 9th April, 1994. This decision was supported by the Minister in the letter of 17th November, 1994. It was confirmed by the CEO on 29th May, 1995 and again on 31st July, 1995. A decision which is a reiteration of a previous decision is not a new decision. Time therefore begins to run when the final decision is first made. For [the] purposes of this action the decision of 29th May, 1995 was the final decision.” (Emphasis added).
42. Evidently this reasoning is apposite in the instant case. As stated by the High Court judge in his judgment, Mr. Howley’s letter of the 28th January, 2010, was “…explicitly, and in terms, a reiteration of a previous decision”, specifically, that of Mr. Buckley’s letter of the 27th January, 2009. Accordingly, as Mr. Howley’s letter post-dated the “final decision” by almost twelve months, such communication is not the relevant one for O. 84, r. 21 R.S.C. That occurred in January, 2009. Accordingly, the leave application was out of time.
43. In addition, I would also have no hesitation in holding that the expeditious requirement underpinning all applications for judicial review was not fulfilled in this instance and, accordingly, in the absence of any application, based on good reason, to extend the time within which an application should be made, the High Court judge was fully justified in dismissing the application on this ground.
44. This conclusion is of course sufficient to dispose of the appeal. However, in light of the imputation which a finding of a lack of candour has on the person in question, I feel it both necessary and just that I should also address that issue.
Non-Disclosure/Lack of Candour:
45. There is no doubt but that from a consideration of the grounding affidavit, it is apparent that much of the relevant material which passed between the parties was neither referred to nor exhibited in that affidavit, and accordingly was not put before the court on the leave application. Thus, one can readily see from that omission simpliciter how a conclusion of non-disclosure could be arrived at. That is of course non-disclosure without assessing the underlying reasons. There is, however, a considerable distance between arriving at that view and a conclusion that such omission was deliberate and intentional, thus justifying the finding of lack of candour. Before such a decision can be reached, however, I am satisfied that any evidence offered in explanation or denial of that issue must be seriously considered, and if it provides a reasonable or plausible explanation for what occurred, it should normally, in the absence of countervailing factors, be accepted rather than rejected.
46. In this case the appellant is a lay litigant and whilst it is undoubtedly true that she has experience of the legal system, nonetheless she cannot be judged to the same professional standards as a qualified practitioner. In her defence she strenuously denies any lack of candour in the sense of intentional non-disclosure with a view to mislead. She says that in the past a named member of the High Court Bench has advised her to keep her applications simple and to the point. Thus, she felt it desirable to avoid over burdening the affidavit with detail. She need not have worried in that regard as quite evidently she should have referred to the correspondence subsequently exhibited by Mr. Buckley, but did not do so.
47. That omission however does not necessarily equate with a lack of candour. She points out that as any case progresses, each party will have a full opportunity of outlining their position in detail. That is precisely what Mr. Buckley did on behalf of the Revenue Commissioners and in response what the appellant’s second affidavit also set out to achieve. In any event, she must have realised that the full chronology and sequence of exchanges which took place would inevitably form part of the Revenue’s case. There was thus no point or purpose in deliberately concealing it, unless there was some serious advantage to be obtained, which I must say is not at all self evident to me.
48. On her case the critical date was Mr. Howley’s letter. She was perfectly entitled to make this a central plank of her application. She was, at least at a prima facie level, justified in arguing that this was the start date. In my belief she was entirely incorrect in that regard, for the above reasons. But that is not the point on this aspect of the case. She did not seek to have Peart J., on the leave application, extend the time for the institution of proceedings. If that had occurred, then perhaps a different complexion might be taken of what she did. But that is not what happened. I therefore cannot see any advantage, for the time requirement aspect of O. 84, r. 21 RSC, or for the general delay point, in not disclosing the above exchanges. Nor do I think that the threshold of arguability was materially impacted upon by the course which she adopted. If the Revenue felt that there was real substance in this candour point, it was of course open to them to move to set aside the order of Peart J., which it did not do. Consequently, when the overall circumstances are viewed and the offered explanation considered, this case should be regarded as one of significant non-disclosure intentionally done in the sense that Ms. Sfar knew what she was doing, but not embarked upon with any intention to mislead. Accordingly, I do not believe that the finding of lack of candour can be or was justified and, thereafter, I would allow the appeal on this point.
49. In view of the aforegoing, I do not consider it necessary to express any view on what precise designation the B.V.C. should be given for the purpose of the Circular, or on her argument grounded upon legitimate expectation, or on her assertion that once qualified in the United Kingdom she would as a matter of EU law be entitled to practice in Ireland. These matters simply do not arise, and I do not propose to further address them.
50. In these circumstances the appeal will be dismissed on the delay point, but allowed on the lack of candour point.
