Supreme Court of Ireland Decisions

harp graphic.

THE SUPREME COURT

14^th September, 2021

[Supreme Court Record No. S:AP:IE:2020:000044]

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

BETWEEN:

PATRICK J. KELLY

APPELLANT

V.

MINISTER FOR AGRICULTURE FISHERIES AND FOOD, the minister for finance, the government of ireland, ireland, and the attorney general

RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 15^th day of  September, 2021

1.                  I acknowledge this is a difficult case. The judgments delivered by this Court today bring this lengthy matter to a conclusion. As is clear, I, and my three colleagues who formed the majority, reached our conclusions by somewhat divergent routes. From this point onwards, there might be a temptation to decide that the papers in this case should be filed away to await consignment to the National Archives after many years. For many reasons, I think this would be unfortunate. This matter is not simply a case; it deserves to be a case study.

2.                  A number of lessons can be drawn from this proceeding. What I say now is not to point a finger or blame any individual. The questions I raise here relate, first, to how the investigation process actually took place.  In the words of the English poet, Pope, the investigation was “like a wounded snake, dragging its slow length along” (Pope, Essay on Criticism (II Line 356)). It is easy to order an investigation. To conduct one is obviously a less easy task. But, however onerous the undertaking, such investigations must take place within a limited timeframe. Those charged with carrying out the investigation must be allowed adequate time and space to carry out the work in a focused way. The consequence of prolongation will often be procrastination.

3.                  Second, the appellant held the position of Harbour Master in Killybegs, Co. Donegal. Doubtless, this is an important position. But, the multi-layered investigatory and disciplinary process laid down by statute required no less than a cabinet decision as a final sanction. This procedure necessary to be deployed is surely redolent of another age when the distinction between officeholders and employees might have been greater than now. (See Garvey v. Ireland, 1981 I.R. 75.)

4.                  Third, the sheer duration of these proceedings itself created difficulties. The elapse of time had the consequence that the Court was constrained as to the form of remedy which might be adopted. While the consequence of my minority judgment on the primary issue might have been more radical than that adopted by the majority, remittal to the Government was simply not a practicable option open to the Court. There are categories of case where there is a duty on the parties to ensure that cases are progressed with expedition. This was undoubtedly such a case.

5.                  These few brief reflections lead to one further concern. I accept that the remedy of judicial review by way of certiorari is discretionary; that issue is considered in comprehensive detail by O’Donnell J. and Charleton J. in their judgments now delivered. It is true that in a number of cases the courts have chosen to grant a limited form of remedy while granting judicial review. Yet, I question whether such a limited approach should be adopted in this case. I acknowledge that my reasoning in relation to the primary issue of bias differs from that of the majority. But nonetheless, I would take the view that in the circumstances now obtaining, the appropriate order for the court at this point would be remittal to the High Court in order to consider any issue as to whether the appellant actually did sustain loss or damage which might be recoverable at law, whether in the form of loss of salary or of pension. Obviously, such an issue would have required close case management. I take this view, acknowledging that this case has already had far too long a duration. But it seems to me, remittal under Order 84 Rule 27 (4) should nonetheless be the appropriate remedy. The extent to which the appellant would have been able to advance his claim successfully would have been an open question. It is one which would have required to have been properly pleaded, allowing for discovery and all other appropriate procedures. While I understand the attractions of the approach proposed by the majority, I would nonetheless respectfully differ from them as to the form of order now to be granted (see, Civil Proceedings and the State, 3^rd ed. Collins and O’Reilly (Round Hall) (2019) paras. 6-120 to 6-122 and Administrative Law in Ireland, 5^th ed. Hogan, Morgan and Daly (Round Hall) (2019) 18-106 to 18-110).