Supreme Court of Ireland Decisions

An Chúirt Uachtarach

The Supreme Court

 

Clarke CJ

O’Donnell J

MacMenamin J

Dunne J

Charleton J

 

Supreme Court appeal number: S:AP:IE:2020:000044

[2020] IESC 000

Court of Appeal record number 2014/745

[2019] IECA 299

High Court record number 2010/319 JR

[2012] IEHC 000

 

Between

 

Patrick J Kelly

Applicant/Appellant

 

 - and -

 

 The Minister for Agriculture, Fisheries and Food, The Minister for Finance, The Government of Ireland, Ireland and the Attorney General

Respondents

 

 

Judgment of Mr Justice Peter Charleton of Wednesday 15 September 2021

 

1. The gravamen of the majority judgment of 30 March 2021 is this: that the presence at Cabinet of Minister Coughlan, a person of strong views about the propriety of the actions of Patrick Kelly as harbourmaster of Killybegs, and more generally, when he was dismissed constituted a situation of objective bias. What remains are two issues: firstly, as a matter of discretion, is the Court entitled not to proceed to quash the Cabinet decision; and, secondly, were the matter to be returned on being quashed, would the Cabinet be deciding on Patrick Kelly’s dismissal as if on the first occasion or, in stark contrast, because of Patrick Kelly reaching retirement age, 65 years old, would they as of now be deprived of the power to dismiss him as he is no longer an established civil servant but, as it is claimed without evidence, has become a retired one? The majority judgment on this supplemental issue is that of O’Donnell J. The analysis herein moves to a similar conclusion but would encompass a wider principle as hereunder stated. It is also worth reiterating that while the principles in the conduct of enquiries are straightforward, regrettably Irish law leave far too much room for argument and contrariness. Hence, this enquiry lasted years and the judicial review of it took six days in the High Court. That is unnecessary and should not be repeated.

 

Discretion

 

2. Halsbury (4^th edition, Volume 1(1) 108, 117) describes certiorari and the other judicial review remedies as derived from the prerogative and, hence, as being discretionary. There may also be a common law origin, as Lord Bingham implies in the article later cited; but that is not significant for this analysis. As thus described, they are akin to equitable remedies which derive from the power of the sovereign, through the Chancellor, to ameliorate a legal judgment towards what was regarded as fair and just, as opposed to meeting the letter of the law; see Keane, Equity and the Law of Trusts in Ireland (3^rd edition, 2017) chapter 2. Hence, even though a defect in jurisdiction, in procedure or in the written form of an order is identified as a matter of law, the discretionary nature of the remedy of certiorari does not compel a court to quash that order where to do so would be unfair or unjust. Ordinarily, faced with the inevitability of a judgment based on the conformity of one side or the other in litigation with the law but left with a sense that the party succeeding lacked merit, a court is confined to its discretion solely on awarding costs; s 168 of the Legal Services Regulation Act 2015.

 

3. The rule of law demands that those facing litigation should be able to be informed as to the legal principles applicable to their situation. That a statute declares a wrong in particular circumstances and the law proposes a remedy conforms to that imperative, but in interpreting law judges strive as far as is possible to reach conclusions which are just and which accord with good sense. The limitation on interpretation towards what seem right and fair comes from the wording of the law, and the need to conform to precedent, into what is predictable and towards that which accords fairness on the foundation rules that meet the multiple situations to which the law must be addressed. In framing statutes, the legislature strives to shape rules so that, ideally, an outcome that is fair and just results to those to whom legislation applies. A similar approach to the interpretation of precedent must similarly underly judicial interpretation of the common law. Limits are set and rules are applied but outcomes must still be guided by an innate sense of fairness. Lord Cooke, writing in The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Oxford, 1998) page 211, states that the “law will always recognize that there are some limits to the reasons which will legally justify the exercise of a discretion. It is a matter of degree. The depth of the court’s examination will vary with the subject-matter and what can be discerned of the purpose of any relevant statute.”

 

4. Those limits set by law are real; but discretion is also real and must not be shorn of its efficacy. The strictures of the law are enforced; but where discretion is possible as a matter of law, unjust outcomes may be avoided. Hence, as it used to be the case, a contract for the sale of goods of value £10 or more was required by the Sale of Goods Act 1893 to be in writing, otherwise it was unenforceable. Even though a judge found the evidence as to the formation of the contract utterly convincing, no damages for breach of contract could result were one party to the bargain to back away, perhaps for as unmeritorious a motivation as a better offer, and the court would have had to dismiss the claim. There was no discretion. A case for the sale of land, however, attracted the equitable remedy of specific performance of a contract, acknowledging that since land is unique it is not readily replicable, whereby part performance of the obligation to sell or buy would overcome the requirement of writing under s 2 of the Statute of Frauds 1695, now s 51(1) of the Land and Conveyancing Law Reform Act 2009. Equity stepped in where the legal rule would produce an unjust outcome since the statute existed to prevent fraud but to rely on the statute might in itself be a fraudulent action which fairness ought not tolerate. Delay, unfair conduct, want of mutuality or inequity might tip the discretion of the court against enforcement of the contract; see Keane chapter 16.

 

5. Discretion, however, where vested in a court, is not equivalent to arbitrariness. What is fair and just is adjudged as against sets of precedents, on lines laid down through experience as to how the best outcome is arrived at. Consequently, Lord Halsbury LC in describing discretion distinguished what is “arbitrary, vague, and fanciful but legal and regular”; Sharp v Wakefield [1891] AC 173, 179. The law abhors what is capricious and moves towards the guidance of discretion by what has substantial and solid reason for its exercise; United States v Lotempio (1931) 58 F (2d) 358. Lord Bingham, [1991] PL 64, 67 described the difference between the application of the law by a judge and the use, where permitted, of judicial discretion thus:

 

an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and any necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that he embarks on the exercise of a discretion.

 

6. In discretion, the search is on for what is right, what accords with good sense, what is reasonable, towards that which meets each and every circumstance found by a court to exist as a fact and is directed towards the drawing up of an order that will meet the justice of case with an outcome that harmonises with innate feelings of appropriateness in the variable circumstances of a case. While discretion is guided by precedent, and rightly so from the point of view of certainty of law, it parts with the rigidity of legal rules in not being constricted into a particular outcome simply because that result is recorded in a similar case elsewhere. Principles, rather than rules, are laid down by precedent in discretion. And since cases diverge in circumstances, precedent should be regarded as a guide and not as governing outcomes. Both Halsbury and Lord Bingham describe the principles upon which, notwithstanding the identification by an applicant for judicial review of a defect in procedure, jurisdiction or form of order, discretion may result in the refusal by the court of aid in the form of quashing the order, as including delay, acquiescence, failure to exhaust other remedies, adverse public consequences, such as the effect on third parties, and futility or lack of useful purpose. In that regard, the guidance of Denham J in Stefan v The Minister for Justice, Equality & Law Reform [2001] 4 IR 203 accords. There, at 217, having reviewed the authorities on whether judicial review should lie in circumstances where an administrative appeal was available, said:

 

Certiorari may be granted where the decision maker acted in breach of fair procedures. Once it is determined that an order of certiorari may be granted, the court retains a discretion in all the circumstances of the case as to whether an order of certiorari should issue. In considering all the circumstances, matters including the existence of an alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an order of certiorari is not granted and the degree of fairness of the procedures, should be weighed by the court in determining whether certiorari is the appropriate remedy to attain a just result.

7. Notable in this approach is the positive statement of principles and the shunning of any fetter on the exercise of discretion which would do more than channel its exercise as opposed to replacing it with rigid rules. There cannot be such rigidity for otherwise discretion ceases in being the flexible exercise of the choice of the right and fair outcome and becomes instead a rule of law. In Lord Bingham’s review of discretion, the idea of futility in making a declaration, another equitable remedy, but one now also expressed as part of the under Order 84 of the Rules of the Superior Courts dealing with judicial review, is based on the justice of undermining those who have done their best by facing them with a court order. Hence, he points out that courts have declined “declarations which will serve no useful purpose”; AG v Scott [1905] 2 KB 160, 169; Eastham v. Newcastle United Football Club Ltd [1964] Ch 413, 449: that relief will be refused “where the applicant has achieved the substantial result which he seeks without any order”; R v Commissioner of Police of the Metropolis, ex p. Blackburn [1968] 2 QB 118: that there should not be a declaration “where a public body has shown that it is doing all it honestly can to comply with its statutory duty”: R v Bristol Corporation, ex parte Hendy [1974] 1 WLR 498: that there should be no declaration “where an error has been substantially cured”; R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1: nor should a court interfere when it is clear “that a public body will readily perform its duty once the court tells it what its duty is”.

 

8. In R (on the application of Hibbert) v General Medical Council [2013] EWHC 3596 (Admin) at [22]-[23], Simler J stated that “ordinarily” nullification of a public body’s decision is retrospective but indicated that there could be circumstances where such nullification was treated as having prospective effect only. In R (on the application of British songwriters, composers and authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin) Green J outlined the extent to which a court has discretion over the nature of a quashing order:

 

[15] There was some debate before me as to the extent to which the court has the power to impose a temporal limitation upon a quashing order. In my judgment it is clear that the court has a discretion to limit the effects of such an order. In Mossell (Jamaica) Ltd v Office of Utilities Regulations Cable and Wireless Jamaica Ltd [2010] UKPC 1 Lord Phillips described the jurisprudence on the question of the effect of executive orders and administrative decisions before a final judgment was reached on their validity as “vexed” (ibid para 43). In para 44 Lord Phillips summarised the position in the following terms:

 

“44 What it all comes to is this. Subordinate legislation, executive orders and the like are presumed to be lawful. If and when, however, they are successfully challenged and found ultra vires, generally speaking it is as if they had never had any legal effect at all: their nullification is ordinarily retrospective rather than merely prospective. There may be occasions when declarations of invalidity are made prospectively only or are made for the benefit of some but not others. Similarly, there may be occasions when executive orders or acts are found to have legal consequences for some at least (sometimes called 'third actors') during the period before their invalidity is recognised by the court - see, for example, Percy v Hall [1997] QB 924. All these issues were left open by the House in Boddington. It is, however, no more necessary that they be resolved here than there.”

 

9. The above cases demonstrate the extent of a court’s discretion in fashioning the appropriate remedy where a government, administrative or quasi-judicial or lower court decision has been nullified. The precedent, that nullification has retrospective effect, is a guide only, and there may be, and indeed have been, cases where it is appropriate for nullification to have prospective effect. What does this tell us about the present case? While there may be “ordinary” cases where the precedents indicate that the remedy should have a particular effect, this does not prevent the court, where the facts justify it, from altering this effect to meet the requirements of justice in that particular case.

 

10. What should not be forgotten in any review of the law on discretion in the grant of an order of certiorari is that just as the courts of equity, in exercising their discretion, are not to be drawn into the approval of fraud through the application of a legal rule designed to prevent deceitful conduct for gain, no judicial review remedy should be squeezed from a court by the rigid application of legal rules where those legal rules lead to a manifestly unjust outcome. The one exception, that where notwithstanding that it may be unfair, an order quashing the outcome of a process should always be made is where the tribunal is so manifestly improperly constituted as not to exist at all on the face of the record as the body charged with making the decision impugned. In those circumstances, ex debito justitiae, the order is made notwithstanding the merits. A defect, known to an applicant but not protested at when before the tribunal, is otherwise and may be acquiesced in to his or her being refused relief. 

 

11. Discretion is about what is just. To grant Patrick Kelly the quashing of the Cabinet decision dismissing him would be an unjust outcome. The worst that can be said of the Cabinet decision, on the state of proof advanced on his behalf, is that Minister Coughlan had previously pursued, as was her right, a political function in pointing out a grave situation of commercial exploitation in conflict with public duties, expressed other colourful views, and then sat in Cabinet and on consideration of whether he should be dismissed or not voted in the same way as the investigative report suggested. To that should be added that on behalf of Patrick Kelly it was not suggested in representations to Cabinet that the report was wrong but that the penalty might be disproportionate.

 

12. The majority judgments accept that the process leading to the recommendation was conducted fairly and was not undermined by the dissemination by Minister Coughlan of her strong views, including to the person tasked with investigating her legitimate complaints. What would be the result were a public representative not enabled to express views based on genuine concerns? From fear of contamination, their task in pointing to potential wrong would be silenced and manifest wrong might be enabled to continue. Fortunately, the robustness of procedures enables an investigator, in all but the most extreme circumstances, to shrug off rumour, suspicion, or preliminary views in favour of a genuine search for the truth. A judge must often do no less.

 

13. Patrick Kelly ceased to work as a public servant after he was dismissed by Cabinet. He should not now be paid for work he did not do. During the time when this over-complicated judicial review was taking up all of 10 days of hearing in the High Court, he apparently reached 65 years of age and hence was eligible to retire, having reached retirement age, but there is no proof of him proffering his resignation from public service. The result of quashing the outcome of the Cabinet would be a windfall of several years of salary out of public funds. That is unjust, most especially as the investigative report put before Cabinet outlines in stark terms the wrong for which he was ultimately dismissed.

 

14. This outcome, of a declaration with no other order, is not unprecedented. In Histon v Shannon Foynes Port Company [2004] IESC 107, reorganisation of harbours led to the appointment of two former harbourmasters to one company, the defendant, but where only one was needed to operate in the role as such, the other, the plaintiff, being required to report to him as a subordinate. This he would not do. In consequence, and in due course, he was dismissed. The only order granted by this Court, in the judgment of Geoghegan J, was a declaration that he had “not been validly removed from office in the employment of the respondent”.

 

15. On this issue, it should finally also be noted that the extent of the powers of the Government under Article 28 of the Constitution, whether the Government in exercising “The executive power of the State” is bound by any form of procedural rule and whether political actions, or prior expressed views or political actions as a public representative, could ever disentitle a Minister as a member of the Government from voting as part of the Government have not been argued. The resolution of any issue arising from Article 28 should be reserved to a case where such argument has been properly advanced. It might be wondered how the collective authority of the Government might be split and how in particular the power to vote granted by the Constitution might be taken away through political action prior to a vote where that issue came for consideration at a later stage?

 

Remedy

 

16. Even were it to be that discretion was exercised, in addition to the grant of a declaration in favour of Patrick Kelly and some portion of his costs, to quash the order of the Government, issues as to damages would remain. In that regard, the contribution of Patrick Kelly towards his pleaded wrong could not be ignored. McCord v ESB [1980] ILRM 153, cited most often in relation to the duty of reasonableness where an essential service, electricity supply, is cut off, also has powerful statements as to the role of contributory negligence where it is pleaded that an unreasonable action has resulted in the loss to the applicant. There, a disconnection of supply was outside the statutory remit of the ESB and nominal damages of £50 were awarded by the High Court. That was reversed by a majority of this Court, O’Higgins CJ dissenting. The electricity meter in his home had been tampered with and a new seal attached. So, he got a lot of free supply. On being presented with a document by the ESB taking responsibility for paying back the supply actually used by his household, he refused to sign, thereby, for seven months until litigation caused restoration, as Henchy J records, depriving his wife and four children of heat, light, cooking and household appliance power; something “excruciating to bear and dangerous to their physical and psychological health.” This was all, according to the majority, due to his intransigence. The ESB were wrong to act on a power which they did then have, but Mr McCord’s untrammelled intransigence had entirely set the scene for what would otherwise have been the awarding of substantial damages. Even when asked to sign in the middle of such deprivation and without admission of wrongdoing, his foot remained down. Should there be a remittal under Order 84 Rule 27 of the Rules of the Superior Courts, the degree of contribution of Patrick Kelly to his dismissal would be in issue. Manifestly, as well, that remittal power is, under the Rules, discretionary.

 

17. Order 84 Rule 27(4) was introduced in furtherance of the discretionary nature of judicial review remedies. It provides:

 

Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.

 

18. The Superior Courts Rules Committee was established under s 67 of the Courts of Justice Act 1936 and thereby stepped into the shoes of the Minister for Home Affairs under s 36 of the Courts of Justice Act 1924 in making rules for “pleading, practice and procedure generally … in all civil cases, including revenue cases and proceedings as to the validity of any law having regard to the provisions of the Constitution and proceedings in the nature of a petition of right”; which latter category fits State side remedies. In terms of powers, the Rules Committee is limited by the express boundaries set by the legislation and in making rules is to be guided by the terms of the statute and its boundaries and purpose, as opposed to any, as can happen in modern legislation, iteration in express terms of a recital of principles and policies; see for instance the Health (Preservation and Protection and other Emergency Measures in the Public Interest) 2020 which contains, in European law fashion, recitals including “ WHEREAS an emergency has arisen of such character that it is necessary for compelling reasons of public interest and for the common good that extraordinary measures should be taken to deal with the immediate, exceptional and manifest risk to human life and public health posed by the spread of the disease known as Covid-19” and in s 6(1) introduces a new s 40A to the Social Welfare Consolidation Act 2005 and recites, ss (2), a range of matters to which a Minister in making delegated legislation is to have regard. In contrast, the courts are well used to reading legislation, discerning the boundaries thereof and drawing out from the terms of what has been enacted the limits of what has been delegated, to a Minister or other rulemaking body, and the expected subject matter and circumspection of what can legitimately be provided for; Island Ferries v Minister for Communications [2015] IESC 95.

 

19. The Rules Committee exercises the power of making legislation on a delegated basis and is thus bound by the limits of the existing statutory law and, as to the choice made as between possible modifications to, or new rules as to, practice and procedure, constrained by the boundaries set and principles discernible from the parent legislation; Cityview Press v An Chomhairle Oiliúna [1980] IR 381, Bederev v Ireland [2016] IESC 34, [2016] 3 IR 1, O’Sullivan & Anor. v. Sea Fisheries Protection Authority & Other. [2017] IESC 75, [2017] 3 IR 751. Moreover, an important indication of the retention of control by the Oireachtas, return and vote on delegated legislation, as noted in NECI v The Labour Court & Others [2021] IESC 36, is not present for rules of court. Since the original rule maker was the Minister for Home Affairs, but became the Rules Committee, rules made return to the Minister for Justice for assent, rather than to the Oireachtas for a positive vote, or a vote should the matter be objected to by sufficient public representatives to get the issue on the order paper of Dáil Éireann; the model in Bederev.

 

20. Section 91 of the Courts of Justice Act 1924 enables the “the adaptation or modification of any statute that may be necessary” for the purposes of rule-making. But, even here, the Rules Committee, setting aside any question that may thus arise, is limited to, in the words of Kingsmill Moore J in State (O’Flaherty) v O’Floinn [1954] IR 295, 304 “the manner in which, or the machinery whereby, effect is given to a substantive power which is either conferred on a Court by statute or inherent in its jurisdiction.”

 

21. Consequently, there is no power in the Rules Committee in providing for remittal upon quashing an order of an administrative or quasi-judicial tribunal, to modify the fundamental principle that judicial review remedies are within the discretion of the High Court. Remittal is discretionary upon quashing and quashing an order is inherently discretionary. Moreover, remittal must reflect the nature of the remedy granted. It is not there to give more than the justice and right of the case demands. Nor is it any exception to good sense whereby a windfall of public money on the basis of no work is to be bestowed upon a former public servant, whether by retirement or by dismissal.

 

22. The remedy is always to be what is just. That is why it is within the discretion of the courts. In contrast, the argument on behalf of Patrick Kelly is a mechanistic one whereby since an order is quashed and he has, as is claimed, retired by operation of law, a result of several years of salary are to be paid. That is not right.

 

22. If, as the majority have held, the presence of Minister Coughlan at Cabinet was in itself an indication of objective bias that requires the decision of Government to be quashed, the remedy must reflect the wrong. Had she excused herself or, as seems likely and has not been proven, taken no part in the discussion, the decision would be unimpeachable on any reading of the law. Since, she was merely one vote out of 15 members of Cabinet, perhaps considerations of proof would require a wider influence, accepting for the moment the divisibility of governmental decisions. If that is the wrong, the remedy required is for the matter to be reconsidered by Cabinet, Patrick Kelly being again entitled to make submissions on a humanitarian or legal or other attempted persuasive basis; but the Cabinet will revisit the original decision and if they dismiss, that is valid, but if they decide to retain his services then retirement might possibly then be relevant. The analysis above, derived from  McCord v ESB would be of potential relevance to any damages claim.

 

23. That is especially so as the majority judgment of Dunne J upheld the report of the investigation. Consequently, any potential damages claim necessarily and inescapably would proceed with the findings therein intact.