Ainsworth v The Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 04 June 2003
• Neutral Citation: [2003] IEHC 13
• Court: High Court
• Docket Number: 2002 846 JR
• Date: 04 June 2003

[2003] IEHC 13

THE HIGH COURT

2002 846 JR

AINSWORTH v. MIN FOR DEFENCE

ADRIAN AINSWORTH

APPLICANT

AND

THE MINISTER FOR DEFENCE

RESPONDENT

Citations:

FREEDOM OF INFORMATION ACT 1997 SCH 1

HANLEY V MIN DEFENCE 1998 4 IR 496 2000/10/3701

ADAM V MIN JUSTICE 2001 3 IR 53

GORDON V DPP 2002 2 IR 369

EGAN V MIN DEFENCE UNREP BARR 24.10.1988 1988/7/2165

ARMY PENSIONS ACT 1923

ARMY PENSIONS ACT 1946

ARMY PENSIONS ACT 1947

ARMY PENSIONS ACT 1980

WALSH V IRISH RED CROSS SOCIETY 1997 2 IR 479

RAFFERTY V BUS EIREANN 1997 2 IR 424

BANE V GARDA REPRESENTATIVE ASSOCIATION 1997 2 IR 449

GEOGHEGAN V INSTITUITE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

KIRRANE V FINLAY UNREP KELLY 2.3.1998 (NO TRANSCRIPT AVAILABLE)

G V DPP 1994 1 IR 374

Synopsis:

JUDICIAL REVIEW

Setting aside leave

Defence Forces - Noise induced hearing loss - Post traumatic stress disorder - Settlement agreement - Whether an order granting leave to apply for judicial review should be set aside when it relates to a non administrative decision (2002/846JR - Kearns J - 4/6/2003)

Ainsworth v The Minister For Defence

Facts: The applicant, a commandant in the Defence Forces claimed that he developed symptoms of post traumatic stress syndrome and noise induced hearing loss. The applicant instituted proceedings in the High Court, however the case settled for £80,000 prior to the date of the hearing. The applicant was paid his damages and he continued in the service of the respondent. Since October, 2000 having been deemed fit for restricted overseas services by the respondents’ doctors, the applicant made six unsuccessful applications for overseas service. The applicant subsequently learned that the army Director of the Medical Core had failed to make the necessary recommendation supporting his requests because of the view of the Claims Branch of the defence forces, supported by a letter or report from Senior Counsel which had been placed on the applicant’s file, that any overseas tours of duty in the applicant’s case would amount to double compensation because he had already been compensated for hearing loss and future unrelated loss of earnings. The applicant claimed that the aforementioned letter/report did not represent the settlement agreement and further that as a result of the decision of the Claims Branch to place that letter on his personal file, he suffered prejudice and damage to his career in the Defence Force. In the High Court the applicant obtained leave to apply by way of an application for judicial review for a declaration that the said letter incorrectly stated the agreed terms of the settlement of proceedings, an order of prohibition restraining the respondent from further relying on that letter, an order of certiorari quashing the respondent’s decision to place that letter on his personal file, an order of mandamus directing the respondent to expunge the said letter from his personal file and damages. Consequently the respondent sought to discharge the order granting leave or in the alternative an order striking out the applicant’s proceedings on the grounds that they disclosed no reasonable cause of action, were frivolous and/or vexatious, or, were doomed to fail.

Held by Kearns J. in granting the respondent’s application:

1. That the real dispute between the parties arose from the fact that a different version of the settlement of the applicant’s previous High Court proceedings existed between the applicant and the respondent. Accordingly, although the court was required to accept the applicant’s version of the facts as correct for the purpose of determining the existence of an arguable case, it was not obliged to consider that the actual terms of the settlement agreement were as enunciated by the applicant.

2. That judicial review proceedings are concerned with the propriety or otherwise of the decision making process. It is not a process concerned with mere secretarial acts. Consequently, a determination of the terms of the settlement of the personal injury action was not a matter which fell within the ambit of judicial review.

3. That the only decision in the instant case was the respondent’s decision to refuse overseas service to the applicant. However to have allowed the applicant to amend, substitute or add new grounds in support of his application by including that decision would have resulted in a total amendment of the character of the application. It would have involved an acknowledgement that the existing application was effectively misconceived, that the same should have been brought to challenge the decision(s) of the respondent to refuse overseas service to the applicant.

4. That the present case fell into the category of exceptional cases referred to in Adam v The Minister for Justice [2001] 3 I.R. 53 and is plainly one where leave should not have been granted.

Reporter: L.O’S.

JUDGMENT of

Mr. Justice Kearns

1 delivered the 4th day of June, 2003.

2 In this case the respondent seeks to discharge the order of the High Court (Murphy J.) of 13^th January, 2003, granting leave to the applicant to apply for judicial review, or, in the alternative, to strike out the applicant's proceedings on the grounds that they disclose no reasonable cause of action, are frivolous and/or vexatious, or, are doomed to fail.

3 The said order had given leave to the applicant to apply by way of an application for judicial review for:-

4 (a) A declaration that a letter/report dated the 27^thOctober, 1998, held on the applicant's personnel files by the respondent, incorrectly states the agreed terms of settlement of proceedings entitled Adrian Ainsworth and the Minister for Defence which was ruled before the High Court (Johnson J.) on 6^th October, 1998;

5 (b) An order of prohibition restraining the respondent from further relying on the said letter/report;

6 (c) An order ofcertiorari quashing the respondent's decision to place the said letter on the applicant's personnel files;

7 (d) An order ofmandamus directing the respondent to expunge the said letter/report from the applicant's personnel file;

8 (e) Damages.

9 The grounds upon which leave was granted were those set forth in paragraph (d) in the statement dated 17^th December, 2002 which were as follows:-

10 (1) The said letter/report of 27^th October, 1998 is incorrect and misleading and as such its existence on the applicant's personnel files has damaged the applicant in his career, is a continuing source of prejudice to him and, unless expunged, will be a source of damage and prejudice to him in the future.

11 (2) The said letter/report is incorrect and misleading in that it purports to indicate agreement on a breakdown of damages in the sum of £80,000 over a number of headings when, in fact, no such agreement was made.

12 (3) The said letter/report misrepresents the actual terms of settlement in that it implies that there was agreement that at least £70,000 reflected compensation for noise induced deafness with the remaining £10,000 being for future diminution in employability and lack of promotional prospects.

13 (4) The said letter/report misrepresents the terms of settlement in that it implies there was little or no allowance for the claim in respect of the failure to treat post traumatic stress syndrome.

14 The applicant is a commandant in the defence forces, aged 47 years, married with three daughters. Since being commissioned in 1974, he has had a number of postings and served overseas on four occasions, including South Lebanon in April, 1980. As a result of his involvement in this and other critical incidents, the applicant claimed that he developed symptoms of post traumatic stress syndrome and noise induced hearing loss. In 1997, the applicant issued High Court proceedings against the respondent claiming damages for negligence for

(a) failing to properly treat his condition of P.T.S.D.; and

15 (b) causing damage to his hearing by failing to protect him from the noise of weapon fire.

16 The case was listed for hearing on the 6^th October, 1998, but was settled four days prior thereto at a settlement meeting. The said proceedings were settled for the sum of £80,000 together with costs and the agreed High Court order was a strike out with an order for costs in default of agreement.

17 The settlement was the subject of a number of newspaper articles which suggested that the settlement was in respect of hearing loss and not post traumatic stress syndrome. So concerned was the applicant by these reports that he procured an affidavit from his Senior Counsel in the legal proceedings stating that the settlement sum of £80,000 was paid largely in respect of compensation for post traumatic stress and that only a small proportion of the settlement sum was in respect of noise induced hearing loss.

18 The applicant was paid his damages and continued in the service of the respondent. Since October, 2000 however, having been deemed fit for restricted overseas service by the respondents' doctors, the applicant made six unsuccessful applications for overseas service. The applicant then became aware that the army Director of the Medical Core (D.M.C.) had not made the necessary recommendations supporting the applicant's requests for overseas service. The applicant sought an interview with the D.M.C. to discuss his eligibility. In February 2002, the D.M.C. informed the applicant that he could not make the necessary recommendation because of the view of the Claims Branch of the Defence Forces, supported by a letter or report from Senior Counsel which had been placed on the applicant's file, that any overseas tours of duty in the applicant's case would amount to double compensation because he had already been compensated for hearing loss and future related loss of earnings.

19 The applicant sought a copy of the report under the Freedom of Information, Act,1997, which said request was...