Callely -v- Moylan & Ors, [2011] IEHC 2 (2011)

Docket Number:2010 1207 JR
Party Name:Callely, Moylan & Ors
Judge:O''Neill J.
 
FREE EXCERPT

THE HIGH COURT

JUDICIAL REVIEW2010 1207 JR

BETWEEN

IVOR CALLELYAPPLICANTAND

PAT MOYLAN, DAN BOYLE, FRANCES FITZGERALD, CAMILLUS GLYNN, DENIS O’DONOVAN, JOE O’TOOLE AND ALEX WHITE (MEMBERS OF THE SELECT COMMITTEE ON MEMBERS INTERESTS OF SEANAD ÉIREANN), COMMITTEE ON MEMBERS’ INTERESTS OF SEANAD ÉIREANN AND SEANAD ÉIREANNRESPONDENTS

JUDGMENT of O’Neill J. delivered on the 14th day of January, 2010

  1. In these proceedings, the applicant seeks, by way of judicial review, orders of certiorari, quashing the respondents’ ‘Report of the Results of an Investigation into Complaints Concerning Senator Ivor Callely’ dated 14th July, 2010, and quashing a resolution of Seanad Éireann adopted by Seanad Éireann on 14th July, 2010, to the effect that the applicant be censured and be suspended from service of the House for a period of twenty days on which the House should sit, and that such annual sum by way salary payable to the applicant be withheld for that period, and that the period of suspension commence forthwith.

    BACKGROUND

  2. The applicant in these proceedings is member of Seanad Éireann, having been so appointed by An Taoiseach, Mr. Brian Cowan, T.D., in August 2007. Prior to that, he had been a member of Dáil Éireann for approximately eighteen years and lost his Dáil seat in the General Election in May 2007. As a member of Dáil Éireann, he represented the constituency of Dublin North Central, where he resided with his family, and where he had a Constituency Office. The applicant also has another home, originally a holiday home, since 1992, at Kilcrohane, near Bantry in West Cork.

  3. Pursuant to s. 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938 (“the Act of 1938”), members of the Seanad are entitled to recover expenses incurred in travelling to attend sittings of Seanad Éireann, from their “normal place of residence”. The section is as follows:

    “The travelling facility to be granted to each member of the Oireachtas under this Act shall be . . .

    (c) in the case of a member of Seanad Éireann, travelling facilities between Dublin and his normal place of residence for the time being.”

  4. Pursuant to the Oireachtas (Allowances to Members) (Travelling Facilities and Overnight Allowances) Regulations 1998 (S.I. No. 101 of 1998) (“the 1998 Regulations”), a member of the Houses of the Oireachtas, whose normal place of residence was further than fifteen miles from Leinster House, had an option of choosing to claim expenses in attending Leinster House, either through a daily allowance of €61.00 or a travel allowance based on mileage and an overnight allowance of approximately €140.00 per night. These Regulations were replaced, on 2nd March, 2010, by the Oireachtas (Allowances and Facilities) Regulations 2010 (S.I. No. 84 of 2010). It is the 1998 Regulations that apply in the circumstances that are in controversy in this case.

  5. The applicant, in December 2007, submitted a claim for overnight and travel expenses for the period from 3rd August, 2007 (the date of his appointment) to 3rd November, 2007. By way of explanation, he wrote as follows:-

    “My personal situation has changed since June 2007, and while I retain my Dublin home and my Constituency Office, my current principal residence is Kilcrohane, Bantry, County Cork, as per my letter of appointment to Seanad Éireann as attached . . . “

    Here, the applicant was referring to the letter from the Department of An Taoiseach dated 3rd August, 2007, informing him of his appointment to An Seanad which was addressed to the applicant at his Cork address.

  6. Subsequent claims for expenses on the same basis were submitted by the applicant for the period from 4th November, 2007, to 31st December, 2007, from 1st January, 2008 to 4th May, 2008, and for the period from 5th May 2008, to 31st August, 2008. By a claim form submitted on 22nd December, 2009, the applicant submitted a “nil” claim for the period from 1st September, 2008, to 31st December, 2008.

  7. The applicant claimed travel and overnight expenses on the basis of travelling from his Cork residence for the periods from 1st January, 2009, to 4th April, 2009, from 5th April, 2009, to 2nd August, 2009, and from 3rd August, 2009, to 2nd October, 2009. He submitted a “nil” claim for the period from 3rd October, 2009, to 31st December, 2009. The applicant claimed on the same basis, i.e. travelling from his Cork residence, for the period from 1st January, 2010, to 28th February, 2010. By a letter of 2nd April, 2010, the applicant returned, by cheque, a sum of €3,987.00, being the March portion of his travelling and accommodation allowances.

  8. In a letter of 2nd October, 2008, sent to the applicant by the Members Services (the office in the Oireachtas that deals with allowances for Members), the following was stated:

    “I note from your letter of December 2007, that you have stated that the House at Kilcrohane, Bantry, County Cork, is your ‘current principal residence’. However, for avoidance of doubt and for absolute certainty for factual and audit purposes, I would be grateful if you could certify, in writing, that this house in Bantry was ‘your normal place of residence for the time being’ for the period of the claim. This is the statutory provision used in s. 4(1)(c) of the Oireachtas (Allowances to Members) Act 1938, for payment of such expenses.

    For ease of reference, the term ‘normal place of residence’ has been defined by the Department of Finance in previous correspondence as ‘what is involved is a premises which, though not necessarily one’s permanent and principal abode, is used for a period which is both of some length and for a purpose which is not ad hoc and goes beyond mere shelter in passage such as a few nights in a hotel’.”

  9. By a letter of the same date, the applicant replied as follows:

    “. . . as already advised, my personal situation has changed since June 2007, as per my previous communication in December 2007. I can confirm that my residence in Kilcrohane is my normal place of residence for the time being, though not necessarily one’s permanent and principal abode at all time. It is the residence from which I received my appointment to Seanad Éireann . . .”

  10. In or about June 2009, the applicant became concerned that the expenses he claimed reflected his evolving circumstances. He contacted the Members Services of the Houses of the Oireachtas and enquired about changing his claim for allowances from the ‘Travel and Overnight Allowance’ to the ‘Daily Allowance’. By a letter dated 2nd July, 2009, the Members Services Office stated as follows:

    “Following on from your recent enquiry, I am writing to confirm that you elected to recoup expenses incurred in respect of your attendance in Leinster House by way of Overnight and Travel Allowances for the year 2009.

    Section 5 of S.I. 101 of 1998 states that a Member, whose normal place of residence is more than fifteen miles (24.135 km.) from Leinster House, may opt for the Daily Allowance of Travel and Overnight Allowance once and only once within a normal calendar year.

    As you have previously declared, on 12th November, 2008, that your option for 2009 is to be the Travel and Overnight Allowance for the year ending 31st December, 2009, we are, unfortunately, unable to proceed with your request to change the option chosen until the start of the new calendar year on 1st January, 2010 . . .”

  11. At paragraph 11 of his affidavit grounding these proceedings, the applicant avers the following:

    “In 2009, Kilcrohane, County Cork, continued to be my ‘normal place of residence’ and I continued to commute from Kilcrohane. However, as my circumstances evolved, I again found myself spending more time in Dublin. Therefore, I determined that a fair and appropriate solution to the situation in which I found myself would be for me not to claim expenses from August 2008 to December 2008, and September 2009 to December 2009. I have not received any expenses in respect of 2010. On 7th October, 2009, I emailed Members Services to explain my position as follows:

    ‘I refer to our discussions in connection with my expenses. I am anxious that my claim should reflect my actual travel. I understand the current expenses system in respect of attendance is restricted in options and the option available to me is not suitable for my current travel, thus, I have not made any recent claim’.

    I note the response in July last, where a change of the restricted options is not possible until the start of the new calendar year in January 2010. Given that the Minister for Finance is currently considering amendments and/or a new system for expenses, it may be an opportunity to address any such issue . . .”

  12. On 16th December, 2009, the applicant wrote a further letter to the Members Services Office, and in it said the following:

    “As stated in my last letter of 30th November, I would prefer ‘my travel to reflect my actual and/or to be vouched to reflect actual expenses’.

    I understand a new expenses system will be introduced shortly, but will not be retrospect. In order to reflect travel between my Kilcrohane and Dublin abode and the expenses incurred, I wish to indicate that my claim, up to August 2008 is my last claim for 2008, I am claiming for eight months only in 2008, and I do not intend to claim for September, October, November or December 2008, as I feel this best reflects my particular situation.

    I await the new expenses system and do hope it will accommodate my position.”

  13. On 2nd April, 2010, the applicant, again wrote to the Members Services Office, in the following terms:

    “I refer to the cheque which I received under the new Parliamentary Standard Allowance system and to advise that I wish to return the monies received on 31st March, 2010.

    I do not wish to draw down my full entitlement, and return cheque to the value of €3,987.50. As I have previously indicated, I wish my expenses/allowance to reflect my actual expenses. I was hoping that the new allowance system would accommodate my...

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