Curran v Minister for Education

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date31 July 2009
Neutral Citation[2009] IEHC 378
Date31 July 2009
CourtHigh Court
Docket Number[2009 Nos. 167, 218 & 219 JR]
Curran & Ors v Minister for Education & Ors
[2009] IEHC 378
ELEANOR CURRAN, MARY HOLDEN, BRIDGET GALVIN, PAT MCVEIGH AND HELENA SYRON MCLOUGHLIN
APPLICANTS

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
ITA DUGGAN, MAURICE LANE, ITA MCMAHON, RITA MCNAMARA, DANIEL SHINE AND ANNE TWOHIG
APPLICANTS

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
Curran & Ors v Minister for Education & Ors
ANTHONY CORBET, NEIL DEMPSEY, KAREN GAUGHREN, PAT HOLLAND, JOHN O'REGAN, CHRIS PURCELL AND JOHN SEAGRAVE
APPLICANTS

AND

THE MINISTER FOR EDUCATION AND SCIENCE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

[2009] IEHC 378

[No. 167/218/219 J.R./2009]

THE HIGH COURT

JUDICIAL REVIEW

Remedies

Legitimate expectation - Public interest - Declining economic circumstances - Representation - Identifiable group - Existence of transaction or relationship - Procedural or substantive legitimate expectation - Whether legitimate expectation can be outweighed by public interest - Whether group too large - Whether doctrine of legitimate expectation can be relied on to obtain benefit - Whether Minister for Finance entitled to withdraw early retirement scheme - Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84 applied; Keogh v CAB [2004] IESC 32, [2004] 2 IR 159, Glenkerrin Homes v Dun Laoghaire Rathdown County Council [2007] IEHC 298 (Unrep, Clarke J, 26/4/2007), R (Niazi) v Home Department [2008] EWCA Civ 755, [2008] All ER (D) 127 considered; Power v Minister for Social and Family Affairs [2006] IEHC 170, [2007] 1 IR 543 followed; R (Nadarajah) v Home Department [2005] EWCA Civ 1363, [2005] All ER (D) 283 and R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 approved - Financial Emergency Measures in the Public Interest Act 2009 (No 5), ss 2, 9 & 10 - Relief refused (2009/218 & 219 JR - Dunne J - 31/7/2009) [2009] IEHC 378

Curran v Minister for Education

GLENCAR EXPLORATION PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

GLENKERRIN HOMES v DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP CLARKE 26.4.2007 2007/26/5308 2007 IEHC 298

R (NIAZI) v SECRETARY OF STATE FOR THE HOME DEPT 2008 EWCA CIV 755

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S9

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S10

LATCHFORD v MIN INDUSTRY 1950 IR 33

R (NADARAJAH ABDI) v SECRETARY OF STATE FOR THE HOME DEPT 2005 EWCA CIV 1363

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE HARGREAVES 1997 1 WLR 906 1997 1 AER 397

LETT & CO LTD v WEXFORD BOROUGH CORP & ORS UNREP CLARKE 23.5.2007 2007/34/7055 2007 IEHC 195

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

POWER & ORS v MIN FOR SOCIAL & FAMILY AFFAIRS 2007 1 IR 543 2007 1 ILRM 109 2006/49/10354 2006 IEHC 170

R v NORTH & EAST DEVON HEALTH AUTHORITY, EX PARTE COUGHLAN 2001 QB 213 2000 2 WLR 622 2000 3 AER 850

R v SECRETARY OF STATE FOR EDUCATION & EMPLOYMENT, EX PARTE BEGBIE 2000 1 WLR 1115

FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST ACT 2009 S2

KEOGH v CRIMINAL ASSETS BUREAU (CAB) & ORS 2004 2 IR 159 2004 2 ILRM 481 2004/26/6080 2004 IESC 32

ABRAHAMSON & ORS v LAW SOCIETY OF IRELAND & AG 1996 1 IR 403 1996 2 ILRM 481 1996/9/2635

DUGGAN & ORS v AN TAOISEACH & ORS 1989 ILRM 710 1989/1/110

TARA PROSPECTING LTD & ANOR v MIN FOR ENERGY & ORS 1993 ILRM 771 1993/9/2705

DUNLEAVY & ORS v DUN LAOGHAIRE-RATHDOWN CO COUNCIL UNREP MACKEN 2.11.2005 2005/18/3676 2005 IEHC 381

1. Relief sought
2

2 1.1 Leave to pursue judicial review proceedings was granted by this Court on the 16 th February, 2009, in respect of the first set of proceedings, and on the 26 th February, 2009, in respect of the second and third proceedings. The principal reliefs sought are orders of certiorari quashing the decision of the first named respondent to suspend an early retirement scheme for teachers and/or insofar as it applies to the applicants, as set forth in circular 0102/2007 issued by the Department of Education and Science ("the Department"), orders of mandamus to process the applicants' applications pursuant to the scheme, orders of prohibition prohibiting the respondent from acting on foot of the purported suspension of the scheme, declarations that the purported suspension of the scheme was carried out in breach of the applicants' constitutional rights and in breach of the applicants' legitimate expectation that the early retirement scheme would apply to the applicants' retirement at the end of the school year 2008/2009 and/or that the applicants are entitled to apply pursuant to strand 3 of the scheme in respect of their proposed retirement and/or that the proposed suspension of the scheme is unlawful, void and of no legal effect.

2. The facts
2

2 2.1 These three sets of proceedings were heard together. All eighteen applicants are post-primary school teachers who wished to apply for early retirement to take effect at the end of the school year 2008/2009, pursuant to an early retirement scheme of the Department. Seven of the applicants (Mr. Corbet, Mr. Dempsey, Ms. Gaughran, Mr. Holland, Mr. O'Regan, Mr. Purcell and Mr. Seagrave) are secondary teachers at Belcamp College, Malahide, Co. Dublin. Mr. McVeigh is principal of the school. It was announced in 2004 that Belcamp College would close at the end of the school year 2008/2009. The remaining applicants are teachers at various post-primary schools.

3

3 2.2 The early retirement scheme at issue in these proceedings had been in operation by the Department since May 1997. It was introduced on a pilot basis, subject to review by the Commission on Public Service Pensions. That body recommended in November 2000 that the scheme be continued for five years, at the end of which a further review be carried out. Pending completion of that further review, the Department continued the scheme for the 2007/2008 school year.

4

4 2.3 The scheme was a voluntary one which comprised of three "strands" under which applications could be submitted by teachers seeking early retirement. Strand 1 related to "teachers who are consistently experiencing professional difficulties in their teaching duties". Strand 2 related to "teachers whose retirement will provide their school with an opportunity to enhance the education service provided through facilitating change". Strand 3 related to "teachers who are in posts which are surplus to requirements." All of the applicants in the present proceedings intended to make applications pursuant to strand 3. The criteria for strand 3 applications were for a teacher to have a minimum of 5 years' service, to be in a post surplus to requirements, from which they may not be redeployed readily and which would not be filled should they leave the post. Offers of early retirement were made to teachers who were found by the Department to satisfy these conditions but were subject to an overall annual quota of 150 per year for retirements under strand 3 and strand 1. There was an overall quota of 400 per year in respect of the entire scheme.

5

5 2.4 It was the practice of the Department to continue the operation of this early retirement scheme on a year by year basis through issuing a circular inviting applications to Boards of Management, Vocational Educational Committees and school principals which was then circulated to all permanent teachers or teachers who were employed under contracts of indefinite duration. The circulars would issue in the month of November with a closing date for receipt of applications in January or February, depending on which strand the application was made under.

6

6 2.5 Circular 0102/2007, entitled "Early Retirement for Teachers, Retirement at the end of the 2007/2008 school year" invited applications for retirement in respect of the school year 2007/2008. It stated expressly in para. 1 thereof that the scheme would operate again for the school year 2008/2009 in the following terms:-

"In order to promote greater efficiency and effectiveness within schools a voluntary early retirement scheme is available to teachers. The scheme was introduced on a pilot basis pending the report of the Commission on Public Service Pensions. The Commission recommended that the pilot scheme be continued for 5 years and that a review be carried out at that time. Work on the review is now underway and is expected to be completed by mid-2008. Pending the completion of the review, it has been decided that the pilot scheme will be continued to include teachers retiring at the end of 2006/07,2007/08 and 2008/09 school years [emphasis in the original]"

7

7 2.6 The applicants claim that they intended to make applications pursuant to the scheme in respect of the 2008/2009 school year. In his budget speech of the 14 th October, 2008, the Minister for Finance announced, however, that the scheme was being withdrawn. The first named respondent communicated this decision in circular 0101/08 dated the 19 th November, 2008. Accordingly, the applicants were denied the opportunity of submitting applications under the scheme for the school year 2008/2009.

8

8 2.7 The financial backdrop against which the decision to withdraw the scheme was taken is set out in the affidavit of Mr. Dalton Tatton, Principal Officer in the Department, sworn on the 23 rd April, 2009 in respect of the first proceedings and the 1 st May 2009 in respect of the second and third proceedings. He averred as follows:-

2

2 "21. The finances of the State are under severe pressure. In March 2008 the Department of Education and Science discussed the actual and projected financial information emerging and the consequences this might have for the end of year position in 2008 and into 2009. An immediate review of all Departmental expenditure was...

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