Elder v The Minister for Defence
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 22 July 2019 |
| Neutral Citation | [2019] IEHC 716 |
| Date | 22 July 2019 |
| Court | High Court |
| Docket Number | [2019] 378 JR [RECORD NO. 2019/378JR] |
[2019] IEHC 716
THE HIGH COURT
Ní Raifeartaigh
[2019] 378 JR
[RECORD NO. 2019/378JR]
AND
Legitimate expectation – Countervailing factors – Paramedic course – Applicant seeking to undertake a paramedic course – Whether a legitimate expectation had arisen
Facts: This case concerned the procedure by which the Defence Forces selected individuals for participation in a two-year paramedic course run by an external body, the National Ambulance Service College (NASC). A course notification was published on 7th May, 2019. Following that, interviews were held. There was a notification of a decision on 5th June, 2019 as to who the successful candidates were (which included the applicant, Mr Elder) and then there was a subsequent notification on 11th June, 2019 which stated that the respondent would re-conduct the interviews because an anomaly had been discovered. In due course, there was a new course notification and this indicated that there was a change in relation to the minimum academic qualification that was required for applicants. In other words, this was the issue relating to the Leaving Certificate versus the Level 5 NQF requirement. Originally, only applicants with a Leaving Certificate were permitted to apply; however, the pool of applicants was being expanded to those who might have a Leaving Certificate or a Level 5 NQF. The applicant obtained leave to bring judicial review proceedings, the order granting which was dated 14th June, 2019. He also obtained a stay on the process which, in effect, prevented any subsequent interviews taking place. There were various reasons as to why the matter did not get a hearing until Friday 19th July, 2019 which was the last working day before the course was due to start. As a matter of practicality, therefore, either the applicant and his fellow applicants were permitted to do the course or nobody got to do it. It seemed to Ní Raifeartaigh J that she had to decide the case on the basis of legal principle and that she needed to consider the legal position on the date when the leave and the stay were granted without being influenced by this practical reality. This case was run primarily on the basis of legitimate expectation and Ní Raifeartaigh J proposed to deal with it on that basis.
Held by the High Court (Ní Raifeartaigh J) that it was not convinced by any argument that the applicant was entitled to a place on the course simply because he had been told he had achieved the place, nor on any implicit argument about the fact that the matrix was going to be changed in the new interviews, but it was persuaded by the Leaving Certificate/Level 5 argument that a legitimate expectation had arisen and in the absence of negative countervailing factors, it seemed to it that the applicant should be successful.
Ní Raifeartaigh J held that the applicants were permitted to undertake the paramedic course.
Reliefs granted.
This case was run primarily on the basis of legitimate expectation and I propose to deal with it on that basis. I have reached the conclusion that it has edged over the line - but only just - from what might be described as a “bare” expectation to what in law amounts to a “legitimate” expectation. First, I will speak about the reasons for that conclusion and then I will discuss the reliefs to be granted.
The case concerned the procedure by which the Defence Forces selected individuals for participation in a two-year paramedic course run by an external body, the National Ambulance Service College (“NASC”). First of all, I should say that I accept that the qualification of a paramedic is a useful career-enhancing qualification and that it is a benefit in that sense without my necessarily having to find that it would inexorably lead to certain promotions or postings, as there was some dispute about the precise effect of having the qualification.
The sequence of events was as follows. A course notification was published on 7th May, 2019. Following that, interviews were held. There was a notification of a decision on 5th June, 2019 as to who the successful candidates were (which included the applicant) and then there was a subsequent notification on 11th June, 2019 which stated that the respondent would re-conduct the interviews because an anomaly had been discovered. In due course, there was a new course notification and this indicated that there was a change in relation to the minimum academic qualification that was required for applicants. In other words, this was the issue relating to the Leaving Certificate versus the Level 5 NQF requirement. (Originally, only applicants with a Leaving Certificate were permitted to apply; now, however, the pool of applicants was being expanded to those who might have a Leaving Certificate or a Level 5 NQF.)
The background to the decision to re-conduct the interviews, as appears from the affidavits, is that after the interviews were held, it was realised that a new set of weighted criteria had been used to assess candidates. I call those weighted criteria ‘the matrix’. It is clear from what I have seen that there was a document setting out how each applicant would be scored during the interview and it contained twelve categories, with each category carrying a weighting such as 10% or 5%. The weighting of each category is very important to the overall score that the person receives. A lot of work had been put into devising a particular matrix, which was used in a similar set of interviews in 2018, and I will call that the ‘2018 matrix’. What, in fact, happened was that a slightly altered one – where the weighting was different in relation to one factor in particular - was used for the interviews in May 2019. I will call that the ‘2019 matrix’.
The evidence before me on behalf of the respondents was that this change, the use of a different matrix, was unintended and that the intention had been to use the 2018 matrix. When it was realised that, from the respondent's points of view, the wrong matrix had been used, the decision was made to re-conduct the interviews and use the 2018 matrix. This apparently was what led to the email to the applicant referring to an “anomaly” within the process.
Later, and separately, it seems that it was also realised that the requirement of the external body, the NASC, as regards minimum academic qualifications was that they would accept not only a Leaving Certificate but also a Level 5 NQF. Therefore, it was decided to expand the pool of applicants to include people who had a Level 5 NQF as well as those who had a Leaving Certificate (minimum six subjects). In other words, it was decided that in re-conducting the interview, there would be an expansion of the minimum academic criteria, arguably lowering them, leading to a potential expansion of the pool of candidates.
At this point in time, and in my view the sequencing is important, the applicant obtained leave to bring judicial review proceedings; the order granting which is dated 14th June, 2019. He also obtained a stay on the process which, in effect, has prevented any subsequent interviews taking place. There are various reasons as to why the matter did not get a hearing until Friday 19th July, 2019 which was the last working day before the course was due to start. As a matter of practicality, therefore, either these three applicants are permitted to do the course or nobody gets to do this particular course. I understand there is a different one starting in September but there are some other differences in that it is a longer course (it is a three-year course) and there are various other aspects of difference. At the moment, the next course starts on 22nd July and because it was not possible to re-conduct the interviews because of the stay imposed by the High Court, either the applicant (and his fellow applicants) do it or nobody does it. But that, I hasten to add, does not influence me in the decision I have reached because it seems to me that I have to decide the case on the basis of legal principle and I need to consider the legal position on the date when the leave and the stay were granted and not to be influenced by this practical reality.
Quite a number of authorities were opened to me including the case of Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84 which featured considerably with regard to the three criteria for satisfying the doctrine of legitimate expectation, as set out by Fennelly J. at page 162 as follows:
“In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these...
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