Eogan v University College Dublin

• Jurisdiction: Ireland
• Judgment Date: 16 May 1996
• Date: 16 May 1996
• Docket Number: [1995 No. 195 J.R.]
• Court: High Court

Eogan v. University College Dublin

George Eogan

Applicant

and

University College Dublin, Respondent

[1995 No. 195 J.R.]

High Court

Judicial review - Availability of remedy - University established by statute - Constituent college established by Royal Charter - Rules for government of college subject to approval by legislature - Rules providing for appointment of academic staff - Rules providing for academic staff to continue in office until age of sixty-five with possibility of annual extensions up to age of seventy - University not continuing professor in office after age of sixty-five - Whether decision susceptible to judicial review - Irish Universities Act, 1908 (8 Edw. VII, c. 38).

Legitimate expectation - Rules of university providing for academic staff to continue in office until age of sixty-five with possibility of annual extensions up to age of seventy - University formerly having practice of continuing all academic staff in office until age of seventy - University changing practice in order to reduce age level of staff and costs - Applicant appointed to academic staff when former practice applied - Whether applicant having legitimate expectation of being continued in office until age of seventy - Whether applicant's only legitimate expectation relating to fair procedures in regard to change in policy - Whether rational grounds for change in policy.

The Irish Universities Act, 1908, provides for the foundation of the National University of Ireland, and the establishment of a constituent college by Royal Charter, known as University College Dublin (U.C.D.). The Act of 1908 also provides for statutes to be made by the Commissioners of the College, subject to approval by Parliament, for its "general government".

Statute 1, Chapter XIII, provides for the appointment of a Professor of Celtic Archaeology. By Chapter XV, para. 10, subject to certain exceptions, each professor

". . . shall, subject to good conduct and the due fulfilment of his duties, continue in office until he shall have attained the age of 65 years and may thereafter be continued by the Senate in office for five further years provided that his further continuance in office is recommended to the Senate of the University by the Governing Body with the approval of the President and is sanctioned by the Senate annually."

Prior to 1987, academic staff at U.C.D. who had reached the age of sixty-five were annually continued in office until the age of seventy. For some years prior to 1987, the idea had been discussed of ceasing to continue such staff in office, with a view to lowering the age profile of academic staff and making financial savings. The issue was debated at the Academic Council (of which the applicant was a member) and was brought before the Labour Court on a number of occasions; at least one of the trade unions representing academic staff was also involved in the debate. In November, 1987, the Governing Body decided to discontinue extensions in office beyond the age of sixty-five.

The applicant joined the academic staff of U.C.D. in 1965. When discussing his terms of employment with the then Professor of Celtic Archaeology, it was pointed out to him that one of the benefits of the job was that the effective retirement age was 70. In 1979, he succeeded to the professorship. In June, 1989, he formally objected to the decision of the Governing Body of November, 1987. In June, 1995, he was informed that the Governing Body had decided not to recommend his continuance in office beyond his sixty-fifth birthday in September.

The applicant contended that he had a legitimate expectation that he would be continued in office, and sought inter alia to quash the decision of the Governing Body of June, 1995. The respondent contended the decision was not susceptible to judicial review, and that in any event, the applicant had not had the legitimate expectation contended for. It was common case that service beyond the age of sixty-five would not provide the applicant with any greater pension entitlement.

Held by Shanley J., in dismissing the application, 1, that the following were among the matters which might be taken into account in considering whether a decision was subject to judicial review:—

• (a) whether the decision was made pursuant to a statute;

• (b) whether the decision maker, by his decision, was performing a duty relating to a matter of particular and immediate public concern and therefore falling within the public domain;

• (c) where the decision affected a contract of employment, whether that employment had any statutory protection so as to afford the employee any "public rights" upon which he might rely;

• (d) whether the decision was being made by a decision maker whose powers, though not directly based on statute, depended on approval by the legislature or the Government for their continued exercise.

Beirne v. Commissioner of An Garda Síochána [1993] I.L.R.M. 1, Geoghegan v. The Institute of Chartered Accountants[1995] 3 I.R. 86, Murphy v. The Turf Club[1989] I.R. 171 and In re Malone's Application[1988] N.I. 67 considered.

2. That, in the instant case, both the decision to appoint the applicant and the decision not to continue him in office were decisions taken in substance pursuant to the regime flowing from the Act of 1908, which regime depended for its existence on approval by the legislature; and that accordingly the decision not to continue him in office was susceptible to judicial review.

In re Malone's Application [1988] N.I. 67 considered.

3. That while academic staff at U.C.D. had formerly enjoyed the benefit or privilege of continuance in office between the ages of sixty-five and seventy, the applicant was not entitled to an order quashing the decision of the Governing Body of June, 1995, on the grounds of breach of legitimate expectation, in that:—

• (a) the applicant had been fully aware as early as 1987 of the proposal to adopt a scheme of retirement at sixty-five for all academic staff, and of the reasons for such a policy;

• (b) he had been offered, and availed of, the opportunity to comment on the proposal;

• (c) there had been rational grounds for such a scheme, both when it was introduced and when it was applied to the applicant.

Pesca Valentia Ltd. v. The Minister for Fisheries (No. 2) [1990] 2 I.R. 305, Fakih v. The Minister for Justice[1993] 2 I.R. 305 and Council of Civil Service Unions v. Minister for the Civil Service[1985] 1 A.C. 374 considered.

Cases referred to in this report:—

Beirne v. Commissioner of An Garda Síochána [1993] I.L.R.M. 1.

Council of Civil Service Unions v. Minister for the Civil Service[1985] 1 A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935.

Fakih v. The Minister for Justice [1993] 2 I.R. 305; [1993] I.L.R.M. 274.

Geoghegan v. The Institute of Chartered Accountants [1995] 3 I.R. 86.

Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578; [1971] 2 All E.R. 1278.

In re Malone's Application [1988] N.I. 67.

Murphy v. The Turf Club [1989] I.R. 171.

Pesca Valentia Ltd. v. The Minister for Fisheries (No. 2) [1990] 2 I.R. 305.

R. v. Panel on Take-overs and Mergers, ex p. Datafin plc [1987] Q.B. 815; [1987] 2 W.L.R. 699; [1987] 1 All E.R. 564.

R. v. East Berkshire Health Authority, ex p. Walsh [1985] Q.B. 152; [1984] 3 W.L.R. 818; [1984] 3 All E.R. 425.

University Council of the Vidyadays University of Ceylon v. Silva[1965] 1 W.L.R. 77; [1964] 3 All E.R. 865.

Vine v. National Dock Labour Board [1957] A.C. 488; [1957] 2 W.L.R. 106; [1956] 3 All E.R. 939.

Judicial review.

The facts have...