McMenamin v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 01 January 1997
• Neutral Citation: 1994 WJSC-HC 3588
• Court: High Court
• Docket Number: Record No. 96 J.R./1993
• Date: 01 January 1997

MCMENAMIN v. IRELAND

JUDICIAL REVIEW

BETWEEN

DISTRICT JUDGE LIAM OLIVER McMENAMIN

APPLICANT

AND

IRELAND THE MINISTER FOR JUSTICE AND THE ATTORNEY GENERAL

RESPONDENTS

1994 WJSC-HC 3588

Record No. 96 J.R./1993

THE HIGH COURT

Synopsis:

CONSTITUTION

Courts

Judges - Pensions - State - Obligations - Statute - Terms - Effect - Enactment in 1961 providing for retirement pensions for judges of District Court - Effect of enactment altered by passage of time - Duty of State to maintain and implement policy of statute in current circumstances - Order declared that State was in breach of its duty under Constitution - Courts of Justice and Court Officers (Superannuation) Act, 1961, s. 2 - Courts (Supplemental Provisions) Act, 1961, ss. 31, 48 2nd schedule, Part III, para. 8(2) - Constitution of Ireland, 1937, Articles 35, 36, 40 - (1993/96 JR - Geoghegan J. - 23/6/94) [1996] 3 IR 100 - [1994] 2 ILRM 368

|McMenamin v. Ireland|

PENSIONS

Judiciary

State - Obligations - Statute - Provisions - Effect - Circumstances - Change - Effect of statute altered after period of time - Enactment in 1961 providing for retirement pensions for judges of District Court - Effect of enactment altered by passage of time - Duty of State to maintain and implement policy of statute in current circumstances - Order declared that State was in breach of its duty under Constitution - (1993/96 JR - Geoghegan J. - 23/6/94)1996 3 IR 100 - 1994 2 ILRM 368

|McMenamin v. Ireland|

STATUTE

Effect

Alteration - Circumstances - Change - Judge - Pension - Ancillary benefits diminished - Enactment in 1961 providing for retirement pensions for judges of District Court - Effect of enactment W:G7 altered by passage of time - Duty of State to maintain and implement policy of statute in current circumstances - Order declared that State was in breach of its duty under Constitution - (1993/96 JR - Geoghegan J. - 23/6/94) 1996 3 IR 100 - 1994 2 ILRM 368

|McMenamin v. Ireland|

Citations:

COURT OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2(5)

COURTS OF JUSTICE (DISTRICT COURT) ACT 1949 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S31

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACT 19611961 SCHED 2 PART III PARA 8

COURTS OF JUSTICE ACT 1953 S8(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48(3)

ADMINISTRATION OF JUSTICE (PENSIONS) ACT 1950 S1 UK

CONSTITUTION ART 35.5

SOMJEE V MIN FOR JUSTICE 1981 ILRM 324

WALSH, STATE V MURPHY 1981 IR 275

MORGAN V PARK DEVELOPMENTS LTD 1983 ILRM 156

BLAKE V AG 1982 IR 117 1981 ILRM 34

BRENNAN V AG 1984 355

VALENTA V R 24 DLR 161

O'BYRNE V MIN FOR FINANCE 1959 IR 1

CONSTITUTION ART 40.1

QUINNS SUPERMARKET LTD V AG 1972 IR 1

W V W 1993 2 IR 476

MCKINLEY V MIN FOR DEFENCE 1992 2 IR 333

COX V IRELAND 1992 2 IR 503

ADMINISTRATION OF JUSTICE (PENSIONS) ACT 1950 S2 UK

COURTS OF JUSTICE & COURT OFFICERS (SUPERANNUATION) ACT 1961 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

COURTS OF JUSTICE ACT 1924

1 Judgment of Mr. Justice Geoghegan delivered the23rd day of June 1994.

2 This is an application for Judicial Review by District Judge McMenamin pursuant to leave granted by Keane J. by Order of the 19th of April 1993.

3 Essentially the Applicant has two complaints. First of all he says that the statutory arrangements on foot of which the lump sum gratuity payable to District Judges on retirement is calculated are irrational and arbitrary and that the Minister for Justice is constitutionally obliged to take the necessary steps to have them changed.

4 Secondly, he says that he is wrongly and unconstitutionally discriminated against in that Circuit Court Judges are eligible for full pension after 15 years service whereas District Court Judges must serve 20 years.

5 I will deal with each of these points in turn. The relief claimed in respect of the first complaint is

"An Order of Certiorari quashing a decision of the Minister for Justice ("the Minister") dated in or about the 6th day of January 1993 as refused to change the pension arrangements for Judges of the District Court, including the Applicant".

6 The grounds upon which this relief is sought are effectively grounds C, D, & E as set out in the Statement of Application. These grounds read as follows:-

7 a "C. By virtue of Section 2(5) of the Superannuation Act, the said pension of Judges of the District Court is reduced by one fourth and in return the said Judges receive a gratuity on retirement equivalent to one and one half of their retirement pension (as abated). The effect of this statutory abatement is that for each £1 per annum of pension so abated by Section 2(5), the Judge will receive a lump sum of £4.50.

8 b D. The said statutory calculation is arbitrary and represents the application of an approximate rule of thumb. It is not based on actuarial science nor is it consistent with modern practice in either the public or private service or the standard practice of the Revenue Commissioners where the ratio of £9 of lump sum per £1 of annual pension is the universal norm. If standard actuarial practice were so employed, the result would be that long serving Judges of the District Court would be entitled to a lump sum of approximately twice that presently payable, together with their pension as statutorily abated. Conversely, such Judges would in the alternative be entitled to a full pension without statutory abatement, but without payment of any lump sum.

9 c E. The operation of the said statutory abatement provision is arbitrary, unreasonable and not based on any rational actuarial premise. In the premises, the said Section 2(5) of the Superannuation Act violates the Applicant's constitutional rights to fair procedures and to a reasonable and rational system of statutory pension entitlements."

10 In the above cited paragraphs in the Statement of Application the references to "the Superannuation Act" are references to the Courts of Justice and Court Officers (Superannuation) Act 1961.

11 The Applicant was appointed a Judge of the District Court on the 1st of March 1983. He will retire (assuming that the appropriate annual extensions of time are sanctioned by the Standing Committee pursuant to Section 2 of the Courts of Justice (District Court) Act, 1949) on the 4th of February 1997. The statutory arrangements for calculation of the retirement gratuity were already in existence as of the date of the Applicant's appointment. They are to be found in Section 2 of the above Act of 1961 which I will, for convenience hereafter in this judgment, refer to as the Superannuation Act 1961. It will be noted from the title of the Act that it was enacted prior to the Courts (Supplemental Provisions) Act, 1961 and indeed related at the time of its enactment to the Justices of the District Court of Justice established by the Courts of Justice Act, 1924. The Section however has been continued in operation by the Courts (Supplemental Provisions) Act, 1961and continues to apply therefore to Judges of the District Court established under the Courts (Establishment and Constitution) Act, 1961. It is important to note and in my view is quite crucial to the first of the two issues raised in this case that the principal statutory provision for pensions for District Judges is not Section 2 of the Superannuation Act, 1961 but rather Section 31 of the Courts (Supplemental Provisions) Act 1961 and part 3 paragraph 8 of the Second Schedule to that Act. For all practical purposes there is re-enacted in paragraph 8 of the Second Schedule to the Courts (Supplemental Provisions) Act 1961 the provision contained in Section 8(1) of the Courts of Justice Act, 1953. Subparagraph (2) is the relevant part of paragraph 8 and it reads as follows:-

"There shall be granted to a justice to whom this paragraph applies and who, having reached the age of sixty five years, vacates his office after 20 years' service or upwards a pension for life of two thirds of his remuneration at the time of such vacation of office."

12 Section 48 of the same Act applies to the newly established Courts' enactments contained in the Courts of Justice Acts which have not been repealed by that Act. Such an enactment is Section 2 of the Superannuation Act, 1961. That section reads as follows:-

13 2 "12.-(1) This section applies to

14 (a) a person appointed a judge of the Supreme Court the High Court, or the Circuit Court or a justice after the passing of this Act, and

15 (b) a person who in accordance with the provisions of Section 3 of this Act and of regulations under Section 6 of this Act adopts the provisions of this section

16 (2) Upon the grant of a pension under the Acts to any person to whom this section applies there shall be granted to that person a gratuity of an amount equal to one and one half times the yearly amount of the pension (including any part thereof surrendered under Section 7 of this Act) as reduced under subsection (5) of this section.

17 (3) Upon the death, while holding office as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice after 5 years service or upwards as a judge or justice as the case may be, of any person to whom this section applies, there shall be granted to the legal personal representative of that person a gratuity of an amount equal to the yearly amount of his salary as a judge or justice, as the case may be, at the time of his death.

18 (4) If any person to whom a pension under the Acts and a gratuity under this section have been granted dies at a time when the amount paid to him on foot of the pension and the gratuity is less by any sum than the yearly amount of his salary as a judge of the Supreme Court, the High Court or the Circuit Court or as a justice, as the case may be, at the time when he ceased to hold office as such judge or justice, as the...