Morrissey v The Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 19 October 2018
• Neutral Citation: [2018] IEHC 672
• Docket Number: [2018 No. 784 JR]
• Court: High Court
• Date: 19 October 2018

[2018] IEHC 672

THE HIGH COURT

JUDICIAL REVIEW

MacGrath J.

[2018 No. 784 JR]

BETWEEN

GAVIN MORRISSEY

APPLICANT

AND

THE MINISTER FOR DEFENCE, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Judicial Review – Certiorari – Education Law – Applicant seeking an order of certiorari quashing the decision of the respondents rejecting his application to military college – Whether the respondent’s application of admission criteria breached the applicant’s rights

Facts: On 1st April, 2018, applicant applied for a place in the cadet school of the military college established and operated by the first respondent. His application was rejected as he had not obtained the necessary Leaving Certificate qualifications in one sitting, which was required in the 2018 admission criteria. The applicant had initially sat his Leaving Certificate in 2017, and had then retaken the majority of the exams in 2018 specifically for the purpose of achieving the necessary qualifications for admission to this particular school. The applicant had conversation at an open day in April 2017 with a member of the Defence Forces where he was informed he did not have to pass all of the subjects in a single sitting. The applicant argued, inter alia, that he reasonably relied on this information, the 2017 terms and conditions, and on information on the Defence Forces website, to form his belief that he could use his Mathematics score from the previous year for his 2018 application. The applicant argued that the application of the changed terms and conditions and consequent refusal of his application was contrary to his legitimate expectations, contrary to natural justice, and was irrational and disproportionate in the circumstances.

Held by MacGrath J that while the Minister was entitled to change the terms and conditions relating the minimum educational entry requirements, it was both unfair and legally unreasonable for him to make such a change in such a manner and at such a time. The applicant relied on the representations and understandings of the respondent’s agents of how the rules operated and this was evidenced by his conduct, in particular the expense of attending a private school to re-sit his Leaving Certificate exams. MacGrath J held that the change was not only unreasonable but was contrary to the legitimate expectation of the applicant and the refusal was therefore in breach of the applicant’s rights.

Relief granted.

EX TEMPORE JUDGMENT of Mr. Justice MacGrath delivered on the 19th day of October, 2018.

1 This is an application for judicial review in which the applicant claims various orders and reliefs against the respondents including an order of certiorari quashing the decision of the respondents to reject his application for a place in the cadet school of the military college established and operated by the first respondent. He seeks declarations that the respondents, in refusing him a place in the cadet school on the basis that he did not obtain all the necessary academic qualifications in a single sitting of the Leaving Certificate, have acted in a manner contrary to his legitimate expectations, contrary to natural justice, and was irrational and disproportionate in the circumstances.

2 The applicant was born on 10th November, 1998. He sat his Leaving Certificate in 2017 and repeated it in 2018. It was his wish and desire to become an officer of the Permanent Defence Forces and to this end, on 1st April, 2018, he applied for entry into the cadet school at the military college. The college is responsible for the training and education of officers in the Defence Forces and in the context of this case, the army.

3 On 3rd April, 2017, the applicant attended an open day for the Defence Forces at Stephens Barracks, Kilkenny. He says he was informed by a member of the Defence Forces that he required a third language in his Leaving Certificate, and that the Leaving Certificate subjects required did not have to be passed at a single sitting of the examination. It was his understanding based on this conversation that a candidate could count certain subjects which he passed in a previous Leaving Certificate sitting towards the fulfilment of the cadet school's subject requirements.

4 The applicant did not achieve the necessary standards in the various subjects required for entry into the cadet school in his Leaving Certificate in 2017. He decided to repeat his Leaving Certificate in 2018, which according to communications and correspondence opened to the Court (and in particular a letter of 23rd August, 2018, sent at his behest by his father to the Defence Forces), he did so solely in order to meet the entry requirements for a cadetship. He commenced studying a third language and a new subject after carrying out research on the defendant's website, www.military.ie. He wished to ensure that he would fulfil the entry requirements. He enrolled in Yeats College in Waterford, a private school providing grinds specifically for repeat Leaving Certificate students, which cost almost €7,000.

5 In January, 2018, following consultation with the school principal and a career guidance teacher, he dropped mathematics from his studies in order to focus on studying his other subjects and to improve his grades generally. He avers that during the course of the 2018 academic year he consulted the Defence Forces website which indicated, under the section entitled ‘ Naval Service FAQ’ that ‘ the specific subjects listed need not be in a single sitting…’. He maintains that the Defence Forces website contained no indication that the required Leaving Certificate subjects all had to be obtained within the same year. He avers that it was in reliance on these representations that he, in consultation with his school guidance counsellor, decided to drop mathematics from his studies. His intention was to carry over the 2017 grade in mathematics in order to fulfil the subject requirements for admission to the cadet school in 2018.

6 On 1st April, 2018, the day that the competition opened, the applicant submitted his online application. This required the completion of a form requesting information including whether he intended to sit for the Leaving Certificate or national equivalent examination in 2018, to which he replied in the affirmative. The last paragraph of the form contained the following declaration:-

‘I hereby declare that all the particulars supplied in connection with this application are true, accurate and complete to the best of my knowledge and belief. I hereby declare that I have read and that I fulfil all the requirements set out in the Governing Terms and Conditions for this position and that the information given in this form is correct…’

To this, he answered ‘ Yes’. The applicant completed the form at 16:46 on that day.

7 In May, 2018, the applicant undertook an online psychometric evaluation. He underwent a further group psychometric competition on 26th June, 2018 and was interviewed by representatives of the military college on 13th July, 2018. He underwent a medical examination on 26th July, 2018. The applicant successfully passed all of these tests. Therefore, the only outstanding matter was his Leaving Certificate results, and based on these, he hoped to secure a place in the cadet school for the academic year commencing on 25th September, 2018.

8 By email of 9th June, 2018, the respondent sent a bundle of documents to the applicant which included a document entitled ‘ Terms and Conditions and General Information Regarding Officer Cadetships in the Defence Forces 2018’ (‘the 2018 terms and conditions’). This document is dated 29th March, 2018 and was published on the Defence Forces website on the morning of 1st April, 2018. It appears that it should have been available to download and read when the applicant completed his application on that day. Mr. Morrissey avers that he did not read the 2018 terms and conditions document closely when he received the email in June, 2018. The Leaving Certificate Mathematics Papers I and II examinations took place on Friday 8th June, 2018 and on Monday 11th June, 2018.

9 It was believed by the applicant that through a combination of the Leaving Certificate results for the 2017 and 2018, he had achieved the minimum educational requirements set out in the 2018 terms and conditions. However, as a result of not sitting the mathematics examination in 2018, he was informed by the respondent by email, on 22nd August, 2018, that he had not been accepted into the cadet school.

10 On the hearing of this application, it became evident that the only matter which stands in the way of the applicant securing a place in the cadet school for this current year is that he did not sit the Leaving Certificate mathematics examination this year but is relying on the results of the Leaving Certificate examination in mathematics obtained in 2017.

11 The 2018 terms and conditions, as in the case of the terms and conditions in previous years, are divided into a number of parts. Part I contains the governing conditions, rules and qualifications required for the award of cadetships in the Defence Forces. The relevant paragraphs of the terms and conditions which have been relied upon by the parties include para. 2 of Part I. Paragraph 2 is entitled ‘ MINIMUM EDUCATIONAL QUALIFICATIONS’, and states as follows:-

‘a. Army (Line) and Army (Equitation School)

School Leaver/Non-Graduate Candidates who sat their Leaving Certificate Examination in 2017 or who are sitting this examination in 2018, must possess a minimum of Grade H5 in 3 Higher Level papers and Grade O6/H6 in 3 Ordinary/Higher level papers.

A minimum of Grade O6/H6 is required in the following Ordinary/Higher level subjects:

(1) Mathematics.

(2) Irish. NUI matriculation exemptions apply.

(3) English. Candidates whose first language is not English must satisfy the English language requirements in...