Palmer v Minister for Defence and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 16 May 2014
• Neutral Citation: [2014] IEHC 446
• Docket Number: [2013 No. 160 J.R.]
• Court: High Court
• Date: 16 May 2014

BETWEEN

GARY PALMER

APPLICANT

AND

MINISTER FOR DEFENCE AND ATTORNEY GENERAL

RESPONDENTS

[2014] IEHC 446

[2013 No. 160 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Service Personnel – Army –Promotion – Training – Loss of Earnings – Age – Discrimination – Equality – Legitimate Expectation – Judicial Review - Order of Mandamus

Facts: The applicant a serving private in the army was nominated in 2012 to undergo training to render him qualified for promotion to non-commissioner officer rank. Having completed the preparation training and the necessary medicals, the applicant came to work in McKee Barracks during his days off during the summer and autumn 2012, in order to make his preparations for the course, which commenced in Oct 2012. Two days after commencing training, the applicant and two other colleagues were called into the headquarters and asked their age by the commanding officer who advised that they were too old for the course and that a decision would be made the following Friday whether he and others over 40 years of age would return to his unit. The applicant continued on the course and on the Friday he was advised that he was being sent back to his army unit in McKee Barracks without being allowed to complete the remainder of the course. The applicant who was upset by this decision claimed that he suffered disappointment, distress and a loss of earnings and subsequently applied for leave for judicial review. He was grated leave to apply for judicial review to quash the decision of the respondents of 2nd November, 2012, to remove him on age grounds from the training course and to deprive him of a place in the training course when he had already commenced work and to deny him the opportunity to complete the training course for which he had been selected. The applicant further sought by way of certiorari an order to quash the entry criteria for entering onto the course for non-commissioned officers in the absence of clear and transparent and published objective justification for the age limitation therefore and further the applicant sought a declaration that his removal was unfair and unreasonable and an order of mandamus by way of application for judicial review directing that the respondents allocate the applicant a place in a future course and damage. Thus, the grounds of the claim were that the decision of 2 ^nd November, was unfair and reasonable and unlawful and in breach of the applicant’s legitimate expectation contrary to fair procedure and was discriminatory under equality provisions. The respondent contended that the decision to admit the applicant onto the course was an unfortunate administrative error.

Held by Justice Cross that the first question to be asked was whether the applicant had an expectation within the meaning of established case-law that he would be allowed to continue on the course notwithstanding his age. It was the opinion of the court that the applicant had not established such an expectation. It was stated that the respondents had made a significant administrative error. Whilst it was accepted that the applicant had expended some energy in preparing for the course and was two days on the course before he was told there was a problem and was approximately a working week on the course before he was removed, Justice Cross did not accept that that action constituted an expectation in any real sense. He reasoned that whilst the applicant had a great hope that he would be able to complete the course and proceed to promotion, he was not satisfied that the respondent’s error had created an expectation in the first place. Nor was he satisfied that as a result of being accepted onto the course that the applicant did any adverse to his interests or that any question of estoppel could arise. Following the doctrine of legitimate expectation emanating from Webb v. Ireland [1988] I.R. 353, Justice Cross further reasoned that no promise or representation had been made by the respondents. It was merely a mistake. Justice Cross also accepted the submission on behalf of the respondent that if here was no expectation then there was also no legitimate expectation. The applicant was never eligible for inclusion in the course as he did not satisfy the criteria set out in the Joining Instructions. The applicant accordingly never had any legitimate expectations about the course, that he never had an expectation which was either reasonable or legitimate which was a prerequisite for the doctrine to arise. Finally, it was determined by Justice Cross that the operation of a reasonable policy by the Defence Forces to apply an upper age limit could and did override any legitimate expectation the applicant may have had. He further held that there was no breach of fair procedures or natural justice. Consequently, the applicant’s case was dismissed.

Mr. Justice Cross

JUDGMENT of Mr. Justice Cross delivered on the 16th day of May, 2014

1 The applicant in this case is a serving private in the PDF having been born on 24th June, 1971, and has had some 23 years of unblemished experience and service in the army.

2 He was nominated in 2012 by his commanding officer to undergo a non-commissioned officer’s training course of intensive training to render him qualified for promotion to non-commissioner officer rank. He was afterwards selected by the designated staff officer of the General Office Commander of the Second Eastern Brigade. The course commenced on 30th October, 2012. Prior to the course commencing, in September 2012, the applicant underwent general preparation training so that he could satisfy the pre-course requirements and he came in to work in McKee Barracks during his days off during the summer and autumn 2012, in order to make his preparations for the course.

3 He attended a medical and was pronounced fit.

4 Upon reporting for the course on 30th October, 2012, at Casement Aerodrome, Baldonnell, he commenced the course but two days later he and two other members were called into the headquarters and asked their age by the commanding officer who advised that they were too old for the course and that a decision would be made the following Friday whether he and others over 40 years of age would return to his unit. The applicant continued on the course and on the Friday he was advised that he was being sent back to his army unit in McKee Barracks without being allowed to complete the remainder of the course.

5 The applicant says and I accept that he was greatly upset by this because he had passed all the other criteria for the course and that as a result he claims that he was really disappointed and distressed and has suffered a loss of earnings.

6 Accordingly, the applicant applied for leave for judicial review and was granted leave on 4th March, 2013, to quash the decision of the respondents of 2nd November, 2012, to remove him on age grounds from the training course and to deprive him of a place in the training course when he had already commenced work and to deny him the opportunity to complete the training course for which he had been selected.

7 The applicant further sought by way of certiorari an order to quash the entry criteria for entering onto the course for non-commissioned officers in the absence of clear and transparent and published objective justification for the age limitation therefore and further the applicant sought a declaration that his removal was unfair and unreasonable and an order of mandamus by way of application for judicial review directing that the respondents allocate the applicant a place in a future course and damage.

8 The grounds of the claim were that the decision of 2nd November, was unfair and reasonable and unlawful and in breach of the applicant’s legitimate expectation contrary to fair procedure and indeed discriminatory under the equality provisions.

9 At the hearing of the application, it was accepted that the equality provisions did not arise and though counsel for the applicant did make the case that the decision was irrational under the...