Patrick J Kelly v The Minister for Agriculture, Fisheries and Food, The Minister for Finance, The Government of Ireland, Ireland, and The Attorney General

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Donnell J.,McKechnie J.,MacMenamin J.,Dunne J.,Charleton J.
• Judgment Date: 15 April 2021
• Neutral Citation: [2021] IESC 28
• Docket Number: S:AP:IE:2020:000044
• Date: 15 April 2021

Patrick J Kelly

Appellant

and

The Minister for Agriculture, Fisheries and Food, The Minister for Finance, The Government of Ireland, Ireland, and The Attorney General

Respondents

[2021] IESC 28

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

S:AP:IE:2020:000044

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Order of certiorari – Objective bias – Costs – Appellant seeking order of certiorari – Whether Supreme Court could refrain from making order of certiorari

Facts: The appellant, Mr Kelly, was dismissed from his post as Harbour Master in Killybegs. The dismissal was effected by a decision of the third respondent, the Government of Ireland, of the 30th of September, 2009. The appellant challenged the decision of the government. On the 30th of March, 2021, the Supreme Court (Dunne J) allowed the appellant’s appeal against the decision of the Court of Appeal which had upheld the High Court’s decision to refuse relief to the appellant. The appellant maintained that the Supreme Court should proceed to make an order of certiorari quashing the government decision, and that it would be impermissible thereafter to remit the matter to the government pursuant to O. 84 of the Rules of the Superior Courts as it was contended that the appellant was no longer an established civil servant rendering service within the meaning of s. 1 of the Civil Service Regulation Act 1956. It was argued that the consequence was that, on the quashing of the decision, the appellant became a civil servant suspended from duty who would either have retired or be deemed to have retired on the 17th of July, 2016 (on reaching his assumed retirement age), and that he became entitled, accordingly, to arrears of pay from the date of the government decision together with any increments that would have been accrued until that date, and to a pension from July, 2016, and that the Court should so order and declare. The respondents maintained that the appellant’s challenge to the investigative process had failed and, accordingly, that the finding of gross misconduct stands and that the only order the Court should make was a declaration that the decision of the government of the 30th of September, 2009, was tainted by objective bias by the attendance of a government minister; it would be a matter for the parties thereafter to address what, if anything, flowed from that finding. Alternatively, it was suggested that, if the Court proceeded to make an order of certiorari, it then had power to remit the matter to the government and should do so. It was suggested that anything else would be an affront to justice. The respondents accepted that the appellant succeeded in the appeal, but argued that the appellant’s challenge was extremely broad-based and impugned the investigation and the appellate process, and that it was significant that the appellant’s challenge failed on those grounds, with the consequence that the conclusion of the investigation and the Appeal Board that the appellant was guilty of gross misconduct stands. It was, the respondent submitted, appropriate to take an overall approach and, on that basis, the respondent contended that the appellant should recover 30% of its costs in each court. The appellant argued that he had succeeded in the appeal and that the substantial costs incurred would have been avoided if the respondent had taken the course of conceding that the decision was invalid at the outset. It was also argued that the respondent bore considerable responsibility for the length of the hearing.

Held by the Court that it would make a declaration that the decision of the government of the 30th of September, 2009, to dismiss the appellant was tainted by objective bias by reason of the attendance of Minister Coughlan at the meeting and would further direct that the parties provide written submissions on the following issues: (i) whether, in the light of the Court’s findings, the Court can refrain from making an order of certiorari quashing the government decision and, if so, the considerations which are applicable; (ii) whether, if the Court makes an order of certiorari quashing the government decision, the Court may remit the matter to the government and, if so, the considerations relevant to that decision; (iii) the effect of the declaration already made on the validity of the government decision and/or the appellant’s status; (iv) whether, and in any event, the Court could make declarations as to the status of the appellant, his entitlement to (a) salary, (b) increments and (c) pension, and, if so, the considerations relevant to any such orders.

The Court considered that the merits of the case would be met if the appellant recovered 50% of his costs in each Court up to and including the costs of the hearing on the 14th inst.

Costs awarded to appellant.

Ruling of the Court delivered on the 15 ^th day of April, 2021 .

1 . On the 30th of March, 2021, this Court delivered judgment in this appeal and, in the principal judgment of Dunne J., allowed the appellant's appeal against the decision of the Court of Appeal which had upheld the High Court's decision to refuse relief to the appellant. The case concerned the dismissal of the appellant from his post as Harbour Master in Killybegs, which dismissal was effected by a government decision of the 30th...