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
• Judge: Mr Justice Peter Charleton,Mr. Justice John MacMenamin,Mr. Justice O'Donnell
• Judgment Date: 15 September 2021
• Neutral Citation: [2021] IESC 62
• Court: Supreme Court
• Docket Number: [2019] IECA 299 Supreme Court appeal number: S:AP:IE:2020:000044 Court of Appeal record number 2014/745 High Court record number 2010/319 JR

Between

Patrick J Kelly

Applicant/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 62

Clarke CJ

O'Donnell J

MacMenamin J

Dunne J

Charleton J

[2019] IECA 299

[2012] IEHC 000

Supreme Court appeal number: S:AP:IE:2020:000044

Court of Appeal record number 2014/745

High Court record number 2010/319 JR

An Chúirt Uachtarach

The Supreme Court

Bias – Evidence – Judicial review – Appellant seeking to judicially review a determination by the third respondent – Whether the first instance investigation into the appellant’s conduct was tainted by bias

Facts: The appellant, Mr Kelly, was appointed Harbour Master of Killybegs in 1996, and was therefore an established civil servant under the terms of s. 1 of the Civil Service Regulation Act 1956. In 2004, an investigation was commenced, resulting in a report that the appellant had been guilty of misconduct as Harbour Master, meriting his dismissal from the Civil Service. The appeal board allowed the appellant’s appeal in part but upheld the finding of misconduct meriting dismissal. On the 30th September, 2009, the Government decided to dismiss the appellant from his position. Proceedings were commenced challenging the entirety of the process, the conduct of the investigation, the behaviour of the investigating officer, the procedure of the appeal board, Departmental Circular 1/92, and the constitutionality of the Act. The appellant’s claim failed entirely in the High Court (by judgment delivered in 2012) and in the Court of Appeal in 2019. The decision of the Government to dismiss the appellant on foot of the report, as reviewed by the Appeal Board, was found by the Supreme Court to be tainted by objective bias. The appellant claimed that he was entitled to an order of certiorari quashing the dismissal decision of the 30th September, 2009. It was said that if such an order was made, then the consequence was that the appellant’s: “employment status logically reverts to what it was as of 30 September 2009, before the now-impugned Government decision was taken. At that point in time, he was an established civil servant who had been suspended pending the outcome of an investigation and disciplinary process conducted in accordance with Circular 1/92”. It was further submitted that the logical conclusion if an order of certiorari were made was that the matter would be remitted to the Government pursuant to O. 84 r. 27(4) to permit it to make a decision on the position of the appellant in the light of the investigation as reviewed by the Appeal Board. It was argued that this was no longer possible as it was said the appellant was no longer an established civil servant “rendering established service”. In such circumstances, the appellant contended that he was entitled to be treated as a civil servant suspended on full pay and recover arrears of salary and pension. The respondents, the Minister for Agriculture, Fisheries and Food, the Minister for Finance, the Government of Ireland, Ireland and the Attorney General, contended that the Court should make no further order than that already made in the proceedings, or, and in the alternative, if an order for certiorari was made quashing the decision of dismissal, the matter should be remitted to the Government to take a decision as to the employment status of the appellant but as of the 30th September, 2009 and to take effect from that date.

Held by O'Donnell J that it was possible to return the situation to where it would have been had the invalid decision not taken place, without requiring one party to inappropriately suffer or gain by reason of the invalid decision-making. In those circumstances, O’Donnell J did not consider that it was necessary to determine the question of whether, in the circumstances of the case, it would be possible to quash the decision of the Government of the 30th September, 2009, and remit the matter to the Government on the basis that it could, if it thought fit, ratify the decision made in the same way as it is possible to ratify the acts of an agent taken in excess of authority, which ratification relates back to the original act and anything done in consequence of it.

O'Donnell J held that a just conclusion would be to make an order of certiorari quashing the Government’s decision to dismiss the appellant under s. 5 of the 1956 Act, but refusing to make the orders sought by the appellant directing payment of salary and consequential pension entitlement, as claimed by him.

Appeal allowed.

Judgment of Mr Justice Peter Charleton of Wednesday 15 September 2021

1 The gravamen of the majority judgment of 30 March 2021 is this: that the presence at Cabinet of Minister Coughlan, a person of strong views about the propriety of the actions of Patrick Kelly as harbourmaster of Killybegs, and more generally, when he was dismissed constituted a situation of objective bias. What remains are two issues: firstly, as a matter of discretion, is the Court entitled not to proceed to quash the Cabinet decision; and, secondly, were the matter to be returned on being quashed, would the Cabinet be deciding on Patrick Kelly's dismissal as if on the first occasion or, in stark contrast, because of Patrick Kelly reaching retirement age, 65 years old, would they as of now be deprived of the power to dismiss him as he is no longer an established civil servant but, as it is claimed without evidence, has become a retired one? The majority judgment on this supplemental issue is that of O'Donnell J. The analysis herein moves to a similar conclusion but would encompass a wider principle as hereunder stated. It is also worth reiterating that while the principles in the conduct of enquiries are straightforward, regrettably Irish law leave far too much room for argument and contrariness. Hence, this enquiry lasted years and the judicial review of it took six days in the High Court. That is unnecessary and should not be repeated.

Discretion

2 Halsbury (4 ^th edition, Volume 1(1) 108, 117) describes certiorari and the other judicial review remedies as derived from the prerogative and, hence, as being discretionary. There may also be a common law origin, as Lord Bingham implies in the article later cited; but that is not significant for this analysis. As thus described, they are akin to equitable remedies which derive from the power of the sovereign, through the Chancellor, to ameliorate a legal judgment towards what was regarded as fair and just, as opposed to meeting the letter of the law; see Keane, Equity and the Law of Trusts in Ireland (3 ^rd edition, 2017) chapter 2. Hence, even though a defect in jurisdiction, in procedure or in the written form of an order is identified as a matter of law, the discretionary nature of the remedy of certiorari does not compel a court to quash that order where to do so would be unfair or unjust. Ordinarily, faced with the inevitability of a judgment based on the conformity of one side or the other in litigation with the law but left with a sense that the party succeeding lacked merit, a court is confined to its discretion solely on awarding costs; s 168 of the Legal Services Regulation Act 2015.

3 The rule of law demands that those facing litigation should be able to be informed as to the legal principles applicable to their situation. That a statute declares a wrong in particular circumstances and the law proposes a remedy conforms to that imperative, but in interpreting law judges strive as far as is possible to reach conclusions which are just and which accord with good sense. The limitation on interpretation towards what seem right and fair comes from the wording of the law, and the need to conform to precedent, into what is predictable and towards that which accords fairness on the foundation rules that meet the multiple situations to which the law must be addressed. In framing statutes, the legislature strives to shape rules so that, ideally, an outcome that is fair and just results to those to whom legislation applies. A similar approach to the interpretation of precedent must similarly underly judicial interpretation of the common law. Limits are set and rules are applied but outcomes must still be guided by an innate sense of fairness. Lord Cooke, writing in The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Oxford, 1998) page 211, states that the “law will always recognize that there are some limits to the reasons which will legally justify the exercise of a discretion. It is a matter of degree. The depth of the court's examination will vary with the subject-matter and what can be discerned of the purpose of any relevant statute.”

4 Those limits set by law are real; but discretion is also real and must not be shorn of its efficacy. The strictures of the law are enforced; but where discretion is possible as a matter of law, unjust outcomes may be avoided. Hence, as it used to be the case, a contract for the sale of goods of value £10 or more was required by the Sale of Goods Act 1893 to be in writing, otherwise it was unenforceable. Even though a judge found the evidence as to the formation of the contract utterly convincing, no damages for breach of contract could result were one party to the bargain to back away, perhaps for as unmeritorious a motivation as a better offer, and the court would have had to dismiss the claim. There was no discretion. A case for the sale of land, however, attracted the equitable remedy of specific performance of a contract, acknowledging that since land is unique it is not readily replicable, whereby part performance of the obligation to sell or buy would overcome the requirement of writing under s 2 of the Statute of Frauds 1695, now s 51(1) of the Land and Conveyancing Law Reform Act 2009. Equity stepped in where the...