Robinson v Minister for Defense and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards,Noonan J,Faherty J
• Judgment Date: 17 April 2023
• Neutral Citation: [2023] IECA 88
• Docket Number: Record No: 292/2021
• Court: Court of Appeal (Ireland)

Between/

Niall Robinson

Appellant

and

The Minister for Defence, The Attorney General and Ireland

Respondents

[2023] IECA 88

Edwards J.

Noonan J.

Faherty J.

Record No: 292/2021

THE COURT OF APPEAL

Judicial review – Certification – Promotion – Appellant seeking judicial review – Whether the appellant’s pleadings were insufficient or inadequate

Facts: The appellant, Mr Robinson, appealed to the Court of Appeal against the judgment of the High Court (O’Regan J) delivered on the 22nd of October 2021 and the consequent order of the 4th of November 2021 refusing an application brought by the appellant by a notice of motion dated the 20th of December 2019 seeking diverse orders against the respondents, the Minister for Defence, the Attorney General and Ireland, by way of judicial review, including an order of certiorari quashing the decision of the General Officer Commanding (GOC), Air Corps, a servant or agent of the respondents, dated the 26th of September 2019, to refuse to certify the applicant as having reached a satisfactory standard of training to qualify for consideration for promotion to the rank of Flight Sergeant Senior Sensor Airborne Radar Operator Instructor, 101 Squadron, a declaration that Administrative Instruction Part 10, and the Promotion Competition document promulgated thereunder, require the relevant corps director to consider each candidate for promotion individually, in order to satisfy himself as to whether they should be certified as having reached a satisfactory standard of training to be eligible for promotion within the Permanent Defence Force, and an interim and/or interlocutory injunction prohibiting the respondents, their servants or agents, from promoting any member of the Permanent Defence Force to the rank of Flight Sergeant Senior Sensor Airborne Radar Operator Instructor, 101 Squadron, pending the determination of the proceedings, or further order of the Court, and awarding costs to the respondents as against the appellant, leave to apply for judicial review having been granted by the High Court on the 16th of December 2019.

Held by Edwards J that in interpreting ‘A’ Administrative Instructions Part 10, and the Promotion Competition document, the GOC misinterpreted the discretion afforded to him and in doing so acted on foot of an error of law; accordingly, he and, through his agency, the respondents, acted ultra vires their powers under the Defence Acts 1954-2007 and the regulations made pursuant thereto. Edwards J was satisfied that the appellant was also correct in his contention that insofar as the GOC was motivated by policy considerations, he applied a fixed and inflexible policy and, thus, unlawfully fettered his discretion. Edwards J was persuaded that for the GOC to have allowed himself to be influenced by the exigencies of the service did amount, having regard to the express terms of the relevant Administrative Instructions and the Promotion Competition document, to the taking into account of an irrelevant consideration. Edwards J believed that the appellant had made a persuasive case that the terms of the relevant Administrative Instructions and the Promotion Competition document did induce in him a legitimate expectation that fair consideration would be given to whether he qualified for promotion on the basis of having reached a satisfactory standard of training in lieu of the completion of a Senior Non Commissioned Officer Course, and that the GOC’s unwillingness to consider his eligibility for promotion on that basis breached that legitimate expectation. Edwards J disagreed with the trial judge that the appellant’s pleadings were insufficient or inadequate to enable him to succeed in seeking relief by way of judicial review. Edwards J held that the trial judge attached too much significance to the fact that the appellant made no representations to the GOC in respect of his qualifications in the letter of 24th of September 2019.

Edwards J held that he would allow the appeal and be disposed to receive short additional written submissions from the parties concerning which amongst the reliefs claimed by the appellant in Part D of his Statement of Grounds should be included in the final Order. Edwards J’s provisional view was that the appellant was entitled to the costs of the appeal against the respondents and the costs in connection with the hearing at first instance before the High Court.

Appeal allowed.

FOR ELECTRONIC DELIVERY

Judgment of Mr Justice Edwards delivered on the 17 ^th of April 2023 .

Introduction

1 . This is an appeal against the judgment of the High Court (O'Regan J.) delivered on the 22nd of October 2021 and the consequent Order of the 4th of November 2021 (perfected on the 5th of November 2021) refusing an application brought by the appellant by a Notice of Motion dated the 20th of December 2019 seeking diverse orders against the respondents by way of judicial review, and awarding costs to the respondents as against the appellant, leave to apply for judicial review having been granted by the High Court on the 16th of December 2019.

Background:

2 . The Defence Forces are comprised of the Permanent Defence Force (which in turn consists of three services, namely the Army, the Air Corps and the Naval Service) and the Reserve Defence Force (comprising the Army Reserve, formerly known as the FCA, and the Naval Service Reserve, formerly known as An Slua Muirí). Defence Forces personnel, both commissioned and non-commissioned, in the Army, the Air Corps, and the Army Reserve, hold army ranks (or equivalent); while those in the Naval Service and the Naval Service Reserve hold naval ranks.

3 . The appellant, Mr. Robinson, is a Sergeant (otherwise “Sgt”) assigned to the Air Corps as a Senior Airborne Radar Operator (“SARO”) Instructor. At the time of the High Court judgment, the appellant's Defence Forces career spanned more than 21 years. He had applied for, and was refused, a promotion to Flight Sergeant (otherwise “FSgt”) SARO, a Non Commissioned Officer (“NCO”) position within the Air Corps the holder of which enjoys a rank equivalent to a Company Sergeant (otherwise “Coy Sgt”) in the Army. Being dissatisfied with the basis on which he had been refused promotion, and considering it to have been legally infirm, the appellant initiated these judicial review proceedings.

4 . Before considering the basis of his application in more detail it is necessary to outline the legislative and regulatory framework within which the controversy arises.

Relevant legislation / regulations / administrative instructions

5 . Section 84, sub-section (1) of the Defence Act 1954 (i.e. “the Act of 1954”), as amended, provides:-

“ (1) The Minister or any officer authorised by him in that behalf may promote—

• (a) any man holding a non-commissioned army rank to a higher substantive non-commissioned army rank,

• (b) any man holding a non-commissioned naval rank to a higher substantive non-commissioned naval rank.”

6 . Section 26 of the Act of 1954 provides that the Minister may make regulations, not inconsistent with that Act, in relation to all or any of the matters mentioned in the Fourth Schedule thereto. The Fourth Schedule contains a long list of the matters in respect of which regulations may be made under s. 26, including inter alia the appointments to be held by officers and men; the examination of members of the Defence Forces as to proficiency in military subjects and as to their general educational or technical qualifications, and the granting of certificates of proficiency, and; the classification of men by reference to particular ranks or grades of ranks, qualifications or appointments. It also provides for the making of such regulations, “ concerning any other matter or thing which is not otherwise expressly provided for by or under this Act and which, in the opinion of the Minister, is necessary for securing the good government, efficiency and internal control and management of the Defence Forces or for carrying out and giving effect to this Act”.

7 . In a measure aimed at securing the good government, efficiency and internal control and management of the Defence Forces, and at carrying out and giving effect to the Act of 1954, the Minister, by means of regulations made under s. 26 of the Act of 1954, established a classification of measures by which members of the Defence Forces would either be bound and required to adhere to, alternatively informed as to and guided by, as the case might be, in the context their military service. The regulations in question were Defence Force Regulations S.1. (i.e “DFR S.1.”).

8 . Under DFR S.1. such measures would fall into three categories, namely (1) Defence Force Regulations (of which DFR S.1. was itself an example); (2) Administrative Instructions authorised by and issued pursuant to Defence Force Regulations, providing for such matters (other than those required to be made or prescribed in Defence Force Regulations) which “ require to be or are convenient to be published for the general information and guidance of members of the Defence Forces”, and; (3) General Routine Orders, which are defined as “ dealing with such matters (other than those prescribed in Defence Force Regulations or provided for in Administrative Instructions) which are published for the general information and guidance of members of the Defence Forces.”

9 . In the justiciable controversy that arises for determination in this litigation, we will be primarily concerned with ‘A’ Administrative Instructions Part 10, (i.e. “‘A’ Admin Instr Pt.10” or “the relevant Administrative Instructions”) which state internally that they are required to be read in conjunction with Defence Force Regulations A10 (“DFR A10”) and General Routine Orders 43/1955 (i.e. “GRO 43/55”) concerning personnel matters. As regards GRO 43/55, however, while alluded to here for completeness, they...