Whelan v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 27 November 2019
• Neutral Citation: [2019] IEHC 921
• Court: High Court
• Docket Number: [2017 No. 110 JR]

BETWEEN

KILLIAN WHELAN

APPLICANT

AND

MINISTER FOR DEFENCE

RESPONDENT

[2019] IEHC 921

Binchy

[2017 No. 110 JR]

THE HIGH COURT

JUDICIAL REVIEW

Declaratory relief – Defence Forces – Dismissal – Applicant seeking declaratory relief – Whether the applicant had established any basis upon which the High Court could grant the declarations sought

Facts: The applicant, Lt Whelan, applied to the High Court seeking the following reliefs: (1) an order prohibiting the respondent, the Minister for Defence, his servants or agents, recommending the dismissal and/or retirement of the applicant pursuant to the provisions of the Defence Forces Act 1954; (2) a declaration that the failure by the respondent to provide sufficient reasons for the decision to dismiss the applicant breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations; (3) a declaration that the failure by the respondent to provide documentation and/or information sought that related to the decision to dismiss the applicant breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations; (4) a declaration that the refusal by the respondent to engage at all with the submissions made by the applicant on the issue of his dismissal breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations; (5) a declaration that the refusal by the respondent to engage with medical reports provided by the applicant on the issues of his medical fitness and fitness to serve breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations; (6) a declaration that the refusal by the respondent to consider a regrading of the applicant’s Medical Classification Code breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Act 1954 and the regulations made thereunder; (7) a declaration that insofar as the regulations failed to provide for an adequate of system of appeal and/or regrading of medical status said regulations are ultra vires and contrary to the provisions of the Defence Act 1954 as amended; (8) a declaration that the operation by the respondent of a fixed and rigid policy with regards to the medical classification of (sic) breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the Defence Forces’ regulations; (9) a declaration that the failure by the respondent to investigate expeditiously the fitness of the applicant to serve, breached the applicant’s entitlement to fair procedures and/or constituted a breach of statutory duty, and/or was ultra vires, and/or breached the applicant’s legitimate expectation that serious allegations concerning fitness to serve against him pursuant to the Defence Forces’ regulations, would be dealt with expeditiously; (10) a declaration that the respondent in restricting the duties the applicant could undertake has acted ultra vires; (11) a declaration that the respondent breached the applicant’s rights in failing to provide a means of overturning the Director of Medical Corps classification of the applicant pursuant to Defence Force Regulation A.12 para. 74 (2); (12) an injunction by way of application for judicial review restraining the respondent, its servant or agents from proceeding to dismiss the applicant pending the hearing of the trial of this action (such injunction was granted at the leave stage of these proceedings); (13) an order providing for all necessary and/or consequential and ancillary directions in relation to this application for relief; (14) an interim order restraining the respondent from any further order suspending the applicant without leave of the Court (such an order was made at the time leave was granted by Noonan J); (15) such further or other order as the Court may deem fit; (16) an Order, if necessary, extending the time within which to bring the within application.

Held by Binchy J that the applicant had not established any basis upon which the Court could grant any of the declarations sought.

Binchy J held that the proceedings must be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Binchy delivered on the 27th day of November, 2019

1 The applicant is a lieutenant in the Defence Forces currently attached to 2 Brigade, Transport Corps, Athlone. He entered the Defence Forces as an Officer Cadet in 2006 and was commissioned as a second lieutenant on 16th January, 2008.

2 In January 2015, a medical officer in the Defence Forces recommended that the applicant face a Medical Board because he had failed a fitness test and had failed to bring his body mass index (“ BMI”) to 30 or below. At the time that he joined the Defence Forces, the applicant had a BMI of 33. On 18th December, 2014, his BMI was 36.

3 The Medical Board was convened and met on 15th April, 2015. It concluded that the applicant was “below Defence Forces' medical standards” on the grounds of: “persistent obesity (BMI > 35) rendering him unfit for armed military duties”. The applicant was informed that he had 7 days within which to give notice of intention to make representations against the determination of the Medical Board to the Director of the Medical Corps (who is now referred to as the Director of the Medical Board), and that he would have a further 28 days of giving such notice to make such representations in writing. He was also informed that such representations may be made by himself or on his behalf through a medical or legal representative.

4 The applicant exercised his right to make such representations by notice of appeal dated 18th May, 2015. He expressly stated that he did not include in his appeal representations from either legal or medical bodies because, in his words, he believed “that the issue was resolvable and he accepted personal responsibility for the resolution of the same.” He also stated, at para. 4 of his notice of appeal:

“I wholly understand the issues with my consistently high BMI in both my personal, professional and indeed medical status and furthermore I understand the potential outcomes for my career of the classification ‘X’ [I explain this classification below] in light of the above circumstances. The issue of my high BMI and difficulties with weight have been a constant obstacle for me for the last number of years, and despite a significant amount of time given I have failed to remedy the same”.

While not disputing the decision of the Medical Board, or his medical classification by the Board, he said, at para. 11:

“Although my inability to lower my BMI has negatively affected my career in a plethora of ways I have continued to serve in a number of appointments through 2 BDE and have never suffered any significant illness or injury which has prevented me from carrying out my duties as a transport officer or any of the other tasks which I may be assigned from time to time. I currently carry out 002 [ordinary officer] duties in LBH as my medical status prevents me from carrying out armed regimental duties for the time being. My current status is neither sustainable in a practical nor professional sense and I am wholly committed both physiologically and psychologically to resolve my weight and BMI issues with vigour and determination.”

5 He then went on to request a “forestalling on the decision of the Medical Board and the granting of a period of 7 months” to resolve what he described as a curable condition, namely his obese state. The form of appeal also set out a series of steps which the applicant was taking to address his BMI and weight related issues.

6 The Director of the Medical Board, namely Colonel Gerald Kerr considered the appeal and in a decision of 11th June, 2015, he upheld the determination of the Medical Board. In his decision, Colonel Kerr stated that the applicant had had ample opportunity to get his weight under control. He stated that having achieved a weight loss resulting in a weight of 126kg by the end of a course which the applicant had attended in [this is the HRFA attended by the applicant] his weight had returned to 133.8kg at the time of the Board. He also noted that the applicant presented no medical evidence or case in his appeal which would warrant a reversal of the opinion of the Board.

7 The procedures which I have summarised above are set out in a document entitled “Administrative Instruction A12 (New Series) Medical Treatment 2015” at paras. 214 (G) – (J). At Para. J of this document, it is provided as follows:

“The DMB [Director of the Medical Board] shall consider all written representations made for the purpose of these proceedings by or on behalf of the officer or enlisted soldier who was reclassified by the Medical Board to “below defence forces medical standards” within 28 days of receipt of same together with the Medical Board report and the relevant medical documents which were put before the Medical Board, shall complete part 4 of annex “A”, and shall immediately notify the officer commanding the officer or enlisted soldier of his/her decision.”

At para. (K) of the Administrative Instruction it is stated that:

“The officer or enlisted soldier's commanding officer will inform him/her of the DMB's decision on the representations against the determination of the Medical Board and complete part 5 of annex ‘a’. NOTE: For further action on the part of the commanding officer see Administrative Instruction part 10.”

This latter document was not exhibited or opened to...