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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ainsworth v. Minister for Defence [2003] IEHC 13 (4 June 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/13.html Cite as: [2003] IEHC 13

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THE HIGH COURT

2002 846 JR

ADRIAN AINSWORTH

APPLICANT

And
THE MINISTER FOR DEFENCE

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 4th day of June, 2003.

In this case the respondent seeks to discharge the order of the High Court (Murphy J.) of 13th January, 2003, granting leave to the applicant to apply for judicial review, or, in the alternative, to strike out the applicant's proceedings on the grounds that they disclose no reasonable cause of action, are frivolous and/or vexatious, or, are doomed to fail.
The said order had given leave to the applicant to apply by way of an application for judicial review for:-

(a) A declaration that a letter/report dated the 27th October, 1998, held on the applicant's personnel files by the respondent, incorrectly states the agreed terms of settlement of proceedings entitled Adrian Ainsworth and the Minister for Defence which was ruled before the High Court (Johnson J.) on 6th October, 1998;

(b) An order of prohibition restraining the respondent from further relying on the said letter/report;

(c) An order of certiorari quashing the respondent's decision to place the said letter on the applicant's personnel files;

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(d) An order of mandamus directing the respondent to expunge the said letter/report from the applicant's personnel file;

(e) Damages.

The grounds upon which leave was granted were those set forth in paragraph (d) in the statement dated 17th December, 2002 which were as follows:-

(1) The said letter/report of 27th October, 1998 is incorrect and misleading and as such its existence on the applicant's personnel files has damaged the applicant in his career, is a continuing source of prejudice to him and, unless expunged, will be a source of damage and prejudice to him in the future.

(2) The said letter/report is incorrect and misleading in that it purports to indicate agreement on a breakdown of damages in the sum of £80,000 over a number of headings when, in fact, no such agreement was made.

(3) The said letter/report misrepresents the actual terms of settlement in that it implies that there was agreement that at least £70,000 reflected compensation for noise induced deafness with the remaining £10,000 being for future diminution in employability and lack of promotional prospects.

(4) The said letter/report misrepresents the terms of settlement in that it implies there was little or no allowance for the claim in respect of the failure to treat post traumatic stress syndrome.

The applicant is a commandant in the defence forces, aged 47 years, married with three daughters. Since being commissioned in 1974, he has had a number of postings and served overseas on four occasions, including South Lebanon in April, 1980. As a result of his involvement in this and other critical incidents, the applicant claimed that he developed symptoms of post traumatic stress syndrome and noise
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induced hearing loss. In 1997, the applicant issued High Court proceedings against the respondent claiming damages for negligence for

(a) failing to properly treat his condition of P.T.S.D.; and

(b) causing damage to his hearing by failing to protect him from the noise of weapon fire.

The case was listed for hearing on the 6th October, 1998, but was settled four days prior thereto at a settlement meeting. The said proceedings were settled for the sum of £80,000 together with costs and the agreed High Court order was a strike out with an order for costs in default of agreement.
The settlement was the subject of a number of newspaper articles which suggested that the settlement was in respect of hearing loss and not post traumatic stress syndrome. So concerned was the applicant by these reports that he procured an affidavit from his Senior Counsel in the legal proceedings stating that the settlement sum of £80,000 was paid largely in respect of compensation for post traumatic stress and that only a small proportion of the settlement sum was in respect of noise induced hearing loss.
The applicant was paid his damages and continued in the service of the respondent. Since October, 2000 however, having been deemed fit for restricted overseas service by the respondents' doctors, the applicant made six unsuccessful applications for overseas service. The applicant then became aware that the army Director of the Medical Core (D.M.C.) had not made the necessary recommendations supporting the applicant's requests for overseas service. The applicant sought an interview with the D.M.C. to discuss his eligibility. In February 2002, the D.M.C. informed the applicant that he could not make the necessary recommendation because of the view of the Claims Branch of the Defence Forces, supported by a letter or
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report from Senior Counsel which had been placed on the applicant's file, that any overseas tours of duty in the applicant's case would amount to double compensation because he had already been compensated for hearing loss and future related loss of earnings.

The applicant sought a copy of the report under the Freedom of Information, Act, 1997, which said request was refused by the respondent on the grounds of privilege and confidentiality. On appeal, the respondent agreed to furnish a summary of the report of Senior Counsel dated 27th October, 1998. It states, inter alia as follows:-

"Senior Counsel's letter of 27th October, 1998 to the Chief State Solicitor's office detailed the settlement, a summary of which is as follows: -

• The sum of £80,000 was a full and final settlement of the entire claim, i. e. hearing loss, failure to treat post traumatic stress disorder and future loss of earnings

• The hearing loss element of the claim was valued at around £70,000 based on the High Court judgment in the Hanley case of July 1998

• The balance of £10, 000 was mainly based on future diminution in employability and lack of promotional prospects with little or no allowance for the claim concerning failure to treat post traumatic stress disorder."

At para. 6 of his grounding affidavit, the applicant deposes to his belief that the said letter/report does not represent the agreement made on the 2nd October, 1998 and that, specifically, there was no agreement as to apportionment of the £80,000 and
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no agreement that it should be attributed to noise induced hearing loss associated therewith.

The applicant asserts that as a result of the decision of the Claims Branch to place the letter on his personnel file, he has suffered prejudice and damage to his career in the Defence Forces, in terms of overseas service, allowances, promotional prospects and pension entitlements including disability pension entitlements.
The applicant therefore seeks to have the said letter/report expunged from his personnel file and seeks an order of prohibition restraining the respondent from relying on the said letter/report.
This is a preliminary application, and it is agreed on the part of the respondent, that the court has to consider the application on the basis of the facts put forward by the applicant. On the hearing of the matter before this court, it was intimated to the court that the respondent would, if the substantive matter went further, file an affidavit to contradict the averments in the applicant's affidavit with which the respondent disagrees.

RELEVANT LAW

In the case of Adam v. Minister for Justice [2001] 3 IR 53, the Supreme Court held that the High Court had an inherent jurisdiction to set aside an order granting leave to apply for judicial review that had been made on the basis of an ex parte application, including cases where there was an absence of mala fides. The Supreme Court further held in that case that leave should be set aside where the applicant's proceedings had disclosed no reasonable cause of action, were frivolous and vexatious and doomed to fail and where the applicants had not only failed to put forward a stateable case but where they had not put forward any case at all within the confines of judicial review. This inherent jurisdiction to set aside an order granting
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leave, which had been made on the basis of an ex parte application, was one to be used only in exceptional cases.

At p. 72 of the judgment, McGuinness J., while affirming the inherent jurisdiction, stated that it "should only be exercised very sparingly and in a very plain case".
She continued:-

"One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave. Each application would probably require considerable argument-perhaps with further affidavits and/or discovery. Where leave was discharged, an appeal would lie to this court. If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this court. Such a procedure would result in a wasteful expenditure of court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the court's inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases."

On the question of amendment to save the applicant's proceedings in Adam v. Minister for Justice [2001] 3 IR 53, Mr. Justice Hardiman stated at p. 83 of the judgment:-

"The applicants' final point in relation to these matters was that the court should not strike out the proceedings if they were capable of being saved by amendment. In my view, nothing which could properly be described as amendment could save these proceedings. If, hypothetically, the applicants or any of them have any stateable cause of action, it would require to be

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expressed in proceedings which bear no resemblance whatever to those presently under consideration."

The question of setting aside a leave granted was also revisited more recently in the case of Gordon v. Director of Public Prosecutions [2002] 2 IR 369. In delivering the judgment of the court, Mr. Justice Fennelly stated as follows at p. 375:-

"It follows that the applicant for the order to set aside carries a heavier burden than the original applicant for leave. The latter has to show that he has an arguable case. The former has to establish that leave should not have been granted, a negative proposition. It is both logical and convenient to the administration of justice that this should be so. The leave procedure was intended to provide a filtering process, a protection against frivolous or vexatious applications. The judge at the ex parte stage will scrutinise applications for leave. Obviously his order decisions will not always be right. Hence the need to permit applications to set aside, where clearly unmeritorious applications have slipped through the net. There is also a need to be able to set aside orders made where there has been a failure by the applicant to observe the principle of utmost good faith, of which the present case is not an example. On the other hand, to permit this option to operate as a pre-emptive hearing of the substantial trial would defeat the purpose of the judicial review machinery for all the reasons given by McGuinness J. and Bingham L.J …"

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SUBMISSIONS OF THE PARTIES

Mr. O hOisin B.L., Counsel for the respondent, submits that the applicant's case clearly originates from a dispute as to the terms on which his High Court proceedings were settled in 1998. As such, the dispute is clearly a private law matter. A settlement having been reached between the parties, a contract is then in place. If there is a dispute subsequently between the parties as to the precise terms of the settlement, the aggrieved party may sue on the settlement in plenary proceedings.
To come within the parameters of a judicial review application, some sort of decision capable of review must be shown to exist. The only decision referred to in the statement grounding the application for judicial review is an alleged decision to place a letter/report of the 27th October, 1998 on the applicant's personnel file. Counsel for the respondent submits that a decision to place a letter or report on a file is not an administrative decision which is amenable to judicial review. To place a letter on a file is merely a "consequentional and secretarial act". Counsel for the respondent submitted that in reality the applicant was seeking to have his version of the settlement of October, 1998 preferred over the respondent's version. In seeking to have the letter expunged from his personnel file, he was, in effect, seeking to have the record of the settlement terms removed because they do not accord with his own version of those settlement terms. Even assuming that some sort of decision amenable to judicial review was thereby made, how could the court ever arrive at any conclusion without determining whether or not the letter accurately or inaccurately reflected the terms of settlement? It could only, he submitted, assess the accuracy of the letter by hearing evidence from the parties who concluded the settlement, namely, counsel on behalf of the applicant and counsel on behalf of the respondent. It would
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be quite extraordinary, he suggested, to have a hearing as to the terms of a settlement in the course of a judicial review application.

Counsel for the respondent acknowledged that issues of fact may arise in judicial review proceedings, but such disputes invariably relate to the steps or procedures taken up to the time a decision was made. Judicial review was concerned with the decision-making process. The present conflict over the terms upon which the settlement was reached was a conflict of fact of a very different nature. Resolution of that conflict would determine any case that the applicant might have in contract.
Counsel for the respondent further submitted that the applicant should not be allowed to amend the relief and grounds upon which leave had been granted. Very radical amendments would be necessary to the proceedings and any proceedings so revised would, in the words of Hardiman J. "bear no resemblance whatever to those presently under consideration". In fact, he submitted, a completely different application would be necessary, being one which challenged a decision of the respondent to refuse overseas service to the applicant. Counsel for the respondent submits that there is nothing in the applicant's papers establishing why any decision to refuse to accede to his applications for overseas service should be reviewed by reference to legal principles applicable to judicial reviews. While the applicant himself may be of the view that his applications have been unsuccessful because of the terms of the letter/report, his disagreement with the terms of that letter, however, could not constitute a valid basis for suggesting that some quite distinct decision-making process was defective. In effect, any attempt by the applicant to seek review of a decision to refuse to accede to his applications for overseas service inescapably involved his claim to have his version of the settlement terms of October, 1998
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preferred over that of the State. Only in circumstances where that version was upheld in other proceedings would any claim lie in judicial review.

In response, Mr. Fullam S.C., Counsel for the applicant submitted there was a sufficient public law element in the case to warrant judicial review proceedings. In Egan v. Minister for Defence (Unreported, High Court, Barr J., 24th November, 1988), the High Court held that "[a]ll members of the permanent Defence Force of whatever rank serve on foot of statutory contracts the terms of which are set out in Defence Act, 1954 and regulations made thereunder". The applicant's pension entitlements are governed by the Army Pensions Acts, 1923 to 1980. The Department of Defence is listed as a public body in the First Schedule to the Freedom of Information Act, 1997. Furthermore, the functions of the respondent are within the public domain of the State. Mr. Fullam also relied on other decisions intending to show that once there was a public or community interest at stake and where the consequences of an unlawful interference with the contractual rights of a respondents employees may be very serious for them, the courts were inclined to treat the case as falling within the parameters of judicial review (Walsh v. Irish Red Cross Society [1997] 2 I.R. 479; Rafferty v. Bus Eireann [1997] 2 IR 424; Bane v Garda Representative Association [1997] 2 IR 449; Geoghegan v. The Institute of Chartered Accountants in Ireland [1995] 3 I.R. 86 at p. 130).
In essence, Counsel for the applicant submitted, the decision complained of is a written directive to the Director of the Medical Corps (D.M.C.) not to certify the applicant's eligibility for certain perquisites of office. The decision has a number of elements, namely, its procurement, its placement on the applicant's file, and the respondent's reliance upon it. The D.M.C. had already relied upon the report on six
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occasions in refusing the applicant's request for overseas service. Furthermore, the D.M.C. had indicated that he would rely upon it in future.

Counsel for the applicant further submitted that expungement was clearly appropriate in certain circumstances and referred to Kirrane v Finlay (Unreported, High Court, Kelly J. 2nd March, 1998) as an instance where the respondent did not contest an application for the expungement of a finding in the Finlay Report into Hepatitis C.
He further submitted that as damages had already being claimed in the statement, no prejudice would be suffered by the respondent by an amendment which would include an order of certiorari quashing the refusals of overseas service already made and prohibiting such refusals in the future.
Counsel for the applicant further submitted that there could be no dispute as to the fact or terms of settlement of the personal injuries case. That had to be seen in law as the position, as the respondent had accepted in submissions to the court that the court has to consider the application on the basis of the facts put forward by the applicant. Those facts include the applicant's version of the settlement made in October 1998.

DECISION

This Court is particularly mindful of the heavy onus on a respondent in judicial review proceedings who is seeking to set aside leave granted, not least because of the decision of the Supreme Court in Gordon v Director of Public Prosecutions [2002] 2 IR 369.
Nonetheless, the real dispute between the parties in the instant case arises from the fact that a different version of the settlement of the plaintiff's previous High Court proceedings exists as between the applicant and the respondents.
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While of course on the making of the present application, the court must accept the applicant's version of the facts as correct for the purpose of determining the existence of an arguable case, that is quite a different thing from saying that the plaintiff's version of the settlement terms of his personal injury case must be taken as being those asserted by the applicant. The applicant himself acknowledges that there is a dispute as to the terms of that settlement and that the summary of the settlement contained in the opinion/report of senior counsel which was placed on the respondent's file is at variance with the recollection of his own senior counsel. This court, either for the purposes of the present application or otherwise, cannot take that issue as now being conclusively determined, merely because the applicant's version of the facts of the case also sets out his understanding of that settlement. That, in my view, is to completely misunderstand the reference to "disputed issues of fact" which were under consideration Gordon v. Director of Public Prosecutions [2002] 2 I.R. 359.
The facts in that case (at least in so far as they were alleged and not disputed at the leave stage) were that the Garda Inspector charged with presenting the case on behalf of the first respondent before the second respondent was aware that certain evidence tendered to the District Court in a drunk driving case was false. As Fennelly J. stated at p. 375:-

"There was only one version of the facts before the High Court. It is the version put forward by the applicant which would normally ( i.e. in the absence of arguments concerning non disclosure or absence of the utmost good faith, which has not been suggested), as indicated in G v Director of Public Prosecutions [1994] 1 I.R. 374, be presumed to be correct for the purpose of determining the existence of an arguable case."

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However, the version of facts put forward by the applicant in the instant case reveals all too clearly the existence of a dispute concerning the terms of settlement of a personal injuries action. It is precisely because the respondent's version of that settlement has been noted on the applicant's file that this application has been brought.
There is no way in which any adjudication of the applicant's complaint can be carried out without an issue being determined as to the terms of settlement of the personal injury action. That is clearly not a matter which falls within the realm of judicial review. Where disputes as to terms of settlement of litigation arise, there are well established procedures for resolving same.
To challenge the placing of a document on file in circumstances such as these is, in my view, to completely misunderstand the nature of judicial review proceedings. Judicial review proceedings are concerned with the propriety or otherwise of the decision making process. It is not a process concerned with mere secretarial acts. The only conceivable "decision" in the instant case is the respondent's decision, for whatever reason, to refuse overseas service to the applicant.
It is perhaps an acknowledgement that this is the case that Counsel for the applicant in the course of his submissions applied for leave to apply for other reliefs and amend the grounds, or substitute new grounds in support of his application. However, to grant such an amendment would be to totally alter the character of the present application. It would involve acknowledging that the existing application was effectively misconceived, that the same should have been brought to challenge the decision or decisions of the respondent to refuse overseas service to the applicant. It would also be necessary at some stage in those proceedings to show that the decision making process was flawed. That "flaw" could only be that the respondent acted on a
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mistaken note or record of the terms of settlement which had been set out in the report of Senior Counsel which had been placed on the respondents file.

This brings the consideration full circle back to the requirement that the issue concerning the settlement would require to be resolved before any such adjudication could take place. If an adjudication on the settlement, brought and disposed of in the usual way, were to conclude that the respondent's version of the settlement was the correct one, then the whole basis of the applicant's judicial review application would fall away.
In my view, therefore, this case falls into the category of exceptional cases referred to in Adam v. The Minister for Justice [2001] 3 IR 53 and is plainly one where leave should not have been granted.
I therefore accede to the respondent's application.