High Court of Ireland Decisions

1. These proceedings are an application by way of Judicial Review for a number of reliefs arising out of the compulsory retirement of the Applicant from the Defence Forces which was notified to him on 25th June, 1969, pursuant to the provisions of the Defence Act, 1954 and the Defence Force Regulations made thereunder.

2. On 23rd November, 1998 Geoghegan J. extended the time for making the application for leave to apply for Judicial Review, and granted such leave, "with liberty to the Respondents to argue the time point at the hearing of these proceedings." Subsequently, by Order dated 18th February, 1999, Kinlen J. ordered that a preliminary issue be heard seeking an Order dismissing or staying the Applicant's claim herein on the grounds that there has been inordinate and/or inexcusable delay in the commencement of the proceedings herein. It is this preliminary issue which I now have to determine.

3. Order 84 Rule 21 of the Superior Court Rules provides:-

4. The primary provision, therefore, is that an application for Judicial Review must be made promptly, and it is only a secondary provision that, in any event, the application must be made within the stated time depending on the nature of the application. It would appear, therefore, that an application for Judicial Review may fail even if it is made within the stated time unless it is also made promptly. There is, however, the overall power of the Court to extend the period where the Court considers there is good reason to do so. While it may not be an absolute rule, I have no doubt that in the vast majority of cases the onus is on the Applicant to produce evidence to show such a good reason.

5. Before turning to the reasons furnished by the Applicant, I should comment on one further matter which was raised on his behalf. It is said that this is simply a rule in the Superior Court Rules, and is not a statutory limitation. This is undoubtedly true, and indeed it is probably for this reason that the Court was given an express power to extend the time without limitation. While it might be interesting to analysis the exact effect of a rule such as this, I do not think it is necessary to do so in this case because of the length of the delay.

6. In the Grounding Affidavit the Applicant has set out in detail his account of the events which took place in 1969 which led to his enforced retirement. For the purpose of this application I am not concerned with the merits of his case, save insofar as they may affect the question of delay. He makes the case that he was interrogated at considerable length over a period, that on 27th June, 1969, without any warning, he was furnished with a letter stating his retirement, and was given twelve hours to leave the barracks. He was told by his father that he would not be welcome then, or ever, to return home. He emigrated in 1971 and worked on and off in Britain and in the United States.

7. It should be noted that during the period in which he was under investigation he contacted a Solicitor and was advised to request a Court Martial, which he did. In fact no Court Martial was held, which is one of his complaints in the Judicial Review proceedings. At paragraph 15 of his grounding Affidavit he says that the Solicitor concerned did not act for him nor did he institute proceedings on his behalf, and that the said Solicitor has discontinued practice and left the country. The Applicant is very vague as to his contacts with the Solicitor, and in particular does not state whether he contacted the Solicitor after his retirement, or whether he obtained any advice from him at that stage. What is clear is that he was aware that he was in need of legal advice.

8. In the Autumn of 1997 the Applicant's sister Adi Roche was a candidate in the Presidential elections. The Applicant avers that the whole episode of his retirement was resurrected by the media at that time, which he found extremely traumatic, as I do not doubt was the case. After this, the Applicant undoubtedly attempted to reopen his case, and he wrote to the President and to the Minister for Defence. In relation to the period between 1969 and the Presidential election in 1997, the Applicant himself has given virtually no evidence to explain his inaction. What he says at paragraph 17 of his grounding Affidavit is:-

9. He does also say in his replying Affidavit of 10th February, 1999 at paragraph 10, after rejecting the assertion that he had provided no valid reasons for delay:-

10. In support of this case, the Applicant has filed two Affidavits sworn by friends of his. The first is by a former army colleague, Patrick Walshe who swore that he met the Applicant some time after he had been retired, and that he was devastated and effectively a broken man, that he had lost his self confidence and had become a mental wreck. He also says that in the early 1970s the Applicant was effectively down and out and was so emotionally upset that the Deponent couldn't hold a logical conversation with him and he was in a state of severe nervous breakdown. The Deponent did not have any contact with the Applicant after he went to America.

11. The second Affidavit is that of James Charles McCarthy who befriended the Applicant in the United States in 1971 and 1972, and has kept in regular contact with him since. He states that the Applicant was clearly traumatised by his enforced retirement and further avers at paragraph 4 of his Affidavit:-

12. Basically the Applicant's case is that he was so emotionally traumatised by his experience that he was unable to address the possibility of taking proceedings by reason of post traumatic stress disorder. He is now obtaining counselling from Miss Anne Kelleher as a result of which it is claimed that a great deal of his self esteem has been restored. There is an Affidavit from Miss Kelleher which states that he was unable to address his trauma or seek assistance, and was unable to plan or commit himself to a task. I have also been furnished with an Affidavit and a medical report from Dr Finnuala O'Loughlin, who confirms that her impression is that he is suffering from post traumatic stress disorder and that he felt powerless and helpless to influence events. She also discloses that when he went to America he developed a dependence on alcohol and at least abused drugs and she states that during his time in America he was unable to tackle his problem because of his alcohol and drug abuse, which were in a way his way of dealing with the memories and feelings of injustice and helplessness and powerlessness.

13. Of course neither Miss Kelleher nor Dr. O'Loughlin had seen the Applicant until very recently, and there is no medical evidence whatever in relation to the period between 1969 and 1997. It would appear that during that period the Applicant went to America, where he worked, was befriended by Mr. McCarthy and discussed his difficulties with Mr. McCarthy on numerous occasions. It also appears that during that time he married and had a family. He was, therefore, able to make important decisions in relation to his life, and he had others, all be it lay persons, who were aware of his problems and could indeed have advised him. There is no history of his mental or emotional condition being so serious that he had to obtain medical advice or be hospitalised during the relevant period. The Applicant is a person who clearly believes that he was wronged by the Defendants, and that he suffered severe traumatic events which led to post traumatic stress. This may well be so, but there is no real evidence before me that any post traumatic stress disorder which the Applicant may have suffered prevented him from obtaining legal advise or instituting these proceedings. It seems clear that the publicity given to him, probably quite unfairly, during the course of his sister's candidature for President had a very serious effect on him, and Dr. O'Loughlin has given her opinion that his psychological condition over the last two years would suggest a relapse of his acute symptoms of post traumatic stress. Assuming this is so, the fact remains that notwithstanding these acute symptoms which arose in 1997, the Applicant was still able to instruct a Solicitor and issue these proceedings, which he failed to do during the preceding twenty eight years.

14. In summary, therefore, it is my view that the Applicant, while undoubtedly having suffered a traumatic experience, has not shown that he was so affected by that experience that he was unable to issue these proceedings over such a lengthy period. He was able to work, he was able to marry and bring up a family, and indeed Dr. O'Loughlin says in her history of the complaint that the Applicant seemed to deal with the problems of alcohol and drug abuse and resolved his dependence. In the light of all these matters I do not think he has discharged the onus which is upon him to show the Court that there is good reason for extending the period within which this application should be made.

15. Quite apart from the provisions of Order 84 Rule 21, I have been referred to a number of cases in which the Court has considered whether it ought to strike out proceedings on the grounds of inordinate and inexcusable delay. Many of these cases are personal injuries cases dealing with injuries suffered by an infant either at birth or very shortly thereafter, in which proceedings were not commenced until the Plaintiff became of full age. In such cases, the Plaintiff cannot personally be blamed for the delay, but nevertheless in some cases the proceedings have been struck out. In one such case, namely Toal -v- Duignan [1991] ILRM 135 Finlay C.J. said:-

16. Principles originally set down by Finlay J., as he then was, in Rainsfort -v- Corporation of Limerick , which was unreported but in which judgment was given on 31st July, 1979 and which is noted at [1984] IR 153 have been expressly approved in a number of subsequent cases. They may be briefly summarised as:-

17. There can be no doubt that in the present case the delay was inordinate. In my view, for the reasons given above in relation to Order 84 Rule 21, I would also hold that the delay was inexcusable. There only remains therefore, to consider whether the balance of justice is in favour of or against allowing the case to continue taking into account the extent of the Applicant's personal blameworthiness.

18. I fully realise that the Applicant's effective dismissal from the Defence Forces must have been a very traumatic experience for him. This is particularly so when one takes into account the attitude of his own family. However, I do not think that there is any convincing evidence that this trauma was such as to render the Applicant incapable of issuing these proceedings, and indeed neither the psychologist nor the psychiatrist who have given evidence go this far. A couple of years after the events took place, the Applicant chose to leave the country and seek to make a new life elsewhere. I am not for a moment blaming him for taking this action but I think it points to an attitude on his part of wanting to leave the whole unfortunate experience behind him and start afresh. I think this was a deliberate choice on his part, taken at a time when he could have sought relief through the Courts. Unlike the infant cases, the Applicant was at all times personally in a position to instruct Solicitors and to issue proceedings, and did not do so for some twenty nine years. In my view he is totally blameworthy in the sense that that word is used in the judgment I have referred to. This is not to imply that he did anything wrong, but rather that he is the person responsible for proceedings not having been issued. I should also add that the Respondents cannot in any way be blamed for the delay.

19. The Respondents claim that three potential witnesses have died in the intervening period and that all the other witnesses have retired from the defence forces. I accept the Applicant's argument that only one of the three deceased witnesses could give direct evidence of the matters which took place, but the other two were persons who were in very senior positions in the defence forces, and certainly would have been in a position to give evidence as to the reasons behind the enforced retirement of the Applicant. It is also a fact that, after twenty nine years, memories of events which took place are bound to be severely dimmed, even if the events were as unusual as they appear to have been in this case. I do not consider that the balance of justice requires that this case be allowed to proceed.

20. Finally, I should comment on a remark of McCarthy J. in his judgment in State (Furey) -v- Minister for Justice and the Attorney General [1988] ILRM 89 where he said at the end of his judgement:-

21. This remark was clearly obiter in the context of that case, although I fully accept that in considering the requirements of justice, the fact that the Plaintiff may have been wronged by the state authorities rather than by a private individual must be a relevant consideration. However, I would emphasis that this was not an absolute statement that delay cannot disentitle an Applicant, but rather that it should not "of itself" disentitle an Applicant. In fact, I think that this comment is not inconsistent with the principles I have quoted already, and I would dismiss these proceedings not solely because of the delay in itself, but because, in addition to such delay, there is the element of blameworthiness on the part of the Applicant and the fact of possible prejudice to the Respondent.