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1. On the 15th of March 1999 by his order of that date Kelly J. gave leave for the Applicant to apply by way of an application for a Judicial Review for the following reliefs

2. The Applicant was given leave to apply for this relief upon the following ground:-

3. The Applicant was born on the 8th of August 1962 and joined the Civil Service in 1981. He was transferred to the Department of Justice in 1984. He worked in the rank of Clerical Officer from 1984 to 1988 in the Circuit Court Office at the Courthouse Washington Street Cork and from 1988 to 1991 as a Staff Officer and from 1991 to the present time as an Executive Officer with an allowance. Since the month of March 1991 he has worked as a Court Registrar in Cork Circuit Court and still does this work.

4. On his return from annual leave on the 5th of September 1998 the Plaintiff was informed by Mr Eamon Kiely Chief Clerk of the Cork Circuit Court that a letter had been issued by the Respondents and received in the Circuit Court Office in Cork appointing the Applicant as a Higher Executive Officer.

5. The Applicant never received this letter because soon after it was issued the Respondents requested that it be sent back to them and indeed it was returned to the Respondents by the Cork County Registrar without it ever having been seen by the Applicant. Soon afterwards that is to say early in September of 1998 a Mr Richard O’Connor and a Mr Peter Murray who were both Court Registrars in the Cork Circuit Office were appointed to the grade of Higher Executive Officer as and from the 1st of July 1998.

6. Not having heard anything concerning a promotion of himself the Applicant commenced correspondence by letter of the 14th of September 1998 addressed to Mr Kiely, the Chief Clerk of the Cork Circuit Court and also to the Personnel Section of the Courts Division of the Department of Justice Equality and Law Reform. In that letter the Applicant referred to the appointment of his two colleagues and asked those to whom it was addressed if they could outline the criteria required for these promotions in the light of the fact that the Applicant’s duties were exactly the same as the two men who had been promoted. This letter was responded to by a letter dated 30th September 1998 from Mr Brian Fitzpatrick Personnel Officer of the Respondents. In this letter it was acknowledged by the writer that there was no difference in the Applicant’s duties and those performed by the two officers who had been promoted. Mr Fitzpatrick then goes on to explain the background to the promotion of the other two officers which was to the effect that there had been agreement with the relevant union namely the Public Service Executive Union (PSEU) in respect of some restructuring to facilitate the taking on of family law work and that this agreement involved the upgrading of two officers currently engaged in registrar work, with the most seniority in the grade. While this letter sympathises with the Applicant for not having obtained promotion to one of the two vacancies it makes no reference whatsoever to the letter received in the Cork Circuit Court Office and which was withdrawn nor to the contents thereof.

7. The Applicant responded to this letter of Mr Fitzpatrick by a letter of the 11th of November 1998. In this letter the Applicant asked Mr Fitzpatrick to define his duties as an Executive Officer with an allowance within the present structure of the Cork Circuit Court Office. He goes on to make the point that there had only been consultation with the union in regard to the facilitating of family law work and that there had been no consultation with non union officers such as himself and he makes the point that he personally had been for many years involved in the family law courts in the Circuit Court. He also makes the point that it was confirmed to him by the County Registrar and the Chief Clerk of the Circuit Court Office that these persons were unaware of any consultation process in regard to the duties required of Higher Executive Officers within the Cork Circuit Court Office.

8. The Applicant’s letter of the 11th of November was acknowledged by a letter of the 18th of November 1998. The Applicants letter was replied to in substance by a letter of the 30th of December 1998. This letter elaborated to some extent the points already made by Mr Fitzpatrick in his letter of the 30th of September 1998.

9. The correspondence between the parties ended at this point.

10. The Respondents made discovery of documents and in the Affidavit of Discovery sworn by Mr Fitzpatrick on the 12th of November 1999 he makes the following averment at paragraph six;

11. The documents so referred to at paragraph six of the Affidavit and numbered eleven in the second schedule to the Affidavit as are as follows;

12. These documents which are at the heart of the issue in this case cannot be seen by the Court as they have been destroyed.

13. The Respondents in their statement of opposition generally traverse the Applicant’s case and additionally say that the Applicant failed to apply promptly or within the time specified in Order 84 Rule 21(1) of the Rules of the Superior Court 1986 and that he has failed to make out any case or show grounds entitling him to relief by way of judicial review. They say that in September of 1998 a number of promotions and/or upgradings in the Cork Circuit Offices were made as part of a country wide package including restructuring to facilitate the taking on of family law work and they contend that these were all matters which were intra vires the powers of the Respondent. They say that the two appointments in Cork to the post of Higher Executive Officer were to be on a “senior suitable basis” . They contend that the decision to withdraw the letter sent in respect of the Applicant was intra vires the powers of the Respondent and they contend that if there was any error in respect of the withdrawal of the said letter that it was an error which was within the Respondents jurisdiction and competence and not open to challenge by way of Judicial Review.

14. In his Affidavit sworn 30th June 1999 Mr Fitzpatrick at paragraph five says the following:-

15. At paragraph ten he says the following:-

16. The Applicant’s complaint in these proceedings is essentially concerned with the purported recision by the Respondents of what the Applicant claims was his appointment to the grade of Higher Executive Officer. The Respondents admit that the letters containing the relevant proposal was issued in the first instance and subsequently withdrawn and subsequent to that destroyed. They deny however that the Applicant was entitled to hold the position of Higher Executive Officer since the end of the month of August 1998.

17. It thus becomes necessary for me to determine what was the effect of the letter sent by the Respondents to the Circuit Court Office and subsequently withdrawn and what was the legal consequence of the withdrawal of that letter. This issue is obviously of crucial importance to the Applicant’s case because if it were the position that the letter which was withdrawn did not in fact appoint him to the grade of Higher Executive Officer; if it was merely an offer of such appointment which was withdrawn before it was communicated to the offeree namely the Applicant, then it would follow that no appointment had been made in the first instance and hence the question of a recision of that appointment would not arise.

18. The evidence on Affidavit in relation to this matter is contained in paragraph five, six, eighteen and nineteen of the Affidavit of the Applicant and paragraph ten of the Affidavit of Brian Fitzpatrick sworn on the 30th day of June 1999 and paragraph six of the Affidavit of discovery of Brian Fitzpatrick sworn on the 12th day of November 1999.

19. Clearly the Applicant is at a disadvantage in that he did not ever see the letter in question. While Mr Fitzpatrick does not deal with the content of the letter in his main Affidavit, in his Affidavit of Discovery the documents which were returned to the Respondents by the Circuit Court Office and were destroyed are described in the following term:-

20. It is implicit in this description, that the content of the letter was an offer and there was included in the documentation a form for the acceptance of the offer.

21. I am inclined to the view that it is probable that what was contained in the letter issued from the Respondents to the Circuit Court Office in respect of the Applicant was an offer of appointment to the Higher Executive Officer grade, an offer which would have to be expressly accepted by the Applicant before an appointment would be effected. The description of the documentation destroyed seems to me to fit that pattern. It would seem to me to be very unlikely that in making a promotion or appointment of this kind that it would be done unilaterally by the Respondents without in advance obtaining the acceptance of the appointee.

22. Thus I have come to the conclusion that the letter issued from the Department did not appoint the Applicant to the grade of Higher Executive Officer but merely offered that appointment subject to acceptance by the Applicant, and that offer not having been communicated to the Applicant and therefore not having been accepted by him it would seem to me that it was open to the Respondents to withdraw the same and that in the result no appointment to the grade of Higher Executive Officer was made pursuant to Section 2 (2) of the Ministers and Secretaries Act of 1924.

23. I tend to be reinforced in this conclusion by the nature of the correspondence which took place between the Applicant and the Respondents in the months of September, November and December of 1998. At no stage in this correspondence does the Applicant claim that he had been appointed nor indeed does he allude at all to an appointment of him to the grade in question. Such an omission would surely be very surprising if he believed that an actual appointment had been made which was then, without notice to him, revoked. The general thrust of the correspondence from the Applicant is to enquire as to the criteria for appointment and to complain or at the very least draw attention to the fact that he the Applicant was performing the same duties as the two who were appointed to the higher grade. Implicit in this correspondence is a recognition that he had not in fact been appointed and that such non appointment was his real grievance.

24. It necessarily follows that if the Applicant was not appointed to the grade of Higher Executive Officer a recision of that appointment could not take place. As the challenge which is mounted in these proceedings by way of judicial review is to the recision and as it has been unequivocally accepted by the Applicant that there could be no challenge to the right of the Minister to make such an appointment in the first instance it seems to me to inevitably follow that as the decision which is impugned in the proceedings namely the recision never took place, the grant of relief by way of Judicial Review of that decision is entirely inappropriate.

25. For these reasons in my view the Applicant’s claim in these proceedings must fail.

26. At the start of their statement of opposition the Respondent made the case that this Application was not brought promptly or not within the time limited by order 84 Rule 21(1) of the Rules of the Superior Court 1986. The Applicant learnt of the letter from the Respondents on the 5th of September 1998. He made his ex parte application to Kelly J on the 15th of March 1999. Hence he would appear to be outside the six month period prescribed in the rules. The Applicant in his submissions attributes such delay as there was, to the continuance of correspondence and because of what the Applicant categorises as the Respondents failure to answer the queries or issues raised by the Applicant in the correspondence until the letter of the 30th of December 1998.

27. In my view the process of correspondence could in no way justify the delay for the simple reason that at no stage in the correspondence did the Applicant make the case which he now makes in these proceedings which is that he was in fact appointed and that his valid appointment was by the ultra vires act of the Respondent, rescinded. As the Respondents were not in the correspondence at all challenged with the issues which have arisen in these proceedings it can hardly be said that any delay on their part in dealing with the other issues that were raised in the correspondence could have contributed in any way to the delay in getting these proceedings going.

28. However the Respondents do not point to any prejudice either to themselves or to any other persons in the granting of the relief sought in these proceedings and on that basis I am disposed to exercise my discretion in favour of extending the time for the bringing of these proceedings.

29. In the light of my foregoing conclusions it is unnecessary for me to express any view on the other submissions made by either side.