THE HIGH COURT
JUDICIAL REVIEW
		1998 No. 436 J.R.
BETWEEN
HUGO TONER
		APPLICANT
AND
IRELAND  THE ATTORNEY GENERAL  THE MINISTER FOR DEFENCE
BRIGADIER GENERAL JOHN MARTIN AND MAJOR GENERAL BILL DWYER
		RESPONDENTS

Judgment of Mr. Justice Kinlen delivered on the 11th day of February, 2000.

	On 21st November, 1998, Ms. Justice Laffoy granted the Applicant leave to apply by way of application for judicial review for the relief set out in the Statement of Grounds, and that the Respondents be restrained (pending the determination of the application for judicial review) from discharging the Applicant from the Permanent Defence Forces until further order.  The Applicant served originating Notice of Motion with copies of the statements and verifying affidavit and of this Order on the Respondents.  The costs were reserved.  The reliefs sought are as follows:-

1.	A declaration that the permission granted on or about 18th June, 1997 by the Fourth named Respondent to the Applicant to continue in service for a further period of two years with effect from 21st November, 1998 remain valid and continue in the full force and effect.

2.	An Order of Certiorari quashing the decision of the Fourth named Defendant which reversed the decision made in or about June 1997 to permit the Applicant to continue in service for a further two years with effect from 21st November, 1998.

3.	A declaration that the decision made by the Fourth named Respondent to the effect that the permission already granted to the Applicant to continue in service for a further period of two years from 21st November, 1998 had not come into effect and could be revoked was in fact ultra vires null and void and of no legal effect.

4.	An Order of Certiorari quashing the decision of the Deputy Chief of Staff Support (formally known as the Adjutant General) made to Major General Bill Dwyer, the Fifth named Respondent herein, which purported to affirm the latest recommendation of the Fourth named Respondent not to grant permission to the Applicant to continue in service for a further period of two years.

5.	An Order of Certiorari quashing the decision of the Respondents which purported to revise downwards the Applicant's military conduct rating from "exemplary" to "unsatisfactory" by reason of the imposition of a fine by the District Court on 17th July, 1998 which was appealed.  

6.	An Order of Prohibition preventing the Defendants or each of them, their servants or agents from discharging the Applicant from the Permanent Defence Forces with effect from 23.59 hours on 21st November, 1998.  

	The case has been very fully argued by Counsel on both sides and both made written submissions in addition to all oral contributions.  The evidence is primarily contained in four affidavits and the exhibits therein adduced and referred to.  Firstly, there was the affidavit of the solicitor, Michael Baines, then of the Applicant, Hugo Toner, then of Commandant Eamon Caulfield (who at the relevant time was the officer in command of A Company 28 Infantry Battalion stationed at Lifford in the County of Donegal) and Lieutenant Colonel Declan O'Carroll (also of the 28th Infantry Battalion based at Finner Camp, Ballyshannon).  The Applicant's submissions may be summarised as follows:-

	"The Applicant is a private soldier in the Permanent Defence Forces and on 21st November, 1998 would have completed 21 years of service.  He was born on 1st September, 1955."

Section 65 of the Defence Act, 1954 provides for the continuance in service after 21 years service of men of the Permanent Defence Force and provides that the Minister may, by regulation, provide for their continuance in service.  The Defence Force Regulation A10, as amended, provided at Regulation 11(3) and (4), 11(a) and 11(b) in so far as it applies to this application that the continuance in service can be authorised by the General Officer commanding the command (i.e. Brigadier General Martin or his predecessor).  It also provides that a person may continue to have his continuance in service extended by two years provided he does not go past the age of 60.
	Continuance in service of a man of the Permanent Defence Forces shall not be authorised unless:-

(a)	The man's continuance in service is recommended by his Commanding Officer.
(b)	If the man is a Private, he be graded not lower than Private Two Star.
(c)	If the man's military conduct is assessed not lower than good in accordance with provisions of Paragraph 38 and 40 of the Defence Force Regulations A8.
(d)	The man's continuance in service is in the interest of the service.

	By Regulation 11(d), it is provided:-

	"Continuation in service after 21 years of a man of the Permanent Defence Force shall be affected by the completion of AF642".

	Assessment of military conduct and ability takes place in accordance with the Regulations found in the Defence Force Regulations A8, Regulation 38.  Regulation 37 provides that the military conduct of a Non Commissioned Officer or Private shall be assessed by his Commanding Officer in connection with:-

(a)	Advancement as Private;
(b)	retention of grade;
(c)	promotion to and within non commissioned officer ranks;
(d)	extension of service;
(e)	re-engagement;
(f)	continuance in service;
(g)	discharge from the Permanent Defence Forces; and
(h)	transfer to Reserve Defence Forces.

	Regulation 38 provides for a series of categories as follows:-
(a)	exemplary;
(b)	very good;
(c)	good;
(d)	fair; and
(e)	unsatisfactory.

	A much discussed Regulation is A8 under the heading "Temporary Assessment of Military Conduct Regulations 40 and 40A".  Since these regulations are crucial it is appropriate to quote them in full:-

	"40(1)	A Non Commissioned Officer or Private who has failed to maintain the standard of military conduct prescribed in Defence Force Regulations A10 for extension of service, re-engagement, continuance in service, advancement in grade and promotion to and within Non Commissioned Officer Rank shall be advised accordingly by his Commanding Officer. 

	40(2)	For the purposes of Paragraphs 9, 10, 11, 37 and 38 of the Defence Force Regulation A10, the military conduct of a Non Commissioned Officer or Private is assessed as lower than good or if not already assessed under Paragraph 38 of these regulations may be assessed temporarily as 'good' provided that during the preceding six months he has not incurred an entry on his conduct sheet.

	40(3)	Where a Non Commissioned Officer or Private whose military conduct has been assessed temporarily as good in accordance with the provisions of sub-paragraph (2) of this Paragraph fails in the succeeding period of twelve months to maintain the character of military conduct not lower than good, he shall be liable to be reverted or discharged as appropriate in accordance with the relevant provisions of Defence Force Regulations A10."

	Assessment on the authorisation of the Adjutant-General:-

	"40(a)	The Adjutant-General, on the recommendation of the Commanding Officer and the General Officer commanding the command, may authorise an assessment of military conduct one grade higher than that provided for in Paragraph 38 of these regulations in the case of a Non Commissioned Officer or Private whose military conduct subsequent to the date of the current assessment has merited reconsideration".

	To complete the picture in this part of the judgment I will refer to Paragraph 11 of the Defence Force Regulations A10 mentioned above in Regulation 40(2):-

	"Continuance in service:-
	11(1)	A man of the Permanent Defence Force:-
	(b)	who has completed more than 20 years continued service...may on giving notice of his desire to continue in service and in accordance with the remaining provisions of this paragraph be permitted to continue in service after he has completed a total continuance period of 21 years service.
	11(4)	The continuance in service of a man of the Permanent Defence Force and of the provisions of this paragraph shall not be authorised unless:-
	(a)	the man's continuance in service is recommended by his Commanding Officer; 
	(b)	if the man is a Private, he is graded not lower than Private Two Star; 	(c)	the man's military conduct is assessed not lower than "good" in
			accordance with the provisions of Paragraph 38 and 40 of Defence
			Force Regulation A8; and
	(d)	The man's continuance in service is in the interest of the service."

	Regulation 40
(2)A8 provides that in certain circumstances where a private is assessed as lower than good, he may be assessed temporarily as good provided that during the preceding six months he has not incurred an entry on his conduct sheet.  The Applicant's first point is that he was not advised by his Commanding Officer that he had failed to maintain the relevant standard.  The first notification of any problem is contained in a letter of 20th October, 1998 of the Lieutenant Commandant Caulfield and exhibited in his Affidavit as follows:-

	"I am further to advise you that your conduct rating is now 'unsatisfactory' in accordance with GFRA A8, Powers 38(e)(IV) that QC/OC28 INFPN has applied to the Records Office, Western area, to have your application for 'continuance in service' dated April 1997 effective from 21st November, 1998 revoked."

	It is argued that the words of the letter are to the effect that the conduct rating is now unsatisfactory and it is clear from Regulation 40(1) that the person who has failed to maintain the standard of military conduct for various purposes shall be "advised accordingly by his Commanding Officer".
	It is argued that while the Regulations do not make provision specifically for the Applicant to make representation in circumstances where his standard has dropped, it is clear from Regulation 40(2) and 40(a) that circumstances may arise where he might apply for a temporary assessment as good or to have his assessment upped a grade for his military conduct subsequent to the date of the current assessment, as merited reconsideration.  Since the assessment is critical to an application for continuance in service, it was submitted that the Regulations do not permit of a unilateral reassessment but on the contrary provides for circumstances where the Applicant should have been entitled to apply for relief particularly under Regulation 40(2).  It is argued that it is critically important because on one interpretation of the Regulation the Applicant had not incurred an entry in his conduct sheet for the six months prior to the assessment which took place or should have taken place subsequent to his conviction on 17th July, 1998.  By the Commanding Officer's letter of 20th October, 1998, the Applicant was faced with a "fait accompli" that in the opinion of his Commanding Officer his rating was now "unsatisfactory" and that the Officer in Command of the 28th Infantry Battalion had applied to the Records Officer to have his continuance in the service revoked.
	It was also submitted that by virtue of Article 11(d) of the Defence Force Regulations A10, the continuance in service is affected by the completion of AF642 and under the Act and under the Regulations, there is no power to revoke a continuance in service once properly granted.  It was submitted that the only option open to the Defence Force is a discharge from the Permanent Defence Force.  If one looks at Regulation 58 of the Defence Force Regulations A10, it provides for discharge from the Permanent Defence Force and there is a table in Regulation 58 setting out in Column 1:-
(1)	The reason for discharging him, 
(2)	the Officer authorised or prescribed military authority, and
(3)	special instructions.

	It is argued that the only person who can authorise the continuance in service in the case of the Applicant is the General Officer commanding the command (the GOC Western Command Brigadier, General Martin).  The only person who potentially might revoke the authorisation is Brigadier General Martin.  Again, by reference to the letter of 20th October, 1998, it appears that Lieutenant Colonel O'Carroll had applied to the Records Officer to have the continuance in service revoked but it is argued that there was not such a provision or procedure under the Regulations.  However, the Court did not allow this point to be pursued as it was not raised in the proceedings.  It is argued that in so far as "continuance in service" aspect of this application is concerned that the Respondents have misconstrued the Regulations and have:-

(1)	Acted contrary to natural justice in failing to notify the Applicant that he had failed to maintain a standard of military conduct prescribed for continuance in service and to allow him to apply for temporary assessment in accordance with Regulation 42 or to apply to the Adjutant General for reconsideration under Regulation 40(a); misconstrued the Regulations in thinking that they have a power of revocation of an effective continuance in service under Regulation 11(D) Defence Force, Regulation A10 or alternatively that there is no power of revocation of an Order allowing continuance in service other than an application to discharge from the Permanent Defence Forces under Article 58 of the Defence Force Regulation A10 or in the alternative, even if there is a power of revocation that it can only reside in the person who has authorised the continuance, namely, his General Officer commanding the command being Brigadier General Martin, who has not done it in this case.  It is argued that since both the failure to notify him that he had fallen below the appropriate standard and/or the application to revoke an already existing continuance in service was made without reference to the Applicant but vitally affected his status in the army, he should have been given the opportunity at both these stages to make representations in these areas.  It is argued that it must be remembered that the army exists on a chain of command and accordingly the Privates rely upon their officers to protect their rights in terms of their entitlements.  Clearly, the interpretation of the Regulations is a complicated legal consideration.  In civilian life, if the Applicant was fired from his job, he would be entitled to go to the Employment Appeals Tribunal where the onus would be on the employer to justify both procedurally and in substance the dismissal.  No such protection exists in a case of a Private in the Permanent Defence Force.  It is submitted that this is all the more reason why opportunities to make representations and/or seek legal advice should not only be afforded but should be encouraged particularly in the context of a situation.  Not only was the Applicant going to loose his job but his pension rights might be affected.  The Applicant concedes that time was given on 20th October, 1998 to make representations.  On 26th October, 1998 within the time period for making representations, the Applicant made representations and at the end of his representations, he indicated that he was seeking legal advice for the moment and would like time to consider same.  By letter of the same date from his Solicitors Baines & Company, they asked various questions to ascertain why the application for discharge was being made.  The Respondents replied to the letter of 29th October, 1998 saying that the letter was sent to the Secretary of the Department of Defence.  Baines & Company wrote again on 2nd November again looking for the reasons and they were replied to on 5th November, 1998.  The reasons set out were inter alia as follows:-
	"Firstly it was pointed out that his continuance in service has not been revoked but that it never came into effect.  Secondly, it is pointed out that the application for discharge was made as a result of his conviction by the civil power so that the question of discharge is currently under consideration.  It was also pointed out that notwithstanding his possible discharge under Paragraph 58M of Defence Force Regulation A10, his discharge under Paragraph 58T of that Regulation will take place with effect from 21st November, 1998.  58T is 'on termination of engagement'.  By letter of 18th November, 1998, he is informed that his permission has been deleted."

	Hugo Toner, the Applicant, was arrested and charged with importing cigarettes illegally when returning from INLS duties in the Lebanon.  It is pointed out that on 19th November, 1998 Baines & Company, Solicitors for the Applicant, by fax and telephone informed Brigadier General John Martin that by order of Judge Murphy of the Dublin Metropolitan District Court the time in which to appeal had been extended and that the District Court order would be appealed.  However, the Applicant had pleaded guilty and the only matter to be appealed was the penalty.  At that time the Respondents were on notice that an appeal was pending.  Even if a decision had been made on notice before the communication the Respondents should have awaited the outcome of the decision.  It is pointed out that it is difficult to know whether the Applicant was discharged for 58M or not because the replying letter of 20th November says that he was discharged on 21st November and doesn't indicate under what heading he had been discharged although it appears from the replying affidavit of Lieutenant Colonel Declan O'Carroll that he had not on the day of his swearing that affidavit (18th June, 1999) been discharged under 58M.
	At no time in the course of the run up to his purported discharge was there any question of any other convictions.  However, as appears in the affidavits he also attempted to smuggle cigarettes through Northern Ireland and was convicted at the Antrim Magistrates Court on 4th July, 1997.  This conviction is now relied on by the Respondents in their Affidavits.  However, it is argued on behalf of the Applicant that under the Defence Act the expression 'civil offence' has the meaning assigned to it by Section 169 of the Defence Act.   That Section does not make reference to a revenue offence in Northern Ireland and a conviction by a civil power there but at least it is arguable that the offence in Northern Ireland is not a civil offence within the meaning of this Section and it has no application to a discharge under Regulation 58 of the Defence Force Regulations A10(m).
	This is a novel submission but it is not necessary for the Court to give a decision on it.  Finally, it was submitted that on the completion of AF642 (the application to continue in service pursuant to Section 65 of the Defence Act, 1964) his continuance in service was "effective".  The only option open to the Respondent was to seek a discharge under one of the headings of Sections 58 of Defence Force Regulations A8.  This they may or may not pursue.  The option to "revoke his continuance in service" was not open to the Respondent and neither was 58(T).
	The main features of the Respondents are carefully set out in the letter of 5th November, 1998 to the Applicant's solicitor and emanating from the letter of Colonel J.A. Maloney.  It reads:-

	"The position in relation to your client, Private Hugo Toner, is that his current period of service is due to terminate on the 21st November, 1998.  For administrative reasons his application to be continued in service after that date was processed in advance at a time when he qualified under the terms of paragraph 11 on DFRA10 for his continuance.  At that time his conduct rating was assessed under the terms of paragraph 38 of DFRA8 as 'exemplary'.  His application was recommended on that basis at that time and he was notified in unit routine orders but would not of course come into effect until the due date.  

	Since then a number of other considerations have arisen in relation to Private Toner.  One such consideration is that consequent on his having been awarded a fine of £400 in a Dublin Metropolitan District Court on 17th July, 1998, his conduct has now been assessed as unsatisfactory under the terms of paragraph 38 of DFRA8.  It follows that he is no longer eligible for continuance in service under paragraph 11 of DFRA10.  Accordingly, he was informed by his Commanding Officer that he would not now be continuing in service but would be discharged with effect from 21st November, 1998 under paragraph 58(T) of DFRA10 'on termination of engagements'.  This is not a revocation of his continuance in service which has not come into effect but is in accordance with the usual criteria laid down in Defence Force Regulations.

	Separately from this process and as a result of Pte. Toner's conviction by the District Court on 17th July, 1998 of an offence contrary to Section 186 of the Customs Consolidation Act, 1876 as amended, an application was made for his discharge under para. 58(M) of DFRA10 'as a result of conviction by the civil power'.  Pte. Toner was informed of this application by his Commanding Officer and has made representations in relation to that matter.  The question of his discharge under para. 58(M) of DFRA10 is currently under consideration. 

	I feel it is necessary to clarify that notwithstanding the question of Pte. Toner's possible discharge under para. 58(M) of DFRA10, his discharge under para. 58(T) of that regulation will take place with effect from 21st November, 1998 in accordance with the usual criteria."

These arguments are expanded upon in the outlined submissions of the Respondents.  The Applicant is requested to make his application for a continuance in service some considerable time before the date on which his engagement is due to terminate for administrative reasons.  He was due to leave Ireland to serve a tour of duty in the Lebanon with UNIFIL and would not be available in this country to deal with any matters arising in relation to his application.  
	The Applicant went to the Lebanon as a member of the armed forces serving with UNIFIL in 1997.  On two separate occasions during that tour of duty he returned home on leave and on both occasions was caught by customs authorities attempting to smuggle significant quantities of cigarettes without paying the appropriate Customs & Excise duties.  On the first occasion the Applicant was caught with 29,800 cigarettes in Belfast International Airport on 28th June, 1997.  The Applicant was convicted by Antrim magistrates on 20th July, 1997 and fined £800 sterling.  The second offence was committed after the Applicant had been convicted in respect of the first offence.  On the second occasion he was caught with 40,000 cigarettes in Dublin Airport on 27th September, 1997.  On 27th September, 1997 he pleaded guilty in the Dublin District Court and was fined £400.  On 27th July, 1999 this fine was reduced to £250 on appeal by the Dublin Circuit Court.
	Leaving aside the implications of the Applicant's conviction in Belfast, it is the Respondents' case that a continuance in service can only take effect on the termination of the soldier's existing engagement.  A continuance in service is dependant, inter alia, on the soldier meeting certain conditions set out in DFRA10.11, one of which is that he must have a conduct assessment of not less than good under DFRA8.38.  Following his conviction in a Dublin District Court (and even allowing for the reduction of his fine on appeal), the Applicant does not merit a conduct assessment of "good" or higher.  Therefore, at the time of the termination of his engagement he did not meet the mandatory preconditions for a continuance in service.  The authorisation of the continuance in service (which continuance itself had not come into effect) was based on the Applicant satisfying these preconditions and such authorisation was revoked prior to a continuance becoming effective on the basis that the Applicant was no longer eligible.  The Applicant does not deny this conviction and his case is based entirely on the premise that the Respondents should not be allowed to take account of the admitted conviction to revise his conduct assessment.  Effectively, the Applicant contends that his conduct should be immutably assessed, to his advantage, at a date prior to the commission of the offence and his subsequent conviction.
	This Court is aware that separate to the revocation of authorisation of the Applicant's continuance in service, the Respondents have instituted a procedure under DFRA10.58(M) seeking the Applicant's discharge as a result of the conviction by the civil power.  This procedure has been suspended as a result of the ex parte order made by this Court on 21st November, 1998.  In the event that the Applicant is successful in these proceedings, his service is deemed to continue until 21st November, 2000.  In the event that the Applicant is unsuccessful then as the Respondents contend, he would be deemed to have been discharged on 21st November, 1999 on the termination of his engagement pursuant to DFRA10.58(T).  It should be noted that such a discharge may be more advantageous to the Applicant as it is effectively a "clean" discharge and all of the Applicant's entitlement would be intact.  If the Applicant is ultimately discharged under DFRA10.58(M), the third Respondent has a discretion as to whether the Applicant's pension should be granted or cancelled.  The submission then sets out the various dates.
	The case was made that the District Judge was given misinformation by Pte. Toner's then solicitor as to the effect of a fine on his standing in the army.  There is no suggestion that the same error was made with the Circuit Court Judge who reduced the fine but still imposed one which would leave the Applicant with the conduct assessment of "unsatisfactory" and which would not be sufficient to raise his assessment to "good".  Laffoy J. on 21st November, 1998 gave leave to apply for Judicial Review on the seven sub-paragraphs set out in paragraph E of the Statement of Grounds.  They were to the effect that the decision to permit the Applicant to continue in service could not be revoked or reversed and that the Respondents were estopped from a reconsideration of that decision (E.1, 2 and 3); a denial of fair procedures (E. 4 and 5) and the fact that at the time of the making of the application for leave, the sentence of the District Court was under appeal (E. 6 and 7).  On 15th December, 1999 when this case ultimately came before this Court an additional ground was alleged, namely, that the decision to revoke the Applicant's continuance in service was authorised by the wrong officer and therefore is invalid.  Effectively, the Applicant now asserts the technical flaw in the decision which it is contended invalidates the decision per se regardless of the merits of the decision and the manner in which it was reached.  The Respondents submitted that this was a completely new ground and was not covered by the grounds upon which leave was granted by Laffoy J.  The Respondents had not been put on notice of any application to amend or extend the grounds.
	Order 84, Rule 20 of the Rules of the Superior Courts provides that no application for Judicial Review may be made without leave of the High Court and that the application for leave must be grounded upon a Statement of Grounds and Affidavit.  O. 84, r.21(1) provides that where the relief sought is Certiorari an application for Judicial Review must be made promptly and in any event within six months from the date on which the matters giving rise to the application first arose.  The ground now sought to be introduced by the Applicant was not grounded upon any statement of fact set out in the Statement of Grounds or Grounding Affidavits.  A further application to introduce this ground was being made for the first time over a year after the original application for leave and after the events giving rise to this case and therefore the Applicant was well outside the six months period.  
	No reason has been advanced as to why this interesting point was not raised previously.  To introduce it a year later and in the middle of the hearing without notice is certainly per se prejudicial. 
	Under O.84, r.23(2), the Court has power to allow an applicant to amend his Statement of Grounds but such amendment should not be allowed unless the applicant can justify the delay in seeking to introduce new material.  Further, O.84, r.23(3) requires an applicant who seeks to amend his Statement of Grounds to serve notice of the proposed amendment on every other party.  Clearly this was not done in this case. 
	In Molloy -v- The Governor of Limerick Prison, (unreported, 12th July, 1991) it was held that a Statement of Grounds could be amended subject to the applicant discharging the same onus as an applicant for leave under O.84 - i.e. the time limit of six months referred to above applies unless the applicant can justify a departure from it.  In Rajah -v- The College of Surgeon, (1994) 1 I.R. 384, O'Hanlon J. "reluctantly allowed the applicant to extend her grounds" - however it should be noted that the application to amend was determined by O'Hanlon J. within six months from the date of the events giving rise to the application for a Judicial Review itself.
	To avoid an adjournment and to expedite the hearing of the case, the Court reluctantly allowed the point to be argued "de bene esse".  However, this Court is satisfied that this issue is not properly before the Court and leaves it to be discussed and determined in appropriate proceedings.  Much of the argument before this Court and in the submissions was in relation to the inappropriate officers doing the duties assigned to other officers.  This Court is also satisfied that the continuance of service was processed for administrative reasons before it became effective.  The Applicant remained under his original contract.  The continuance did not come into effect on the date it was issued but came into effect on the completion of his contract.  On the submission of the Respondents, he is now entitled to his full pension right on the expiration of his contract and the question of proceeding with his discharge after 21 years of exemplary rating does not arise.  Accordingly, the Court refuses the various reliefs sought by the Applicant.