THE HIGH COURT
			2000 No. 11545P
BETWEEN
CHARLES E. COONAN
			PLAINTIFF
AND
THE ATTORNEY GENERAL AND IRELAND
			DEFENDANTS
JUDGMENT OF Ms. Justice Carroll delivered on the 31st  day of January, 2001.
	The Plaintiff is State Solicitor for Wicklow/North Kildare.  He was appointed on 14th August, 1974.  The terms of conditions of employment provide at paragraph one 

“The State Solicitor shall be entitled to hold the office of State Solicitor for the above area until he shall attain the age of 65 years but provided that he is then in good health, the age of retirement may be extended by the Attorney General with the concurrence with the Minister for Finance to any age not exceeding 70 years.   The State Solicitor shall be removable at any time, by order of the government made on the certificate of the Attorney General, for misconduct, incapacity, neglect of duty, physical or mental infirmity or for any other cause which in the opinion of the Attorney General would render him unfit to perform the duties of State Solicitor.  The certificate of the Attorney General in respect of any of the aforesaid matters shall be binding on the State Solicitor.  The appointment shall carry no right to pension or compensation on termination.”

	The evidence established that without exception for many years before and after 1974 and up to recently, any State Solicitor who sought an extension year by year to age 70 received it.  In 1996 when Mr. Dermot Gleeson was Attorney General and Mr. Eamonn Barnes was Director of Public Prosecutions it was decided that from then on State Solicitors would be appointed for a 10 year contract or until age 65 whichever first occurred.  Out of approximately 31 State Solicitors, approximately 10 to 12 State Solicitors now hold these contracts.  The remainder were appointed under the old contract.  Even after these fixed terms contracts were introduced, State Solicitors who applied continued to have their contracts renewed year by year from age 65.  The practice was that on application, the Chief State Solicitor after consultation with the Director of Public Prosecutions recommended renewal to the Attorney General.  In one such letter dated 7th October 1997, concerning Mr. McEvoy the State Solicitor for Wexford, the Chief State Solicitor said .  “It is customary to grant an extensions of one year period”. 
	There was a change of Law Officers in 1997 when Mr. David Byrne became Attorney General.  Then on his appointment as Commissioner in the European Commission he ceased to hold office in July 1999.  Mr. Michael McDowell took up office as Attorney General on 28th July, 1999.  
	Mr. James Hamilton was Director General in the Attorney General’s Office during the period up to 15th September, 1999 when he took up office as Director of Public Prosecutions on the retirement of Mr. Eamonn Barnes.
	In 1999 the Nally Report was presented to the Government.  Mr. Hamilton had been on the Committee.  After Mr. McDowell became Attorney General the recommendations with one exception (which is not material) were accepted by the government.  They have not yet been implemented.  One of the recommendations is that responsibility for all State Solicitors be transferred from the Attorney General to the Director of Public Prosecutions.  It would require legislation which has not yet been introduced.
	Owing to difficulties pertaining to one particular State Solicitor (referred to as Mr. S, not his initial) who applied on the 8th of December, 1998 for renewal from the 21st of January, 1999, the Chief State Solicitor after consultation with the Director of Public Prosecutions did not recommend renewal for 12 months.  Instead he recommended renewal for six months only to enable a successor to be appointed.  This was recommended by Mr. Hamilton as Director General of the Attorney General’s Office on the 4th of January, 1999 and agreed by the then Attorney General Mr. David Byrne on the 18th of January, 1999.  The Chief State Solicitor informed Mr. S on the 19th of January, 1999 of his renewal to the 3rd of August, 1999.  The post was advertised in May 1999.  Following representations by Mr. S to the Attorney General Mr. Byrne in June, the contract was further extended to the 21st of January, 2000.  Mr. S was notified by the Chief State Solicitor on the 11th of June, 1999 of the extension but was told his successor would be appointed on the 21st of December, 1999 and the overlap period to the 21st of January was enable the hand over to take place.  Mr. S wrote to Mr. Byrne on the 8th of July, 1999 to ask that his case be reconsidered.  Then when Mr. McDowell was appointed as Attorney General he wrote on the 26th of July, 1999 asking to see him.  Mr. McDowell reviewed the file and in a memo dated the 13th of September, 1999 to Mr. Hamilton said he thought the successor would need until the 31st of March for setting up and he said the new appointment should take effect on the 1st of April, 2000.  Mr. S was notified by the Chief State Solicitor on the 22nd of September, 1999 that he could continue until the 31st of March, 2000.  There was then a meeting between Mr. McDowell and Mr. S and his son and in view of the representations made to him Mr. McDowell directed that the new appointment would take effect from the 1st of September, 2000.
	In a letter to Mr. S on the 12th of October, 1999 Mr. McDowell informed him of the extension to the 1st of September, 2000 he said 

“I wish to reiterate to you that as a consequence of a policy decision taken by the Director of Public Prosecutions extensions in the terms of State Solicitors after the age of 65 will not be the norm from now on.”

	 This is the first mention on paper concerning a policy which is expressed be of the D.P.P.
	In another letter also dated the 12th of October, 1999 to the Chief State Solicitor about the extension for Mr. S, Mr McDowell said 

“I also explained to Mr.          that the present Director James Hamilton was of the view that extensions should henceforth only be granted in exceptional cases and that the general practice, from here on, should be that State Solicitors would retire at the age of 65 unless special and unusual circumstances required otherwise.”

	In the time between the first decision of Mr. Byrne (18th January, 1999) and the last decision of Mr. McDowell (12th October, 1999) in Mr. S’s case, the question of extending the contracts of other State Solicitors arose.  The contract of Mr. McHale, State Solicitor for Mayo, who applied on the 28th of April, 1999 was renewed from the 13th of May, 1999 for one year.  No decision in writing appears in the discovery but Mr. McHale wrote on the 22nd of February, 2000 to say he would not be seeking a further extension.  Mr. Cody the State Solicitor for Carlow reached 65 on the 27th of September, 1998.  On the 24th of June, 1999 the Chief State Solicitor wrote to advise him that he should move to regularise his position.  He applied on the 28th of June, 1999 for an extension to the 27th of September, 1999.  Following a recommendation by Mr. Hamilton on the 19th of July, 1999 and a decision by Mr. McDowell on the 26th of July, 1999 Mr. Cody was given an extension not only for the remainder of one year but for the next year as well until the 27th of September, 2000.  In neither of these cases was there any mention of a policy decision not to renew.
	Two other State Solicitors both of whom had received four extensions applied during 1999 for a fifth renewal.  Mr. McEvoy the State Solicitor for Wexford applied on the 28th of October, 1999 for renewal from May 2000.  In April 2000 he was granted a renewal for one year to May 2001.  
	Mr. Maguire the State Solicitor for Tipperary South applied for a renewal from the 26th of November, 1999 and received first a two month extension to allow for consultation with the D.P.P. who was away.  In January, 2000 a decision was made to grant him an extension to the 30th of September, 2000.  On the 21st of February, 2000 he tendered his resignation from the 1st of April, 2000 owing to an Assistant leaving his firm.
	  Mr. Cody from Carlow who had been extended for two years to the 27th of September, 2000 applied in May 2000 for a further extension and was told on the 23rd of May, 2000 there would be no further extension.  He resigned with effect from 4th October, 2000.  
	In the case of the Plaintiff, Mr. Cooney on attaining his 65th birthday, applied on 14th January, 2000 for renewal on 30th November, 2000. He met the Chief State Solicitor in January 2000 who told him he was not going to be renewed after 65.  The Attorney General made a decision on the 5th of February, 2000 that no extension should be granted.  Mr. Cooney saw the D.P.P. on 18th February, 2000 and was told there would be no extension  Mr. Cooney was informed by letter on the 7th of March, 2000 by the Chief State Solicitor of the decision.
	He was the first person to be refused on his first application for an extension.  I fully accept his evidence that the first intimation he had that he would not be appointed was when he went to see the Chief State Solicitor in January, 2000.  Also I fully accept that he had not anticipated a refusal prior to that.  He had attended a meeting sponsored by Mr. Hamilton the new Director of Public Prosecutions on 15th January, 2000 in the Law Society and took comfort from the address given by Mr. Lombard a member of the Office of the Director of Public Prosecutions.  Mr. Hamilton said that he approved of the address and he said he may even have drafted the passage himself.  Mr. Lombard said (at page 2)

“The present contracts which are in existence with the State Solicitors provide either for retirement at the age of 65 (with the possibility of renewal) or the contracts may be for a fixed period such as 10 years.  If the Director takes over the contracts in question we will develop rules with regard to the renewal of contracts which cannot be regarded as being automatic.  However it would be unfair not to renew if people have not being told performance unsatisfactory.  It will be intended that in the event of the Director taking over this function that unsatisfactory aspects of service will be noted to the State Solicitors and there will be no automatic entitlement to renewal.”

	Mr. Hamilton said in evidence that the reference to renewal of contracts was only intended to refer to the fixed period contracts. However this view contradicts a provision in the new contract which provides at paragraph 1

“At the end or sooner determination of this period the post shall be advertised and the holder of the office under this contract shall not be precluded from applying again for the post provided however that no special consideration shall be given to the holder of the office under this contract arising from his tenure as State Solicitor.”

	In my view Mr. Coonan was justified in taking the reference to renewal to refer to his type of contract as well as the new type.
	In any event when Mr. Coonan was informed on the 7th of March that neither the Director nor the Attorney General considered an extension should be granted he was in the position of having worked as State Solicitor for 26 years.  There was no pension.  A somewhat meagre gratuity would be payable.  He did little private practice as it had been driven out by the pressure of State work.  He had anticipated working until 70.  His pension arrangements consisted of two small policies and a policy with the Law Society.  The resulting pension would bear no relationship to his earnings as State Solicitor.  He had engaged two typists and would have to let one of them go.  This would probably involve him in a redundancy claim.  Also the State Solicitors as a body were awaiting implementation of the Buckley Report on remuneration and were expecting an improvement in salary.  It was important to him to be in office when the Report was implemented.  
	He tried to negotiate renewal.  After seeing Mr. Hamilton on the 18th of February, 2000,  he saw Mr. McDowell on 5th May, 2000 who told him he could not continue his contract because there was a new policy.  The D.P.P. was going to take over and run the State Solicitors.  It had been agreed between the D.P.P. and the Attorney General that the State Solicitors would not stay on.  It was put to him that he had accepted or acquiesced in what he was told.  But I fully accept Mr. Coonan’s evidence that all he would have said was “I see” and that he did not argue.  I do not consider that in any way constituted an acceptance of his position.
	Mr. Louis Dockery who was State Solicitor from October 1978 to February 1993 and was in the Chief State Solicitors office from November 1956 confirmed that to his recollection all the State Solicitors who applied were renewed. There were five who resigned before age 65, three to develop their private practises and two to become Judges of the District Court.
	Mr. Michael Murray a State Solicitor for over 20 years, and President of  the State Solicitors’ Association for three years confirmed that the custom or practice of renewing contracts existed until recently.  Sometime after Mr. S applied for an extension it became known the policy was changed.  But there was no evidence as to how many knew.  There was no consultation or discussion with any representative body.  The President and Secretary of the State Solicitors Association met Mr. McDowell and Ms. Finola Flanagan Director General of the Office of the Attorney General on the 24th of May, 2000.  They complained that the new policy of not extending contracts beyond age 65 was introduced without any notice to them. 
	 Mr. Hamilton gave evidence that the matter of the renewal of Mr. S’s contract first came to the attention of Mr. Byrne as Attorney General.  Mr. Hamilton gave a lot of hearsay evidence about what Mr. Byrne said and felt although Mr. Byrne did not give evidence.  Suffice it to say that the documentation shows that Mr. Byrne on 18th January, 1999 accepted the Chief State Solicitor’s recommendation endorsed by Mr. Hamilton as Director General that Mr. S would be given six months extension to the 3rd of August, 1999 which he further extended in June to 21st January, 2000.  Mr. McDowell said that he had to rely on hearsay.  He was led to believe that Mr. Byrne had come to the view that in future extensions beyond 65 would not normally be granted.   But there was no mention of a policy change when Mr. McHale was renewed in May 1999 and no mention of policy change when Mr. Cody was renewed for two years (partially retrospective) on the 27th of July, 1999.  It appears to me that, while I am sure there were discussions between Mr. Byrne and Mr. Hamilton the new policy was not formulated until about October 1999 when it was referred to in the two letters from Mr. McDowell dated the 12th of October, 1999 one to Mr. S and the other to the Chief State Solicitor.  The documentation suggests that the policy was driven by Mr. Hamilton’s wishes. This may well be so but Mr. McDowell stated that the decision was his and the policy was his and I of course accept that. Therefore the exercise of the discretion in Mr. Coonan’s case was made by Mr. McDowell. 
	Mr McDowell said his view was that it was preferable to have a general rule of retirement at 65 rather than have periodical reviews between 65 and 70.  He felt the general practice in the Civil Service of retirement at 65 should apply to State Solicitors. He said there would be difficulties in carrying out annual assessments.  If there was a case by case policy inevitably he would start to receive representations.  The reasons why a renewal could be granted would be to have time to appoint a successor or if there were particular difficulty over an ongoing legal task.  In relation to personal circumstances he said he would consider an extension for possibly two/ three months but not for a year.  When he saw Mr. Coonan on the 5th of May, 2000  and told him there was no intention to renew beyond the age of 65, he was aware that Mr. Coonan wanted to be in office when the Buckley Report on remuneration was implemented but he did not consider he could take that in to account.  As a conciliatory gesture he gave him extension to the 31st of January, 2001.  He agreed this was mutually beneficial as it covered a busy period in the District Court.
	With regard to the question of notice Mr. Hamilton said in a memo to Ms. Flanagan the Director General of the Attorney General’s Office dated 24th January, 2000.
“There is obviously a case to be made that since this is a new policy people have not had any notice of it up to now.  However, I cannot see this would be a reason to do other than grant very short extensions to one or two cases until the new policy becomes generally known.”  It may be at this stage the State Solicitors are aware of the new policy even though they have not been formally notified of it”.   

	No formal notice was ever given.
	The case made on behalf of Mr. Coonan was that he relied on the conditions of appointment and on the longstanding custom or practice of successive Attorneys General in the exercise of the discretion.  This gave him a legitimate expectation he would have his contract extended yearly until he attained 70, health permitting.  He also said he would not expect to be renewed if he was not performing satisfactorily. But it should be emphasised that Mr. Coonan’s performance was never called in question.
	While the phrase “legitimate expectation” has connotations of public law this is not Judicial Review.  This does not concern the exercise of a statutory discretion. The matter concerns a private contract containing a discretion for the Attorney General.
	In Abrahamson-v-The Law Society of Ireland 1999  1 IR 403 McCracken J. at page 416 gives a helpful and succinct overview of the law on legitimate expectation.  He suggests that while the doctrine of legitimate expectation is similar to and probably founded on the actual concept of promissory estoppel, it has been extended well beyond the bounds of that doctrine.
	This case seems to me to fit four square within the doctrine expressed by Lord Denning MR in Amalgamated Property Company Limited-v-Texas Bank 1982 QB 84 and referred to by Finlay CJ. in Webb-v-Ireland 1988 IR 353

“Where the parties to a transaction proceed on the basis of an underlying assumption either of fact or law, whether due to misrepresentation or mistake makes no difference, on which they have conducted the dealings between them neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow them to do.  If one of them does seek to go back on it the Court will give the other such remedy as the equity of the case demands”.

	I consider the treatment that Mr. Coonan received was indefensible.  In human terms it was brutal news to be told after giving 26 years faithful service to the State that he would get no renewal.  He was given no opportunity to consider how best to plan for those five years from 65 to 70 which he had counted on to earn a living.  There appears to have been a total lack of appreciation of the devastation this news could cause  in a person’s life.  There was a conscious decision not to publicise the new policy.
	I am not saying that the Attorney General could not change the policy of renewal on request, health permitting.  But I do say that he was not entitled to change this long standing custom, rule or policy, by whatever name it is called, and relied on by Mr. Coonan, without giving adequate notice to enable him to arrange his affairs to cope with this alteration to his life plan.  The two extra months given as a conciliatory gesture were wholly inadequate.
	This is an appropriate case to give Mr. Coonan such remedy as the equity of the case demands.  Mr. Coonan’s extension runs out today and Mr. McDonagh says the Attorney General does not want to reappoint him.  I consider that this is an appropriate case to award damages.  I understand the Buckley Report was yesterday accepted by the Government and I do not know what is the new salary appropriate for Mr. Cooney’s grade of State Solicitor.  I feel it is appropriate to know this in order to measure his loss.  
	2pm 
Having been furnished with the information and taking in to account the new salary scale of £35,000 per annum and also taking in to account the stage payments which have been agreed I consider an award of £100,000 is the appropriate amount.