Dermot O'Leary (applicant) v The Minister for Transport, Energy and Communications, Michael Lowry, Ireland and the Attorney General (respondents).

Judicial Review - Certiorari - Practice and procedure - Appropriate test to be applied in respect of application for leave to amend points of claim where judicial review proceedings remitted for plenary hearing - Rules of the Superior Courts, Order 28 rule 1 - Transport Act 1950, section 7(4).

The High Court (Mr Justice Kelly); judgment delivered 26 November 1999.

AN order remitting judicial review proceedings for plenary hearing does not alter the character of the proceedings and the provisions of Order 28 rule 1 of the Rules of the Superior Courts are inappropriate to the determination of an application for leave to amend a grounding statement. Leave to amend a grounding statement will only be granted in exceptional circumstances and must be necessary to determine the issues in suit between the parties. Mr Justice Kelly so held in refusing the applicant's application for leave to amend the points of claim delivered by him.

Adrian Hardiman SC, Mel Christle SC and Michael Conlon BL for the applicant; Paul Gallagher SC and Brian Murray BL for the respondents.

MR JUSTICE KELLY set out the facts stating that the applicant was appointed by the Government to the office of chairman of Coras Iompair Eireann (CIE) on 1 July 1994 for a five year period. The applicant claimed that he was wrongfully dismissed from this office on 25 April 1995 and the respondents contended that he resigned. On 25 March 1996, Mr Justice McCracken gave the applicant leave to apply for judicial review in respect of the events of 25 April 1995 and granted an extension of time to make the application. The principal relief sought by the applicant was an order of certiorari quashing the Minister's decision to dismiss him from office. The respondents filed their statement of opposition and grounding affidavit in May 1996. Ultimately, in July 1997, Mr Justice Smyth made a consent order remitting the matter for plenary hearing and gave directions as to the pleadings. The applicant delivered points of claim in October 1997, and points of defence were delivered in March 1998. Thereafter, the proceedings became dormant until a notice of intention to proceed was served in June 1999. The matter before Mr Justice Kelly was the applicant's motion for leave to amend the points of claim, in support of which he relied upon Order 28 rule 1 of the Rules of the Superior Courts. Mr Justice Kelly referred to the prayer for various reliefs in the points of claim and the fact that leave was not being sought to amend same. Rather, the applicant was seeking to introduce a new claim of conspiracy into the proceedings and sought to add the following paragraph to the points of claim "[f]urther, or in the alternative, and without prejudice to the aforesaid, the first named Respondent and one Michael McDonnell and one John Loughrey and one Michael Brennan and others, servants of the second named Respondent, conspired, with intent to injure the applicant, to procure the dismissal of the applicant which said dismissal occurred in the manner described in paragraph 3 above and which resulted in the loss set out at paragraph 5 above".

Mr Justice Kelly referred to Paragraph 3 of the points of claim as delivered which asserted that, in the course of a meeting requested by the minister with the applicant on 25 August 1995 (sic): the minister purported to dismiss the applicant or gave him to understand that he had been dismissed; the minister's reason for the purported dismissal was that the government wished to revert to a management system in relation to CIE which did not involve any chairman; and the minister indicated that the relevant decision was due to be taken at a cabinet meeting later that morning.

Mr Justice Kelly considered the four affidavits filed in relation to the application.

The first affidavit was sworn on 1 June 1999, by Tony Rooney, a board member of CIE at the relevant time and also the general manager of the Berkeley Court Hotel, who reported to Mr Michael Brennan, the then general manager of the Doyle Hotel Group. This affidavit recounted a conversation with Mr Brennan on 25 April 1995, where, inter alia, Mr Rooney alleged that Mr Brennan received a telephone call from Mr Michael McDonnell (described as a senior civil servant in the Department) expressing a wish that Mr Rooney vote for Mr McDonnell to be appointed group chief executive of CIE, when the applicant's successor would propose him for the position at a board meeting on 3 May 1995. Mr. Justice Kelly noted that the affidavit further alleged that Mr Brennan stated that Mr Loughrey, the secretary of the Department, and Mr McDonnell arranged for the applicant's dismissal by the minister and how important it was that Mr Rooney vote for Mr McDonnell. Mr Rooney further alleged that he felt very uncomfortable with this position and that the conversation ended on terms where Mr Brennan told him that he would know the consequences if he did not conform.

Mr Justice Kelly said that it was clear that this part of the affidavit recounted hearsay evidence from Mr Brennan which Mr Rooney could not give at the trial and that, because Mr Brennan was deceased, this evidence could never be adduced. The same principle applied to another portion of the affidavit detailing a later conversation. Finally, the affidavit narrated a conversation with Mr McDonnell on 2 September 1995. Mr Rooney alleged that Mr McDonnell admitted to having conspired with Mr Loughrey to have the applicant fired and said that the minister went along with their suggestion. It was further alleged that Mr McDonnell indicated to Mr Rooney that he would be doing his best to ensure that the latter was retained as a board member. Mr Justice Kelly noted that Mr Rooney was not kept on the board, since he also departed from his directorship in November 1995, and that the affidavit did not disclose that Mr Rooney issued Circuit Court proceedings regarding this departure. Mr Justice Kelly said that nothing turned on the two affidavits sworn by the applicant's solicitor, save that the second one disclosed that, in September 1998, Mr Rooney furnished the particulars as set out in his affidavit and further investigations ensued. Mr Justice Kelly also noted that this affidavit admitted that the proceedings were adjourned on consent for plenary hearing on the basis that the latter would not extend beyond the matters raised in the judicial review. The affidavit, however, further noted that, at the time of this agreement, there was no direct evidence to ground a conspiracy claim.

As regards the replying affidavit sworn by Mr Loughrey, secretary-general of the Department of Public Enterprise, Mr Justice Kelly noted his emphatic denial of the allegations against him. In dealing with the merits of the motion before the court, Mr Loughrey's affidavit, inter alia, pointed to the delay in bringing the original judicial review proceedings and the failure to furnish any reason for seeking to include the new matters raised. He also asserted that the proposed claim was without legal foundation, based entirely on hearsay and irrelevant in that the alleged conspiracy had an objective which could not be secured by any of the alleged participants because the power to dismiss was reserved to the Government under section 7 of the Transport Act 1950. This affidavit also outlined the basis for the agreement to remit the matter for plenary hearing, as admitted in Mr Rooney's affidavit. Mr Justice Kelly noted the applicant's claim that he ought to be permitted to include the conspiracy claim by virtue of Order 28 rule 1, of the Rules of the Superior Courts. Mr. Justice Kelly also noted the respondents' objections for a number of reasons, namely: delay; the alleged failure to make full disclosure; the prejudice suffered by the respondents; the irrelevance of the proposed amendment; the fact that the case was sent to plenary hearing on the agreed basis; and that it was an abuse of process and an attempt by the applicant to embarrass the respondents.

Mr Justice Kelly considered Order 28 rule 1, which gives the court a discretion to allow either party to amend his pleadings and provides that all amendments shall be made "as may be necessary for the purpose of determining the real questions in controversy between the parties". Mr Justice Kelly noted that the points of claim was in reality the statement of claim which was directed to be delivered by Mr Justice Smyth. For this reason, it was within the literal definition of a pleading in terms of Order 28. However, Mr Justice Kelly said that this was only so as a result of the consent order adjourning the matter for plenary hearing and that this order did not alter the character of the proceedings which began as, and continued to be, judicial review proceedings. Mr Justice Kelly referred to the differences between the two forms of action. He noted that it is not necessary to obtain the court's leave to issue plenary proceedings whereas judicial review proceedings can only begin with the leave of the court, can only proceed in respect of those matters in respect of which leave is granted, and are subject to particular time limitations prescribed by the Rules of the Court. Mr Justice Kelly said that the judicial review procedure is designed to ensure that cases which are frivolous, vexatious or of no substance cannot be commenced and that a fair and expeditious trial takes place on the issues in respect of which leave is granted to seek judicial review. Mr Justice Kelly further said that, in seeking leave to amend the statement of claim, the applicant avoided what he ought, in reality, be seeking, namely leave to amend the grounds in respect of which leave was granted to seek judicial review. Mr Justice Kelly noted that, for good reason, a more stringent test applied in respect of the latter application and he referred to the test propounded in McCormack v Garda Complaints Board [1997] 2 IR 489, at pages 503 - 504, wherein the then President of the High Court, Mr Justice Costello, said: "[i]t seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the court's jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents, then it seems a proper exercise of the court's power of amendment to permit the amendment rather than require the new `grounds' be litigated in fresh proceedings."

Having noted that this represented the "true test" to be applied to the applicant, Mr Justice Kelly said that he would treat the application before him as if it was made in ordinary plenary proceedings, thus falling within Order 28 rule 1, even though he did not believe that this was the correct way to approach the matter. Mr Justice Kelly said that it was clear that an amendment under Order 28 should only be permitted where it is necessary for the purpose of determining the real questions in controversy between the parties. Mr Justice Kelly noted that it was not sought to amend the prayer in the statement of claim and that the applicant conceded that the conspiracy claim was neither relevant, nor added anything, to any of the reliefs being sought except for the last one, in which the applicant sought a declaration that the Minister, in purporting to dismiss the applicant, was bound to comply with the provisions of natural and/or constitutional justice. Mr Justice Kelly could not see the relevance claimed but said that it was, in any event, put to flight by the respondent's concession that, if the applicant satisfied the trial court that he was in fact dismissed, the applicant would succeed because only the Government was competent to dismiss him.

For this reason, Mr Justice Kelly was satisfied that the addition of the conspiracy claim was not necessary to determine the real question in controversy between the parties, namely whether the applicant resigned or was dismissed. Notwithstanding this finding, Mr Justice Kelly was of the opinion that the application would also fail if it was considered in the appropriate manner, namely as one seeking to amend the grounds for seeking judicial review. Mr Justice Kelly said that the amendment was unnecessary and the case did not illustrate any exceptional circumstances warranting the making of such an order. He also considered that the absence of a satisfactory explanation for the substantial delay, between the relevant information being furnished by Mr Rooney and the issuing of the motion, would have warranted the refusal of the application as it exceeded the time limited for the making of an application for leave by several months.

Mr Justice Kelly refused the application for leave to amend the points of claim, thus rendering it unnecessary to consider the respondents' other grounds of objection.

Mr Justice Kelly reiterated the purpose of the judicial review procedure in terms of ensuring a fair yet speedy and efficient determination of relevant issues in dispute. He noted the various delays that occurred throughout the proceedings and said that this was undesirable and tended to defeat the objective of the judicial review procedure.

Solicitors: B. & P. Byrne & Co for the applicant; Chief State Solicitor for the respondents.