Supreme Court allows amendment to judicial review grounds due to respondent's failure to inform appellant of complaint date.

THE SUPREME COURT

Record No. 2012/20

Fennelly J.

O’Donnell J.

McKechnie J.

BETWEEN/

ANDREW KEEGAN

Appellant/Applicant

-AND-

GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

Respondent/Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 1st day of May, 2012.

1. This is an appeal from the refusal by the High Court (Hedigan J) on 16th January 2012 to permit the appellant to amend the

Statement of Grounds for his application for judicial review by way of prohibition of or injunction against the making of a decision by

the respondent to conduct an investigation under the Garda Síochána Act, 2005. The appellant wishes to add one ground. The Court

has already ruled that the amendment should be permitted. In this judgment, I give my reasons for that decision.

2. The appellant is a Sergeant in An Garda Síochána, stationed at Donnybrook Garda Station, Dublin. On 22nd May 2005, a garda

patrol car struck a pedestrian, Ms Mary Seavers, at Clonskeagh Road, Dublin, as a result of which she died. The appellant was

responsible for the subsequent garda investigation of the accident. He submitted a file to his superiors. It was transmitted to the

Director of Public Prosecutions (“The DPP”), who directed that there be no criminal prosecution. The DPP repeated this direction

following review in September 2007.

3. The appellant on 20th October 2008 receives written notice via the Superintendent at Donnybrook that the Garda Síochána

Ombudsman considered it desirable in the public interest pursuant to s. 102(4) of Garda Síochána Act, 2005 that there be an

investigation of the adequacy of the Garda investigation into the accident. Chief Superintendent John Manley had been appointed to

investigate the matter. An accompanying notice from Assistant Commissioner Al McHugh stated that a complaint had been made by

Mr David Seavers alleging that the Garda investigation was inadequate.

4. On 19th February 2010 Chief Superintendent Manley, as Investigation Officer, gave the appellant formal notice of the investigation.

He also referred to the complaint of Mr Seavers.

5. The appellant engaged the services of a solicitor to represent him in connection with the investigation. His solicitor conducted

correspondence with Chief Superintendent Manley. In two letters of 5th November 2010, one addressed to Chief Superintendent

Manley and the other to the Garda Síochána Ombudsman Commission, the solicitor sought details of the complaint of Mr Seavers. He

also objected to the jurisdiction of Chief Superintendent Manley. By letter of 17th December 2010, the Garda Síochána Ombudsman

Commission informed the appellant’s solicitor that it held no admissible complaint from Mr Seavers. Although the letter did not say so,

this statement meant essentially that Mr Seavers’ complaint had been ruled by the Commission to be out of time. The letter went on

to say that s. 102(4) of the Act of 2005 did “not require the admittance of a complaint but that it empower[ed] the Commission, if it

appears desirable in the public interest to do so and without receiving a complaint to investigate any matter that appears to it to

indicate that a member of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary

proceedings.” The Commission then asserted “public interest privilege over the papers sought,” including Mr Seavers’ complaint.

6. Following further correspondence, the Commission, by letter dated 15th February 2011 claimed that it was precluded by s. 81(2) of

the Act of 2005 from revealing the identity of the person who had made a complaint, but, having regard to the fact that the name of

Mr Seavers had been referred to in the notice from Chief Superintendent Manley, the Commission stated that the “determination to

initiate a section 102(4) investigation…[had been] made having regard to the matters raised in the inadmissible complaint of Mr

Seavers.”

7. In the same letter as well as in a separate letter addressed personally to the appellant, the Commission stated that it had received

one complaint from Mr Seavers on 19th November 2007 and that this complaint had been found to be inadmissible as it was out of

time.

8. On 3rd March 2011, the Senior Investigations Officer of the Respondent invited the appellant to attend for “interview” at the

offices of the Commission 4th April 2011 in order to progress the investigation pursuant to the provisions of s.95 of the Act of 2005.

The appellant was also given formal written notice of the alleged breaches of discipline which were under investigation: eighteen

allegations of “neglect of duty” and seven of “falsehood or prevarication.” The material provided to the appellant included a statement

of the sanctions that might apply in the event that, following the report of the investigators, the Garda Commissioner should find that

a serious breach of discipline had been committed. The potential penalties ranged from reduction of pay not exceeding four weeks to

dismissal.

9. On 8th June 2011, the High Court (Hedigan J) granted leave to the appellant to apply for judicial review by way of prohibition or

injunction of the investigation on two principal grounds advanced in the appellant’s statement of grounds, namely:

• That Act of 2005 did not come into force until 9th May 2007, i.e., after the occurrence of the matters complained of and that the

Act made no provision that it was to have retrospective effect;

• Bias by prejudgment on the part of the officer conducting the investigation, who, for reasons not relevant to the present appeal,

had by that stage replaced Chief Superintendent Manley.

10. By a notice of motion issued on 21st December 2011, the appellant applied for leave to amend the grounds on which he sought

judicial review by adding the following single ground:

“The respondent having determined pursuant to s. 87 of the Act

of 2005 that the complaint of David Seavers was inadmissible,

has no jurisdiction by virtue of s. 88 of the Act to take any

further action against the appellant.”

11. The application did not seek to amend the relief sought in the original statement of grounds. The failure to include the additional

proposed ground in the original statement of grounds was explained, in one sentence in the grounding affidavit, as being due to “an

oversight on the part of the Applicant’s legal advisors.”

12. Hedigan J, in ruling on the application for amendment, noted that all the facts grounding the application had been known at the

time of the application for leave. He referred to the judgments of Kelly J in Ní Eilí v Environmental Protection Agency [1997] 2 I.L.R.M.

458 and of Finlay Geoghegan J in Muresan v Minister for Justice, Equality and Law Reform (High Court, unreported October 2003). He

referred to a remark of Finlay Geoghegan J to the effect that “a clear oversight or errors by lawyers acting for an applicant [might]

amount to good and sufficient reason for extending the period under section 5(2))” of the Illegal Immigrants (Trafficking) Act, 2000.

The learned judge did not believe that there had been any such “clear error” in the present case. He thought that the point made by

the appellant might be an interesting one but that there were insufficient grounds to amend the order granting leave.

The Appeal

13. It is common case that, if the Court is to grant leave to apply for judicial review on the additional ground which the appellant now

wishes to advance, the point at issue must at least be an arguable one. The Act of 2005 contains two procedures which can lead to

an investigation being carried out by the Commission. The first is where a complaint is made to the Commission pursuant to s. 83 of

the Act. In the present case, the Commission states that its investigation is being conducted following a decision by the Commission

pursuant to s. 102(4) of the Act that “it appears to it desirable in the public interest to do so and without receiving a complaint……”

14. The appellant seeks leave to argue that the Commission has no jurisdiction to conduct its proposed investigation. The Commission

received a complaint from Mr David Seavers on 19th November 2007. Section 84 (1) of the Act provides that “a complaint must be

made within the period of 6 months beginning on the date of the conduct giving rise to the complaint or within any extension of that

period allowed under subsection (2).” Although the Commission may, pursuant to s. 84(2) “extend the time limit for making a complaint

if it considers that there are good reasons for doing so,” it did not in fact do so. In accordance with s. 87 of the Act, the Commission,

as it stated in its letter to the appellant of 15th February 2011, determined that the “complaint was inadmissible on the grounds that

it was not made within the time allowed under Section 84 of the Act.”

15. Section 88 of the Act provides:

“(1) On determining under section 87 that a complaint is inadmissible, the Ombudsman Commission shall—

(a) notify, in writing, the complainant, the member of the Garda Síochána whose conduct is the subject of the

complaint and the Garda Commissioner of its determination,

(b) include in the notification the reason for the determination, and

(c) take no further action in relation to the complaint.”

16. The Commission did not communicate its decision to determine Mr Seavers complaint inadmissible to the appellant at the time it

was made. It did so by its letter of 15th February 2011, more than three years after the event. The appellant wishes to be allowed to

rely on s. 88(1)(c) and to argue that, because the Commission was precluded from taking any “further action in relation to the

complaint,” it did not have jurisdiction to hold an investigation pursuant to s. 102(4) based upon it. Counsel for the Respondent does

not dispute that this is an arguable point of law. It is unnecessary to comment any further at this point on its merits.

17. The principal focus of the argument on appeal has been on the decision of Costello J in McCormack v Garda Síochána Complaints

Board [1997] 2 I.R. 489 and, in particular, the following passage at page 503:

“It 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 that the new"grounds" be litigated in fresh

proceedings.”

18. That passage has been cited in a number of subsequent cases. Many of them, though not the two cases cited by the learned

High Court judge in the present case, were gathered together in the judgment of Kearns J in the judgment which he delivered, with

the concurrence of all member of the Court, in Shine v Fitness to Practise Committee [2009] 1 I.R. 283. It is important to bear in

mind, of course, that neither the High Court nor the Supreme Court in Shine had been asked to entertain any application for leave to

amend the statement of grounds for judicial review. What had occurred in that case was that the High Court judge, with the

agreement of the parties, had undertaken the task of examining a large number of complaints of indecent assault made by 29

complainants against a medical consultant, who was seeking, by way of judicial review, to prevent the Medical Council from inquiring

into them. The High Court judge granted relief in the case of five complainants on the ground of double jeopardy, because the

complaints of those five persons had been the subject of criminal charges which had gone to trial and the applicant had been

acquitted. However, no leave had been granted, at any stage, whether by amendment or otherwise, to apply for judicial review on

that ground. Thus the comments of Kearns J on the question of amendment of grounds did not relate to any proceedings before the

Court. Nonetheless, it is clear that the Court, in that case, regarded McCormack v Garda Síochána Complaints Board as having laid

down an appropriate test, which, though not binding on this Court, should be accorded the respect due to any dictum of Costello J.

19. The remark of Costello J that “liberty to amend a grounding statement” will be granted “only in exceptional circumstances...”

might, if literally interpreted, be taken to imply a quantitative or statistical approach. It cannot be regarded in itself as providing the

test. The statement is in harmony with that of Kearns J, with which I agree, that “once leave has been granted an applicant has

limited scope thereafter for arguing that an amendment should be made to the grounds permitted to be argued by the judge who

granted leave to bring the proceedings.” Kearns J also quoted Keane C.J. as having remarked in an ex tempore judgment in

O’Siodhacháin v Ireland (Unreported, Supreme Court 12th February 2002) that “…the court will of course be very circumspect about

allowing amendments to grounds in the High Court, properly circumspect and this Court, certainly I do not think , would normally

interfere with a High Court judge who decided a matter of this nature on the basis that there was a substantial departure from the

grounds as originally relied upon and on which leave was given.”

20. This caution is justifiable because, under the system of judicial review, administrative decisions may only be challenged if the

requirements of the Rules of Court or of the relevant statute are met. Firstly, an applicant must make his application within the

permitted time or persuade the court to make an order extending the time. Secondly, he must advance grounds at the time of his

application sufficient to persuade a judge that leave should be granted to seek judicial review of the decision. As Costello J said, “the

court's jurisdiction to entertain the application is based on and limited by the order granting leave.”

21. On the other hand, the varous dicta which I have quoted cannot be regarded as precluding and undoubtedly were not intended to

preclude a court from granting leave to amend grounds, when the interests of justice require that such an order be made. Notably, as

Kearns J remarked, the Court in O’Siodhacháin v Ireland did, in fact, allow the statement of grounds to be amended on the basis that

doing so would not result in any significant enlargement of the applicant’s case. This appeal is about the grounds on which an

applicant, having obtained leave on specified grounds, should be allowed to expand those grounds.

22. It is the ensuing remark of Costello J that seems, at least potentially, to have led to a belief in some later cases that he had, in

some sense, laid down a precondition to an amendment being permitted, namely, that new facts had “come to light which could not

be known at the time leave was obtained……” Costello J did not purport to hold that the discovery of new facts was either an

essential precondition or that proof of such a discovery was exhaustive of the circumstances in which leave to amend might be

granted. It was sufficient, on the facts of the case, to allow Costello J to grant leave to amend the grounds. It seems that the newly

argued ground in that case emerged from the terms of the respondent’s answer to the applicant’s application.

23. I do not think it is helpful to rehearse in any detail the various cases cited to the Court in some of which leave has been granted

an in some of which it was refused. Every case depends on its own facts and circumstances. In Dooner v Garda Síochána Complaints

Board and another [2000] IEHC 122, where new facts appeared in the replying affidavit, Finnegan J granted leave to amend at the

hearing, although he considered that the applicant ought to have applied by notice of motion as soon as he or his advisers had sight

of the new facts. In Hynes v v Wicklow County Council and another [2003] 3 I.R. 66, Murphy J, at page 74, interpreted McCormack

as having laid down “a two-fold” test and said that “the applicant had to rely on facts which could not have been known at the time

leave was obtained…” As I have indicated, Costello J did not lay down such a strict precondition.

24. In some cases, courts have refused leave to amend so as to introduce what amounts to a claim for entirely new relief. In Ní Eilí v

Environmental Protection Agency, cited by Hedigan J, Kelly J considered an amendment where judicial review was sought of a decision

of the respondent agency to grant an integrated pollution control license. Leave had been granted on grounds relating to the

reasonableness of the decision, the considerations which the Agency was entitled to take into account and whether it had observed

the requirements of natural and constitutional justice. An amendment was sought so as to introduce a constitutional challenge to

certain provisions of the Environmental Protection Agency Act, 1992. Kelly J held, in the first instance, that s. 88(5) of the Act of

1992 laid down an absolute time limit which permitted no extension of time. Thus, the applicant could not be permitted to advance

new reliefs on new grounds outside the statutory time limit. As an alternative, and as a matter of judicial discretion, relief should, he

held, be refused in any event, in view of the fact that the proposed amendments would effectively give rise to a new cause of action.

25. Muresan v Minister for Justice, Equality and Law Reform, cited above, concerned a challenge to a deportation order. That decision

is more relevant and gives rise to some considerations similar to those which arise in the present case, although the power to extend

time was sought under s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 and not simply under the Rules of Court.

26. The initial application for leave was to seek to quash a deportation order made by the Minister for Justice Equality and Law Reform

pursuant to s. 3 of the Immigration Act, 1999. An application was made to amend by adding claims for orders of certiorari of the

antecedent decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. Finlay Geoghegan J said that the

only explanation offered for the delay in seeking the proposed amendments was that new counsel, engaged shortly before the

hearing, considered that the new grounds should be added. While accepting that different counsel could take different views, she did

not accept that the change of representation was sufficient to justify the addition of new grounds. She acknowledged, however, that

“on certain facts clear oversights or errors by lawyers ……may amount to good and sufficient reason for extending the period under

s.5(2).” She said that there was no such clear error in the case before her and, as she said at a later point, “there must at a minimum

be a clear error committed by the lawyers previously retained.” McCormack was not referred to in that case, which suggests that the

parties did not consider it relevant.

27. Finally, I believe that it is appropriate to have regard to the judgment of the Court, delivered by Keane C.J. on the reference

pursuant to Article 26 of the Constitution in Re Illegal Immigrants (Trafficking)Bill, 1999 [2000] 2 I.R. 389. Counsel appointed by the

Court argued that s.5(2) of the Bill was incompatible with the Constitution by reason of the very short time, fourteen days, permitted

to apply for judicial review of a range of decisions in immigration and asylum matters which could potentially lead to the deportation

from the state of persons affected by such decisions. The Court, at page 393, acknowledged that it was likely that there would be a

very large number of cases, where “persons, through no fault of their own, [were] unable to apply for judicial review within the appeal

limitation period, namely fourteen days.” That was, the Court said, a situation “with which the courts deal on a routine basis for other

limitation periods.” The Court responded to the argument that the limitation period was so brief as to be unconstitutional by stating

that:

“……the discretion of the court to extend the time to apply for leave where the applicant shows “good and sufficient reason” for so

doing is wide and ample enough to avoid injustice where the applicant has been unable through no fault of his or hers, or for other

good and sufficient reason, to bring the application within the fourteen day period.”

28. In the result the Court held at page 394:

“The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons

who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with

regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of

seeking judicial review in accordance with their constitutional rights.”

29. It is apparent from these statements that the Court regarded the power to extend time for the bringing of applications for judicial

review of decisions in that case as being necessary in order to cater for the interests of justice and to protect a constitutional right

of access to the court. The same considerations must, in my view, be relevant in the case of an application to amend grounds as in

this case.

Conclusion

30. It is not suprising that there is no comprehensive and exhaustive judicial statement of the circumstances in which a court may

permit an applicant for judicial review to amend the grounds for the relief sought. It is equally unsurprising that the courts, using

varying language, have expressed themselves reluctant to grant such amendment without good reason.

31. Persons are permitted to seek review of administrative decisions which affect them within prescribed times and on grounds in law

which they propose and which the courts grant them leave to argue. The object of the system is to strike a fair balance between the

certainty and security of administrative decisions and the rights of persons affected by them who wish to contest them.

32. The strict imposition of time limits is mitigated by the power of the court to permit an application outside the permitted time,

provided the court is persuaded that there is good reason for the delay and that no other party is adversely or unfairly prejudiced.

33. Once an applicant has obtained an order granting leave to apply for judicial review, he is confined to the grounds permitted. He

may not argue any additional grounds without leave of the court.

34. If he applies for an amendment of his grounds within the judicial review time limit, he should, obviously, at least in normal

circumstances, have no difficulty obtaining the amendment. If he applies for an amendment outside the time, he will have to justify

the application. He will have to explain his delay, just as in the case of a late applicant. The court will expect him to give reasons to

explain his failure to include the new proposed ground in his original application.

35. On the other hand, it is difficult to see why an applicant for an amendment of grounds should have to satisfy a more exacting

standard in explaining delay than is imposed on an ordinary late application. He may say that the additional ground is based on

material of which he was unaware when he was making his original application. On occasion, the respondent reveals a new ground of

argument in its answer to the application, as appears to have occurred in McCormack and Dooner. The applicant may offer a different

explanation. There is no reason, in logic, to impose on an applicant a criterion of newly discovered fact to justify an an application to

amend, when an application for an extension of time is not subject to any equivalent condition. This is not to say that the applicant’s

knowledge of the facts is irrelevant. In some cases, as in McCormack, discovery of new facts may be an explanation for the omission

to include a ground. In other cases, the applicant may have been aware at all relevant times of the facts relevant to the new ground

and this will weigh in the balance against him, without being necessarily conclusive.

36. None of this is to take away from the fact that an application for an amendment of his grounds for judicial review must explain his

failure to include the proposed new ground in his original application. The cases show that the courts are reluctant to admit new

grounds which amount to advancing an entirely new cause of action, as in Ní Eilí v Environmental Protection Agency, or a challenge to

a different decision as in Muresan. The nature of the decision under attack may also be relevant. If it is one which benefits the public

at large or a large section of the public, a challenge may have corresponding disadvantages for a large number of people. This may

explain why special and stricter statutory rules have been introduced in cases of public procurement, planning and development and

asylum and immigration. The courts will have regard to the public policy considerations which have prompted the adoption of such

rules.

37. Amendment may be more likely to be permitted where, as in O’Siodhacháin v Ireland, it does not involve a significant enlargement

of the applicant’s case. To the extent that leave has already been granted, the public interest in the certainty of a decision is already

under question. An additional ground may not make any significant difference, particularly if it is based, as in the present case, on a

pure matter of law. A court might take a different view, if the new ground were likely to give rise to further exchange of affidavits

relating to the facts.

38. For the purposes of the present application, it is not in dispute that the proposed new ground meets the test of being arguable. If

it were to succeed, it would mean that the respondent had no jurisdiction to initiate the investigation pursuant to s. 102(4) of the

Act of 2005. Consequently, the additional ground is a significant one and raises an entirely new ground in law. To that extent it

substantially enlarges the original grounds. On the other hand, the appellant would be deprived of a serious argument, if he were

prevented from advancing it.

39. It is necessary then to examine the explanation offered on behalf of the appellant for the failure to include this ground in the

original application for leave. As stated in the grounding affidavit simply and laconically, it is that the point was overlooked by the

legal representatives of the appellant. While the legal point can itself be explained at some length, the failure of lawyers to notice it

can only be stated in its starkest terms. They failed to advert to the legal significance of the fact, of which they were aware from

February 2011, that Mr Seavers complaint had been ruled to be out of time. In particular, they did not advert to s. 88(1)(c) 0f the

Act.

40. In fact, the appellant’s solicitors were made aware in October 2008 that there had been a complaint by Mr David Seavers, but this

was more than three years after the original road traffic accident. Neither the appellant nor his solicitors were then informed of the

date of Mr Seavers’complaint or of the fact that the respondent had ruled it inadmissible.

41. Thus, even if it could be said that the solicitors should have been aware of the six-month time limit for the making of a complaint,

they were not informed by the respondent of the actual date of the complaint until 15th February 2011, some two and a half years

later.

42. The point which counts against the appellant is that, knowing the date of Mr Seavers’ complaint and that it had been ruled

inadmissible from 15th February 2011, he did not include this point in his application for leave on 8th June 2011. At this point the

question of whether the amendment should be permitted depends on whether the lawyers’ oversight is a sufficient explanation.

43. At this point, I find the reasoning of Finlay Geoghegan J helpful. She accepted that an oversight or error by an applicant’s lawyers

might, depending on the facts, provide a sufficient explanation. In a situation where the client might be significantly prejudiced if he

could not explain delay or failure to include a ground by reference to such an error, I believe that she was right. She was also rightly

sceptical where new lawyers had merely taken a different view of the law. Not every suggested lawyer’s mistake will necessarily

justify an amendment.

44. In the present case, it is clear, contrary to the view of the learned High Court judge, that it was an error on the part of the

appellant’s legal representatives to omit from the statement of grounds for judicial review any ground relating to the effect of s. 88(1)

(c) of the Act of 2005 on the power of the Commission to initiate an inquiry pursuant to s. 102(4). The additional ground for judicial

review would, if successfully argued, enable the appellant to prevent an inquiry potentially leading to serious disciplinary penalties.

The first of the two grounds for which leave has been granted could, if successful, potentially lead to prohibition of the inquiry. Thus,

there is no change in the nature of the relief sought. Nor is there any significant prejudice to the respondent, if it has to reply to the

new ground, which is a pure question of law.

45. The delay by the appellant, from 15th February to 21st December 2011, and the oversight of his lawyers in raising the new point,

is significantly counterbalanced by the failure of the respondent to keep the appellant informed of the complaint of Mr Seavers and of

the ruling that it was inadmissible for several years.

46. In the particular circumstances of the present case, it would be unjust to visit on the appellant the consequences of what his

legal representatives frankly admit to have been their error. The appellant should not, without good reason, be deprived of the right

to argue a very significant point of law.

47. The balance of justice weigh clearly in favour of granting the amendment.