Kelly v Minister for Agriculture & Ors (Approved)

Factual and Procedural Background

The Appellant was appointed Harbour Master of The Harbour in 1996 and thereby became an “established civil servant” within the meaning of the Civil Service Regulation Act 1956. In 2004 an investigation—conducted under Departmental Circular 1/92—was commenced into the Appellant’s conduct, and he was suspended on full pay.

The investigation produced a meticulous report concluding that the Appellant’s misconduct merited dismissal. An internal appeal board partially allowed the appeal but upheld the central finding of misconduct. On 30 September 2009 the Government decided to dismiss the Appellant.

The Appellant mounted broad-based judicial review proceedings challenging every stage of the disciplinary process. Those claims failed in the High Court (2012) and the Court of Appeal (2019). The Supreme Court, in a majority judgment of 30 March 2021 ([2021] IESC 23), held that the presence of the relevant Minister at the Government meeting gave rise to objective bias and tainted the dismissal decision. A further ruling on 15 April 2021 ([2021] IESC 28) made a limited declaration of invalidity, awarded 50 % of the Appellant’s costs, and invited submissions on consequential orders.

The present judgment addresses what, if any, further relief should now be granted.

Legal Issues Presented

1. Whether the Court should grant an order of certiorari quashing the dismissal of 30 September 2009.
2. If certiorari is granted, whether the Appellant is entitled to declarations restoring him to office, deeming him suspended on full pay from 2009-2016, and entitling him to arrears of salary and pension.
3. Whether discretionary factors justify withholding any relief beyond the limited declaration already made.
4. Whether the matter should be remitted to the Government for a new, unbiased decision.

Arguments of the Parties

Appellant's Arguments

• An order of certiorari should automatically restore his pre-dismissal status as an established civil servant suspended on full pay.
• Because he reached retirement age on 17 July 2016, he should be deemed to have retired on that date and receive salary arrears (without increments) and pension based on full service from 1996-2016.
• Any remittal to the Government is now impossible because he is no longer “rendering established service.”
• No further pleadings or evidence are required; the financial consequences flow “logically” from quashing the 2009 decision.

Respondents' Arguments

• Both certiorari and declaratory relief are discretionary; the Court should confine itself to the declaration already made.
• Alternatively, if certiorari is granted, the matter should be remitted to the Government to decide the Appellant’s status as of 30 September 2009.
• The Appellant’s claims for salary and pension constitute an un-pleaded, evidentially unsupported damages claim and should be rejected.
• No pension has been withheld; the Appellant simply never applied for it.

Table of Precedents Cited

Court's Reasoning and Analysis

1. The Court first addressed the absence of pleadings and evidence supporting any claim for damages, salary, or pension. Relying on Diesel SPA and Fage, it held that litigation is not a rehearsal and refused to allow late evidential expansion.

2. Turning to discretionary relief, the Court adopted the framework in Tristor: the objective is to restore the parties to the position they would have occupied but for the invalid act, without conferring a windfall. The Court also drew on Sister Mary Christian, State (Cussen), and related decisions to emphasise that certiorari and declarations are never automatic.

3. The Court rejected the Appellant’s request for a declaration deeming him the lawful Harbour Master between 2009 and 2016. Such a declaration would ignore reality, undermine the findings of misconduct (which remain untouched), threaten the legal position of the current office-holder, and confer an “undeserved windfall.”

4. The Appellant’s alternative theory—that he should be “deemed” a suspended civil servant on full pay—was likewise dismissed. The Court found it artificial and inconsistent with the fact that the Appellant pursued other work and could not have rendered civil-service duties during the period.

5. Nevertheless, the Court reasoned that the orthodox remedy for an objectively biased decision is to quash it. As none of the discretionary bars (delay, acquiescence, abuse) justified withholding that minimal relief, certiorari should issue. The findings of misconduct, however, remain valid, and no declaration of restored office, salary, or pension for 2009-2016 is warranted.

6. On the pension issue, the Court noted that entitlement up to the dismissal date appears uncontested and encouraged the parties to resolve any administrative hurdles without further litigation.

Holding and Implications

ORDER OF CERTIORARI GRANTED, quashing the Government’s dismissal decision of 30 September 2009. All other relief sought by the Appellant—including salary arrears, pension for the period 2009-2016, and declarations of continuous incumbency—is refused.

Implications: The Appellant may apply for a pension based on service up to 2009, but he gains no windfall for the period after dismissal. The judgment reinforces the discretionary nature of public-law remedies and cautions against expansive relief that over-compensates successful applicants. No new substantive precedent is created, but the decision illustrates the practical application of existing principles on remedy calibration.