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Mulligan v Commissioner Of An Garda Siochana (Approved)
Factual and Procedural Background
The Applicant began training with Company A in 2019 and became attested later that year, after which his probationary period commenced. [Para 25] During that probationary period, allegations arose concerning sexual activity with a 17-year-old female and driving while over the legal alcohol limit; he was arrested, interviewed under caution, suspended, and the matter was referred to Company B for investigation. [Para 26][Para 27] Company B completed a public-interest/criminal investigation, referred the file to the Prosecuting Authority, and no criminal prosecution followed. [Para 28] Company B then initiated a disciplinary investigation and recommended disciplinary proceedings, after which a Board of Inquiry was convened, found four breaches proved, and recommended dismissal on each breach. [Para 29][Para 31][Para 39] The Respondent accepted those recommendations and directed dismissal, but the Applicant instituted judicial review proceedings; leave was granted ex parte, and the alternative-remedy issue was expressly reserved. [Para 40][Para 41][Para 42][Para 20] The Respondent later moved to set aside leave on the basis that the Applicant had not pursued the statutory appeal under the 2007 Regulations. [Para 13][Para 14][Para 83]
Legal Issues Presented
- Whether the statutory appeal under Regulations 33 to 37 of the Garda Síochána (Discipline) Regulations 2007 was an adequate alternative remedy that should have been exhausted before judicial review. [Para 13][Para 104][Para 120]
- Whether the complaint about the withdrawal of the complainant’s statement raised a fundamental denial of justice or jurisdictional defect outside the ordinary appeal process. [Para 62][Para 215][Para 219][Para 229]
- Whether, in light of Amariei and A.B., the ex parte leave order was plainly wrong and should be set aside. [Para 21][Para 162][Para 164][Para 180]
Arguments of the Parties
Respondent's Arguments
- The Respondent argued that the Applicant had a broad statutory appeal under Regulation 33 that could address procedural complaints, evidential sufficiency, fact-finding, and proportionality, and that the Appeal Board had extensive powers to hear evidence and alter outcomes. [Para 120][Para 122][Para 108][Para 111][Para 113]
- The Respondent also argued that the appeal notice was lodged out of time, because the dismissal decision was served on 20 March 2026 and the notice was not lodged until 31 March 2026. [Para 123][Para 107]
- It further submitted that judicial review should not be used to bypass the statutory appeal structure. [Para 122][Para 123]
Applicant's Arguments
- The Applicant contended that the disciplinary process was fundamentally unfair, especially because the Board relied on allegations linked to a complainant who had withdrawn from the process. [Para 124][Para 62]
- He also argued that the Board’s findings were irrational, unsupported by evidence, and disproportionate. [Para 124][Para 125]
- The Applicant maintained that the appeal was not an adequate remedy and that any appeal steps taken were without prejudice to the judicial review proceedings; he also sought to challenge the refusal of an extension of time. [Para 125][Para 46][Para 48]
- He further argued that the Commissioner, not the Appeal Board, had wrongly treated the appeal as invalid and refused to extend time. [Para 51][Para 52]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| G v DPP [1994] 1 IR 374 | Leave for judicial review requires an arguable case and satisfaction that judicial review is an appropriate remedy. [Para 127][Para 128][Para 132][Para 133] | The court treated it as the foundational leave-stage authority, while holding that the later Supreme Court cases sharpened the alternative-remedy analysis. [Para 140][Para 145][Para 146] |
| Gordon v DPP [2002] 2 IR 369 | Set-aside of leave is exceptional and requires showing that leave plainly should never have been granted. [Para 139][Para 140][Para 141][Para 144] | The court applied Gordon as the governing set-aside test and held that the Respondent had to meet a heavy burden. [Para 146][Para 156][Para 159][Para 160] |
| Adam & Iordache v Minister for Justice [2001] 3 IR 53 | Authoritative source on the power to set aside leave sparingly and only in a very plain case. [Para 139] | The court relied on it as part of the line of authority confirming that leave is not to be discharged lightly. [Para 140][Para 144] |
| Kelly v An Bord Pleanála [2022] IEHC 238 | Set-aside applications must not become mini-trials or rehearings of the merits. [Para 139][Para 144][Para 159] | The court used it to reinforce the narrow scope of the set-aside jurisdiction. [Para 144][Para 159] |
| Doyle v Amatrek Ltd v Dublin City Council [2025] IEHC 441 | Another modern statement on the strict set-aside approach. [Para 139] | The court cited it as supporting the proposition that set-aside remains exceptional. [Para 139][Para 144] |
| Amariei v. The Chief Appeals Officer [2026] IESC 22 | The default position is that a statutory appeal should usually be pursued first, and judicial review is exceptional where an adequate alternative remedy exists. [Para 21][Para 134][Para 135][Para 162][Para 163][Para 168][Para 170] | The court held that Amariei materially strengthened the Respondent’s alternative-remedy argument and made clear that the pleaded complaints were, in the main, appellate issues. [Para 173][Para 174][Para 180][Para 183][Para 184] |
| A.B. v. Chief International Protection Officer [2026] IESC 23 | The default position is exhaustion of the statutory appeal, with only narrow exceptions such as a fundamental denial of justice. [Para 21][Para 162][Para 163][Para 164][Para 168][Para 170] | The court treated it as decisive on the substantive remedy question and concluded that no pleaded ground met the exceptional threshold. [Para 169][Para 170][Para 179][Para 180][Para 233][Para 235] |
| State (Abenglen Properties) v Dublin Corporation [1984] IR 381 | An alternative remedy does not automatically bar judicial review in every case. [Para 156] | The court relied on it through Gordon to acknowledge that an appeal is not always dispositive, but found that this case still fell within the strict exhaustion rule. [Para 156][Para 157][Para 158] |
| Kelly v. Commissioner of An Garda Síochána [2013] IESC 47 | The 2007 Regulations create a self-contained disciplinary process. [Para 190] | The court used it to support the conclusion that the appeal scheme is broad and structured to correct disciplinary errors. [Para 190][Para 189] |
| O'Reilly v. Commissioner of An Garda Síochána [2018] IECA 34 | The disciplinary appeal may amount to a full rehearing. [Para 66][Para 67][Para 191] | The court noted the case as part of the background showing the breadth of the appeal mechanism, though it regarded the point as not decisive after Amariei and A.B.. [Para 67][Para 190][Para 191] |
| Ivers v. Commissioner of An Garda Síochána [2022] IECA 206 | The Appeal Board can hear evidence, permit representation, and make procedures flexible, though the appeal is not strictly de novo. [Para 191] | The court cited it to show the breadth and corrective capacity of the statutory appeal. [Para 191][Para 189] |
| Hegarty v. Commissioner of An Garda Síochána [2022] IEHC 183 | The 2007 Regulations provide an elaborate set of checks and balances for fair discipline. [Para 192][Para 193] | The court relied on that description when concluding the appeal regime was wide and effective. [Para 193][Para 195] |
| H v H [2026] IEHC 402 | Applied Amariei and A.B. on a leave application, granting leave only where a fundamental defect was arguably shown. [Para 174][Para 175][Para 176][Para 177] | The court used it as an example of how the recalibrated alternative-remedy analysis operates at leave stage. [Para 175][Para 176][Para 179] |
| Bradley J. [2025] IEHC 297 | Earlier judicial review proceedings in the same matter, where relief was refused on delay grounds. [Para 23] | The court mentioned it only as background to the present litigation history. [Para 23] |
| Stefan | The judgment notes and rejects a broad reading that a fair appeal can never cure an unfair hearing. [Para 170] | The court referred to the Supreme Court’s disapproval of that proposition in explaining the narrow post-A.B. exceptions. [Para 170] |
Court's Reasoning and Analysis
The court first explained that the leave order created an unusual tension: Judge Simons had granted leave while expressly leaving open whether the Regulation 33 appeal was an adequate alternative remedy. [Para 150][Para 151] The court held that, despite that reservation, the set-aside application still had to be tested under the strict Gordon standard, meaning the Respondent had to show that leave plainly should never have been granted. [Para 156][Para 159][Para 160]
The court then treated Amariei and A.B. as materially strengthening the ordinary exhaustion rule. It held that the statutory appeal under Regulations 33 to 37 was wide enough to address procedural fairness, evidential sufficiency, fact-finding, proportionality, and delay, because the Appeal Board could hear evidence, receive submissions, quash findings, substitute sanctions, or order a fresh inquiry. [Para 162][Para 163][Para 174][Para 189]
Applying that framework, the court distilled the Applicant’s pleaded complaints into four main categories: procedural unfairness, the withdrawal issue, irrational findings, and disproportionate dismissal. It concluded that those complaints fell squarely within the statutory appeal process and were therefore classic appellate issues rather than grounds requiring immediate judicial review. [Para 196][Para 197][Para 198][Para 199][Para 200][Para 202][Para 213]
The only potentially borderline issue was the complainant’s withdrawal. The court accepted that this had been the main point that persuaded Judge Simons to grant leave, but it ultimately held that the withdrawal did not deprive the disciplinary process of jurisdiction because the process was based on a GSOC report and the Applicant’s own admissions, not on the continuing participation of the complainant. [Para 215][Para 216][Para 219][Para 220][Para 221] As a result, the withdrawal point was treated as another matter that could be corrected on appeal, not as a fundamental defect taking the case outside the statutory scheme. [Para 222][Para 223][Para 229]
The court also rejected the argument that the later expiry or invalidity of the appeal time limit mattered to the adequacy analysis. It held that adequacy is judged when the remedy was available and accessible, and that a litigant cannot make an adequate remedy inadequate by letting time expire. [Para 236][Para 237][Para 242][Para 243][Para 246]
Holding and Implications
The order granting leave was set aside. [Para 247][Para 250][Para 252] The court held that the Regulation 33 appeal was an adequate alternative remedy, that none of the pleaded grounds arguably disclosed a fundamental denial of justice or comparable defect, and that this was one of the rare cases in which leave had plainly been wrongly granted. [Para 233][Para 235][Para 250][Para 252]
The immediate effect is that the judicial review permission is removed, subject to final orders to be dealt with after fourteen days unless the parties file a consent order. [Para 253] The broader implication is that, on these facts, the statutory appeal scheme remains the primary route for complaints about disciplinary fact-finding, procedure, and sanction, and judicial review will not be allowed to bypass it merely because the appeal was not pursued in time. [Para 246][Para 250]
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