Discretionary Powers

Cases

Rehab Group v Minister for Justice & Equality

 

[2014] IEHC 312

 

Neutral Citation: [2014] IEHC 312

THE HIGH COURT
JUDICIAL REVIEW

Record No. 2012/951 JR

 

BETWEEN:

THE REHAB GROUP
AND

REHAB LOTTERIES LIMITED

Applicants
-AND-
THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Judgement of Ms Justice Iseult O’Malley delivered the 5th June, 2014.
Introduction
1. In 1997 the Government introduced a non-statutory scheme intended to benefit a number of identified charitable bodies, including the applicants, who claimed that they had been financially disadvantaged by the establishment of the National Lottery. The scheme provided for an annual payment to each of these bodies, upon submission of an application demonstrating compliance with certain criteria.

2. In December, 2012 the respondent communicated a decision that the scheme was to be phased out over a period of three years.

3. There are, apparently, up to 19 charities that will be affected by this, ranging in size from large to very small. The applicants are the most obviously affected in terms of the sums of money they stand to lose, although not perhaps in terms of percentage income.

4. The issues in this case concern the process whereby the respondent came to that decision. The applicants do not contest his legal power to reduce the funding available to the scheme or indeed to abolish it. Nor do they assert in these proceedings that the decision was in the legal sense unreasonable. The claim is that they were denied fair procedures, in that they were not informed or consulted about the respondent’s intentions. They say that because of this, they were not able to address the reasons for his decision before it was made. In the circumstances they had no opportunity to make representatives to the respondent on a matter that affected their interests.

5. The applicants also claim that the respondent has mischaracterised the nature of the scheme, on the basis that, they say, it is not a grant scheme but a mechanism for distributing a compensation fund.

6. The respondent says that the nature of the decision is such that the applicants had no entitlement to make such representations before the decision was made and that, in any event, the decision was made in accordance with the principles of fair procedures. It is asserted that in making the decision the respondent had regard to all relevant considerations.
Background
7. The first named applicant is an organisation engaged in the provision of health and social care, training and education, rehabilitation, employment, residential and supported accommodation services for people with disabilities and those who are socially disadvantaged. It provides these services through its subsidiaries RehabCare, National Learning Network and Rehab Enterprises.

8. The second named applicant supports the activities of the first named applicant and its subsidiaries by raising funds from the sale of lottery products, such as scratchcards and bingo games, through a network of 1,400 retail agents nationwide and through the promotion of online games.

9. For the most part this judgment does not distinguish between the two applicants.

10. From about 1952 onwards, the applicant had raised a proportion of its funds by way of a football pools game. Under the terms of the Gaming and Lotteries Acts, the limit that could be paid out in prize money for such games was set from 1956 at £500 per week. It is said by the applicants that by 1986 the football pools product held about 25% of the lottery market in the State.

11. It should perhaps be noted that the Gaming and Lotteries Act, 1956 prohibited most forms of lottery other than those run for charitable purposes.

12. The National Lottery was established under the provisions of the National Lottery Act, 1986 and commenced selling products in March 1987. By virtue of s.32 of that Act, the National Lottery was exempt from the prize cap imposed under the Gaming and Lotteries Acts. The cap continued to apply to the applicant and all other persons or bodies engaged in the running of lotteries within the meaning of those Acts, although it was raised in 1987 to £10,000.

13. The applicants had made an unsuccessful bid for the licence to run the National Lottery. Based, they say, on the experience gained in putting together that bid, a scratch-card product was launched in November 1987. However, they say that its market share fell to 15% in the first year of the National Lottery and to 5% in 1989. They say that the share currently amounts to 1% of the market. The applicants attribute their inability to compete with the National Lottery to “the unfair advantage enjoyed by the National Lottery which could offer unlimited prizes whereas the other lotteries were subject to a weekly prize cap”. The National Lottery prize has been known to be as high as €190m, while the weekly cap for other lotteries is currently €20,000.

14. The applicants also claim that if there was a level playing field for all lottery operators, it is likely that they would have a 15-20% share of the market. This would give them an annual turnover of €150m and net proceeds of €40m.
The Scheme
15. It appears that over the years following 1987 the applicants and certain other charitable bodies who felt that their income had been adversely affected by the operation of the National Lottery made those feelings known to Government. Lobbying and negotiating on the issue seem to have continued for several years.

16. In 1997, the government established a fund of approximately £5m, financed from the National Lottery surplus via the vote of the Department of Finance, to be distributed through a “Scheme to assist private charitable lotteries whose products are in direct competition with similar products being sold by the National Lottery” (hereafter “the scheme”, sometimes referred to as “the Charitable Lotteries Fund” or “CLF”). The published criteria provided that the scheme, which was initially to operate for three years with provision for a review, was confined to such lotteries. It included a number of conditions relating to accountability on the part of the recipient charities. The disbursement of the monies was provided for as follows:

“Subject to the availability of funds and to the other conditions of the scheme being met, it is intended that eligible charities would be assisted in proportion to the volume of their annual gross lottery turnover in the three most recent years of account as certified by the organisation’s auditors. ”
17. The turnover in question was that which related to lottery products which were directly comparable with National Lottery products.
18. The scheme was initially funded entirely out of the National Lottery surplus. However, since about 2005 onwards the amount of Lottery-related funds spent on “good causes” has exceeded the Lottery surplus and has been part-funded by the Central Exchequer. This particular scheme is therefore publicly funded to the extent of 35%.

19. The scheme continued to be administered by the Department of Finance until 2011, when it was transferred to the respondent’s Department. It was reviewed and renewed a number of times over the years and the level of the fund was occasionally increased. It was in 2002, following one such review, that the weekly prize cap under the Gaming and Lotteries Acts was raised from £10,000 to €20,000.

20. The applicant is, by a long way, the largest beneficiary under the scheme. In 2011 it received €3.905m out of a total fund of €6m. In 2012 the figure was approximately €3.924 out of €6m. A handful of other charities received six­ figure sums and the rest received smaller amounts.
The 2004 review
21. The applicants have placed significant reliance on the report of the 2004 review, which was carried out by a committee of officials of the Department of Finance, as providing a “sophisticated and detailed” analysis of the scheme.

22. The report discussed the context in which the scheme was introduced and noted the fact that during the Oireachtas debate about the establishment of the National Lottery the Government had given a commitment

“to provide compensation, if necessary, for any adverse impact of the Lottery on the fund-raising incomes of existing private lotteries. ”
23. It may be important to note that the document uses the term “compensation” more than once. However, the objective of the scheme was identified as being
“to enable private charitable lotteries whose revenue-earning capability had been adversely affected by the National Lottery to supplement their income with funding from the National Lottery surplus.”
24. The report refers to submissions made by the applicants to the effect that the “inequitable legislative situation” had caused them a loss of about €110m, based on the assertion that without the prize cap they would have had at least 10% of the market. The committee noted that it was not in a position to verify this claim and that in 2001 DKM consultants had commented that the applicants’ estimate “that 10% of the revenues of the National Lottery would flow to charities if the lottery did not exist” appeared to be “somewhat of an over-estimate.”
25. The committee considered the impact of the National Lottery on charitable fundraising but was of the view that this was difficult to assess with any accuracy. However, it supported retention of the scheme in the following passage:

“The Committee does not consider abolition of the Scheme to be a desirable option at the present time. It is evident to the Committee that the Scheme has been generally effective in meeting its primary objective. While it might be argued that the private charitable lotteries who have secured funding from the Scheme no longer directly compete with the National Lottery due to their relative size and position in the marketplace and therefore do not warrant compensation, the fact of the matter is that this compensation is being provided precisely for this reason. The Committee considers that the issue of compensation is still relevant and necessary in the context of the marketplace and the conditions within which these lotteries operate, and that a measure compensation.
The Committee believes that the abolition of the Scheme would rekindle the pressures which led to the establishment of the Scheme in 1997.”

26. The committee took the view that if the Scheme was abolished, some other type of compensation mechanism would be necessary and that any other scheme would be likely to be more costly to run and more bureaucratic in nature.
27. The recommendation of the Committee was that the scheme should be continued, subject to a review by an Inter-Departmental committee after a further three years. It advised that account should continue to be taken of relevant developments in relation to increasing expenditure by the State in the health sector, changes in the tax treatment of donations to eligible charities and the possibility that National Lottery sales might by then have “evened out”. The scheme was continued and the sum made available to the fund was increased in 2005.

28. A further review of the scheme took place in 2009. No explicit recommendation was made as to the future of the scheme at this time but a comment was made that it

“may have had the unintended effect of encouraging the charities to continue to run a lottery in order to draw down funds. ”
29. Three charities, not including the applicants, were said to be running their lotteries at a loss or for a very small profit. It was also suggested that the charities should, by that time, be expected to have “contended” with the existence of the National Lottery and that the scheme should not run “for an indefinite period of time. ”
30. In 2011 a further examination of the scheme was carried out by Central Expenditure Evaluation Unit of the Department of Public Expenditure and Reform, under whose aegis the scheme was at that time operating. This was described as a “Focused Policy Assessment”. The applicants were not invited to participate or make submissions, and do not appear to have been apprised of the outcome before these proceedings. The report this time came to the conclusion that there were identifiable flaws in relation to “the rationale, objectives and continuing relevance of the scheme” and that

“the case for continuing with the scheme appears to be very weak”.
31. In the view of the evaluators, the charities were not in competition with the National Lottery, since the motivation for purchasers of their products was arguably different, and it was “highly contestable” that they had been adversely affected. It was considered that the primary effect of the scheme was not to address the market distortion vis-a-vis the National Lottery, but to create a real distortion as between its beneficiaries and charities who entered the market after 1997.
32. Meanwhile, in the 2010 Budget the fund had been reduced from €8.61m to €6.0m. The applicants had objected unsuccessfully to the reduction and had continued to correspond with the Minister for Finance on the issue.
Meeting of 21st November, 2011
33. Responsibility for the administration of the scheme was transferred to the respondent’s department on the 1st May, 2011 (apparently as part of the general policy area of regulation of charities). The applicants then contacted the respondent with a view to arranging a meeting with him to discuss the scheme.

34. The meeting eventually took place on the 21st November, 2011 and was attended by Ms. Angela Kerins and Mr. John McGuire, respectively CEOs of each of the applicants, and Mr. Frank Flannery, a director of the first named applicant. The respondent was accompanied by an advisor and by an official from the Charities Regulation Unit.

35. According to Ms. Kerins

“At the outset the Minister was unfamiliar with the origin and purpose of the Scheme. However following an explanation and overview by the Applicants to the Minister as to the origin and importance of the Scheme, he agreed that the Scheme continued to play an important role and after that meeting we were under the clear impression that the Minister was fully supportive of the Scheme.”
36. In keeping with this impression, Ms. Kerins wrote in late December, 2011 to thank the respondent for the meeting, conveying a “deep appreciation” of “the close and sympathetic” attention given by him. It was also stated that the result in the recent budget had been “excellent” from the applicants’ perspective and that the applicants were very grateful for what was clearly the respondent’s “effective advocacy for the CLF”.
37. The respondent has exhibited a note of the meeting, the relevant parts of which are here set out in full.

“The Minister welcomed the Rehab representatives to the meeting and said that he was happy to hear their views in relation to the Charitable Lotteries Association (CLF).
Rehab Group representatives outlined that:

The CLF was established as a compensation fund to provide financial assistance to charitable lotteries who could not compete with the National Lottery. The Rehab view was that the National Lottery has prospered largely as a result of eliminating the opposition via prize restrictions etc. As a result, since the National Lottery was established, the market share of the charitable lotteries has dropped from some 10% to 1%.

The Department/PER decision to cut funding in 2010 was implemented on a unilateral basis; there was no prior discussion with the affected charitable lotteries. This was unfair.

The CLF is not an item of public expenditure- it is sourced from the National Lottery Beneficiary Fund, as opposed to the Exchequer. By cutting the funding on an arbitrary basis, the Government is treating the CLF as an ordinary expenditure line. Rehab representatives considered there had been a change of procedure in D/Finance in 2005/6, which allowed for this switch. However, Rehab did not have documentary evidence of this.

The Charitable Lotteries Fund has always operated in retrospect. Therefore, payments under the Fund are always a year behind

Mr. Flannery said that the charitable lotteries substantially gave up their ability to earn, in return for the establishment of the CLF. In effect, the State bought off the competition, leaving charitable lotteries as ‘zombie ‘ companies. The National Lottery now dominated the market- the clock cannot be turned back in this regard It would constitute a serious breach of faith if, having decimated the opposition, the Government were to pull the funding. Mr. Flannery was 1000% behind Rehab in their opposition to this.

The Minister raised the following issues:

The Minister queried the size of the profits accruing/rom the scratch card product of the Rehab Lottery. Figures revealed a profit of only £9,452 based on product scratch card sales of close to £4m. This profit ratio seemed disproportionate. Could that activity become more profitable in terms of administration and other costs?

The Minister queried the number of people employed in the operation: were they full-time or part-time?

Rehab Response:

Rehab finds it difficult to operate economies of scale in relation to lottery products. This affects profitability. Tensions between Rehab and the National Lottery also hinder sales. The sales of radio bingo products are more profitable than the scratch cards.

Rehab employs two permanent employees and some agency personnel for this operation.

Minister’s response:

The Minister thanked the Rehab Group representatives for attending the meeting. It was a timely meeting in the context of the Expenditure Review which is currently underway.

The Minister undertook to examine the issues further and revert to Rehab.

Rehab response:

The Rehab representatives thanked Minister Shatter for the meeting. Mr. Flannery reiterated that it would be morally wrong to pull the CLF Scheme. In addition, if the pole position of the National Lottery was successfully challenged in the courts, it would liberalise the field This would allow lotteries from outside the country to compete with the National Lottery. Such outside competition could have much more impact on National Lottery profits than the charitable lotteries. ”

The 2012 audit
38. In April 2012 the Internal Audit Unit of Department of Justice and Equality undertook an audit of the first named applicant’s use of the funds provided to it under the scheme in 2011. The purpose of the audit was stated to be an analysis of expenditure and value for money of those funds, with an assessment of governance in the organisation.
39. As part of this process, the applicant furnished the auditor with a presentation on the scheme entitled “The Charitable Lotteries Fund- the origin of the fund and why it should continue”.

40. This document stated that there were “compelling reasons” why the scheme should continue. It described the CLF as

” a deal negotiated between Rehab and officials in the Department of Finance …The deal was a good one for the State in that it effectively bought off competition for the National Lottery.”
41. The claim is made that if Rehab had been able to compete with the National Lottery from day one, it could have had a 10% market share by today. That situation was no longer thought to be possible:-
“With the passage of time and the extent to which the national Lottery is so established after 25 years of trading, there is no way that Rehab or any other commercial entity could acquire a significant share of the Irish lottery market if the restrictions in the Gaming and Lotteries Act 1956 were relaxed and other operators could compete on an equal basis to the National Lottery. ”
For the State to abolish the CLF, it would be reneging on an agreed deal knowing that the National Lottery is now protected in perpetuity”.

42. The presentation emphasised the negative publicity that might flow from a decision to abolish the CLF.
43. A draft report by the Internal Audit Unit was sent to the applicants on the 2nd August, 2012 with a request for observations to be forwarded by the 24th of that month. The report is, in large part, favourable to the applicant, finding a sound corporate governance structure and effective application of systems of internal control. However, it was considered that the costs associated with the applicant’s lottery represented a significant percentage of overall sales revenue leading to a low profit margin. A recommendation was made that the applicant address this by reducing the costs. Other contentious aspects, as far as the applicants are concerned, related to recommendations that there should be a signed agreement as to the specific use of the funds, and regular reporting thereon. There was also an issue as to whether some portion of the funds had been used for administrative expenses.

44. The applicant took issue with the draft report on a number of grounds but primarily because of what was viewed as a “serious and material misunderstanding” on the part of the auditor. In her response to it, Ms. Kerins said

“This fund is a commercial agreement between the Government as owners of the National Lottery and the owners of private charity lotteries. This commercial agreement was the result of the National Lottery operating under vastly more enabling legislation, thereby creating a very uneven commercial playing field. This agreement acknowledged the unequal legislative provisions pertaining to the charity lotteries. The basis for this mechanism of compensation was reiterated in the most recent comprehensive review of the scheme by the Department of Finance [i.e. the 2004 review]. It is generally accepted that the agreement constituted a very favourable arrangement for the Government’s lottery. ”
45. Ms. Kerins referred to various extracts from the 2004 report. She then went on:
“The funding of the CLF is a first charge on the profits of the National Lottery as it relates to its cost of doing business. It is not an Exchequer grant to organisations to provide services. It is therefore clearly not appropriate for the Department of Justice to seek to influence the operations of a private body by insisting that its earned income be applied to certain areas. ”
46. The application form for the 2012 payment was sent to the applicant during the course of this and the ensuing correspondence, and, based on the recommendations in the draft report, sought a greater level of detail in relation to the proposed spending of the money. The applicants furnished the information required, without prejudice to their position that the respondent was not entitled to it.
The Decision
47. The impugned decision of the respondent was communicated to the applicants by way of a letter dated the 5th October, 2012 to Ms. Kerins. After noting that the applicant had received almost €80m under the scheme since its inception, the respondent referred to the current economic situation and the urgent need to cut Government spending. He continued as follows:

“The Charitable Lotteries Scheme has been examined as part of this process. In the broader context of the savings that have to be made, I have concluded that this Scheme cannot be justified in the current circumstances and must be phased out. As you know, assistance under the scheme is apportioned according to the gross annual sales of the lottery products of the applicant organisation without regard to either the profitability of the lottery or the proportion of the revenue it generates that reaches the charitable cause in whose name the products are sold This means that the scheme has not provided any incentive for charities to operate lotteries with a low cost base or to ensure that a high proportion of the revenue generated goes directly to the cause with which the ticket is identified According to the information supplied to my Department in line with the requirements of the scheme, both of these features are relevant in the case of Rehab Lotteries. Information supplied as part of Rehab’s 2011 application for assistance under the scheme shows that the percentage of gross sales retained for the benefit of the charitable organisation over the period 2008 to 2010 averaged around 1% for scratch card instant win lotteries and around 15% for draw lotteries. In these circumstances, it is hard not to conclude that some lotteries assisted by the scheme have come to serve as vehicles for leveraging Government funding, rather than as an effective means of fundraising directly from the public for a charitable cause, as originally intended It is not possible to justify expenditure of this nature in the current circumstances.
It is intended that the assistance available under the Scheme will begin to reduce next year, that it will reduce gradually for a period of three years, and that no further payments will be made under the scheme after 2015 …

… The scheme is being phased out in this gradual basis in order to give affected organisations as much time as possible to adjust to the change. This is also why I am informing those affected well in advance of the first planned reduction in assistance. In this way, your organisation has an opportunity to examine its current fundraising methods, and, where necessary, to plan and put in place new fundraising practices that can raise funds from the public in a more directly profitable way. In this connection, you may also wish to note that I am considering an increase to the current limits on private lottery prizes and envisage making regulations to this effect under the Gaming and Lotteries Act of 1956 in the coming months. I would appreciate your giving consideration to this and would welcome any submission you may wish to make on this important issue within the next six weeks. I understand that the decision to phase out the Charitable Lotteries Scheme will come as a disappointment to you and would like to emphasise that it has been taken in the context of the urgent need to reduce Government expenditure, and following due consideration of the scheme itself The decision relates solely to this particular scheme and has no bearing on the levels of Government funding received by the Rehab Group each year for a variety of other sources across the Government system. This decision should not be taken in any way as a reflection on the very valuable work carried out by the Rehab Group across many sectors of society. ”

48. The applicants say that this decision, if implemented, will cause irreparable harm to them and to the other charitable lotteries affected.
49. Leave to seek judicial review was granted on the 19th November, 2012.
The respondent’s evidence
50. A number of affidavits have been filed on behalf of the respondent.

51. Ms. Una Ni Dhubhghaill, Principal Officer of the Department of Justice and Equality, puts the proposed phasing out of the scheme in the context of the financial position of the State and the need to cut Government spending. She also refers to the various criticisms of the scheme in the reviews since 2009.

52. With specific reference to the applicants, she says that the proportion of funds raised by them through lottery products is low. The percentage of gross sales in 2010 and 2011 was about 1% for scratchcards and about 15% for draw lotteries. It is suggested that the money spent by the applicant in running its lotteries might be better invested in other fundraising activities. Withdrawal of the scheme will amount to a phased withdrawal of about 2% of the applicant’s annual turnover.

53. It is stated that the criteria for the scheme has never required applicants to demonstrate that the National Lottery has adversely affected their receipts and that there was never any commitment on the part of the Government to offer compensation for such adverse effects, such that State assistance would be divorced from the activities assisted. The scheme does not meet the description of a compensation scheme in that the fund is not allocated on the basis of losses incurred but on an audited annual turnover of the relevant products.

54. Ms Ni Dhubhghaill says that she believes that the purpose of the meeting on the 21st November, 2011 was to discuss the scheme and its future, and that at that meeting

“the applicants were afforded and availed of the opportunity to make their case for the retention of the scheme and to argue against any reduction in the level of assistance under it”.
55. This assertion is “categorically rejected” by Ms. Kerins, who says that the purpose of the meeting was to brief the Minister on the importance of the scheme to the applicants, and that there was no mention by him of an intention to wind it down. The applicants were never invited to make representation on such a proposal.
56. Ms Ni Dhubhghaill refers to what she describes as a “thinly veiled threat” of a legal challenge to any withdrawal of the scheme, which she says is inconsistent with the expression of surprise when the respondent ultimately made the decision. The respondent was, she says, “at all times non-committal with regard to future payments under the scheme”. She asserts a belief that the applicants were aware that it was in the respondent’s contemplation that the scheme would be wound down, and that their representations were “explicitly sought” and were furnished, including the threat of legal action should the scheme be wound down. This could only be explained by an awareness on the part of the applicants that such a possibility was within the contemplation of the respondent. The respondent did refer to the comprehensive review underway at the time in all Government Departments.

57. However, in a supplemental affirmation, while maintaining the view that the applicants had made explicit representations as to the future of the scheme, she says that the respondent was awaiting legal advice as to the possibility of abolition and that it would therefore have been premature to give an explicit indication of any particular intention. Ms Ni Dhubhghaill also says:

“The respondent does not accept that he is under an obligation to share all information as [sic] comes into his possession that may influence his thinking on whether to discontinue the scheme or make like decisions. As the applicants are aware, a key informational input into the decision to discontinue the scheme was the State ‘s budgetary situation and the need to make spending reductions, which inevitably involved a consideration of various factors, such as the respective merits of various projects on which the department expended monies and the balancing of competing interests. It would be unworkable in practical terms for all such information to be made available to parties in positions such as the applicants. ”
58. The respondent was, she says, fully briefed on all aspects of the scheme and the final decision was taken with the approval of the Taoiseach.
59. Ms. Ni Dhubhghaill asserts that the 2004 report was fully considered by the respondent in making his decision.

“Other factors considered included the lack of incentive to beneficiaries of the Scheme to operate the lotteries in an efficient and profitable way and, when considered against the backdrop of the catastrophic decline in the economic circumstances of the State, the contents of the 2004 review, now over eight years old, were not found to be persuasive. ”
60. The point is also made that the applicants are incorrect in considering that the money available under the scheme is funded by the National Lottery. Since 2005, 65% comes from that source with the remainder coming from the Exchequer.
61. In summarising the reasons for the decision Ms Ni Dhubhghaill states that they included

“(a) The urgent need to generate savings in light of the decline in the economic circumstances of the State.
(b) The unacceptable, in the respondent’s view, existing criteria for the scheme, which incentivise the running of charitable lotteries at extremely low profit margins or at a loss.

(c) The fact that these criteria also contribute to a situation in which the normal business incentive to keep administration costs down for reasons of profitability, does not apply and evidence that some of the lotteries assisted under the scheme, including the applicants, have unacceptably high administration costs.

(d) The low proportion of an already low profit margin that actually reaches those whose assistance is the charitable purpose of the applicant.

(e) The fact that the consumers of the applicant’s lottery products are likely to be unaware of that fact and that they are also likely to be drawn disproportionately from lower socio-economic groups.

(f) The fact that some of the lotteries benefiting from the scheme appear to have essentially become mechanisms for leveraging government funding rather than vehicles for raising charitable funding directly from the public as originally intended

(g) The reputational risk for the respondent and his department and for the government in general arising from these features of the scheme and of the lotteries it supports. ”

62. Affidavits have also been filed on behalf of the respondent explaining the view of the Department of Finance on the necessity of cutting public expenditure and the particular budgetary position of the Department of Justice. I do not consider it necessary to set these out.
Submissions
63. Mr. Holland SC on behalf of the applicants submitted that the respondent’s decision to wind up and ultimately abolish the Scheme was a decision of a type that required him to hear representations from those parties compensated by the Scheme.

64. In summary, it is submitted that the scheme was, not compensation for “wrong done”, in the sense of a legal wrong, but compensation for “damage caused”. This was, in factual terms, a continuing damage and was acknowledged as such by the State. The income accruing to the applicants was therefore something not to be seen simply as a grant-in-aid. It is argued that because of this, there was a legitimate expectation that the scheme would not be discontinued without consultation.

65. It is said that the decision to abolish the scheme causes damage to the interests of the applicants in relation to both their income and their reputation – the latter primarily because at least some of the reasons given reflect adversely on the applicants- and that both of these considerations give rise to a right to be heard.

66. Mr Holland relies primarily on the case of Dellway Investments v The National Assets Management Agency [2011] 4 I.R. 1. In particular he has cited the judgment of Hardiman J and the references therein to passages from De Smith and from Hogan and Morgan. He says that the distinctions previously thought to apply between cases involving definable rights and those involving a broader concept of “interests” are no longer valid. Similarly, the principle that policy decisions do not attract the rules of natural justice must be modified at least to some extent in cases involving identifiable individual persons or entities.

67. The argument that urgent measures were needed because of the national economic situation is rejected on the basis that it appears from the evidence that the decision was under consideration for over a year. In these circumstances there was nothing to prevent consultation with the affected parties and no real practical difficulties.

68. On behalf of the respondent, Mr. Brian Kennedy SC submits that the decision was not of a class that required prior consultation with Rehab. Primarily, he argues that the decision was a policy decision, made in the public interest and based on policy considerations. In these circumstances there was no obligation on the Minister to accord a hearing to those affected.

69. In characterising the decision as a policy matter, Mr Kennedy points to the State’s economic situation, and to concerns that the scheme was not efficient either as a compensation mechanism or as a method of promoting fundraising by the relevant charities. In this context it is important to note that the respondent says that the criticisms made of the scheme were not intended as, and should not be taken to be, criticisms of the applicants. The intended point to be made was that the nature of the scheme gives rise to inefficient lotteries with low, or no, profits. There is thus no damage to the applicants’ reputation to be inferred.

70. Like the applicants, the respondents rely on Dellway. It is submitted that that case concerned, in effect, one individual and the effects on his rights and interests of the decision in question in the case, whereas the instant case involves broader policy concerns. The issue affects, not just the applicants but the other beneficiaries under the scheme and indeed those charities which have never benefited from it, as well as, potentially, the National Lottery and other relevant Ministers.

71. The respondent denies that the applicants had a legitimate expectation to the continuation of the scheme, on the facts, but says that, even if they did, such expectation or any other entitlement to be consulted was outweighed by the unprecedented economic circumstances surrounding the making of the decision. The respondent further submits that, without prejudice to any of these arguments, the Minister did in fact hear Rehab’s representations at the meeting on the 21st November, 2011 where the applicants themselves raised the possibility of a legal challenge in the event that any attempt was made to abolish the Scheme.
Relevant authorities
72. The leading Irish authority relied upon by the applicants is the decision of the Supreme Court in Dellway Investments v NAMA [2011] 4 I.R. 1.

73. Dellway concerned a decision of the National Asset Management Agency (“NAMA”) to acquire certain loans of the applicants pursuant to the provisions of the National Assets Management Act, 2009. The loans in question were considered to be “eligible bank assets” within the meaning of the Act. The statute made it clear that the decision whether or not to acquire was a discretionary one, rather than depending purely on the application of the statutory criteria. An opportunity was to be provided to the bank, whose assets the loans were, to give its views but there was no reference to the position of the borrower.

74. The relevant issue, as far as the instant case is concerned, was whether NAMA was required, in the exercise of its discretion, to act in accordance with the principles of constitutional justice, and to grant to borrowers in a position similar to that of the applicants an opportunity to make representations before the decision to acquire was made.

75. The appellants contended that the decision interfered with rights held by them by virtue of their ownership of the properties securing the loans including their right to deal with the properties as they saw fit; the income stream flowing from the properties, their contractual rights with the banks that made the loans and their reputations (particularly in the case of the individual appellant, Mr. McKillen). They lost in the High Court, essentially because that court considered that the legal rights of borrowers were not interfered with by the acquisition of the loans by NAMA.

76. The Supreme Court held unanimously that NAMA was obliged to hear the appellants’ representations before making the decision. It is a feature of the case that it was accepted in each of the six judgments given that the decision was, as a matter of fact, capable of interfering with the legal rights of the appellants – for example, Finnegan J engaged in a close analysis, with which a number of the other judges expressly agreed, of the potential effects on the appellants’ equity of redemption with respect to the mortgages. Murray CJ underlined the point that the interests involved in the case were property rights and interests derived from the ownership of property, as well as contractual rights. The application to the appellants of the provisions of the Act would deprive them of their normal entitlement to manage independently their affairs related to those properties. Denham J (as she then was) considered in addition that the acquisition of the loans by NAMA would affect the appellants’ business, involving potential loss, expense and damage to reputation.

77. However, the test for holding that the right to make representations arises does not appear to have been necessarily confined to situations where an applicant’s legal rights are, or may be, interfered with.

78. Dealing with the question “What triggers the right to a hearing?” Hardiman J quoted and approved as a statement of the position in Irish law the following passage from the 6th edition of De Smith’s Judicial Review of Administrative Action:-

”The term ‘natural justice’ has largely been replaced by a general duty to act fairly which is a key element of procedural propriety. On occasion, the term ‘due process’ has been invoked. Whatever term is used, the entitlement to fair procedures no longer depends upon the adjudicative analogy, nor on whether the authority is required or empowered to decide matters analogous to a legal action between two parties. The law has moved on; not to the state where the entitlement to procedural protection can be extracted with certainty from a computer, but to where the courts are able to insist upon some degree of participation in reaching most official decisions by those whom the decisions will affect in widely different situations, subject only to well-established exceptions. ”
79. He considered that this position was in fact well-established in Irish law and cited passages from varying leading textbooks to similar effect.
80. Hardiman J acknowledged the existence of recognised grounds for the exclusion of fair procedures, listed in Hogan and Morgan Administrative Law in Ireland under the heading “The rules do not (usually?) apply”. The categories listed include “Policy”, (considered below) which Hardiman J viewed as inapplicable to a discretionary decision in relation to defined assets.

81. Macken J agreed with the judgment of Hardiman J, while considering that each of the rights claimed by the applicants in the case was “a genuinely serious constitutional right which they are justified in invoking for the purpose of asserting a right to be heard”.

82. Fennelly J outlined the issue in the following terms:

“The central, and the most difficult, question in the appeal concerns whether the right to be afforded fair procedures in accordance with natural and constitutional justice depends on the contemplated decision amounting to an interference with rights, in the sense of legal rights only, guaranteed by the Constitution. ”
83. He referred to Haughey v. Moriarty [1999] 3 IR 1, which appeared to him to apply a test based on a person being affected. At para. 460 of the reported judgment he said
“It does not appear to me that it has been established that the right to be heard before a contemplated decision is made depends on establishing interference with a specific and identifiable right. It is difficult to discern a principled basis for restricting the right in that way. The courts have never laid down rigid rules for determining when the need to observe fair procedures applies. Everything depends on the circumstances and the subject-matter. The fundamental underlying is liable to affect my interests in a material way, it is fair and reasonable that I should be allowed to put forward reasons why it should not be made or that it should take a particular form. It would be unjust to exclude me from being heard. For the purposes of being heard, I would not draw a sharp line, what is sometimes called a ‘bright line ‘, of distinction between an effect which modifies the legal content of rights and a substantial effect on the enjoyment or exercise of rights. I would fully endorse the first part of the statement of the High Court, quoted above as follows:-

‘The court is not satisfied that any mere possibility that there might be an indirect consequence for a party’s rights affords the party concerned a right to fair procedures. There must be a real risk that a party’s rights will be interfered with in the event that there is an adverse decision. ‘

… If the requirement is that there be direct interference with the legal substance of the rights, the statement is too narrow. It should be capable of including material practical effects on the exercise of the rights.”
84. It appears to have been accepted by all members of the Court that mere diminution of in the value of an applicant’s property would not suffice to bestow a right to be heard.
85. In Treasury Holdings v. NAMA [2012] IEHC 66, Finlay Geoghegan J considered the applicability of the principles set out in Dellway to a decision by NAMA to demand repayment in respect of facilities of the applicant which were in default and, failing repayment, to appoint receivers to properties which comprised the security for the facilities. Relying on Dellway, the applicant made the argument that a decision to enforce had material practical effects on the exercise and enjoyment of its rights and interests.

86. The respondent argued that Dellway did not go that far. It was also contended that since the applicant was both insolvent and in default, it had no rights which could be described as being adversely affected; that its indebtedness exceeded the value of the security and it had, therefore, no right to an equity of redemption; that it had no right to such income as it was receiving but rather held it in trust for its creditors; and that it had by entering into the original contract agreed that the loans could be enforced, thereby depriving itself of any rights capable of being adversely affected by the decision.

87. The applicant did not succeed in obtaining the relief sought- however, this was on the basis of an estoppel arising from events subsequent to the making of the impugned decision.

88. In holding that a right to be heard arose in the circumstances, Finlay Geoghegan J said that she considered that the Supreme Court had, in Dellway, rejected the argument that an applicant must show that the decision interfered with a legal right. The applicant company had rights and interests, the practical exercise and enjoyment of which were affected by the decision. Its insolvency did not mean that it had no right to such income as it was receiving, rather that the directors had obligations in deciding how that income was to be used. She rejected a floodgates argument to the effect that every NAMA debtor might have to be given a right to be heard, on the basis that the circumstances in which the right arises are always fact-specific. In this case, it was dependent upon the nature of the rights held by the applicant in its property and development business, and the entering into a Memorandum of Understanding between the parties.

89. On the facts of the case, there had been no indication from NAMA that it had the intention of considering taking a decision to enforce – in fact there had been a “deliberate policy” not to disclose the possibility. This was a breach of the obligation to act fairly and reasonably, by reason of the failure to afford an opportunity to be heard.

90. In their treatment of the categories of decisions which may be exempt from the rules of natural justice, Hogan and Morgan make the point that “policy” questions may involve either specific, one-off situations affecting a very limited number of persons; or may concern a potentially unlimited category of interest. In general, they say that the closer a decision is to the second scenario the less likely it is to be construed as attracting the rules.

“In regard to policy decisions which affect only individuals (as distinct from quasi-legislative actions) it seems that it is now too late in the day to argue that such decisions do not attract the rules. ”
91. This analysis is supported by reference to decisions in deportation cases, which clearly require the application of the rules of natural justice.
92. However, it is not suggested that the policy exemption is obsolete in its entirety.

93. The “policy’ category is closely identified with the category of cases to do with legislation, where the audi alteram partem rule is generally considered to be inapplicable for reasons both of principle and practicality. The reasons of principle relate to the fact that the area of legislation is within the domain of the elected representatives of the people, and therefore not generally a matter for the courts.
Discussion and conclusions
94. This is an area of law which appears to be in the process of development. It is indeed difficult to draw what Fennelly J described as “a bright line” between decisions attracting the rules of natural justice and those within the policy exemption. All of the authorities make it clear that the analysis must be based on the facts and circumstances of each individual case.

95. It seems to me to be helpful to begin with an analysis of the nature of the scheme. The applicants concede, correctly in my view, that it was not established to provide compensation in the legal sense of that word – in other words, its existence is not to be taken as an acknowledgement by the State that any legal wrong was done to the relevant charities in the setting up of the National Lottery. It never aimed to measure actual losses suffered, whether or not such a measurement would have been feasible.

96. The argument made in correspondence by Ms Kerins to the effect that the scheme was created on foot of a commercial agreement, and that the fund was a “first charge” on the National Lottery’s income, was not pursued.

97. I accept that funding from the scheme was something more than a simple grant, which might be given one year and not the next. It was an effort made by the executive, after years of lobbying by the applicants and others, to ameliorate the difficulties faced by a specific group of charities.

98. In this context, it would certainly have been the case that while the scheme operated, the beneficiary charities would all have had certain rights in respect of its administration. They would have been entitled to demand that it be operated fairly and in accordance with the set criteria. If the responsible Minister at any given time had decided to drop an individual charity from the scheme – for example, because of a perceived deficiency in financial accounting – that body would undoubtedly have been entitled to reasons and to an opportunity to be heard. However, it is accepted that at all times the scheme was to be subjected to periodic review and that the beneficiaries have no legal right to its continuance. There was never a representation, express or implied, that a decision to terminate the scheme would not be taken without consultation.

99. This is therefore, a case where the applicants cannot assert a legal right to the payments, or make a claim that the termination of the payments interferes with any other legal right of theirs other than, perhaps, their right not to be wrongly damaged in their reputation.

100. It seems to me that the decision to establish the scheme was rooted in policy considerations, as were the various decisions in favour of its retention over the years. Unfortunately, the coming of harsher economic times seems to have produced a harsher policy analysis. Whether that analysis is correct or not is not for this court to adjudicate upon in these proceedings. The case made by the applicants is that, if given the chance, they could have made representations on the issues raised, but that does not alter the overall policy setting of the respondent’s decision to end the scheme.

101. That policy decision is focused on the scheme as it applies to the entire class of charities affected by the particular situation, and not on individual considerations applicable to any individual organisation.

102. The reasons given for the decision, in the letter of the respondent and in the evidence presented on his behalf, are in my view overwhelmingly policy-oriented. It seems clear that the respondent and his advisors had simply come to the conclusion that this was not a justifiable expenditure of public money. Insofar as the letter contains what might be perceived as criticism of the applicants, it does so by way of illustration of the inefficiency of the scheme. It is understandable that the applicants are disgruntled by this, particularly in circumstances where they had been given the impression that the respondent was favourably disposed to their cause, but this factor does not mean that the decision was specific to them and gave rise to a right to be heard in defence of their reputation.

103. The economic situation of this State over the last number of years does not require to be described. However, I would agree with the applicants in this case that the length of time taken to make the impugned decision does not point to an urgency such as would, on its own, excuse the respondent from undertaking a consultation process if it was otherwise legally required.

104. It is also true that in this particular case a consultation process would not have been obviously impracticable or unduly onerous, given the limited numbers of persons or bodies affected. In this context I would comment that the meeting in November, 2011 cannot realistically be seen as the opportunity for the applicants to put their case, since it is accepted that the respondent did not tell them that he was contemplating the abolition of the scheme or what his potential reasons were. The respondent has in this case stood on the principle that he was not obliged to consult. It is of course the legal entitlement of any litigant to take this approach.

105. In the circumstances of this case I do not consider that Dellway is of assistance to the applicants. It is clear that at least some of the members of the Supreme Court adopted a formulation in regard to the right to be heard which does not depend on assertion of a risk of interference with specific, enforceable legal rights. However, the context of that case was such that I do not consider it possible to say that the traditional exemption of policy decisions from the application of the rules of natural justice has been abrogated.

106. I therefore refuse the reliefs sought.

Grange v Commission for Public Service Appointments

[2014] IEHC 303
JUDGMENT of Mr. Justice Barrett delivered on the 30th day of May, 2014
1. There are two key issues in this case. The first is whether certain decisions of the Commission for Public Service Appointments are amenable to judicial review. The second is whether, assuming such decisions are amenable to judicial review, the particular decisions of the Commission in issue in these proceedings should be allowed to stand.
Facts
2. This application is brought by Mr. Grange, the disappointed applicant for a position within the Civil Service. The decisions of the Commission which it is sought to impugn were taken from 2012 onwards. To understand the context of those decisions it is necessary to look back further in time, starting in 1991. In that year Mr. Grange successfully completed a degree in business studies at Dublin City University. Just over a decade later, in 2003, he was awarded the degree of Barrister-at-Law by King’s Inns. Between October 2007 and August 2008, Mr. Grange ‘devilled’ for a year in the Law Library. Four years later came the events that have led directly to these proceedings. In January 2012, the Public Appointments Service ran a competition for the position of Administrative Officer in the Civil Service. On 26th January, 2012, Mr. Grange, then a serving civil servant, applied for the position of Administrative Officer (Economics). This application was not successful. On 23rd May, 2012, Mr. Grange applied for the position of Administrative Officer (Human Resources). On 30th May, 2012, he was advised that he had not been short-listed for this role. On 11th June, 2012, Mr. Grange requested a review of the decision of the short-listing board. On 14th June, 2012, Mr. Grange was advised that the short-listing board had made its assessment of applications under three headings, viz. ‘Qualifications/Training’, ‘Work Experience’, and ‘Range and Depth of Experience’. Under the heading ‘Qualifications/Training’, Mr. Grange was found to have ‘somewhat relevant undergraduate experience’. Under the heading ‘Work Experience’ Mr. Grange was deemed not to have any relevant experience. Under the heading ‘Range and Depth of Experience’ he was deemed to have ‘no relevant qualifications and experience’. On 29th June, 2012, Mr. Grange was provided with a copy of the short-listing board’s assessment. On 9th July, 2012, Mr. Grange requested, pursuant to section 8 of the Code of Practice on Appointment to Positions in the Civil Service and Public Service, as published by the Commission for Public Service Appointments in 2007, a formal review by the Public Appointments Service of the short-listing board’s decision. On 24th and 25th July, 2012, Dublin City University confirmed to the formal reviewer that the degree awarded to Mr. Grange in 1991 was primarily a general business degree, that Mr. Grange had specialised in the HR area but that it was not specifically a HR degree. The university left it to the formal reviewer to decide if the degree could be treated as a HR qualification. On 1st August, 2012, the formal reviewer issued her formal decision, stating, inter alia, that:

“The Board regarded your Business Degree somewhat relevant as it is a general Business Degree with elements of Human Resources. However, for the purposes of this competition, only specific Human Resources qualifications were considered relevant, in line with the essential requirements of this post. Your legal qualifications were deemed ‘not relevant’ by the Board as Employment Law is a module of the legal degree course and is therefore not considered a Human Resource qualification.”
3. On 13th August, 2012, Mr. Grange lodged a complaint with the Commission for Public Service Appointments alleging that in the operation of the competition for the position of Administrative Officer (Human Resources) there had been breaches by the Public Appointments Service of the Code of Practice on Appointment to Positions in the Civil Service and Public Service. In essence, he contended that the Public Appointments Service had failed to apply the merit principle, that its conclusion regarding him had been irrational, and the formal review unsatisfactory. The ‘merit principle’ is set out in Section 2.2 of the Code which states in this regard that, inter alia:
“Appointment on merit means the appointment of the best person for any given post through a transparent, competitive recruitment process where the criteria for judging suitability of candidates can be related directly to the qualifications, attributes and skills required to fulfil the duties and responsibilities of the post. This fundamentally fair and just approach to dealing with applicants results in the selection of individuals whose competencies, abilities, experience and qualities best match the needs of the organisation in question. Merit is therefore an integral principle which must underpin all appointment practices.
Throughout any merit-based process, it is essential to ensure that the selection process does not provide unjustifiable advantage or disadvantage to any particular candidate or group of candidates. The selection process should embrace genuine equality of opportunity, and this should be integral to the processes by which appointments are made.”

4. From August 2012 onwards, the Commission for Public Service Appointments moved centre-stage in the events that preceded these proceedings and it is, of course, the Commission’s actions that are the subject of these judicial review proceedings. By way of general note, the Commission was established pursuant to section 11 of the Public Service Management (Recruitment and Appointments) Act 2004. It consists of An Ceann Comhairle, the Secretary General to the Government, the Secretary General of the Department of Public Expenditure and Reform, the Chairperson of the Standards in Public Office Commission and the Ombudsman. It is responsible for regulating recruitment and appointment processes in, inter alia, the Civil Service. Its key statutory responsibilities, as set out in section 13 of the 2004 Act, can be summarised as follows: (i) establishing standards of probity, merit, equity and fairness for recruitment and selection procedures and publishing those standards in Codes of Practice; (ii) safeguarding those standards by monitoring, auditing and evaluating appointment processes; (iii) publishing procedures for persons to make a complaint about an appointment process; (iv) examining complaints alleging breaches of a Code of Practice; (v) granting licences to public bodies to carry out recruitment; and (vi) maintaining order in the public service recruitment market. As will be seen hereafter, the instant application is concerned with the fourth of these responsibilities.
5. Continuing with the chronology of events that preceded these proceedings, on 3rd September, 2012, pursuant to a request made by Mr. Grange, the Freedom of Information Officer at Dublin City University made available to him the records concerning the exchanges between the Public Appointments Service and Mr. Grange regarding his business studies degree. Mr. Grange forwarded this information to the Commission for Public Service Appointments. On 16th October, 2012, two members of the Commission for Public Service Appointments met with two of the three members of the short-listing board and made various enquiries as to how the short-listing board had discharged its functions. On 25th October, 2012, three of the five Commission members met to consider Mr. Grange’s complaint. At their meeting they were presented with a report by the Office of the Commission on Mr. Grange’s complaint. They were not referred to the information that Mr. Grange had procured from Dublin City University. On 26th October, 2012, the Secretary of the Commission advised Mr. Grange that the Commission did not consider that the merit principle contained in the Code of Practice had been breached during the short-listing process operated by the Public Appointments Service. On 6th November, 2012, Mr. Grange wrote to the Secretary of the Commission stating that he believed the report which had been presented to the Commission was materially flawed in that it did not refer to the Dublin City University materials, nor had these been placed before the members of the Commission. He asked that the report be withdrawn, that a report by an independent person be prepared, and threatened judicial review proceedings. Though not the next step in the sequence of events that preceded these proceedings it is worth quoting at this point the explanation that the Commission offered to Mr. Grange on 14th May, 2013, for proceeding as it had on 25th October, 2012:

“I have asked [a member of the CPSA staff] to explain his rational for excluding this information. He has confirmed that following an examination of your complaint, including the DCU material he met with the shortlisting board and put questions to them in relation to your qualifications…They responded that they assessed all candidates on the basis of the information provided in the application forms and any additional material received after the shortlisting stage was nor relevant to their deliberations. Candidates were required to provide all relevant information on their application to be assessed by the board based on pre-determined selection criteria. The role of the Commission in examining complaints is to ensure all candidates were treated fairly and in line with the principles in the Code of Practice. On the basis of this discussion Mr. Smith did not consider the DCU material relevant to the complaint which examined the process employed by the shortlisting board to assess candidates.”
6. Returning to the winter of 2012, on 29th November, 2012, the Secretary of the Commission met with Mr. Grange to discuss his complaint further. At this meeting the Secretary advised Mr. Grange that essentially the short-listing board had dismissed his application on the ground of lack of qualifications. Mr. Grange furnished the Secretary with a copy of a human resources management qualification then being offered by another third-level institution and which he asserted had strong similarities with his qualification from Dublin City University. The Secretary undertook to liaise with the members of the Commission as to how they wished to proceed with matters. In a memorandum of 5th December, 2012, the Secretary to the Commission briefly summarised for the Commission how matters then stood with Mr. Grange and recommended that a letter issue to Mr. Grange stating that there was no basis for the Commission to withdraw its report or its examination of matters, that the Commission’s decision was final and that should Mr. Grange commence judicial review proceedings the Commission would seek recovery of its legal costs from him if Mr. Grange was unsuccessful in those proceedings. The Secretary did not furnish the Commission with the details of the course which Mr. Grange had provided to him at their latest meeting. At a meeting on 27th February, 2013, the members of the Commission adopted the course of action recommended to them by the Secretary. On 4th March, 2013, a letter duly issued to Mr. Grange in which the Commission stood over its earlier decision. On 15th March, 2013, Mr. Grange sent a reply letter seeking a fresh investigation. On 26th March, 2013, the Commission reiterated in writing its view that there was no reason to commence a fresh investigation. On 28th March, 2013, Mr. Grange’s solicitors sent a letter to the Commission seeking the quashing of various of its decisions and threatening judicial review proceedings. On 4th June, 2013, the Secretary of the Commission sought an internal meeting to discuss how best to deal with the issues presenting and on 7th June, 2013, such a meeting was held. On 2nd July, 2013, leave to apply for judicial review was granted by the court. The judicial review hearings proceeded in February and March of 2014.
Reliefs sought
7. In his notice of motion Mr Grange seeks, inter alia, the following reliefs: (1) an order quashing the decision of the Commission on 25th October, 2012, to adopt a report into his appeal; (2) an order quashing the decision of Commission on 27th February, 2013, to order a fresh investigation into his case; (3) an order quashing the decision of the Commission on 27th March, 2013, refusing all further consideration of his appeal; (4) a declaration that the decision of the Commission to refuse the appeal is ultra vires and of no effect; (5) an order compelling the Commission to conduct a fresh appeal of the decision of the short-listing board of the Public Appointments Service that Mr. Grange had no relevant qualifications or experience for the position of Administrative Officer (Human Resources); and (6) such further order as the court may consider appropriate.
Justiciability
8. The Commission has referred to the fact that the purpose of an investigation done under section 8 of the Code of Practice on Appointment to Positions in the Civil Service and Public Service (2007) is not to confer a benefit on a complainant but to enable the Commission to make recommendations to office-holders with a view to addressing any shortcomings identified during its investigation. The Commission has also adverted to the fact that it does not have any power under the 2004 Act to alter a recruitment decision once it has been made. The Commission has referred in this regard to section 48 of the 2004 Act which states, inter alia, that:

“(1) Where the Commission is of the opinion that an aspect of the recruitment process has been or is likely to be compromised, then the Commission may-

(a) issue instructions to the licence holder concerned, and
(b) issue a copy of those instructions to any other person it considers appropriate to issue a copy to.

(2) Nothing in subsection (1) shall be read as permitting an instruction to be issued which has the result of affecting any particular appointment or purported appointment or the recruitment process relating to that appointment or purported appointment.”
9. Having regard to the foregoing, and relying on decisions such as The State (Stephen’s Green Club and Anor.) v. The Labour Court [1961] I.R. 85 and Ryanair Ltd. v. Flynn and Anor. [2000] 3 IR 240, each of which are considered further below, the Commission contends that there is no justiciable controversy arising in these proceedings for the court to adjudicate upon. However, it is worth noting that during the hearings it was contended for Mr. Grange, and appears to have been accepted by the Commission, that there is anecdotal evidence of instances in which investigations and findings of the Commission have been relied upon by persons to whom those findings and investigations relate, to advance their interests successfully with particular government departments, not because those departments are obliged to vary whatever decision may previously been made but because, in light of the Commission’s findings, it is reasonable for those departments so to do. Indeed in the course of oral argument, counsel for the respondent offered a hypothetical example in which such corrective action might ensue. So it appears that in practice the Commission’s decisions do have the potential to impact materially on the position of persons to whom its investigations and findings relate, at least when those decisions are favourable to such persons. One further point which might be made before proceeding to a consideration of the case-law is that the overall trend of modern jurisprudence runs somewhat counter to the position propounded by the Commission in this regard. Thus in Hogan and Morgan’s definitive text, Administrative Law in Ireland (4th ed., 2010), one finds the following observation made by the learned authors in respect of the three former state side orders of certiorari, prohibition and mandamus:
“It was traditionally understood that these three public law remedies shared certain restrictive features. For instance, they would only lie to review something in the nature of a decision. It was not required to have been absolutely final, but there are older cases which held that a requirement that the decision be approved by another person or body prevents the orders from issuing. Allied to this was the notion that the public law remedies would not lie to a body whose sole function was to make a recommendation, and that the impugned determination had to affect rights or impose liabilities or that ‘a probable, if not inevitable, next step,’ will be that ‘some legal rights will, in fact be infringed’. [The quoted text is from the judgment of Kearns J. in Ryanair Ltd. v. Flynn, op. cit., a decision that is considered further hereafter.] The modern tendency, however, is to eschew a rigid classification of whether a determination is ‘binding’, ‘conclusive’ or whether the ‘legal rights’ of the citizen have been affected. The courts are apt to examine whether the applicant has suffered a real or possible prejudice and to see whether he has a sufficient interest in the matter.”
10. By way of supporting case-law, the learned authors refer, inter alia, to the judgments in MacPharthalain & Ors. v. Commissioners of Public Works & Anor. [1994] 3 I.R. 353, Maguire & Ors. v. Ardagh & Ors. [2002] 1 IR 385 and De Róiste v. Judge-Advocate General & Ors. [2005] 3 I.R. 494. The court considers these and other leading precedents of relevance hereafter.
11. In The State (Stephen’s Green Club and Anor.) v. The Labour Court, Walsh J, had to consider, inter alia, whether the remedy of prohibition lies in respect of the powers exercisable by the Labour Court by virtue of s.67 of the Industrial Relations Act 1946. Writing in this regard, Walsh J. stated, at 94, that:

“It is well established in this country that prohibition may issue to any body which has the duty to act judicially and which on consideration of facts and circumstances has power by its determination within its jurisdiction to impose liability or to affect rights. By this is meant that liability is imposed, or the right affected, by the determination only, and not by the fact determined, so that the liability will exist or the right will be affected although the determination be wrong in law or in fact.”
12. In Murtagh v. Board of Management of St. Emer’s National School [1991] 1 I.R. 482, the applicants sought judicial review by way of certiorari to quash the respondent’s decision to suspend a primary school pupil for certain indiscipline. They were unsuccessful before the High Court and also the Supreme Court, the latter being particularly unimpressed by the proceedings brought. In the High Court, Barron J. stated, at 485, that:
“The cases in which certiorari lie have not been clearly defined. In general the body whose decision it is sought to quash must be discharging a function of a public nature affecting private rights and be under a duty to act fairly in coming to that decision. The public element is essential…”
13. In MacPharthalain & Ors. v. Commissioners of Public Works & Anor., the applicants sought an order of certiorari quashing the decision of the Commissioners of Public Works designating a particular area of bogland as an area of scientific interest. The High Court granted the relief sought. The respondents appealed to the Supreme Court on the basis that, inter alia, the designation did not constitute a decision of the Commissioners. Delivering the judgment of the Supreme Court, Finlay C.J. stated, at 357 et seq. that:
“I have no doubt the learned trial judge was quite correct in coming to the conclusion that, where an officer of a department carrying out what appears to have been within the ambit of a government decision made some time before receives various different types of expert advice and adjudicates upon them and reaches a decision to implement them…that is a decision and a decision capable of being judicially reviewed.
The next question then is was it a decision which affected the rights of the first two applicants…[The trial judge] came to the conclusion that it did and he did so quite specifically and quite exclusively on the basis that it affected their rights because it reduced the value of their holdings of land if they wanted to sell them by reason of the fact that they would ordinarily not expect to obtain a grant for afforestation…

…I am satisfied the learned trial judge was right in finding as a fact that it was the actual designation by the Wildlife Service [a section of the Commissioners of Public Works] that made the impediment or block to the granting of a forestry grant.”

14. In Ryanair Limited v. Flynn & Anor., Ryanair, a corporate entity not entitled to the same rights under the Bunreacht as the natural individual in the instant proceedings, sought judicial review of a study of pay and conditions that had been carried out by the notice party to the proceedings at the behest of a Government minister. Refusing the various reliefs sought, Kearns J. stated, at 264, that:
“[T]here are, quite apart from the public law dimension…two other requirements which must be fulfilled before the court can intervene by way of judicial review, namely, there must be a decision, act or determination and it must affect some legally enforceable right of the applicant. If the right is not a ‘legally enforceable right’, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will, in fact, be infringed.”
15. There is no question that there is a public law dimension to the proceedings now before the Court. Whether the other criteria enunciated by Kearns J. are satisfied is considered further below.
16. In Maguire & Ors. v. Ardagh and Ors., the applicants sought by way of judicial review proceedings to quash certain directions of an Oireachtas sub-committee which was convened to inquire into an incident that had occurred in Abbeylara, County Longford, in April 2000, during which a man was shot dead by the Gardaí. In the Supreme Court, Hardiman J., at 668ff., made the following observations:

“If, in relation to one of the applicants, it was found as a fact by this parliamentary group that he or she had unlawfully killed the deceased man, I do not believe that the alleged technical status of such finding as being (contrary to its obvious and natural meaning) merely an opinion would at all avail him or her in the eyes of the ordinary reasonable member of the community. It would strike such persons as a quibble….The arguments of the respondents draw heavily on the proposition, undoubtedly correct, that the findings of a tribunal of inquiry are said on high authority to be ‘legally sterile’ in the sense of having no strictly legal consequences….I have to say that I find the phrase ‘legally sterile’ extremely unattractive in any realistic human context….One is therefore left with an entity described as a ‘finding of fact or conclusion’ which, it is agreed, could in practice have an adverse affect on an individual. But that, the respondents contend, does not take away from the central truth that ‘in law’ it is of no effect at all.
I do not find appealing a line of argument which sets up a distinction between a universally accepted state of fact in real life and a quite contrary state of law. If this is the law then it can only be described as a legal fiction…It is true that even the most adverse imaginable finding of fact or conclusion by the sub-committee will not amount to a conviction and will not determine any persons rights and liabilities in civil law and will not expose him to any penalty or liability. But that is not the same as saying it has ‘no’ effect.”

17. Clearly any judgment emanating from a member of the Supreme Court necessarily carries a particular weight, regardless of whether the comments are binding precedent or obiter dicta.
18. In De Róiste v. Judge-Advocate General & Ors., the court held that an inquiry into the reasons for the applicant’s dismissal could not be regarded as a simply inquisitive process and therefore unamenable to judicial review. Per Quirke J., at 512:

“The instant proceedings concern a process established by statute by the government of a sovereign State. It was conducted by a statutory personage entitled ‘The Judge Advocate General’. The process was concerned directly with matters relating to the reputation and good name of the applicant. The report which resulted from the process was adopted on behalf of the government and published.
It is inescapable that the findings and conclusions resulting from the process had the capacity to affect the applicant’s reputation and good name…

[I]ts findings and outcome affected his constitutionally protected right to his reputation and good name. Accordingly, he had a legitimate, fundamental significant interest in the process and is entitled to seek the relief which he has sought in these proceedings.”

19. In De Burca v. Wicklow County Manager & Anor. [2009] IEHC 54, the applicant sought, inter alia, the quashing of a report that had been prepared into the ethics of the actions of a member of Wicklow County Council. In the course of his judgment, Hedigan J., at para. 23, et seq., stated:
“The respondents and the notice party argue that the report does not constitute a decision by a public body which is amenable to judicial review…The main basis on which the respondents and the notice party make this contention is that the report had no material effect on the rights of any party, in particular the applicant. They contend that such a lack of legal consequences amounts to a state of ‘legal sterility’ in the context of which judicial review would be a futile and inappropriate exercise…This argument is contested by the applicant who submits that the repo4rt did in fact have serious implications for her legitimate interests. Firstly, she points to the criticism to which she was subjected both in the report and in the general media subsequent to its release, which she suggests was unjustified and acutely injurious to her reputation as a publicly elected representative. She places particular importance on the fact that the report occurred in the context of an ethics investigation, during which reputations are necessarily subjected to scrutiny, and also on the fact that the report is now a matter of public record. Secondly, the applicant submits that she has an entitlement to ensure that her complaint…should be dealt with in accordance with law. In this regard she submits that the deficiencies in the methodology adopted mean that inadequate consideration was given by the respondents to her concerns.”
20. Hedigan J. concluded that the report in issue was justiciable, stating in this regard, at para. 50 et seq., that:
“It is well established that formal reports or other investigative determinations reached by public bodies may be subject to judicial review in certain circumstances. The fact that a report such as that in the present case is portrayed as a mere fact-finding exercise does not, of itself, prevent it from impacting upon the rights of the parties involved…As a public representative, the reputational rights guaranteed to the applicant by Article 40.3.2 of the Constitution maintain particular importance. It seems to me that, following the publication of the report, much of the criticism which was levelled against her in the print and audiovisual media was unfair and vitriolic. The findings of the report, especially its criticisms of her, were at the foundation of this assault on her reputation…The fact that the criticisms contained in the report now form part of the public record of the State serves only to amplify the ramifications for her, in particular should she wish to continue her career in public office. To allow such undue criticism of a conscientious local councillor to go unconsidered on the basis that it is of no consequence, or that it has no implications, would in my view involve a kind of legal fiction with potentially far-reaching consequences for the public service as a whole. In my view, therefore, the report did have material implications for the applicant.”
21. The various cases considered above are merely a representative sample of the extensive jurisprudence in this area. However, they do identify certain key issues as regards determining the issue of justiciability. At the risk of over-simplification of a comprehensive body of law, it appears to the court that the following key principles can be distilled from the above judgments:
22. First principle: Judicial review is available against any body which has the duty to act judicially and which on consideration of facts and circumstances has power by its determination within its jurisdiction to impose liability or to affect rights. (The State (Stephen’s Green Club and Another) v. The Labour Court).

23. In the present case it appears to the court that the Commission for Public Service Appointments, when discharging its functions under the Act of 2004, was not acting judicially in the manner contemplated by Walsh J above.

24. Second principle: Judicial review is available where the body whose decision is impugned is discharging a function of a public nature affecting private rights and is under a duty to act fairly in coming to that decision. (Murtagh v. Board of Management of St. Emer’s National School)

25. In the present case it is not disputed that the Commission for Public Service Appointments in performing its duties under the 2004 Act was discharging a function of a public nature. Could the performance by the Commission of those duties affect Mr. Grange’s private rights? It seems to the court that there are at least two ways in which they could potentially do so. Thus it appears that in practice the Commission’s decisions have the potential to impact materially on the position of persons to whom its investigations and findings relate. At least, this is so if those decisions are favourable to the interests of such persons whereas in Mr. Grange’s case they were not. On a related note, Mr. Grange’s personal rights include the constitutional right to basic fairness of procedures, first referred to by the Supreme Court in Re Haughey [1971] I.R. 217 and referred to extensively throughout case-law since that time. So if the Commission followed a flawed process in the manner in which it discharged its duties then the resultant decisions would appear to be inherently tainted by the breach of Mr. Grange’s constitutional entitlements in their formulation, not least if the effect of any such flaw was to deny him the fruits of a positive decision by the Commission. Moreover. it is clear from the decision of the Supreme Court in Dellway Investments Limited and Ors. v. National Asset Management Agency and Anor. [2011] IESC 14 that it suffices that rights ‘could’ be impacted by a particular process for that process to be justiciable. Thus Denham J., as she then was, states in her judgment in Dellway, at para. 148, that:

“This judgment addresses the issue of fair procedures. The decision in this case is based on a fundamental constitutional principle. When an order could affect the rights of a person in that it might restrict his existing right to trade or his right to enjoy some benefits contracted for, such a possible result is sufficient to require that the procedure which can lead to that result must conform to the principles of constitutional justice, which includes the right to be heard.”
And, it might be added, it necessarily follows that whether such a procedure did so conform is justiciable.
26. Third principle. Where an officer of a department, carrying out what appears to have been within the ambit of a government decision made some time before, receives various different types of expert advice and adjudicates upon them and reaches a decision to implement them…that is a decision that is capable of being judicially reviewed (MacPharthalain v. Commissioners of Public Works)

27. In the present case it does not appear to the court that it is correct to describe the process in which the Commission for Public Appointments was engaged under the 2004 Act as one that involved its adjudicating on a matter in the manner contemplated in MacPhartalain.

28. Fourth principle. Quite apart from the public law dimension, two other requirements must be fulfilled before the court can intervene by way of judicial review, namely, there must be a decision, act or determination and it must affect some legally enforceable right of the applicant. If the right is not a ‘legally enforceable right’, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will, in fact, be infringed. (Ryanair Limited. v. Flynn and Anor.)

29. Here there are decisions of the Commission, but do they affect some legally enforceable right of Mr. Grange? Again, it appears to the court that if the Commission followed a flawed process in the manner in which it discharged its duties then the ultimate decisions of the Commission would be inherently tainted by any breach of Mr. Grange’s constitutional entitlements in their formulation, especially if the consequence of any such breach was to deny Mr. Grange a favourable decision that he could then have sought to use to advance his interests. It is clear from the extract of the judgment of Denham J. in Dellway, quoted above, that the question of whether or not there has been conformity by the Commission with the principles of constitutional justice in this regard is therefore justiciable.

30. Fifth principle. Where a finding is ‘legally sterile’ in the sense of having no strictly legal consequences but could in practice have an adverse effect on an individual, it is not correct to describe it as having no effect. That would be to divorce the law from reality. (Maguire & Ors. v. Ardagh & Ors.)

31. Any decisions of the Commission insofar as Mr. Grange is concerned appear to the court to be at least potentially legally sterile in that, strictly speaking, negative decisions by the Commission, i.e. that there has been no breach of applicable requirements and related decisions, may have no legal consequences for him. Again, however, it appears to the court that the Commission’s decisions could in practice have an adverse impact upon Mr. Grange if arrived at by a route that violated his constitutional right to basic fairness of procedures. This is because such a violation could result in Mr. Grange being denied the fruits of a positive decision that he could then seek to rely upon to advance his interests in a similar manner to that which others have apparently done when positive decisions have issued from the Commission in the past. Thus it appears to the court that it is not correct to describe the finding as having no adverse effect if the manner in which such decision was reached was improper. If such impropriety pertains then the Commission’s resultant decisions are, the court considers, justiciable. For the reasons stated above, the court is buttressed in this finding by the decision of the Supreme Court in Dellway and in particular the observations of Denham J., as quoted above.

32. Sixth principle. Where the findings and conclusions resulting from a statutory process conducted by a statutory personage have the capacity to affect an applicant’s reputation and good name, he has a legitimate, fundamental significant interest in the process which is therefore justiciable. (De Róiste v. Judge-Advocate General & Ors.)

33. It is not clear that the findings of the Commission have any negative consequences for Mr. Grange as regards his reputation and good name. Like many people who apply for particular employment, Mr. Grange has been unsuccessful in a competition in which he was not deemed to be among the suitable candidates. This entails no general reflection on his abilities and there is no suggestion, nor does the court find, that there are any negative consequences for him in terms of his chances of success in any future competition, whether within the civil service or otherwise, for which he is eligible.

34. Seventh principle. Formal reports or other investigative determinations reached by public bodies may be subject to judicial review in certain circumstances. The fact that a report such as that in the present case is portrayed as a mere fact-finding exercise does not, of itself, prevent it from impacting upon the rights of the parties involved. (de Burca v. Wicklow County Manager & Anor.).

35. In the present case the fact that the Commission’s report, strictly speaking, has no direct legal consequences for Mr. Grange in terms, for example, of ensuring that he is given a further chance at getting the job for which he applied, does not, it seems to the court, prevent it from impacting on his rights if arrived at in a manner that offends against the constitutional right to fairness of procedures.

36. To the above might be added the observation of Hogan and Morgan referred to at the outset of this judgment, viz:

“[Eighth principle] The modern tendency…is to eschew a rigid classification of whether a determination is ‘binding’, ‘conclusive’ or whether the ‘legal rights’ of the citizen have been affected. The courts are apt to examine whether the applicant has suffered a real or possible prejudice and to see whether he has a sufficient interest in the matter.”
37. Again, if there was a breach of Mr. Grange’s constitutional right to fairness of procedures in the manner in which the Commission arrived at its findings then he may have suffered a possible prejudice and, again having regard to the decision of the Supreme Court in Dellway, would have a sufficient interest in the matter for it to be justiciable.
The impugned decisions
38. Many grounds of objection to the impugned decisions were raised in Mr. Grange’s statement of grounds. However, it appeared at the hearings that the key contentions being made were fourfold, viz. that there was (1) a breach of fair procedures, (2) a failure to take relevant information (the Dublin City University materials) into account, (3) various errors of law, and (4) an error of fact on the part of the short-listing board and the Commission as regards seeking out information as part of the selection process. There is also a suggestion in the statement of grounds that certain legitimate expectations of Mr. Grange were breached by the manner in which the Commission conducted its review. The court proceeds below to consider each of these contentions in turn.

39. Breach of fair procedures (including procedural impropriety and fettered discretion)

Before proceeding to consider the issue of fair procedures, it is useful to recall why the issue of fair procedures is central to administrative law. The logic, succinctly stated by Hogan and Morgan (2010, 4th edition), at 569, is that:

“[P]ublic authorities are taken to be non-partisan and open to persuasion provided that all the relevant facts and arguments are placed before them. With a fair procedure, the relevant matters are more likely to emerge and to be properly weighed by the decision-maker.”
40. The notion of fair procedures derives ultimately from the procedural rules that a decision-maker must not be biased (nemo iudex in causa sua) and that a person should have the best opportunity to put his or her side of a case (audi alteram partem). In McDonald v. Bord na gCon [1965] I.R. 217 at 242, the principles of natural justice were transmuted by Walsh J. into what he termed “constitutional justice”. The fact that the above principles of natural justice have been subsumed into constitutional justice was confirmed just over 20 years later by McCarthy J. in The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 at 99, and, just over 20 years after that judgment, the point was again confirmed by Denham J. in Dellway at para. 107. Although Walsh J. indicated in McDonald that constitutional justice embraced more than the two key principles that natural justice was perceived to entail, in practice the precise parameters of constitutional justice remain to some extent un-defined and perhaps necessarily so, their amplification and refinement being determined by the facts and parameters of the particular cases that come before the courts from time to time. One change in terminology that has occurred is that what used to be the principle of audi alteram partem has come to be referred to as ‘fair procedure’. Thus, for example, in BFO v. Governor of Dóchas Centre [2005] 2 I.R. 1 at 27, Finlay Geoghegan J. indicates that:
“The requirement that there be due fairness of procedures and due and proper consideration for the rights of others…appears to require that such procedures and consideration be capable of being objectively perceived to be fair.”
41. It is clear from the decision of the Supreme Court in Dellway that the notion of fair procedures includes but is not limited to the right to be heard. Thus, per Denham J., at para. 109: “There is a right to fair procedures, which includes a right to be heard.” Notably, one finds neither in the Dóchas nor Dellway cases nor elsewhere in the applicable case-law any suggestion that procedural perfection is a pre-requisite to a finding of fairness. In an imperfect world, some imperfection of process is to be expected and when it arises, as it almost inevitably shall, it will not necessarily be a bar to a finding that there was nonetheless basic fairness of procedures: a flawed process may still be entirely fair. As Denham J. states in Dellway, at para. 114:
“[W]hat is sought is fairness, which will depend on all the circumstances of a case, and vary from one type of procedure to another.”
42. In the present case, Mr. Grange has contended, in effect, that there are various respects in which the process by which his application and complaints were treated that entailed an unfairness of procedure, resulted in his case not being properly heard and/or yielded a situation in which the processes that are the subject of these proceedings could not, to borrow from the phraseology of Finlay Geoghegan J. in Dóchas, be perceived objectively to be fair. Thus Mr. Grange contends that the Commission for Public Service Appointments: (i) in considering his case, failed to take account of relevant material, give proper reasons and to have regard to matters of material importance; (ii) refused to consider information that was submitted by him; (iii) refused to accede to the request for a fresh investigation made by Mr. Grange in his letter of 15th March, 2013; (iv) failed to ask appropriate questions and undertake a sufficient and complete inquiry; (v) ‘rubber stamped’ the decision of the shortlisting board; (vi) failed to give Mr. Grange an opportunity to fully put his case forward; (vii) over-relied on assurances provided by two of the three members of the shortlisting board and did not meet with its chairman; (viii) did not adequately investigate concerns raised by Mr. Grange that his failure to succeed was attributable to ageism; (ix) in allowing reviews to be conducted as they were, occasioned procedural impropriety which included an inappropriate delegation by the Commissioners of their powers, a failure to monitor the work of Commission staff, and a failure to question alleged deficiencies in the draft report submitted to them; and (x) was guilty of fettering its discretion through the inappropriate exclusion of relevant information.
43. Insofar as the issue of age discrimination is concerned, this is a matter for the Equality Tribunal in the first instance, though the court notes, without comment and purely as a matter of historical fact, that the members of the short-listing board who were interviewed by the Commission appear to have indicated that age was not a factor in the short-listing process. As to the other contentions made, the court does not consider them to be meritorious. In fact, what is striking to the court and ought to be apparent from the detailed account of the facts given above, is the very great lengths to which the Commission for Public Service Appointments went to ensure that it not only discharged its responsibilities properly and lawfully, but also gave Mr. Grange every possible opportunity to ventilate his concerns, even to the point of arranging a meeting between Mr. Grange and the Secretary of the Commission, a notable courtesy. The court does not consider that any of the imperfections contended for by Mr. Grange, assuming for an instant that they constitute procedural imperfections arising in the course of what the court considers were entirely fair albeit not perhaps entirely perfect procedures, are imperfections of such a scale or significance as to require the court to find that the rules of constitutional justice were not observed or that the principle of audi alteram partem has in some way been breached, or that, the procedures employed cannot be perceived objectively to be fair. In fact, the court finds the contrary to be true in each respect. Mr. Grange clearly considers that he is right as to the superior merits of his candidacy for the position for which he applied back in 2012. However, the court cannot perceive in the processes that are the subject of these proceedings anything that is so wrong as to have denied or even been capable of denying Mr. Grange that basic fairness of procedures to which he is entitled under the Bunreacht and which, the court finds, he received.

44. Failure to take the Dublin City University materials into account. The court does not accept that there was an improper failure by the Commission to take into account the materials from Dublin City University that were supplied by Mr. Grange to the Commission. On the contrary, the Commission, and indeed the short-listing board, decided entirely legitimately to determine matters solely by reference to the application form material. Having done this they determined that Mr. Grange, prima facie, was not qualified for the position for which he had made application. There was no legal obligation on them to do anything more. As it happens, in an abundance of prudence the short-listing board sought additional information in respect of five candidates from an initial field of 1,124 applicants in circumstances where the board was not entirely satisfied that a candidate should be ruled in or out of the application process. This did not create an obligation to do so in respect of all candidates, let alone candidates such as Mr. Grange in respect of whom, having due regard to their application forms, no doubt arose on the part of the short-listing board as to whether or not those candidates were qualified for the relevant position.

45. Errors of law. It was pleaded by Mr. Grange that there was an error of law on the part of the Public Appointments Service in not properly assessing his applications. This is not an error of law. It was pleaded by Mr. Grange that it was not appropriate for the Commission to state in its correspondence with him that in the event of his commencing and being unsuccessful in judicial review proceedings the Commission would pursue Mr. Grange for its costs in responding to those proceedings. This is not an error of law. It was pleaded by Mr. Grange that the Commission was in error when it refused to re-open an investigation that it considered closed. This is not an error of law: there was and is no legal entitlement to a further appeal process.

46. Errors of fact. It was contended by Mr. Grange that there was an error of fact on the part of the short-listing board and the Commission in considering that they were not required to seek out information as part of the selection process in circumstances where information was sought in respect of five candidates. This contention has already been considered above and, for the reasons stated, the court does not consider it to be correct. It was also contended that the Commission erred to the extent that it was its view that Mr. Grange had failed to supply the Public Appointments Service with details of his qualifications. Even if the Commission erred in this regard it does not appear to the court to be a relevant issue as both the Commission, and indeed the short-listing board, decided quite legitimately to determine matters by reference solely to the application form material.

47. Legitimate expectations. Among the grounds mentioned in the statement grounding the judicial review application are certain legitimate expectations of Mr. Grange that, it is claimed, were disappointed, specifically that the Commission failed to source all relevant documentation from the Public Appointments Service and that it failed to conduct an investigation in accordance with its own Code of Practice, in particular as regards the issue of age discrimination. The issue of age discrimination has already been considered above. As to the issue of legitimate expectations, this was not pursued in the course of legal submissions for Mr. Grange, leaving the court in some difficulty in this regard. The court assumes that what is being contended is that Mr. Grange had a legitimate expectation as to the procedure that the Commission would follow and that it, allegedly, did not do so, and the court should now require that the Commission do so, consistent with for example, the reasoning in cases such as the Supreme Court decision in Gutrani v. Minister for Justice [1993] 2 I.R. 427 and the High Court decision in Fakih v. Minister for Justice [1993] 2 I.R. 406 in which O’Hanlon J. approved the now classic exposition by Lord Fraser in Attorney General of Hong-Kong v. Ng Yuen Shiu [1983] 2 AC 629 of the fundamental principle that underpins legitimate expectations, Lord Fraser stating, at 638, that

“The justification [for the principle of legitimate expectations] is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty.”
48. Taking Mr. Grange’s case at its height and assuming that he did enjoy a legitimate expectation as to the form of investigation that the Commission for Public Service Appointments adopted, the court finds that the Commission acted as contemplated by the Code of Practice. It may not have acted exactly as Mr. Grange wanted, it undoubtedly did not arrive at the conclusion that he would have preferred, and to this extent it may be that Mr. Grange’s personal expectations were disappointed. However, that is not the same as saying that any legitimate expectations that he enjoyed at law were disappointed. On the contrary, the court finds that they were not, that the Commission’s investigation was substantively in compliance with what the Code of Practice appears to contemplate and that a basic fairness of procedures was consistently attained by the Commission in its actions.
Conclusion
49. For the reasons stated above, the court declines to grant any of the reliefs sought by Mr. Grange.