By Maeve Rowan
The Supreme Court has dismissed Dónal de Roíste’s attempt to pursue judicial review proceedings over actions leading to his compulsory retirement from the Defence Forces in 1969, holding that a delay of about 29 years had not been adequately explained.
De Roíste commenced the judicial review process in 1998. The High Court initially extended his time to seek leave but expressly allowed the Minister for Defence, Ireland and the Attorney General to argue subsequently that the proceedings should be dismissed for delay.
In June 1999, Mr Justice McCracken did so. He found the delay both inordinate and inexcusable and held that the balance of justice did not favour allowing the case to proceed.
De Roíste argued that the events surrounding his departure from the Defence Forces had caused severe trauma and that he had suffered post-traumatic stress disorder. He also relied on publicity surrounding the issue during the 1997 presidential election, when his sister was a candidate, and argued that an alleged public wrong continued to affect his reputation and life.
The State disputed the underlying allegations and argued that the passage of almost three decades made a fair hearing difficult. The High Court had noted that several potential witnesses had died and that surviving witnesses’ memories would inevitably have faded.
Mrs Justice Denham, delivering the Supreme Court judgment, upheld the High Court’s factual findings. She said the medical evidence did not establish that de Roíste had been incapable of bringing proceedings earlier. His conduct after 1969 was found to demonstrate a choice not to pursue the matter rather than an inability to do so.
The Supreme Court stressed that judicial review is a discretionary remedy and that applications must ordinarily be brought promptly. Even an allegation of serious wrongdoing by the State does not remove the court’s power to consider delay, an applicant’s conduct and prejudice to respondents.
The appeal was dismissed and the High Court order ending the proceedings was affirmed. The court therefore did not determine whether de Roíste’s compulsory retirement itself had been unlawful.