Judgment: 2009-07-28 · Court archive

Supreme Court upholds €36,395 award to former soldier discharged months before Army service was due to end

Supreme Court ·

Who, what, where, when and why

Who
  • James McGrath
  • Mr Justice Fennelly
What

Supreme Court upholds €36,395 award to former soldier discharged months before Army service was due to end

Where

Places mentioned in the report

  • Glen of Imaal
When

Judgment:

Why

Reasons reported in the judgment

The Supreme Court has upheld a €36,395.77 award to former soldier James McGrath after finding that the Army frustrated his legitimate expectation of completing an approved extension of service.

The Supreme Court has upheld a €36,395.77 award to former soldier James McGrath after finding that the Army frustrated his legitimate expectation of completing an approved extension of service.

McGrath enlisted in the Defence Forces in 1969 and served for more than 26 years. A knee injury suffered during a football match in the Glen of Imaal in 1977 led to surgery and, from 1988, classification in Medical Category C. He continued performing a range of duties and reached the rank of Sergeant, although he was excused normal regimental duties.

In 1994, McGrath applied to remain in service for another two years so that he could build up 27 years of pensionable service. An Army doctor examined him and retained his Category C classification. His extension from October 1994 to October 1996 was then approved.

A later Army-wide review of Category C personnel followed changes in Defence Forces policy. McGrath was referred to a medical board in November 1995, reclassified to Category E and recommended for discharge. He left the Army on May 12, 1996. The reclassification also prevented him applying under a voluntary early retirement scheme.

The High Court awarded damages after finding that his discharge breached a contractual relationship with the Minister. The Supreme Court rejected that legal basis. Mr Justice Fennelly held that a member of the Permanent Defence Force is not an employee or servant of the Minister and there was no private-law employment contract between them.

However, the Supreme Court held that McGrath had a legitimate expectation arising from the Army's 1994 decision to grant the extension despite knowing his longstanding medical condition. As there had been no significant medical deterioration, he could reasonably expect to serve until October 1996.

The court also upheld the finding that McGrath would probably have succeeded in an application to the voluntary early retirement scheme. The Minister's appeal was therefore dismissed and the €36,395.77 award remained in place, but on the different legal ground of legitimate expectation.

Read the original court judgment

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