The Court of Appeal has dismissed Billy Monahan’s appeal against a High Court refusal to let him add grounds to his judicial review challenge over the suspension of his Defence Forces training and graduation.
The judgment, delivered on 28 May 2024, concerned only Monahan’s appeal. Appeals by the two other original applicants, Jonathan Concannon and Phil McCarthy, did not proceed. The Court of Appeal did not decide the underlying challenge to the suspension or whether Monahan was responsible for the incident that prompted a Military Police investigation.
The three recruits began training at Sarsfield Barracks in Limerick in May 2021. They were due to graduate from Private Grade 1 Star to Private Grade 2 Star on 25 August. The judgment says their involvement in an alleged incident with another recruit, Recruit Canty, on 18 July was disputed, and Monahan denied wrongdoing.
The recruits were told on 20 August that they would not be passed out while the investigation continued. Monahan later alleged that he was not told the substance of the accusation until a Military Police interview in September. Commandant Niall Murray’s account differed on aspects of when the recruits were informed and what was said. The Court of Appeal did not resolve those factual disputes in this appeal.
The recruits obtained leave in November 2021 to seek judicial review, including claims that the decision breached fair procedures and was disproportionate. In March 2022, Monahan sought to amend the statement of grounds with additional claims, including that Defence Forces regulations entitled him to advance in grade and that the decision-maker had failed to consider career and financial effects.
The High Court refused the amendments in March 2023. The Court of Appeal applied the test for amending judicial review grounds: the proposed grounds must be arguable, the applicant must explain why they were not raised earlier, and the respondent must not be prejudiced. The respondents accepted they would not be prejudiced, and the appeal court proceeded on the basis that the grounds were arguable. It nevertheless held that Monahan had not provided an explanation on affidavit for leaving the grounds out of his original application. The court said that the identity of the decision-maker, disclosed in an affidavit, did not explain why the proposed claims could not have been made earlier.
The appeal was dismissed. The court noted that, apart from two proposed grounds, the amendments elaborated on claims already pleaded, and the respondents said they would not object to reliance on those elaborations at the substantive hearing. The underlying judicial review remains distinct from this appeal. On costs, the court’s provisional view was that Monahan should pay the respondents’ appeal costs, with 14 days to request a brief hearing to argue for a different order.