Chief Justice Frank Clarke agreed that €10,000 would meet the justice of a pension case after a statutory provision was declared inconsistent with the Constitution. He said awarding Mr C a full pension retrospectively could give him a windfall.
In a judgment delivered on 28 November 2018, Clarke said he agreed with the conclusions and reasoning of Justice Donal O’Donnell. He also agreed with observations by Justice John MacMenamin about the circumstances in which a court might defer a declaration of unconstitutionality, and the reasons an immediate declaration should be made in this case.
Clarke agreed that people who had not challenged the provision could not expect to gain a windfall merely because part of it was struck down. He said a court might need to fashion a just solution in the circumstances.
The judgment noted that a range of measures could have been adopted that would not have given Mr C a full pension. Clarke said it would be wrong for the court to guess what measures the Oireachtas might have enacted if it had known of the constitutional inconsistency, or what it might consider after the declaration.
Clarke agreed with O’Donnell’s proposed sum of €10,000, but, like MacMenamin, reserved the right to revisit the appropriate approach in a future case. This part of the judgment records Clarke’s concurrence; it does not set out the full order or the underlying pension calculation.