A Supreme Court judge said the prolonged case of Patrick J. Kelly, formerly Harbour Master in Killybegs, should have been remitted to the High Court to consider whether he had suffered loss or damage recoverable at law, including loss of salary or pension.
Mr Justice John MacMenamin set out that view in a judgment dated 15 September 2021. He acknowledged that the majority had reached its conclusions by different routes and that his reasoning on the primary issue of bias differed from theirs. He said he would respectfully differ from the majority on the form of order.
MacMenamin said the High Court could have considered whether Kelly had sustained recoverable loss or damage. Any claim would have needed to be properly pleaded, with discovery and other appropriate procedures. Whether Kelly could have succeeded would have remained an open question, he said, and the matter would have required close case management.
The judgment was part of a set of Supreme Court judgments that, MacMenamin said, brought the lengthy matter to a conclusion. His comments describe his proposed remedy; the source does not set out the majority’s precise order. It says remittal to the Government was not a practicable option, while MacMenamin considered remittal to the High Court appropriate under Order 84, Rule 27(4).
MacMenamin also reflected on the investigation and disciplinary process. He said investigations should be conducted within a limited timeframe, with those carrying them out given adequate time and space to focus. He noted that the statutory process for disciplining the Harbour Master required a cabinet decision as the final sanction, and questioned whether such a multi-layered procedure reflected an earlier era.
He said the duration of the proceedings constrained the remedy available and that the parties had a duty to progress the case expeditiously. He stressed that his observations were not intended to blame any individual.