The High Court has awarded costs to a Defence Forces member who brought judicial review proceedings challenging his planned discharge, finding that the proceedings were a proportionate response to the position taken by the respondents.
The judgment, delivered by Mr Justice Meenan on 7 March 2018, dealt only with the costs of the judicial review. It did not decide whether the original discharge decision was lawful. The court said judicial review concerns the decision-making process rather than the eventual decision.
The applicant joined the permanent Defence Forces in 2007 as an apprentice fitter. After failing the examinations needed to qualify, he sought a transfer to another area. That request was refused, and he was told he would be discharged. His appeal against discharge was rejected on 9 April 2010, with discharge scheduled for 21 April.
His solicitors wrote to the Minister for Defence on 16 April, seeking redress of wrongs under section 114 of the Defence Act 1954. They wrote again on 19 April, asking that discharge be deferred to allow the complaint to be submitted. The judgment records that neither letter received a response.
The applicant obtained leave to seek judicial review on 19 April 2010, seeking to quash the discharge and stay it pending a section 114 inquiry. The respondents argued in their statement of opposition and affidavits that section 114 did not apply to an administrative discharge, and also said the applicant had not made a valid or timely request under that section.
At a hearing on 14 February 2012, the respondents agreed not to enforce the discharge pending the commencement and determination of a section 114 complaint. They made clear they were not conceding that the applicant had been prevented from making such a complaint, that his solicitors’ letter was a valid application, or that the discharge decision was unlawful. The applicant agreed to have the proceedings struck out, with costs reserved. After later appeals, his section 114 application was unsuccessful.
In deciding costs, the High Court found that the applicant’s decision to bring judicial review was proportionate given the unanswered letters and the respondents’ stated position that section 114 was inappropriate for an administrative discharge. The court also found that it was only by incurring the costs of the proceedings that the applicant obtained a stay pending an inquiry. The later unsuccessful outcome of the administrative process did not affect the costs decision.
The court held that the applicant was entitled to the costs of the judicial review proceedings.