Review of employer’s refusal to fund legal qualification dismissed due to delay

The Supreme Court has dismissed a judicial review appeal brought by an employee of the Review Commissioners, who disputed the Commissioners’ decision not to fund her professional legal qualification. The Supreme Court found that there had been too long a delay since the employee was first notified of the refusal.

Ms Donna Sfar had worked in the civil service since leaving school, and was employed by the Revenue Commissioners.

On the back of the law degree, Ms Sfar decided to pursue a further qualification and was successful in obtaining a place on a distance education Bar Vocational Course in London with a private college named BPP.

She first sought funding for this course in July, 2007, on the basis of a Circular which her employer had issued on the 14th September, 2004, and which is headed “Refund of Academic Fees Scheme”.

The Revenue Commissioners took the view, which they have ever since maintained, that she had not met the terms of the Circular, and accordingly declined to approve the funding request.

Disagreeing with their interpretation and application of the Circular, the appellant ultimately instituted judicial review proceedings, seeking a number of Declarations, and an Order of mandamus directing the respondents to reconsider her application.

The judicial review proceedings were heard in 2011 by MacMenamin J, who dismissed all reliefs claimed by Ms Sfar, on the basis of three findings: that there had been delay and a lack of candour in the information Ms Sfar placed before the Court, that the respondents had acted reasonably in their application of the Circular, and Ms Sfar could not invoke the doctrine of legitimate expectation. Ms Sfar therefore appealed.

Supreme Court judge Mr Justice William M McKechnie first dealt with the issues of delay and non-disclosure.

It was noted that the relevant time limits were contained within Order 84 of the Rules of the Superior Courts, and that while an application for an order of mandamus and/or for a declaration which must be moved “promptly” or in any event within three months from the date when grounds for the application first arose, this could be extended for “good reason.”

The Judge noted that there was much case law on what might satisfy this requirement, citing Costello J. in O’Donnell v. Dun Laoghaire Corporation I.L.R.M. 301 as perhaps being still best regarded in this context.

However, the appellant’s position was that no extension was required, as the relevant date for her was the receipt of a final refusal on 28 January 2010.

The Judge cited De Róiste v. Minister for Defence 1 I.R. 190 as demonstrating the general necessity for expedition in moving a judicial review application.

However, that judgment also made clear that the time limits so specified in the Rules of Court cannot be regarded as limitation periods, as their purpose was quite different.

In the present case, the Judge found that the date on which time commences for seeking a declaration and order of mandamus was the same, and should be considered as the point at which a demand was made of an administrative body, and was refused.

He therefore turned to considering when this occurred. It was noted that correspondence had occurred between the appellant and the Revenue Commission commencing in 2007, with the first refusal occurring on 19th March 2008.

However, the appellant continued to seek a refund, and requested the reasons for her refusal.

The Judge noted that throughout all of these exchanges was a consistent position adopted by the Revenue Commissioners.

They repeatedly pointed out that for the B.V.C. to be considered a “qualifying course” for the purposes of the Circular, it would have to be a course accepted by the Revenue Commissioners as relevant to the work of that organisation.

In accordance with the advice obtained and disclosed to the appellant, they voiced the concern that even if the course was successfully pursued by her and even were she to obtain pupillage in England, those achievements, without more, would not permit her to practice law in this jurisdiction.

In any event, a second refusal was given on 21 July 2008, at which point the appellant expressed an intention to seek judicial review if the decision was not changed. Thus, the Judge noted that she must have fully realised in July, that this letter constituted a second refusal.

On 20 October 2008, the appellant wrote directly to the Chairman of the Board, who expressed support for the decision, thus constituting the third refusal. Ms Sfar continued to seek a reconsideration, and again received a refusal in 27 January 2009, this time from the Assistant Secretary, who had recently become Chairman.

Ms Sfar continued to engage in correspondence, leading to a letter being sent from the Assistant Secretary on 2nd February 2010, in which he stated that “Your claim is refused for the reasons already stated in detail in that letter, and there is no point in continuing correspondence or entering further protracted correspondence on the same issues.”

The Judge concluded that “a court would be justified in treating the very first refusal, as above outlined, as being sufficient to trigger the expedition requirement set out in .”

The Judge cited Finnerty v. Western Health Board (Unreported, High Court, 5th October, 1998; I.E.H.C. 143) as containing similar facts, and in which it was noted that “A decision which is a reiteration of a previous decision is not a new decision.”

The Judge also noted that “I would also have no hesitation in holding that the expeditious requirement underpinning all applications for judicial review was not fulfilled in this instance and, accordingly, in the absence of any application, based on good reason, to extend the time within which an application should be made, the High Court judge was fully justified in dismissing the application on this ground.”

Although this was enough to dispose of the appeal, the Judge also considered non-disclosure, due to the “imputation which a finding of a lack of candour has on the person in question”.

It was noted that the “appellant is a lay litigant and whilst it is undoubtedly true that she has experience of the legal system, nonetheless she cannot be judged to the same professional standards as a qualified practitioner.”

Her omissions in her application could be attributed to a wish to keep her application brief, rather than a deliberate attempt at concealment.

Therefore, although the appeal was dismissed on the delay point, but allowed on the lack of candour point.

  • by Rachel Killean for Irish Legal News
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