Elder v The Minister For Defence & ors [2019] IEHC 716 (22 July 2019)

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Written note of the ex tempore judgment of Ms. Justice Ní Raifeartaigh delivered on

1. This case was run primarily on the basis of legitimate expectation and I propose to deal

with it on that basis. I have reached the conclusion that it has edged over the line - but

only just - from what might be described as a “bare” expectation to what in law amounts

to a “legitimate” expectation. First, I will speak about the reasons for that conclusion and

2. The case concerned the procedure by which the Defence Forces selected individuals for

participation in a two-year paramedic course run by an external body, the National

Ambulance Service College (“NASC”). First of all, I should say that I accept that the

qualification of a paramedic is a useful career-enhancing qualification and that it is a

benefit in that sense without my necessarily having to find that it would inexorably lead to

certain promotions or postings, as there was some dispute about the precise effect of

3. The sequence of events was as follows. A course notification was published on 7th May,

2019. Following that, interviews were held. There was a notification of a decision on 5th

June, 2019 as to who the successful candidates were (which included the applicant) and

then there was a subsequent notification on 11th June, 2019 which stated that the

respondent would re-conduct the interviews because an anomaly had been discovered. In

due course, there was a new course notification and this indicated that there was a

change in relation to the minimum academic qualification that was required for applicants.

In other words, this was the issue relating to the Leaving Certificate versus the Level 5

NQF requirement. (Originally, only applicants with a Leaving Certificate were permitted to

apply; now, however, the pool of applicants was being expanded to those who might have

4. The background to the decision to re-conduct the interviews, as appears from the

affidavits, is that after the interviews were held, it was realised that a new set of weighted

criteria had been used to assess candidates. I call those weighted criteria ‘the matrix’. It

is clear from what I have seen that there was a document setting out how each applicant

would be scored during the interview and it contained twelve categories, with each

category carrying a weighting such as 10% or 5%. The weighting of each category is very

important to the overall score that the person receives. A lot of work had been put into

devising a particular matrix, which was used in a similar set of interviews in 2018, and I

will call that the ‘2018 matrix’. What, in fact, happened was that a slightly altered one -

where the weighting was different in relation to one factor in particular - was used for the

5. The evidence before me on behalf of the respondents was that this change, the use of a

different matrix, was unintended and that the intention had been to use the 2018 matrix.

When it was realised that, from the respondent’s points of view, the wrong matrix had

been used, the decision was made to re-conduct the interviews and use the 2018 matrix.

This apparently was what led to the email to the applicant referring to an “anomaly”

6. Later, and separately, it seems that it was also realised that the requirement of the

external body, the NASC, as regards minimum academic qualifications was that they

would accept not only a Leaving Certificate but also a Level 5 NQF. Therefore, it was

decided to expand the pool of applicants to include people who had a Level 5 NQF as well

as those who had a Leaving Certificate (minimum six subjects). In other words, it was

decided that in re-conducting the interview, there would be an expansion of the minimum

academic criteria, arguably lowering them, leading to a potential expansion of the pool of

7. At this point in time, and in my view the sequencing is important, the applicant obtained

leave to bring judicial review proceedings; the order granting which is dated 14th June,

2019. He also obtained a stay on the process which, in effect, has prevented any

subsequent interviews taking place. There are various reasons as to why the matter did

not get a hearing until Friday 19th July, 2019 which was the last working day before the

course was due to start. As a matter of practicality, therefore, either these three

applicants are permitted to do the course or nobody gets to do this particular course. I

understand there is a different one starting in September but there are some other

differences in that it is a longer course (it is a three-year course) and there are various

other aspects of difference. At the moment, the next course starts on 22nd July and

because it was not possible to re-conduct the interviews because of the stay imposed by

the High Court, either the applicant (and his fellow applicants) do it or nobody does it. But

that, I hasten to add, does not influence me in the decision I have reached because it

seems to me that I have to decide the case on the basis of legal principle and I need to

consider the legal position on the date when the leave and the stay were granted and not

8. Quite a number of authorities were opened to me including the case of Glencar

Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84 which featured

considerably with regard to the three criteria for satisfying the doctrine of legitimate

“In order to succeed in a claim based on failure of a public authority to respect

legitimate expectations, it seems to me to be necessary to establish three matters.

Because of the essentially provisional nature of these remarks, I would emphasise

that these propositions cannot be regarded as definitive. Firstly, the public authority

must have made a statement or adopted a position amounting to a promise or

representation, express or implied as to how it will act in respect of an identifiable

area of its activity. I will call this the representation. Secondly, the representation

must be addressed or conveyed either directly or indirectly to an identifiable person

or group of persons, affected actually or potentially, in such a way that it forms part

of a transaction definitively entered into or a relationship between that person and

group and the public authority or that the person or group has acted on the faith of

the representation. Thirdly, it must be such as to create an expectation reasonably

entertained by the person or group that the public authority will abide by the

representation to the extent that it would be unjust to permit the public authority to

resile from it. Refinements or extensions of these propositions are obviously

possible. Equally they are qualified by considerations of the public interest including

the principle that freedom to exercise properly a statutory power is to be respected.

However, the propositions I have endeavoured to formulate seem to me to be

9. The case of Lett & Company Ltd v. Wexford Borough Corporation et al [2007] IEHC 195

was also opened to me in which Clarke J. (as he then was) made reference to “positive”

criteria and “negative” criteria which set the parameters of the doctrine.:

“In the light of those authorities it seems to me that, on the current state of the

development of the doctrine of legitimate expectation, it is reasonable to state that

there are both positive and negative factors which must be found to be present or

absent, as the case may be, in order that a party can rely upon the doctrine. The

positive elements are to be found in the three tests set out by Fennelly J. in the

passage from Glencar Exploration to which I have referred. The negative factors are

issues which may either prevent those three tests from being met (for example the

fact that, as in Wiley, it may not be legitimate to entertain an expectation that a

past error will be continued in the future) or may exclude the existence of a

legitimate expectation by virtue of the need to preserve the entitlement of a

decision maker to exercise a statutory discretion within the parameters provided for

in the statute concerned or, alternatively, may be necessary to enable, as in

Hempenstall, legitimate changes in executive policy to take place. I therefore

propose to approach the contentions of the parties as to the existence of a

legitimate expectation in this case by first considering the positive elements of the

10. In a general sense, reflecting on the various authorities that were opened to me including

but certainly not limited to those particular authorities, it seems to me that the doctrine of

legitimate expectation is fundamentally concerned with holding a public body to a

statement it has made in the past about a decision that it is going to make in the future,

this being a statement either about what decision it will make (in terms of its substance),

or a statement about how the decision will be made (in terms of the process).

11. The doctrine is distinguishable from the doctrine of promissory estoppel in at least one

important respect, namely that the person does not have to act to his detriment on foot

of a promise or representation, and that was clearly set out by O’Hanlon J. in Fakih v.

Minister for Justice [1993] 2 IR 406 and was also stated by the Supreme Court in Carl

Daly v. Minister for the Marine & Ors [2001] 3 IR 513. Therefore, it seems to be a well-

established aspect of the doctrine, and the absence of such a requirement is something

12. The underlying thinking seems to be that it would be unfair to allow a public body to

renege on what it has said to a person or a class of persons if it has made a statement of

intent or communicated something in connection with a decision it will be taking in the

future. The communication, as is clear from the authorities, can arise if something is said

orally, or written down in a letter or other document, but sometimes it can be implied, for

example, from a previous practice. Here I am thinking, for example, of the case of Wiley

v. Revenue Commissioners [1994] 2 IR 160. It seems to me that the communication can

arise by a variety of methods but the doctrine is about communication; it is about the

public authority communicating something about the decision it is going to take in the

future, be that the content of the decision, or the manner in which the decision will be

13. Under Glencar, the first issue the Court must address is whether or not there was a

representation or promise to the applicant (individually or as a member of a group). In

this case, therefore, the question is whether there was a representation or promise as to

how the interviews for the paramedic course would be conducted, including what criteria

would be applied and/or what the eligibility parameters were for applying in the first

place. This first ingredient of the doctrine has seemed to me at all times to be the most

14. When I asked the applicant’s counsel to identify the source of any representations, he

identified two documents: the first course notification of 7th May, 2019, and the

document of 5th June, 2019 which was the notification as to who had been successful.

This means that the Court had to carefully consider the content of each of those

documents. The notification of 5th June followed the interviews and indicated that three

persons had been successful, that another had been selected as a substitute, and that

nine had been unsuccessful. The first course notification of 7th May provided the

1. D COS Sp has provisionally authorised the selection of four (4) members of the

CMU to undergo a Paramedic Course in the National Ambulance Service College

(NASC) – BALLINSASLOE subject to funds becoming available. This course will be

conducted on a full-time basis commencing on 22 July 2018 and is of TWO years

2. A board convened by OC CMU will conduct interviews in the Medical School DFTC on

Tues 28 May 2019 for suitable applicants. The criteria will be based on;

a. Applicants require at a minimum passes in six (6) Ordinary level Leaving Cert

i. Successful completion/certification of a recognised PHCC EMT course is an

ii. OR a degree from a recognised third level institution is acceptable in Lieu of

b. Educational qualifications obtained from other jurisdictions will be assessed on an

c. All original certificates will be reviewed and validated by OC Medical School,

d. Note: A certificate of Garda Vetting Clearance must be submitted to NASC prior to

the commencement of the course and DF students must have additional

15. In relation to the matrix issue - this is the issue of the weighted criteria which applied to

the actual selection of the person - it may be noted that the course notification is entirely

silent on the specifics of what criteria would be used in the interview process. Further, the

evidence on behalf of the respondent would suggest two things to me. First of all, if he

had any expectation as to what criteria might be applied, it might have been that the

2018 matrix would apply again, since he had been given a copy of it the previous year

and it had been discussed with them. Or, secondly, at most he might have expected that

a different matrix would apply without knowing anything about the details of that matrix.

As we know, the 2019 matrix was in fact used. But I do not think the evidence supports a

finding that the applicant expected that the 2019 matrix would be used. Indeed, the

applicant did not aver that he had any particular expectation as to any particular matrix

being used and counsel said that it was not something that he particularly relied on.

Instead, as he pointed out, the issue of the matrix had been raised by the respondent as

an explanation as to why they wanted to re-run the interview process. Accordingly, I do

not think a case of legitimate expectation can be supported on any ground based upon

any expectation that a particular matrix would be used. It seems to me that the common

thread in the various authorities cited to me is that the public body has communicated a

statement of intent as to how it will make a decision or what criteria it will apply in

making the decision. But here, the public body did not say anything specific in the course

notification as to what matrix it would use and therefore I do not think the applicant can

rely on the fact that a different matrix was used than that which was used in 2018 or any

suggestion that he was told anything about the matrix because there was simply no

communication on that point. What is in the course notification, in my view, is very

general and does not reach the level of detail that he would need in order to rely on a

promise or representation as to a particular matrix having been offered.

16. On the academic qualification issue - and by this I am referring to the Leaving Certificate

versus the Level 5 QTF issue - I take a different view. The sequence here was that it was

indicated in the original course notification that the pool of eligible people were those who

had Leaving Certificate only. The proposed expanded pool of people would include those

who had the Level 5 NQF, which is a wider pool. It seems to me that the original course

notification, therefore, did contain what I would describe as a communication of intent

that only those with a Leaving Certificate would be considered and I think there has been

a changing of the goalposts here, to use the terminology used by MacGrath J. in the case

17. I wish to make some additional comments. First of all, I am keenly aware that the

applicant did not do anything in order to come into those goalposts after the goalposts

had been set. For example, unlike the Morrissey case, he did not engage in a course of

action in order to come within the published criteria. In Morrissey, the applicant had

repeated his Leaving Certificate, thinking that he could combine his previous year’s

results with the present year’s results, had dropped maths as a subject, and then the

goalposts were changed. Here, the applicant did not do anything like that. He apparently

already had a Leaving Certificate before the Course Notification was published, so it is not

like the Morrissey case in that respect. However, the authorities, as already noted,

establish that it is not necessary to show that a person has done something in reliance on

the communication or that he or she acted to your detriment (in contrast to the doctrine

of promissory estoppel). Undoubtedly, it would strengthen a person’s case if he or she

had done so, but it is, as I understood the doctrine, not a necessary requirement in order

18. I have also taken into account that the eligibility criteria in relation to the academic

qualifications are set by the external body, the NASC, and not the respondent itself. But

on the facts of this particular case, it seems to me that the Defence Forces would be at

liberty to make the pool of eligible applicants smaller than the pool considered eligible by

the NASC, if they wanted to. Here they seem to have done it by mistake, but they could

also have done this if they wanted to. They could not, I would emphasise, make the pool

of eligible candidates bigger in a way which contravened the external body’s criteria. So,

for example, if they had advertised the post or the placement in such a manner as to

allow for people to apply if they had not only a Leaving Certificate but a Junior Certificate,

that would not satisfy the NASC requirements, and the case would raise different issues

to those in the present case. It might perhaps raise an issue similar to cases such as

Palmer v. Minister for Defence [2014] IEHC 446, where the applicant, who had already

embarked upon the course in question, had his submission of a legitimate expectation

rejected because of the requirement that he be under 40 years of age, which he was not.

Here, however, the NASC actually does accept people with Leaving Certificates and the

applicant has a Leaving Certificate. Insofar as the respondent may have mistakenly

narrowed the pool of eligible applicants, those who fall within the narrower pool were

eligible to do the paramedic course and so there is no obstacle of that kind to the

respondent being held to its communication of intent that it would only select from the

19. I also wish to make a comment about the relationship as I understand it between

mistakes and the doctrine of legitimate expectation. The position of the respondent,

insofar as it had a desire to re-conduct the interviews and re-select people for the course,

arose from two mistakes that were made by the respondent itself; the first relating to the

matrix weighting, and the second relating to the minimum academic qualification of

eligible applicants. The doctrine of legitimate expectation seems frequently to involve

statements or communications which were made on foot of mistakes. It seems to me in

the limited time I have had to read the authorities that the presence of a mistake does

not determine of itself whether or not the doctrine will succeed in any particular case. It is

simply a frequently observed phenomenon in these cases for the obvious reason that

often a public body may want to change its position on a decision precisely because a

prior decision or a provisional view was made on a mistaken basis. Sometimes a public

body cannot be held to a previous communication of intent where it was based on a

mistake such as the Wiley decision or Palmer; and sometimes it can. The outcome

20. A separate point I want to deal with is whether or not the legitimate expectation

argument could have been successful in this case solely on the ground that the applicant

had been told he was entitled to the position. In other words, whether he could have

relied solely on the communication of 5th June, 2019 (telling him he had the place)

simpliciter. In other words, if a public body, having interviewed someone for a position,

tells the person they have successfully obtained the position, would that in itself mean

that the person had a legitimate expectation to take up the position in all circumstances?

This would seem to me to be a very far-reaching finding and one which would go

considerably beyond any previous authority on the doctrine of legitimate expectation. It

seems to me in principle that if the doctrine is about holding a public body to a prior

communication about what decision it will make (or how it will go about making the

decision), then the decision of the public body itself cannot be the means for generating

the legitimate expectation, as it becomes something of a circular argument.

21. Accordingly, if it were not for the academic qualification or Leaving Certificate/Level 5

issue referred to earlier, I would have found against the applicant. In particular, if the

respondent had decided to re-run the interview process on the basis of a different matrix

but with the same pool of applicants, I would not have quashed that decision or granted

relief to the applicants, but the additional factor of changing the criteria for eligibility from

Leaving Certificate to Leaving Certificate or a Level 5 seems to me to draw in the doctrine

of legitimate expectation. It seems to me to move the case across the line from a bare

expectation to a legitimate expectation that the candidates would be drawn from a

particular pool of applicants (those with a Leaving Certificate), as originally communicated

to prospective candidates by the respondent. I must say that I think the case is borderline

and it has caused me a lot of reflection but, on balance, I do think that it creeps over the

line between mere expectation and legitimate expectation within the meaning of the

22. I also wanted to mention the negative factors identified by Clarke J. in the Letts decision.

It seems to me that what he was expressing there was something about the delicate

relationship between holding a public body to a promise where it changes its mind, on the

one hand, and various requirements of statute or questions of vires or questions of

policy, on the other. It is a difficult balance to hold but I do not think in the present case

that there are any of those negative countervailing reasons which would prevent the

applicant from getting the relief sought. For example, there is no issue of cutting across

any policy of the respondent. It was a simple mistake (in connection with the Leaving

Certificate/Level 5 issue). The next time around the respondent can use whatever matrix

it wishes to use, and it can also ensure that it adheres closely to the criteria employed by

the NASC itself and that there is no slippage in this regard. I do not think there is any

interference with policy, nor does any issue arise in relation to forcing a public body to do

something unlawful or ultra vires simply because it had previously represented that it

would do something. There is no such issue here. The example was raised in argument

before me of a board member making a decision and it subsequently emerging that he or

she was not entitled to sit on the board. There can be very difficult issues in such cases in

balancing the various issues involved; on the one hand, holding a public body to what it

has said it will do, and on the other, having regard to the various constraints within which

a public body operates. I do not think those countervailing considerations arise here.

23. As I say, I am not convinced by any argument that the applicant was entitled to a place

on the course simply because he had been told he had achieved the place, nor on any

implicit argument about the fact that the matrix was going to be changed in the new

interviews, but I am persuaded by the Leaving Certificate/Level 5 argument that a

legitimate expectation had arisen and in the absence of negative countervailing factors, it

24. On a final note, I should say that there was argument at the outset of the hearing (which

took place on the Friday before the Monday on which the paramedic course was due to

start) as to the admissibility of affidavits (on both sides) which would have raised

significant additional issues concerning the circumstances in which the 2019 matrix came

to be used in the interview process. This would have prevented the case from concluding

on the Friday itself. The sequence of events in this regard had been commenced with the

late filing (on the Wednesday) of an affidavit on behalf of the applicant, which led to a

robust response by way of affidavit(s) on behalf of the respondent. The respondent

submitted that the affidavits should be received and the additional issues should be aired

in order that the Court would hear the full extent of the factual background to the case.

However, the respondent had originally filed a Statement of Opposition and affidavits in

the full knowledge of the alleged circumstances and had originally chosen not to ventilate

them in Court. It only sought to do so when the applicant sought to introduce the

additional material at the last minute. In those circumstances, and given the time-frame

between the hearing and the course commencement, I ruled against the admissibility of

the additional affidavits (from all sides - both applicant and respondent), and I heard and

decided the case on the basis of the affidavits and pleadings as they had stood three days

before the hearing. Accordingly, my finding that the use of the 2019 matrix was a mistake

was based upon the limited evidence before me.

Result: Reliefs granted. The applicants were permitted to undertake the paramedic course.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Elder v The Minister For Defence & ors [2019] IEHC 716 (22 July 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_716.html Cite as: [2019] IEHC 716

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