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1. This is an appeal against the judgment and order of Kelly J. dismissing the Applicant's application pursuant to Order 28, Rule 1 of the Rules of the Superior Courts to amend his Points of Claim in the above entitled action. The Applicant had sought to amend his points of claim so as to include a claim that the first named Respondent conspired with other named and unnamed parties to procure the dismissal of the Applicant from his office as Chairman of Coras Iompair Eireann.

2. The background to the Applicant's proceedings and to the motion to amend his points of claim is fully set out by the learned High Court Judge in his judgment delivered on the 26th November 1999. It may be summarised as follows.

3. The Applicant was appointed to the office of Chairman of Coras lompair Eireann by the then Government for a term commencing on the 1st July 1994 and ending on the 30 ^th [*2] June 1999. He ceased to hold that office on the 25th April 1995. The circumstances in which he left office are very much in issue in these proceedings. The Applicant contends that he was wrongfully dismissed. The Respondents deny this and contend that he resigned from the office.

4. On the 25th March 1996 McCracken J. in the High Court granted the Applicant leave to apply for judicial review in respect of his alleged dismissal from office on the 25th April 1995. The principal relief sought in these proceedings was an Order of Certiorari to quash "the decision of the first named Respondent to dismiss the Applicant from his position as Chairman of Coras Iompair Eireann with effect from the 25th April 1995 ". The Applicant at that stage also sought reinstatement in his position, an order declaring that the Minister or the Government in dismissing the Applicant was obliged to comply with the requirements of Section 7(4) of the Transport Act 1950, and a number of further orders, together with damages. Since the application for leave was made well outside the period prescribed by Order 84 Rule 21 of the Rules of the Superior Courts, McCracken J. granted an extension of time for the making of the application. The Applicant in his grounding affidavit explains his delay as being due to severe personal pressure arising out of allegations of wrongdoing made against him at the time when he ceased to be Chairman of C.I.E.

5. On the 23rd May 1996 the Respondents filed their Statement of Opposition and an affidavit in support thereof was sworn by John Loughrey , the Secretary to the Department of Transport, Energy and Communications. Further affidavits were exchange d between the parties and discovery was made by the Respondents.

6. On the 14th July 1997 Smyth J. by consent ordered that the action should stand adjourned for plenary hearing and gave liberty to the Applicant to deliver a statement of claim [*3] within three weeks from that date with the like period being afforded to the Respondents to deliver a defence.

7. On the 8th October 1997 the Applicant's delivered Points of Claim. Points of Defence were delivered on the 9th March 1998. The Applicant took no further steps in the proceedings until a Notice of Intention to Proceed was served on the 23rd June 1999. This was followed by the issue of the Notice of Motion seeking leave to amend the Points of Claim which was dated 27th July 1999 and made returnable for the 18th October 1999. This Motion came on for hearing before the learned High Court Judge on 15th November 1999. Following the hearing the learned High Court Judge reserved his judgment. On 26th November 1999 he gave judgment and made an order dismissing the Applicant's motion.

8. The points of claim as originally delivered set out the Applicant's claim as follows:

9. Particulars of breaches of the rules of natural and constitutional justice were pleaded.

10. The Applicant sought the following reliefs:

11. In support of his Motion to amend his points of claim the Applicant filed three affidavits. The Respondent filed a replying affidavit. The content of these affidavits is helpfully set out by the learned High Court Judge in his judgment as follows:

12. In his judgment the learned High Court Judge drew attention to the fact that the Applicant’s original proceedings were by way of judicial review. Despite the consent order made by Smyth J. adjourning the matter for plenary hearing, he considered that the proceedings began as judicial review proceedings and so remained. In regard to judicial review proceedings in general Kelly J. stated (at page 8):

13. The learned Judge held that the Applicant in the present case had confined himself to an application for leave to amend the Statement of Claim. By so doing he had placed himself within the literal provisions of Order 28 Rule 1. But he had avoided what in reality he ought to be seeking, namely, leave to amend the original grounds in respect of which he was given permission to seek judicial review. This would be subject to a much more stringent test than that applying under Order 28 Rule 1.

14. Despite his opinion that the application of the more stringent judicial review test was the correct way to approach the matter, the learned judge stated that he would treat the application as one falling to be dealt with under Order 28 Rule 1. Nevertheless, he rejected the application for leave to amend. He considered that the addition of the conspiracy claim was not necessary for the purpose of determining the real question in controversy between the parties, which was whether or not the Applicant was dismissed or resigned. He laid considerable weight on the fact that it was conceded by Counsel for the Respondents that if the Applicant at the hearing of the action satisfied the Court that he had in fact been dismissed he would have to succeed since under Section 7(4) of the Transport Act 1950 only the Government (and not the Minister) had power to dismiss the Applicant. Kelly J. concluded:

15. The learned judge went on, however, to point out that if the application was considered as one to amend the grounds for seeking judicial review it would also fail as it did not demonstrate any exceptional circumstances which would justify such an order being made. He also severely criticised the various periods of delay which had occurred during the prosecution of the Applicant's proceedings and concluded by pointing out that delay of this type was not desirable and tended to defeat the purpose for which the judicial review procedure was designed.

16. At the hearing of the appeal before this Court Senior Counsel for the Applicant, Mr Hogan, submitted that the learned trial judge had erred in determining that a claim of conspiracy had no relevance to the relief sought by the Applicant and that the claim was not necessary for the purpose of determining the real questions in controversy between the parties. Senior Counsel for the Applicant had in the High Court conceded that the claim of conspiracy would be relevant only to the relief claimed at paragraph (f) of the prayer in the Points of Claim (see above); the Applicant no longer wished to be bound by this concession. Senior Counsel for the Respondents, Mr Paul Gallagher, agreed that he did not wish to rely on the concessions made by Senior Counsel in the Court below but nevertheless contended that the concessions were materially true.

17. Mr Hogan went on to submit that the claim of conspiracy, if established, would be highly relevant not alone to paragraph (f) but also to the claim for an Order of Certiorari and to the claim for damages. He also submitted that even if the Applicant would succeed by establishing that he was dismissed as opposed to resigning, this should not necessarily [*11] prevent him from relying in addition on an another ground, the ground of conspiracy. Such a ground, Counsel suggested, would if established enable the Applicant to demonstrate a combination of illegality and malice, possibly enabling the Applicant to recover exemplary damages (Counsel here referred to Conway v INTO [1991] 2 IR 305).

18. In this context Mr Hogan referred to Krops v The Irish Foresty Board [1995] 2 IR 113 . That case arose out of a road traffic accident when the Plaintiff’s wife was killed when the car she was travelling in was struck by a falling tree. The Defendants had been felling trees in the area at the time. The Plaintiff issued proceedings claiming damages arising out of the death of his wife and alleging that the tree had fallen as a result of the negligence, breach of duty and breach of statutory duty of the Defendants. In 1994, after the period specified by the Statute of Limitations had elapsed, an application was brought to amend the Statement of Claim by adding an allegation of nuisance. Keane J. allowed the Plaintiff to amend his Statement of Claim to include the fresh ground of nuisance.

19. As far as delay was concerned, Counsel for the Applicant submitted that the facts became known to the Applicant only in or about the 10th September 1998. Given the seriousness of the allegation of conspiracy it was reasonable for further investigations to be carried out; these were, in fact, directed by Counsel. The delay in bringing the Applicant's motion was not unreasonable.

20. Senior Counsel for the Respondents, Mr Gallagher, relied on the fact that the Applicant had chosen to initiate his proceedings by way of judicial review. He submitted that because the Applicant had chosen both to initiate his original complaint within the framework of a judicial review application and to add his alleged conspiracy claim to those proceedings, he must necessarily subject himself to the strictures that would have applied had he included the new matters as part of his claim when he sought judicial review originally. In regard to [*12] these strictures, Mr Gallagher referred (as had the learned trial judge) to the test established in McCormack v Garda Complaints Board [1 997] 2 IR 489 :

21. Mr Gallagher pointed out that the evidence upon which the ground of conspiracy was based was entirely hearsay. He also stressed the various delays which had occurred in the proceedings, culminating in the fact that the motion for leave to amend was not brought before the Court until four and a half years after the alleged unlawful dismissal. While the Applicant offered some explanation for his delay up to September 1998, there was no satisfactory explanation of the delay from September 1998 to July/October 1999. Vague references to further investigations were not sufficient.

22. In addition, Counsel for the Respondents submitted that the Respondents would suffer prejudice in their defence because the evidence largely revolved around the assertions of Mr Brennan, who was now deceased. Mr Rooney had instituted separate proceedings of his own arising from his membership of the Bord of C.I.E. but had not made similar allegations in those proceedings. Mr Gallagher also pointed out that there was no claim in the pleadings, even if amended as sought by the Applicant, for exemplary damages. He referred to the judgment of [*13] Finlay C.J. in Conway v INTO [1991] 2 IR 305 at page 321 , where the learned Chief Justice stated:

23. In reply, Counsel for the Applicant submitted that the fact that Mr Brennan had died would be equally, and indeed more, prejudicial to the Applicant's case. As far as the facts surrounding the alleged conspiracy were concerned, both parties were in an equal position.

24. As far as the inclusion of a claim for exemplary damages in the pleadings was

25. Finlay CJ stated:

26. In the event in that case this Court accepted that the judge in the High Court was entitled to consider the question of exemplary damages despite the fact that no claim for such damages was made in the pleadings.

27. In his Notice of Motion the Applicant sought leave to amend his points of claim pursuant to Order 28 Rule 1 of the Rules of the Superior Courts. Order 28 Rule 1 provides as follows:

28. Both in the High Court and in this Court the issue of the amendment of the Applicant's pleadings has been affected by, and to some extent complicated by, the fact that the Applicant commenced his proceedings by way of judicial review. It is in some ways difficult to understand why he took this course. On general principles there is no reason why he should not have sought relevant and effective reliefs in connection with his alleged dismissal by way of plenary proceedings for wrongful dismissal rather than by seeking an Order of Certiorari. I have no doubt that this aspect of the matter was present in the mind of the learned Smyth J. when he made the consent order of 14th July 1997 directing that the [*15] action be adjourned to be heard as plenary proceedings and that a statement of claim and defence be served. In my view from that point onwards the action should in effect be regarded as plenary proceedings. The learned High Court Judge was, therefore, correct in his approach as stated at page 9 of his judgment where he held that he would treat the application as though it fell to be dealt with solely under Order 28 Rule 1 and without reference to the fact that these were judicial review proceedings.

29. The main ground for the learned trial judge's rejection of the Applicant's motion was that the addition of the conspiracy claim was not necessary for the purposes of determining the real questions in controversy between the parties - whether the Applicant was dismissed or resigned. While it is, of course, true that if the Applicant establishes that the Minister purported to dismiss him he must, under the Statute, succeed in this aspect of his case, I would accept Mr Hogan's argument that this should not prevent the Applicant from putting forward another ground. Indeed in his oral submissions to this court Counsel for the Respondents did not really oppose this submission by Mr Hogan. I would also accept that the claim of conspiracy, if established, would be relevant not only to the claim that the Minister was bound to comply with the provisions of natural and/or constitutional justice but even more cogently to the whole issue of damages. In my view, therefore, the learned trial judge erred in dismissing the Applicant's application on this ground.

30. As regards the other grounds dealt with in the judgment, while the learned judge specified that his approach was pursuant to Order 28, Rule 1, it seems to me that, on consideration of the judgment as a whole, the learned High Court Judge's view of the application continued to be influenced by the origin of the proceedings in judicial review and by the standards which the Court should, and does, apply in regard to judicial review proceedings. As he states (at page 8 of his judgment) "the mere fact that such an order (the [*16] order of Smyth J) was made does not, it appears to me, alter the character of these proceedings. They began as judicial review proceedings and so they remain."

31. The trial judge's criticisms of the delays which have occurred in the Applicant's proceedings are both understandable and justified, but are, I think, more closely related to the standards applicable to judicial review rather than to the standards which have been applied by this Court and the High Court in dealing with delay in plenary proceedings.

32. Much the same applies to the arguments in the context of delay which were made to this Court by Counsel for the Respondents. Mr Gallagher also lays great stress on the judicial review origins of the proceedings and the standards which apply to amendment of grounds for judicial review.

33. I accept that there has been undesirable delay in the prosecution of these proceedings. As Mr Gallagher submitted, the action was instituted very late in the day, and having been instituted late, has been progressed by the Applicant at an extremely relaxed pace. Indeed the amount of delay, and the repeated delay, is the strongest argument against permitting the inclusion of a new and distinct claim of conspiracy. However this is an application under Order 28 Rule 1, and the delays in the instant case are not outside the well established parameters of that rule. The operation of the rule was considered by the learned Kinlen J. in Bell v Pederson [1995] 3 IR 511. In that case an application to amend the pleadings in a substantial and important way was made on the morning of the trial. The learned Kinlen J. allowed the Defendants to amend their defence in the manner sought. In his judgment he approved the principles laid down by Keane J. in Krops v The Irish Forestry Bord Limited (supra) and referred also to the dicta of Lynch J. in Director of Public Prosecutions v Corbett [1992] ILRM 674 at page 678 : [*17]

34. Kinlen J. adopted this reasoning as part of the ratio of his judgment. It appears to me also to be an application of principle which is in accordance with justice.

35. Mr Gallagher, however, submits that the claim is based completely on hearsay and that the Respondents will be prejudiced in their defence by the death of Mr Brennan. There is no doubt that the Applicant will face very considerable evidential difficulties if he is to establish his claim of conspiracy. At least some of the evidence on which he proposes to rely can never be admissible due to the death of Mr Brennan. The death of Mr Brennan will indeed cause some prejudice to the Respondents in their defence but this, I consider, will be more than balanced by the difficulties which his death will cause to the Applicant in pursuing his claim. I do not, on balance, consider that the prejudice to the Respondent is sufficiently great to prevent the Applicant from endeavouring to establish his claim. [*18]

36. While submissions were made by Counsel on both sides in regard to exemplary damages, this is a matter which essentially falls to be decided by the trial judge at the hearing of the action and I make no comment upon it.

37. If the Applicant is permitted to amend his points of claim as sought by him he faces very great difficulties in establishing a claim of conspiracy. Nevertheless, the allegations which have been made on affidavit are of a very serious nature and cannot, it seems to me, merely be dismissed as being frivolous or vexatious. On balance it appears to me that to refuse to permit the Applicant to pursue this claim would be to do him an injustice. I would allow the appeal and would permit the amendments sought by the Applicant. I would direct that the amended points of claim should be served on the Respondents within 21 days of today's date. The Respondents should then have a period of 21 days to serve an amended defence.

38. Finally I would repeat and re-emphasise what was stated by the learned High Court Judge at the close of his judgment. It is to be hoped that there will be no further delay in the prosecution of this claim.