A Defence Forces legal officer wants to bring a High Court challenge in a dispute which erupted when he accused his superior officer of abusing his rank.
Lieutenant Colonel Fintan McCarthy, legal officer at the Defence Forces training centre at the Curragh Camp in Kildare, is asking the court to halt an investigation into allegations that he was insubordinate to the Director of Legal Services Colonel Jerry Lane.
Yesterday Mr Justice Charles Meenan adjourned Lt Col McCarthy's application for leave to bring proceedings to next month after expressing concern that the matter should be dealt with through industrial relations machinery rather than through judicial review.
He said if he was to grant the leave sought it could tie down the whole legal section of the Defence Forces in litigation for some time, would be very costly and have serious knock-on effects for that section. The parties should "step back and see what vista is going to be facing them," he said.
Mark Harty SC, for Lt Col McCarthy said there had been attempts at mediation. However, counsel said he would write with the judge's comments to the force's Deputy Chief of Staff (Support) against which the case is being brought.
Complaint
In his action, Lt Col McCarthy says in October 2019 he lodged a complaint with the General Officer Commanding that Col Lane had abused his rank and authority by removing a course available to officers with the US Judge Advocate General Corps.
Lt Col McCarthy also claimed Col Lane displayed unacceptable behaviour towards Defence Forces legal officers and had discontinued the availability of overseas service with UNIFIL for legal officers.
Lt Col McCarthy said three weeks later he withdrew his complaint after he learned it had been reclassified in such a way which he says would have trivialised the seriousness of his complaint.
Col Lane sent him an email the following February saying his "misbehaviour and your failure" to correct his insubordinate behaviour for four months raised questions about Lt Col McCarthy's "judgment, failed professional standards and you manifest lack of respect and integrity".
The following month, Col Lane told him he would seek to bring formal insubordination charges against him unless he received an unequivocal apology, an undertaking not to repeat his behaviour and to “positively engage” in future.
He gave Lt Col McCarthy until 4.30pm on May 7th, 2020 to do so.
Under investigation
Lt Col McCarthy then submitted a "redress of wrongs" complaint to his General Officer Commanding and also made a protected disclosure about what he says were the actions of Col Lane. That matter is still under investigation.
In June 2020, Col Lane submitted formal military charges against Lt Col McCarthy alleging, among other things, insubordination and making a false accusation against a superior officer.
Last month, the Chief of Staff of the Defence Forces appointed an officer of the rank of colonel to investigate the insubordination charges against him.
Lt Col McCarthy then sought to bring High Court proceedings alleging the appointment of the investigator by the Deputy Chief of Staff (Support) was unlawful, unjustified and in contravention of fair procedures and natural justice.
He claimed the investigation should be stopped because of delay and because the existence of the charge sheet and the "oppressive behaviour of Col Lane" are the subject of a Protected Disclosure investigation by the Department of Defence. They were also the subject of an investigation into his "redress of wrongs" complaint.
He says he had a legitimate expectation that the charges would not be brought on the basis that he withdrew his original complaint about Col Lane, as he had.
