knowledge | 20 January 2016 |
Time Limits in Statutory Appeals: An Important Judgment
The High Court has issued important guidance on the circumstances in which it will extend the time available to a party to appeal to it from a decision of a statutory body.
Rights of appeal exist to the High Court from decisions of various regulators, administrative decision-making bodies and statutory tribunals, under a myriad of statutory provisions. Each different statutory provision may or may not deal with the scope of the right of appeal; the circumstances in which an appeal is permitted; and the time limit for appeals. Different language may sometimes be used. Often, the High Court is expressly empowered to extend the time limit for an appeal, or the statutory provision is silent on time limits.
Ambit of Order 84C
The High Court’s rules of procedure include a generic provision on statutory appeals (displaced only where special rules of procedure exist for the kind of appeal concerned). This generic provision, included in order 84C of the Rules of the Superior Courts, supplements the relevant statutory provisions “
where any enactment provides for an appeal to be made to the High Court or to a judge of the High Court from a decision or determination made or direction given by a person or body, other than a court, which person or body is authorised by any enactment to make such decision or determination or give such direction (the “deciding body”), and provision for the procedure applicable is not made either by the enactment concerned”. Order 84C applies subject to any requirement of the relevant statute.
As regards time limits, order 84C, rule 2(5) provides that, subject to any provision to the contrary in the relevant statute, the appeal must be initiated:
“(a) not later than 21 days following the giving by the deciding body to the intending appellant of notice of the deciding body’s decision, or
(b) within such further period as the High Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.”
The application to extend time under rule 2(5)(b) can be made after the 21 day period has expired.
Case before the Court
In Keon v Gibbs1, the High Court considered for the first time what is “good and sufficient reason” for extending the 21 day period under rule 2(5)(b). The appellant sought to appeal a decision of the appeal tribunal of the Residential Tenancies Board awarding damages for arrears of rent to a landlord’s receiver.
The tribunal’s determination stated that it would “on expiry of the period of 21 days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then”.
The appellant’s lawyer initially submitted a form of appeal to the Residential Tenancies Board itself 28 days after the date of the determination, then wrote to the receiver expressing an intention to appeal, and finally applied to the High Court to extend time to appeal some seven weeks after the date of the determination.
In considering the application to extend time, Baker J noted that the common law test for an applicant seeking to enlarge time to appeal was established by the Supreme Court in Eire Continental Trading Company Ltd v Clonmel Foods Limited2 as a three stage test that required an applicant to show (i) that he had a bona fide intention to appeal within the time limit; (ii) that there was an element of mistake (and mere procedural error is not sufficient), and (iii) that there were arguable grounds of appeal. Though there was no authority on how this test interacted with the “good and sufficient reason” test in order 84C, Baker J concluded that the court must look to the reason for the delay and analyse the explanation offered, so that the mere fact that the intended appellant was just days out of time would not be determinative.
Baker J concluded that the “good and sufficient reason” test requires the court to consider whether the intended appellant has arguable grounds of appeal. This is especially so because order 84C also requires consideration of the risk of injustice or prejudice to any other person concerned.
Following careful analysis of the authorities, Baker J concluded that a court hearing an application to extend time under order 84C must have regard to:
- the reason for the delay, and whether a justifiable and sufficient excuse is shown (noting that in general, a fault on the part of a legal adviser is not a sufficient excuse or reason);
- the length of the delay (noting that a short delay can relatively easily be excused);
- the absence of an express requirement that an intending appellant must have formed the intention to appeal within the time limit, though this intention could be a factor;
- whether the appeal is arguable, or put negatively, whether the attempt to appeal is vexatious, frivolous or oppressive to the other party; and
- whether the extension of time is likely to cause prejudice to the other party, which can include litigation prejudice, where the passage of time has resulted in the loss of evidence or witnesses, but also a more general prejudice that an extension of time delays the conclusion of litigation and prevents the winning party from recovering on foot of the decision, and where an appeal may be merely tactical, or is unlikely to succeed.
On the facts, Baker J was not satisfied that a good or sufficient explanation for the delay in lodging the appeal was shown and was not satisfied that the appellant had made out arguable grounds of appeal. In those circumstances, the interests of the landlord far outweighed those of the appellant to seek to prosecute an appeal which the court considered had no stateable basis in law, and an extension of time was refused.
Because order 84C is a generic statutory appeals provision which can be engaged in a vast range of circumstances, the test enunciated in this case is likely to be of extremely broad application, and the outcome of this application is a salutary warning to those who may wish to appeal from decisions of regulators, administrative decision-making bodies and statutory tribunals (and their lawyers) to ensure they do so within the time limit, or risk having to meet quite an onerous test to secure an extension of time.
- Keon v Gibbs  IEHC 812, judgment of 21 December 2015
- Eire Continental Trading Company Ltd v Clonmel Foods Limited  1 IR 170
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.