Supporting Documents:
Redacted Copy of Supreme Court Application fo.5GZ.pdf

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

Result: The Court extends time for the bringing of this application and grants leave to appeal.

Reasons Given:

1 The applicant seeks leave to appeal to this Court pursuant to the provisions of Article 34.5.4 of the Constitution which permit of an appeal direct from the High Court to this Court, where there are exceptional circumstances, and the appeal involves a point of law of general public importance or where it is in the interest of justice that an appeal should be brought to this Court.

2 The criteria upon which the Court will grant leapfrog leave have been discussed in a number of determinations most notably Fox v Mahon [2015] IESC Det 2, Barlow v The Minister for Agriculture Food and the Marine [2015] IESC Det 8, Crayden Fishing Company Limited v Sea Fisheries Protection Authority & ors [2016] IESC Det 77, and In re the Adoption Act 2010 s.49(2), and In the matter of JB a minor and KB a minor CB and PB and the Attorney General [2017] IESC Det 25.

3 In this case the High Court (McDermott J) delivered a judgment on the 24th of April 2017 concerning the jurisdiction of the first named respondent to extend time for the making of an application for redress under s.8(2) of the Residential Institutions Redress Act 2002. The case also concerns the validity of the provisions of Order 84 Rule 21(3)(b)(i) and (ii) which reduced the period within which an application for certiorari might be made from six months to three months and also provided that time could not be extended unless the application established a good and sufficient reason for extension and that the circumstances that resulted in the failure to make the application within the three month period were outside the applicant’s control and could not reasonably have been anticipated by him or her.

4 On the 21st of January 2008, the applicant made an application for redress in respect of his treatment at an industrial school. The statutory period under s.8(1) of the 2002 Act had expired on the 15th December 2005, and therefore if the application was to be entertained it was necessary for him to secure an extension of time pursuant to s.8(2). On the 9th of January 2012, the respondent Board delivered a ruling in which it refused his application for an extension of time. He did not seek to challenge that decision at the time. On the 26th of June 2014, the applicant requested a consideration of the decision. By letter of the 28th of July 2014, the solicitor to the Board responded and indicated that the chairman was satisfied the Board had exhausted its statutory function. By further letter of the 24th of November 2015, the applicant wrote to the Board requesting that it review its decision in the light of the Supreme Court decision in OG v The Residential Institutions Redress Board [2015] IESC 41. On the 3rd of February 2016, the Court of Appeal delivered judgment in J. McE. v The Residential Institutions Redress Board [2016] IECA 17, which it is argued indicated that the Board had applied an unduly narrow test in its interpretation of s.8(2). On the 18th of March 2016 an application was made for leave to apply for judicial review to challenge the determination of the Board of the 9th of January 2012, refusing the extension of time. A declaration was also sought against the Superior Court Rules Committee and the Minister for Justice that the provisions of Order 84 were ultra vires their respective powers because of the substantive and impermissible restriction on the right of access to the Courts.

5 As already set out, on the 24th of April 2017 the High Court (McDermott J) delivered a judgment dismissing the application. The applicant now seeks leave to appeal direct to this Court pursuant to the provisions of Article 34.5.4. In their respondent’s notices the Board and the Rules Committee and Attorney General indicate that they consent to the application and to the extension of time for bringing it.

6 It is perhaps important to observe that the jurisdiction of this Court is expressly provided for by the Constitution. Jurisdiction to hear an appeal cannot be conferred by the mere consent of the parties. It is necessary for the Court to be satisfied in each case that the constitutional test has been satisfied. Where a respondent consents to or indicates an intention not to oppose leave, and because it accepts that the constitutional threshold is met, that is of course of considerable assistance to the Court in arriving at its own decision. However, in all cases it is necessary to address the constitutional threshold: parties cannot agree to a leapfrog appeal simply because it is perceived as presenting a more convenient or speedy path to resolution. The capacity to appeal direct from the High Court under Article 34.5.4 is not intended as an alternative route to appeal to the Court of Appeal: rather it is reserved to those cases which can satisfy the Supreme Court that in addition to the point of general public importance or the interests of justice in the case, there are exceptional circumstances justifying such an appeal.

7 Here the essential issue is whether a change in the jurisprudence can itself be a sufficient ground for extending time under s.8(2) and whether the limitations imposed under Order 84 Rule 21(3)(b)(i) and (ii), are intra vires the powers of the rule making committee. These are undoubtedly substantial issues, but in the normal course they would properly be the subject matter of appeal to the Court of Appeal. Indeed, the very point raised here is dependent on the fact that an adverse decision of the Board was challenged in the High Court, and the decision quashed on appeal to the Court of Appeal. In the normal course of events therefore, the Court of Appeal would be the normal route by which the correctness or otherwise of the High Court decision would be determined.

8 However here, the respondent points out that the Redress Board is required to be dissolved on the completion of the performance of its functions. By statute the Board is not permitted to consider an application for an extension of time made on or after the 17th of December 2011. This case was, at the time it was heard in the High Court, the last remaining judicial review in respect of the Redress Board’s work. It had by that stage processed 16,650 applications for redress and there were no other legal applications pending before it, legal costs had been resolved in all but one of those cases, and the Board was operating on a skeleton staff. In the aftermath of this application a number of applications were brought, and there are now ten cases which currently stand adjourned in the High Court judicial review list awaiting the outcome of this appeal. In addition the challenge to the validity of the amendment to Order 84 is one of general importance. In both cases, the issue is one of law which is unlikely to be different in any way if there were an appeal to the Court of appeal.

9 The Court is satisfied therefore that the issues raised in this appeal are matters of general public importance. The true interpretation of a provision in a remedial statute permitting the extension of time for an application is itself important. The validity of the provisions of Order 84 are also matters of general importance. The Court is also satisfied that the matters set out above constitute exceptional circumstances warranting a direct appeal to this Court. Accordingly the Court grants leave to appeal to the Supreme Court, on the grounds set out at paragraph 6 of the application for leave.

And It is hereby so ordered accordingly.