Supreme Court allows appeal by extending time, ruling acceptance bars appeal but Tribunal has locus standi.

THE SUPREME COURT

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

No. 322/2002

BETWEEN/

D.B.

Claimant/Respondent

and

THE MINISTER FOR HEALTH AND CHILDREN

AND THE HEPATITIS C COMPENSATION TRIBUNAL

Appellants

Judgment delivered on the 26th day of March, 2003 by Denham J.

1. This is an appeal by the Minister for Health and Children, the respondent/appellant, hereinafter referred to as the Minister, and the

Hepatitis C Compensation Tribunal, hereinafter referred to as the Tribunal, from the judgment of the High Court (O’Neill J.) delivered on

the 31st July, 2002.

2. D.B., hereinafter referred to as the claimant, brought a Notice of Motion dated the 22nd April, 1999, to appeal an award made by

the Tribunal. The claim of the claimant had been heard by the Tribunal on the 4th November, 1997, and he had been awarded

compensation. The Minister and the Tribunal submitted that his appeal was barred because the claimant had not only failed to appeal

the decision of the Tribunal within the one month statutory time prescribed for that purpose but that he had also signed an

acceptance of the award made in his favour by the Tribunal.

3. High Court Declarations

On the 11th September, 2002, the High Court declared that:

(i) Section 5(9)(a) of the Hepatitis C Compensation Tribunal Act, 1997 does not give rise to a statutory time limit of one month

on the making of an appeal to the High Court;

(ii) The acceptance of an award of the Tribunal pursuant to s. 5(9) of the Act does not exclude an appeal to the High Court

under s. 5(15) of the Act;

(iii) The Tribunal does not have a locus standi to appear on this application or in this appeal;

(iv) This court has jurisdiction under O. 122(7) of the Rules of the Superior Courts to extend time for the beginning of this

appeal;

(v) Time for the bringing of this appeal expired under O. 105A r. 2(1) of the Rules of the Superior Courts on the 22nd November,

1998;

(vi) This Court will exercise its discretion in favour of extending the time for the bringing of this appeal to the 23rd April, 1999.

4. High Court Leave to Appeal

The High Court gave leave, pursuant to s. 5(19) of the Hepatitis C Compensation Tribunal Act, 1997, for an appeal to be taken to the

Supreme Court on the following specific questions of law:

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time

specified in s.5(9)(a) of the 1997 Act has passed?

(ii) If not, is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

(iii) Does the Tribunal have a locus standi to appear in an application to the High Court or in an appeal?

The High Court ordered that the Minister and the Tribunal have leave to appeal the decision to the Supreme Court on the said

specified questions of law.

5. Grounds of appeal

The Minister appealed on the following grounds:

1. That the learned High Court judge failed to apply the correct test in determining whether or not the time limit set out in s.

5(9)(a) of the 1997 Act was mandatory or merely directory;

2. That the learned High Court judge erred in law in holding that the claimant’s appeal from the award of the Tribunal was not

barred notwithstanding that the time prescribed by s. 5(9)(a) of the 1997 Act had already expired;

3. That the learned High Court judge erred in law in failing to give the words used in s. 5 of the 1997 Act their natural and

ordinary meaning. The learned High Court judge did not correctly construe and interpret the provisions of s. 5 of the 1997 Act;

4. That the learned High Court judge erred in law in failing to hold that

s. 5(9)(a) of the 1997 Act imposes a statutory time limit of one month for the bringing of appeals against awards of the

Tribunal;

5. That the learned High Court judged erred in law and in fact in holding, in relation to the time limits for appeal, that the

intention of the Oireachtas was to treat equally those claimants whose claims had been dealt with by the Tribunal established

by the 1997 Act and those whose claims had been dealt with by the non-statutory tribunal in existence prior to the enactment

of the 1997 Act;

6. That the learned High Court judge failed to have regard to the difference in position between those claimants who, prior to

the 1997 Act, had accepted awards from the non-statutory tribunal and those claimants who, subsequent to the enactment of

the 1997 Act, obtained an award from the Tribunal established pursuant to that Act;

7. That the learned High Court judge erred in law in holding that the High Court had jurisdiction under the Rules of the Superior

Courts to extend the time for appealing an award of the Tribunal;

8. Further or in the alternative, that the learned High Court judge erred in law and in the exercise of his discretion by extending

the time for bringing an appeal by the claimant to the High Court;

9. That the learned High Court judge erred in law in the manner in which he interpreted O. 105A of the Rules of the Superior

Courts;

10. That the learned High Court judge erred in law in holding that the acceptance by the claimant of the award of the Tribunal

under s. 5 of the 1997 Act did not preclude the claimant from appealing the award to the High Court.

The Tribunal appealed on the following grounds:

1. That the learned High Court judge erred in law in holding that O. 105A r. 3(a) of the Rules of the Superior Courts does not

make the Tribunal a party to an appeal or application or give it a locus standi in any appeal or application.

2. That the learned High Court judge misdirected himself in law and erred in law in holding that the full facts of the proceedings

before the Tribunal are ascertainable in the High Court without the involvement of the Tribunal, and that consequently the

Tribunal was not a party to, or did not have locus standi to participate in the application.

3. That the learned High Court judged erred in law in holding that the Tribunal has no interest in the outcome of the appeal or

any application preliminary thereto and that consequently the Tribunal was not a party to, or did not have locus standi to

participate in, the application.

4. That the learned High Court judge erred in law in holding that the Tribunal is not a party to this appeal and does not have a

locus standi in this appeal and application.

5. That the learned High Court judge erred in law in construing and interpreting s. 5 of the 1997 Act and in particular s. 5(9)(a)

notwithstanding the natural and ordinary meaning of the words used therein to permit the Claimant/Respondent to make

application to the High Court notwithstanding the expiry of the time prescribed by the said s. 5 and/or the acceptance by him

of the Tribunal’s award within the said time.

6. That the learned High Court judged erred in law in holding that the claimant’s appeal from the award of the Tribunal was not

barred notwithstanding the expiry of the time prescribed by s. 5 of the 1997 Act and/or the acceptance by him of the Tribunal’s

award within the said time.

7. That the learned High Court judge misdirected himself and erred in law in failing to hold that s. 5(9)(a) of the 1997 Act

imposes a statutory time limit of one month on the bringing of appeals against awards of the Tribunal.

8. That the learned High Court judge erred in law in holding that O. 105A r. 2(1) of the Rules of the Superior Courts creates a

one-month time limit for appeals taken by claimants against awards of the Tribunal in the absence of any time limit contained in

s. 5(9)(a) of the 1997 Act;

9. That the learned High Court judge erred in law in holding that the Court had jurisdiction under O. 122(7) of the Rules of the

Superior Courts to extend the time for the bringing of the appeal;

10. That the learned High Court judge erred in law in the manner in which he interpreted s. 6 of the 1997 Act.

11. That the learned High Court judge erred in law in holding with regard to the applicable time limits for an appeal that it was

intended by the Oireachtas to achieve parity or equality between claims disposed of under the non-statutory scheme in

existence prior to the 1st November, 1997 and claims disposed of under the statutory scheme established on the 1st November,

1997.

12. That the learned High Court judge erred in law in holding that it was not the intention of the Oireachtas to create a one

month statutory time limit on appeals to the High Court pursuant to s. 5(9)(a) of the 1997 Act.

13. That the learned High Court judge erred in law in holding that an acceptance of an award pursuant to . 5(9)(a) of the 1997

Act does not exclude an appeal being made against that award to the High Court.

6. Facts

The claimant is a person entitled to compensation from the State by reason of the circumstances of his having contracted Hepatitis

C. On the 7th March, 1996, the claimant applied to the non-statutory Tribunal established to compensate certain persons who had

contracted Hepatitis C from the use of certain blood products supplied within the State. On the 1st November, 1997, the non-

statutory Tribunal was dissolved and the statutory Hepatitis C Compensation Tribunal was established in accordance with the

Hepatitis Compensation Tribunal Act, 1997, hereinafter referred to as the Act of 1997. Section 6 of the Act of 1997 provided for the

dissolution of the non-statutory Tribunal on establishment day. The Act of 1997 also provided that any claim which immediately

before the establishment day was pending before the non-statutory Tribunal should be heard and determined as if it was a claim

under the Act of 1997. The claimant’s claim had been commenced but not heard before the establishment of the Tribunal. Pursuant to

s. 6(2) of the Act of 1997, the claimant’s claim was deemed to be a claim made under the statutory Tribunal. The claimant’s claim

was heard by the Tribunal on the 4th November, 1997 and he was awarded compensation. On the 24th day of November, 1997, the

claimant made a written acceptance of the award. Under s. 5(10)(a) of the Act of 1997, the claimant was required (as a condition of

accepting the award) to agree in writing to waive any right of action which he might otherwise have against any party and to

discontinue any other proceedings instituted by him arising out of his infection with Hepatitis C. On 22nd April, 1999, the claimant

brought the Notice of Motion to appeal the award which is in issue in this appeal. I shall address the three questions in the order set

out by the High Court.

7. First question

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time

specified in s. 5(9)(a) of the 1997 Act has passed?

In order to determine the first question it is necessary to construe the words of s. 5(9)(a) of the Act of 1997 and then to apply the

construction to the claim of the claimant. This is the core of the case. The case turns on the interpretation of this section.

The Act of 1997 applies to the claimant, even though he made his claim initially to the non-statutory Tribunal. This arises because of

s. 6 of the Act of 1997 which states:

“6. – (1) On the establishment day the non-statutory scheme Tribunal shall stand dissolved.

(2) Any claim which, immediately before the establishment day, is pending before the non-statutory scheme Tribunal shall be

heard and determined as if it was a claim made under this Act.

(3) A person who has had a claim for compensation determined by the non-statutory scheme Tribunal may -

(a) apply to the Tribunal to hear evidence at the discretion of the Tribunal which was not made available to the non-

statutory scheme Tribunal in calculating the award made to that person,

(b) apply to the Tribunal to hear evidence on any statutory or non-statutory benefits which she or he has received or is

entitled to receive which were taken into account by the non-statutory scheme Tribunal in assessing an award to that

person,

(c) apply to the Tribunal for an award of aggravated or exemplary damages or an amount to be paid to her or him from

the Fund,

(d) apply to the Tribunal for the adjustment of any award made by the non-statutory scheme Tribunal to an award to

which she or he would have been entitled had section 2(1)(a) of the Civil Liability (Amendment) Act, 1996, been in force

at the time of making the award, or

(e) appeal an award.”

The establishment day was 1st November, 1997 and on that day the non-statutory scheme Tribunal was dissolved. The claim of the

claimant was immediately before the establishment day pending before the non-statutory scheme Tribunal and thus s. 6(1) and s.

6(2) apply to the claim of the claimant. His claim was heard and determined as if it was a claim made under the Act of 1997. Thus s.

5(9)(a) of the Act of 1997 applies to the claim of the claimant. However, s. 6(3) does not apply to the claimant as his claim was not

determined by the non-statutory scheme Tribunal.

8. Construction of the statute

The Act of 1997 provides some definitions. These are to be found in s. 1. Relevant definitions include the following; “Award” means an

award of compensation. This is relevant as s. 5(9)(a) of the Act of 1997 states:

“… where the Tribunal makes an award …”

Thus the award in the subsection is an award of compensation. Section 1 defines “prescribed” as meaning prescribed by regulations

made by the Minister. “The Minister” means the Minister for Health. Thus the term “prescribed” in the subsection refers to prescribed

regulations by the Minister for Health. “The non-statutory scheme Tribunal” is defined as the Compensation Tribunal for certain

persons who have contracted Hepatitis C within the State from Anti-D Immunoglobulin, whole blood or other blood products

established by the Minister on the 15th December, 1995.

It is necessary to consider the precise words of s. 5(9)(a). In construing statutes, words should be given their natural and ordinary

meaning. The approach taken by the courts to the construction of statutes was described by Blayney J. in Howard v. Commissioners

of Public Works [1994] 1 I.R. 101. He emphasised that the cardinal rule for the construction of statutes was that they be construed

according to the intention expressed in the acts themselves. If the words of the statute are precise and unambiguous then no more is

necessary than to give them their ordinary sense. When the words are clear and unambiguous they declare best the intention of the

legislature. If the meaning of the statute is not plain then a court may move on to apply other rules of construction; it is not the role

of the court to speculate as to the intention of the legislature. In that case I held also that statutes should be construed according

to the intention expressed in the legislation and that the words used in the statute declare best the intent of the Act. I took a similar

approach in M. O’C v. Minister for Health (Unreported, Supreme Court, 31st July, 2001) holding that it was well established that in

construing statutes effect should be given to clear and unambiguous words, for the words of the statute best declare the purpose of

the Act. In addition, in that case, I noted that a purposive approach would have yielded a similar result.

Section 5(9)(a) of the Act of 1997 states:

“Subject to subsection (13), where the Tribunal makes an award to a claimant, the claimant shall have a period of one month or

such greater period as may be prescribed from the date of receiving notice of the making of the award during which the

claimant may decide in writing either to accept or reject the award or to appeal the award under sub-s. 15.”

The words in s. 5(9)(a) are plain, they are precise and unambiguous. Thus the natural and ordinary meaning of the words apply for

they declare best the intention of the legislature. A literal approach should be taken to the section. I shall consider the section word

by word and its application to the claimant.

The words “subject to subsection (13)” are not directly relevant to this case as sub-s. 13 refers to an award to a minor and the

claimant is not a minor. The words “where the Tribunal makes an award to a claimant” are plain and clear. The “award” as defined in

the Act of 1997 means an award of compensation. An award of compensation was made by the Tribunal to the claimant in this case

on 4th November, 1997 and notice of the making of the award was sent by the Tribunal to the claimant on the 6th November, 1997.

The words “the claimant shall have a period of one month” are clear. This initial time span available to the claimant is one month.

Section 5(9)(a) provides that the claimant “shall” have a period of a month (or a greater time as prescribed by the Minister for

Health). The period of one month is an integral and indispensable part of the scheme. The words are plain and unambiguous. It is a

clear statutory time limit for the scheme. It is a statutory time bar. I am satisfied that this is a mandatory provision. I am satisfied

that the time limits expressed in the subsection are mandatory express statutory time limits. Thus actions must occur within these set

limits. In fact the claimant did accept the award on 24th November, 1997.

Section 5(9)(a) provides for an extended time limit. The words “or such greater period as may be prescribed from the date of

receiving notice of the making of the award” are governed by the term “prescribed”. “Prescribed” has been specifically defined in the

Act of 1997 as being prescribed by regulations made by the Minister for Health. Subsequent to the acceptance of the award by the

claimant the Minister did prescribe an extended time; see Hepatitis C Compensation Tribunal Act, 1997, Regulations 1998 (S.I. No. 195

of 1998). This extension of time is analysed by McGuinness J. and Geoghegan J. in judgments in this case. I agree with their analysis

and that the time extended by the statutory instrument was to 23rd November, 1998. However, the claimant did not appeal within

such a time. The claimant appealed by Notice of Motion dated 22nd April, 1999.

The period prescribed in the subsection was thus one month or the extended time prescribed by the Minister. There follow then key

words of s. 5(9)(a). These words are:

“. . . during which the claimant may decide in writing either to accept or reject the award or to appeal the award under

subsection (15).”

Once again these are clear words. They are precise and there is no ambiguity. The claimant may make a decision about the award. He

may decide in writing. The claimant has three choices. They are presented as alternatives. The claimant may decide to accept or

reject the award. Alternatively, the claimant may decide to appeal the award under sub-s. 15. Subsection 15 states:

“An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross-

appeal any such appeal.”

This provides for an appeal to the High Court in respect of any decision. It is an appeal within the scheme.

The claimant is thus given three alternative choices in relation to the award, one of which may be an appeal. However, the

Oireachtas clearly established a time limitation for the decision as to the award under s. 5(9)(a). This time factor is an important

aspect of this scheme of compensation. The scheme and section requires a clear situation at the termination of the time allotted: the

claimant may have decided to accept or reject the award or alternatively to have appealed the award.

The fact that a clear decision is sought to be established under the statutory scheme in the time allotted is emphasised by s. 5(9)(b).

By that section if a claimant has neither accepted nor rejected an award or appealed the award, the claimant shall be deemed to

have rejected the award. Thus, the statute establishes a scheme where within the month, or the period prescribed, a clear decision is

reached by the claimant or is deemed to be reached by law. In effect, either the claim of the claimant then proceeds in the Tribunal

scheme or it does not. The claim is either ‘tribunalised’ or it is not.

Whereas s. 5(13) is not directly relevant to the claimant’s case it is a useful analogy in that it emphasises the establishment of a

clear statutory scheme requiring that the matter be determined within the specified time. Thus s. 5(13) provides:

“(13) In the case of an award to a claimant who is a minor or in the case of a settlement for a claimant who is a minor, the

acceptance of the award shall be subject to the approval of the High Court, which approval shall be sought within one month of

the notification of the making of the award, and the claimant shall have one month from the date of such approval within which

to accept or reject such approved award. The High Court may direct that where it considers any part of such an award, in

respect of aggravated or exemplary damages, is too low, that the claimant shall apply to have a payment made from the

Reparation Fund in lieu of such damages.”

Thus, here too clear time limits are established and required to be met.

In essence, s. 5(9)(a) of the Act of 1997 gives to a claimant the option of using the Tribunal to achieve an award in lieu of going to

the courts. It is a statutory scheme. The scheme established in clear and unambiguous language in s. 5(9)(a) that there is a time limit

within which to make a decision under the scheme. There is a fluidity at the initial steps of the scheme. Claimants may apply to the

Tribunal for an award. This does not affect their right to apply to court. Indeed, time is frozen while such a claim is made. However,

once the award is made to the claimant, the claimant has the specified time in which to decide to stay within the tribunal system or

not. There are three choices and they are put in the form of two main alternatives under the statute. Claimants may either accept or

reject the award. Alternatively they may appeal the award under sub-s. 15. The words are plain and clear. The claimant must do one

of these three alternatives. If he accepts the award he has taken one of the alternatives and cannot proceed otherwise. If he rejects

the award he has made his choice and may then move into another arena. If he appeals then he has chosen to stay within the

Tribunal scheme; he has tribunalised his claim. However, these choices must be taken within the time frame clearly set out in the Act.

If he does not made a choice then, as set out previously, he is deemed to have rejected the award. Thus under the scheme a

decision either in fact or by law is made within the time frame of the subsection.

The words of s. 5(9)(a) are clear and unambiguous. The words mean what they say. Consequently a literal approach should be taken

to their construction. Applying a literal interpretation it is clear that the Act sets a mandatory time limit within which a decision as to

the award had to be made by the claimant.

The claimant received an award. The claimant decided to accept the award, his decision was made within the one month period. This

was one of the three alternative choices which he was entitled to make within one month. Later the Minister extended the time for

appeal. The claimant did not purport to appeal within that time. It is clear from the plain words of s. 5(9)(a) that a claimant is barred

from appealing an award of the Tribunal after the time set out in the statutory scheme has elapsed. Thus I would answer the first

question affirmatively.

I am satisfied that the words in s. 5(9)(a) of the Act of 1997 are clear and unambiguous and that the learned trial judge erred in

taking a purposive approach to the interpretation of the statute. Further, the learned trial judge erred in analysing the statute in a

general way from a concept of parity or equality between claimants proceeding at different times and under different provisions. The

plain language of the statute makes the intention of the Oireachtas clear. The Oireachtas treated applicants under the different

Tribunals differently. The schemes were different. The clear and unambiguous words of the statute set out the law. The Oireachtas

intended to treat non-statutory scheme Tribunal claimants in a different manner as to time limits within which to appeal. This was

provided for in the plain language of s. 5(9)(a).

9. Second Issue

If not, is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

As I have answered the first question affirmatively, the second question does not require a decision. However, for the sake of

completeness, I am satisfied that, as is apparent from the construction of the section set out previously in this judgment, applying

the same construction of the section results in an affirmative answer to this question. As stated previously, under the statutory

scheme the claimant has three choices after an award is made. These choices are in the alternative. These choices have to be made

within the mandatory time frame. The choices are to accept or reject the award. Or, alternatively, to appeal the award.

Consequently, a claimant who has accepted an award of the Tribunal is barred from appealing the award. As the claimant accepted

the award in this case he is barred from appealing the award.

10. Third Issue

Does the Tribunal have a locus standi to appear in an application to the High Court or on an appeal?

The Minister did not object to the Tribunal being heard but made no submissions in relation to this issue. On behalf of the claimant

submissions were filed which concluded that in the absence of any specific provision allowing the Tribunal to appeal or some other

overreaching interest of justice demanding an appearance on the appeal, the Tribunal has no locus standi.

Order 105(A) r. 3(4) of the Rules of the Superior Courts requires that the Tribunal be served with a copy of the appeal. I am satisfied

that in this case the service of the appeal serves to make the Tribunal a party. Order 125 of the Rules of the Superior Courts defines

a ‘party’ as including:

“… every person served with notice of or attending any proceedings, although not named on the record.”

In this case the Tribunal was served with the pleadings. Consequently the Tribunal has locus standi.

While it may be that in many cases the Tribunal would have nothing to add to the argument in others it may have a very significant

submission or argument to present to a court. This situation would include such cases as where the functioning and administration of

the Tribunal are in issue. As the Tribunal is an independent Tribunal the Minister would not be in a situation to represent the Tribunal.

It is for the Tribunal to ensure that the procedure is correctly applied and implemented in the Tribunal, and, consequently, that it be

heard in the appeal process. Thus I am satisfied that the Tribunal has a locus standi to appear in an application to the High Court or

on an appeal.

11. Conclusion

I am satisfied that the answers to the questions specified by the High Court should be in the affirmative, as follows:

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time

specified in s. 5(9)(a) of the Act of 1997 has passed?

Answer: Yes.

(ii) [If not], is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

Answer: Yes.

(iii) Does the Tribunal have a locus standi to appear in an application to the High Court or in an appeal?

Answer: Yes.

Consequently, I would allow the appeal.