IESC 22 · Supreme Court

THE SUPREME COURT

No. 322/2002

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF THE HEPATITIS COMPENSATION TRIBUNAL ACT, 1997

AND IN THE MATTER OF SECTION 6(3)(E)

AND IN THE MATTER OF SECTION 5(15) OF THE HEPATITIS COMPENSATION ACT, 1997

BETWEEN

D.B.

CLAIMANT/RESPONDENT

AND

THE MINISTER FOR HEALTH AND CHILDREN AND THE HEPATITIS C COMPENSATION TRIBUNAL

APPELLANTS

Judgment of Mrs Justice McGuinness delivered the 26th day of March 2003

This is an appeal by the Minister for Health and Children, the respondent/appellant (“the Minister”) and the Hepatitis C Compensation

Tribunal (“the Tribunal”) from the judgment of the High Court (O’Neill J.) delivered on the 31st July 2002.

Background

The legislative and factual background to the proceedings is set out by O’Neill J. in his judgment. There is also further reference to it

in the written legal submissions of the parties. In summary it is as follows.

On 15th December 1995 a non-statutory scheme was set up to compensate certain persons who had contracted Hepatitis C from the

use of Human Immunoglobulin-Anti-D, Whole Blood or Other Blood Products. D.B., whom I shall call “the claimant”, made application to

this non-statutory Tribunal for compensation.

The non-statutory Tribunal had no power to award aggravated or exemplary damages. In calculating its awards this Tribunal took into

account any statutory or non-statutory benefits to which a claimant had already or would in the future become entitled, or had

received or would receive as a result of the condition which gave rise to the claim. There was no appeal from an award of the non-

statutory Tribunal. These aspects of the jurisdiction of the non-statutory Tribunal led to considerable public agitation and in due

course to the enactment of the Hepatitis C Compensation Tribunal Act 1997 (“the 1997 Act”) which became law on the 21st May

1997. I shall refer to the relevant provisions of the 1997 Act later in this judgment. The basic purpose of the 1997 Act was to set up

a new statutory Tribunal which, pursuant to section 2 of the Act, was established on 1st November 1997.

The 1997 Act, inter alia, remedied the above mentioned aspects of the jurisdiction of the non-statutory Tribunal which had given rise

to publicly expressed grievances on the part of sufferers from Hepatitis C caused by blood products administered within the State.

Under section 6 of the 1997 Act the non-statutory Tribunal was dissolved on the day that the statutory Tribunal was established.

Section 6 also provided that any claim which was pending before the non-statutory Tribunal immediately before 1st November 1997

was to be heard and determined by the statutory Tribunal in the same way as other claims made under the 1997 Act.

D.B., the claimant in the present proceedings, had made a claim before the non-statutory Tribunal on 7th March 1996. His claim had

been commenced but not heard before 1st November 1997. It therefore fell to be treated as a claim made under the 1997 Act.

On 4th November 1997 the claimant’s application came on for hearing before the Tribunal and an award was made in his favour. On

6th November 1997 notice of the making of the award was sent by the Tribunal to the claimant. On 24th November 1997 the claimant

accepted in writing the award which had been made and also undertook in writing to waive any right of action which he might

otherwise have had against any party arising out of the circumstances of his claim and to discontinue any proceedings instituted

arising out of the circumstances of his claim. In addition to accepting the award the claimant applied pursuant to section 11 of the

1997 Act to have an amount paid to him from the Reparation Fund, which sum would be 20% of the total amount of the award made

to him, in lieu of the Tribunal assessing and awarding aggravated or exemplary damages to him. On 16th December 1997 the Tribunal

wrote to the solicitors for the claimant enclosing two cheques, one in respect of the amount of the award in the second in respect of

the 20% from the Reparation Fund.

At the time of the establishment of the statutory Tribunal there were no Rules of Court dealing with appeals from the Tribunal to the

High Court. These were subsequently provided under Statutory Instrument No. 392/98 which set out the relevant procedure in Order

105A of the Rules of the Superior Courts. This Order came into effect on the 23rd October 1998. In order to facilitate those to whom

awards had been made by the Tribunal during the period before Order 105A came into effect, the Minister by Statutory Instrument

No. 195/98 made regulations enlarging the time limit for claimants to accept or reject awards or to appeal to the High Court. The time

limit was enlarged to a period of one month after the date of commencement of the relevant Rules of Court, that is, to 23rd November

1998.

Section 6 of the 1997 Act dealt with claims which had been made and awards which had been made under the non-statutory scheme.

Subsection (3) (e) of this section allowed a person who had received an award under the non-statutory scheme to appeal this award

to the High Court. Order 105A Rule 5 provides that any such appeal “shall be brought by originating notice of motion within six

months from the date of the commencement of these rules or within such further period as may be permitted by the court under

Order 122.” Order 122 gives the Court a general discretion as to extension of time limits. Since Order 105A came into operation on

23rd October 1998, persons bringing an appeal under section 6 of the 1997 Act were therefore given until 23rd April 1999 to

commence their proceedings.

The claimant in the instant case commenced an appeal by way of originating Notice of Motion on 22nd April 1999. His Notice of Motion

was headed “In the Matter of the Hepatitis C Compensation Tribunal Act 1997 and In the Matter of Section 6(3) (e) and In the

Matter of Section 5(15) of the Hepatitis C Compensation Tribunal act 1997”. In his Notice of Motion he sought an Order “appealing

the award of general damages” and also an Order “appealing so much of the determination of the Compensation Tribunal herein as

relates to the allowance for future loss of earnings”. His Notice of Motion was grounded on the affidavit of his solicitor, in which it is

averred that the appeal was brought pursuant to the provisions of section 5(15) of the Act of 1997.

When the claimant’s appeal came on for hearing before the High Court a preliminary application was made by the respondent Minister.

The Minister argued:

1. That the Court had no jurisdiction to hear the appeal on the grounds that the Appellant had on the 24th November 1997

signed an acceptance of the award made to him by the Tribunal and

2. even if the Court had jurisdiction to hear the appeal, the appeal was brought out of time having regard to the provisions of

section 5(9)(a) of the Act and that this being a statutory time limit was not one which was capable of extension.

Shortly before the High Court hearing Counsel for the Tribunal had sought permission to be heard on the above preliminary issues;

O’Neill J. acceded to that application. At the hearing before him of the preliminary issues, however, Counsel for the claimant also

argued that the Tribunal had no locus standi in the proceedings. This matter also, therefore, was heard and determined by the

learned High Court judge.

The learned High Court judge gave judgment on the 31st July 2002. On 11th September 2002 he made an order declaring 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 section 5(9) of the Act does not exclude an appeal to the High

Court under section 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 Order 122(7) of the Rules of the Superior Courts to extend time from the beginning of this

appeal;

(V) time for the bringing of this appeal expired under Order 105 Rule 2(1) of the Rules of the Superior Courts on the 22nd day of

November 1998;

(VI) this Court will exercise its discretion in favour of extending the time for the bringing of this appeal to the 23rd day of April

1999.

Section 5(19) of the 1997 Act provides that a decision of the High Court on an appeal under that section is to be final, save that by

leave of the Court an appeal from the decision is to lie to this Court on a specified question of law. On application to him by the

Minister, O’Neill J. gave leave to appeal his decision to this 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 section 5(9)(a) of the 1997 Act had 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 Grounds of Appeal

Both the Minister and the Tribunal served Notices of Appeal setting out their grounds of appeal in connection with these three

specified questions of law.

The grounds of appeal relied upon by the Minister were as follows:

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

section 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 section 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 section 5 of the 1997 Act their natural and

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

Act;

4. that the learned High Court judge erred in law in failing to hold that section 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 judge 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 Order 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 section 5 of the 1997 Act did not preclude the claimant from appealing the award to the High Court.

The grounds of appeal relied on by the Tribunal were as follows:

1. That the learned High Court judge erred in law in holding that Order 105A Rule 3(4) 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 judge 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 application and

does not have a locus standi in this appeal and application.

The remainder of the grounds of appeal relied on by the Tribunal reflect the grounds which are relied upon by the Minister.

The Hepatitis C Compensation Tribunal Act 1997

Since the issues before this Court largely concern the interpretation of the Act of 1997, it is helpful to set out here the relevant

statutory provisions.

In its long title, the Act is described as:-

“An Act to provide for the establishment of a Tribunal to be known as the Hepatitis C Compensation Tribunal to award

compensation to certain persons who have contracted Hepatitis C within the State from Anti-D Immunoglobulin, other blood

products or blood transfusion and to provide for connected matters.”

Section 1, the interpretation section, where relevant provides as follows:-

“’Award’ means an award of compensation;

‘The non-statutory scheme Tribunal’ means the Compensation Tribunal for certain persons who have contracted

Hepatitis C within the State from Anti-d Immunoglobulin, whole blood or blood products established by the Minister on

the 15th day of December 1995;

‘prescribed’ means prescribed by regulations made by the Minister.”

Section 3 provides for the setting up of the Tribunal and for its membership, powers and other matters.

Section 4 deals with claims before the Tribunal. Subsection (1) sets out the persons who may make claims.

Subsection (2) provides:-

“4(2) Where a person has received an award from any Court or a settlement in respect of an action arising out of any

circumstances which could give rise to a claim before the Tribunal, the person shall not be entitled to make a claim to, or be

heard by, the Tribunal or receive any settlement under section 8 in respect of those circumstances.”

Subsection (3) provides that the making of a claim to the Tribunal does not involve the waiver of any other right of action by the

claimant. Thus, though persons who have already dealt with their claims for compensation through the ordinary courts system may

not also apply to the Tribunal, the actual making of a claim before the Tribunal does not prevent a claimant from commencing an

action in court.

The remainder of section 4 deals with details of the making of claims.

Subsection (7) provides that-

“a claimant is not to be required to produce to the Tribunal any evidence of negligence on the part of a relevant agency or

other person in respect of his or her claim.”

Subsection (14) provides for time limits for the making of an application. The normal time limit is a three year period after the

occurrence of various events but under subsection (15) the Tribunal has discretion to extend the time limits where they are

exceptional circumstances.

The principal section the interpretation of which is at issue in the present proceedings is section 5 which where relevant provides as

follows:

“5(1) An award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by

reference to the principles which govern the measure of damage in the law of tort and any relevant statutory provisions

(including Part IV of the Civil Liability Act, 1961), and including, subject to section 11, consideration of an award on the basis

which reflects the principles of aggravated or exemplary damages.

(2) …

(3) An award in respect of aggravated or exemplary damages may be made by the Tribunal where a claimant establishes a

legal entitlement to such against a relevant agency or the Minister.

(4) Subject to subsection 8, the Tribunal shall decide upon the amount of any award it may make to a claimant.

(5) Where the Tribunal makes an award to a claimant it shall award to the claimant any reasonable costs and expenses the

claimant has incurred in taking her or his claim.

(6) …

(7) …

(8) …

(9)(a) 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 subsection (15).

(b) If a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the period referred

to in paragraph (a), the claimant shall be deemed to have rejected the award.

(10)(a) Where a claimant accepts an award (including a provisional award of the Tribunal), the claimant must agree in writing

to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other

proceedings instituted by the claimant arising out of the circumstances of the claimant’s claim before the Tribunal.

(b) An award of the Tribunal shall not be paid to a claimant unless she or he complies with this subsection.

(11) …

(12) Where a claimant chooses to accept an award of the Tribunal, the amount of the award shall, subject to this section, be

paid to the claimant within 28 days of receipt by the Tribunal of notification of acceptance of the award.

(13) …

(14) Where a claimant does not accept an award within the time and in the manner provided in this section, and proceeds

with any right of action she or he may have, the Minister or a relevant agency will not in such proceedings to which it is a

party rely for the purpose of the Statutes of Limitation, 1957 and 1991, upon the period between the date of the claimant’s

application to the Tribunal and the date upon which the claimant abandoned his or her claim, was adjudged not entitled to

compensation under this Act, or was last entitled to accept any award made by the Tribunal (whichever of such dates is the

later) in bar of any right of recovery under such proceedings.

(15) 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.

(16) An appeal shall lie to the High Court by the Minister or a relevant agency in respect of an award of aggravated or

exemplary damages.

(17) …

(18) Where a claimant makes an appeal under subsection (15), the claimant must agree in writing to waive any right of action

which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the

claimant arising out of the circumstances of the claimant’s claim before the Tribunal.

(19) A decision of the High Court on an appeal under this section shall be final, save that, by leave of the court, an appeal

from the decision shall lie to the Supreme Court on a specified question of law.”

Section 6 of the Act deals with the dissolution of the former non-statutory Tribunal and the transfer of claims that had been made to

it. Subsections (2) and (3) of the section are relevant and provide as follows:

“6(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 of 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) …

(e) appeal an award”.

Section 7 of the Act gives the Minister a general power to make regulations giving effect to the Act. Section 11 establishes the

Reparation Fund. Where a claimant accepts an award from the Tribunal in respect of general or special damages or accepts an offer

of settlement in that regard he or she, instead of seeking aggravated or exemplary damages, can apply to this Fund for an additional

payment of 20% of the total of the general and special damages award.

A number of the provisions of Order 105A of the Rules of the Superior Courts are also relevant. The Order provides that appeals under

section 5(15) or 5(16) of the 1997 Act are to be brought by way of originating notice of motion. Order 105(A) Rule 2 sets out a

number of time limits as follows:-

“2(1) Where an appeal against an award is brought by a claimant, such notice of motion shall be issued within one month from

the date of receiving notice of the making of the award or within such greater period as may be prescribed by the Minister.

(2) Where an appeal against the decision of the Tribunal is brought (other than an award) such notice of motion shall be issued

within one month from the date of the decision.

(3) Where an appeal is brought by a claimant, the Minister may cross-appeal within one month of the date of service of the

notice of motion upon the Minister. Such cross-appeal shall be taken by way of a notice of motion. An appeal by any party

shall put the matter appealed against fully in issue and a notice of cross-appeal shall not be required on that issue by any

other party.

(4) Where an appeal is brought under section 5(16) of the Act by the Minister or a relevant agency, such appeal shall be

brought within one month of the date of the making of the award of aggravated or exemplary damages.

(5) Any appeal brought by a person pursuant to section 6(3)(e) of the Act shall be brought by originating notice of motion

within six months from the date of the commencement of these Rules or within such further period as may be permitted by

the court under Order 122.”

Since reference was also made in argument to the non-statutory scheme Tribunal and its powers, it is useful to set out here section

5 of the document establishing the non-statutory scheme. This is the relevant section:-

“5(I) The making of a claim to the Tribunal under the Scheme will not involve a waiver of any right of action. If a claimant

receives an award from the Tribunal, the claimant will have a period of one month from the date of receiving notice of the

making of the award during which the claimant can decide either to accept or reject the award. If a claimant neither accepts

nor rejects the award within that period, the claimant will be deemed to have rejected the award. Only if the claimant

accepts the award will the claimant be required to agree to waive any right of action which the claimant may otherwise have

had against any party arising out of the circumstances of the claimant’s claim and to discontinue any other proceedings

instituted by the claimant. The execution of such a written agreement will be a condition precedent to the payment of any

award under the scheme.

(2) …

(3) Where a claimant does not accept an award within the time and in the manner provided in this scheme and proceeds with

any right of action he or she may have, the State will not in such proceedings to which it is a party rely for the purposes of

the Statutes of Limitation upon the period between the date of the claimant’s application to the Tribunal and the date upon

which the claimant abandoned his or her claim, was adjudged not entitled to compensation under the scheme, or was last

entitled to accept any award made by the Tribunal (whichever of such dates be the later) in bar of any right of recovery

under such proceedings.”

The Decision of the High Court

As has been noted above, there were three issues before the High Court. The first issue was as to whether the claimant, having

accepted the award made to him by the Tribunal and having received the relevant payments, could then proceed to bring an appeal

against the award under section 5(15) of the Act.

The second issue was as to whether the claimant’s appeal was brought out of time given the provisions of section 5(9)(a) and

whether the time limit for such an appeal could be extended by the Court.

The third issue was as to whether the Tribunal had locus standi to appear and be heard on the appeal.

The learned trial judge in essence held in favour of the claimant on the first two issues, and also held that the Tribunal had not the

required locus standi.

As far as the first two issues are concerned the trial judge’s decision depended on his approach to the interpretation of sub sections

5(9) and 5(15) of the 1997 Act. He stated (at page 15 of his judgment) that in construing the relevant sections of the Act of 1997

he would “use the literal and purposive approach”, and would be guided by the judgment of Denham J. in this Court in the case of

M.O’C v The Minister for Health and Children (Supreme Court unreported 31st July 2001). O’Neill J. then went on to consider in some

detail the purpose of the Act in the light of the long title and in the light of the history of the original non-statutory scheme. He noted

that the 1997 Act was intended to benefit not alone those whose claims were heard by the Tribunal set up under the Act but also

those whose claims had been heard by the former non-statutory Tribunal. He went on to state (at page 16):-

“I think it is safe to assume in approaching the construction of the Act that it was intended by the Oireachtas that persons

who had contracted Hepatitis C in the circumstances provided for by the Act would enjoy the same benefits in terms of

access to compensation as provided for either under the non-statutory scheme or as provided for under the Act of 1997

regardless of whether their claims fell to be dealt with by the non-statutory Tribunal or as in the case of the Appellant in this

case by the Tribunal after its establishment on the 1st November 1997.

In short, in approaching the construction of the Act of 1997, in my view only that construction which achieves parity or

equality of treatment as between those persons whose claims were dealt with by the non-statutory Tribunal and those

persons whose claims were dealt with by the Tribunal can be considered as consistent with the intention of the Oireachtas.”

The learned trial judge then went on to analyse both section 6 and section 5 of the Act from the starting point that the Oireachtas

must have intended equality or parity between the two types of claimant – those who might appeal against an award made by the

statutory Tribunal and whose appeals would be governed by section 5 of the 1997 Act and those who might appeal in connection with

an award made by the previous non-statutory Tribunal, whose appeals would be governed by section 6 of the Act.

The time limit for appeals under section 6(3)(e) of the 1997 Act was governed by Order 105A of the Rules of the Superior Courts and

this time limit was amenable to the normal extension of time available under Order 122. Counsel for the Minister had argued in the High

Court that in cases coming under section 5 of the Act upon notice of an award being given by the Tribunal claimants had three

options and were obliged to exercise one of these in writing within one month namely:

1. to accept the award

2. to reject the award or

3. to appeal the award,

all three options being mutually exclusive of each other. Failure to exercise any of these three options would be deemed by the Act to

be rejection pursuant to section 5(10). O’Neill J. felt that there was no proper explanation to justify the difference in treatment

between the two groups in regard to time limit. At page 20 he went on to say:

“It is impossible to fathom what reason could justify such an interpretation particularly having regard to the fact that the

purpose of the Act is to provide for the awarding of the compensation to persons who had been the victims of a public health

disaster and many of whom at the time of the hearing of their claims before the Tribunal were in exceedingly poor health and

in the immediate aftermath of the determination of their claims by the Tribunal might have great difficulty because of their

state of health in focussing on and deciding whether or not they wished at the point to appeal or not to appeal.”

He also felt there was a distinction between an appeal against an award under section 5(9) and an appeal against “any decision” of

the Tribunal under section 5(15). In his view no time limit was prescribed for an appeal against a “decision” under section 5(15). He

commented (at page 21):

“I am unable to fathom any reason why this distinction as to time limit between an appeal against an ‘award’ and a ‘decision’

should be made nor indeed was any advanced by either the respondent or the Tribunal.”

Based largely on this reasoning, O’Neill J. concluded (at page 22):-

“I have come to the conclusion that it cannot have been intended to simply isolate, for no apparent reason, one type of

appeal, namely an appeal against an award of the Tribunal, and to impose the draconian measure of a statutory time limit of

one month on that appeal alone. It seems to me that the policy of the Act correctly construed was to preserve all of these

appeals including an appeal against an ‘award’ from statutory time limits and to regulate them in regard to time in the

ordinary way under the Rules of the Superior Courts in the form of Order 105A.”

He then went on to reject the submission that acceptance and appeal were mutually exclusive options. At page 29 he stated:-

“I have come to the conclusion, in the absence of an express exclusion on appeal where an acceptance has taken place, and it

being the case that acceptance and appeal are not necessarily mutually exclusive, that a claimant can accept and also appeal

and be in compliance with section 5(9) and (10) and thereby be entitled under section 5(12) to be paid the award within 28

days of acceptance of the award.”

This was in harmony with parity or equality of treatment between those whose claims were heard by the non-statutory Tribunal and

those whose claims are heard by the Tribunal.

With regard to the locus standi issue, the trial judge held that the fact that Order 105A Rule 3(4) required that the Tribunal be served

with a copy of an appeal did not in his view of itself make the Tribunal a party to the appeal or give it a locus standi in any appeal.

Any information that was available to the Tribunal could be exhibited in the affidavit of the claimant grounding the appeal. The

involvement of the Tribunal as a party was not required. The Tribunal had no interest in the outcome of the appeal and it was

undesirable that it should “adopt the role of a contentious party” in an appeal.

Submissions of Counsel

Senior Counsel for the Appellant Minister, Mr McDonald, accepted on behalf of the State that under the 1997 Act the claimant was a

person entitled to compensation from the State by reason of his having contracted Hepatitis C. Sufferers from Hepatitis C who were

entitled to compensation were not compelled to submit their claims to the Tribunal under the 1997 Act; it was also open to them to

proceed by way of Court action. These two alternatives both remained open to a claimant until the Tribunal, having heard his or her

case, made an award. At that point the claimant either remained within the four walls of the Tribunal system under the Act or decided

to pursue his or her claim through the Courts. The operation of this process was set out in clear terms in section 5 of the 1997 Act.

Mr. McDonald submitted that the words of section 5 should be given their normal and natural meaning. Under the normal canons of

construction where the words of the Statute were clear it was not permitted to speculate as to what the legislator might have

intended. Here Mr McDonald relied on the judgment of this Court in Howard v Commissioner of Public Works [1994] 1 IR 101, in

particular the judgments of Blayney J. (at page 151 and 153) and of Denham J. (at page 162-163).

Mr McDonald referred to the judgment of the learned trial judge and said that the judge had considered that the Oireachtas could not

have intended that the one month time limit should apply solely to claimants whose claims were dealt with by the Tribunal under the

1997 Act. Mr McDonald submitted that in reaching this conclusion O’Neill J. failed to have regard to the clear language used in

sections 5 and 6 of the 1997 Act. A reading of sections 5 and 6 show that the Oireachtas intended to treat non-statutory Tribunal

claimants in a different way from other claimants (at least insofar as the time for appeal was concerned). There were good reasons

why the Oireachtas should treat the two types of claimant in a different way. A claimant before the 1997 Act Tribunal would have

considerable advantages over a claimant whose claim had been disposed of sometime previously by the non-statutory Tribunal. A

claimant before the statutory Tribunal would have the benefit of a notification by the Tribunal providing him with details of his award

and informing him of his right to appeal and in particular, informing him of a decision which he must now make as between

acceptance, rejection and appeal. Such a claimant would undoubtedly still be in contact with the solicitor and counsel who

represented him or her before the Tribunal and could take immediate advice. The claimant was still involved in the statutory process

and everything would still be fresh in his or her mind and a one month time limit therefore would not impose any hardship.

In contrast the claimants who had had their claims dealt with some time before by the non-statutory Tribunal would in many cases

have lost contact with their legal advisors by the time the 1997 Act was enacted and a right of appeal became available. They were

no longer involved in any process; they might even have moved away from where they lived; they might be difficult to contact and

might therefore be unaware of the rights afforded to them under the 1997 Act. In these circumstances, Mr McDonald argued, it made

eminent sense that the Oireachtas should treat these claimants differently and this was clearly set out in section 6 of the Act.

Counsel submitted that the learned trial judge had fallen into error in putting the entire emphasis of his consideration of the Act on

the need for equality and parity between the two types of claimants.

Mr McDonald went on to submit that the trial judge’s approach had been based on what he presumed or decided was the intention of

the Oireachtas. He submitted that a Court should be very slow to presume that it has a better knowledge of the intention of the

Oireachtas than can be gleaned from the language used in the Act. This was especially so where the creation of limitation periods and

other statutory time limits was concerned as that was a matter primarily for the Oireachtas.

As far as Order 105A Rule 2(1) was concerned, Mr McDonald submitted that the learned trial judge erred in his interpretation of this

Rule. Rule 2(1) did not purport to impose a time limit in place of that imposed by section 5(9) (a). All the Rule did was to provide for

the manner of appeal which was to be by way of notice of motion which must be issued within the statutory time of one month or

within such greater period as might be prescribed by the Minister.

With regard to the second question set by the High Court, counsel for the Minister submitted that it was clear from the actual

wording of section 5(9)(a) –

“The claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15)” –

made it clear that the claimant had three options open to him. While the use of the word “either” was not particularly elegant the use

of the word “or” nevertheless suggested that an appeal was to be regarded as an alternative to either acceptance or rejection. It

was difficult to see how on the basis of the language used in section 5(9)(a) it could plausibly be said that an appeal was something

which could be done in addition to either accepting or rejecting the award. In addition the fact that if a claimant appeals he or she

must under section 5(18) agree to discontinue any existing litigation and abandon any other claims suggested very strongly that the

appeal could not be seen as an additional step to rejection of the award. Rejection ordinarily meant that the claimant would now

pursue litigation through the Courts.

Senior Counsel for the Tribunal, Mr O’Donnell, dealt firstly with the issue of the locus standi of the Tribunal. He submitted that the

question of the Tribunal’s locus standi was resolved by a consideration of the terms of the relevant Rules of the Superior Courts.

Order 105A Rule 3(4) of the Rules of the Superior Courts required that the Tribunal be served in every case with a copy of the appeal.

The service of the notice of motion and affidavit grounding the appeal served to make the Tribunal a party to the appeal. Order 125

of the Rules of the Superior Courts defined 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 not alone served with the same pleadings as the Minister for Health and Children but was also named on

the record of the proceedings and in its title. Counsel submitted the Tribunal clearly had locus standi. Mr O’Donnell went on to say

that the Tribunal wished to clarify that it did not intend to take advantage of its locus standi to contest any appeal on the merits.

However in circumstances where matters of general importance regarding the function and administration of the Statutory

Compensation Scheme had arisen the Tribunal considered it appropriate to make submissions in this regard to the High Court and also

to this Court. The statutory scheme established by the 1997 Act created an independent Tribunal responsible for the administration of

the compensation scheme which had a locus standi in appeals against awards given its unique position within the scheme. The

Minister played no part in the compensation process or indeed in any of the proceedings before the Tribunal. Therefore the Minister

was not aware of the procedures and correspondence regarding an award and was not in a position fully to inform the High Court of

those procedures in the event of an appeal.

Mr O’Donnell referred in particular to the fact that the post-award procedure and correspondence was peculiarly within the knowledge

of the Tribunal. There was no obligation on a claimant to bring this procedure and correspondence to the attention of the Court under

the 1997 Act or under the rules. In a previous case M.D. v Minister for Health and Children (unreported High Court 15th February

2002) the claimant did not disclose the fact that he had accepted the award to the Court in the appeal and the Minister was not

aware that the award had been accepted. In that case the Tribunal had not been represented and had thus been unable to make the

position clear to the Court.

Counsel for the Tribunal went on to refer to page 33 of the judgment of O’Neill J. where the learned trial judge stated:-

“From time immemorial it has been the case that procedural issues are litigated between the parties to the suit without any

involvement in that litigation from the Tribunal whose procedures are in issue. That non- involvement derives inter alia from

the essential feature of courts in quasi-judicial Tribunals as being independent and non partisan.”

Mr O’Donnell submitted that the alleged principle identified by O’Neill J. was erroneous. There were numerous examples of Tribunals

and persons exercising quasi-judicial functions who were respondents or co-respondents in appeals against their decisions and who

were entitled to participate in such appeals. He gave a number of examples of such situations.

Counsel for the Tribunal, whilst adopting the arguments put forward by Mr McDonald, also dealt briefly with the other issues in the

case. He submitted that the core issue was the interpretation of section 5(9) (a). This was a clear and simple provision and in

interpreting it the simple answer was the correct answer. The judgment of the learned High Court judge was very ingenious but was

wrong in its interpretation. While he agreed that the use of the word “either” when three options were offered was inelegant he

believed that it was a question of communication to persons to whom the Act applied and that the meaning of the three options was

perfectly clear. The words had to be taken in the context of the Act as a whole. He also relied on the judgments of this Court in

Howard v Commissioners for Public Works. He referred to the 1997 Act as a “negotiated” Act which was grafted onto the previous

non-statutory scheme. He pointed out that the alternatives of acceptance and rejection were already present in the text of the non-

statutory scheme and that the further option of appeal was simply added on.

Mr O’Donnell submitted that the basic flaw in the judgment of the learned High Court judge was that he gave no interpretation of

section 5(9) (a) and (b). In the context of his judgment either these subsections meant nothing or they meant the opposite of what

they actually said. He agreed with Mr McDonald that there was good reason to distinguish between the claimants covered by section

6 and those covered by section 5.

As far as the purpose of the Statute was concerned, Mr O’Donnell agreed that the primary purpose was to provide proper

compensation for claimants but another essential purpose of the Act was to deal with the volume of claims and to quiet these claims

outside the Court system.

Senior Counsel for the respondent/claimant. Mr. Nesbitt, submitted that while the other parties relied on section 5(9) of the 1997 Act

they failed to take into account the other sections of the Act and did not consider the purpose of the Act. The purpose of the Act

was the delivery of fair and just compensation to claimants. claimants were given right of access to the High Court by way of appeal.

The word “award” was defined in section 1 of the Act as being an award of compensation. There was no definition of the word

“decision” in the Act. There were a number of forms of decision contained in the Act. For example under section 4(8) the Tribunal

would have to make a decision as to whether the claimant was eligible for compensation under the scheme. In the case of the

present claimant a decision had to be taken with regard to the issue of co-infection with both Hepatitis C and HIV. The claimant in

the instant case wished to appeal certain aspects of the award but not necessarily the amount of the award.

A central point of Mr Nesbitt’s submissions was that the making of an award was not a decision but what he described as “a bundle of

decisions”. On that account he submitted that a claimant who was not wholly satisfied with all aspects of the award was not barred

from appealing by the fact that he had accepted “the award”. An award and a decision were not equivalent.

Counsel for the claimant submitted that the learned High Court judge was correct in his purposive approach to the interpretation of

the Act. The main purpose of the Act was to award fair compensation but a secondary purpose of the Act was to bring in an appeal

procedure which had been missing from the non-statutory scheme. It was therefore not in accordance with the purpose of the Act

that claimants should be deprived of the right to appeal. Mr Nesbitt relied on the judgment of Denham J. in this Court in the case of

M. O’C v The Minister for Health (Supreme Court unreported 31st July 2001). In that case a purposive approach had been taken to

the interpretation of the 1997 Act and it had been found to concur with the literal interpretation. In the instant case the learned trial

judge had considered the purpose of the Act and concluded that this could not include unfairness or inequality in the treatment of

persons claiming under the former non-statutory scheme and persons claiming under the statutory scheme. He had correctly based

his interpretation on this approach.

The jurisdiction of the High Court to entertain the appeal was contained in section 5(15) of the Act. This subsection stated simply

that an appeal would lie to the High Court in respect of any decision made by the Tribunal. The section contained no time limit and

therefore the jurisdiction of the High Court to hear appeals remained unfettered by any statutory time bar. The time limits in regard to

appeals were set out in the Rules of the Superior Courts under Order 105(A). These time limits, however, were susceptible of

extension by the Court under Order 122. In the case of the present claimant the learned High Court judge had correctly exercised his

discretion in extending the time limit for his appeal.

In regard to the issue of a locus standi of the Tribunal, Mr Nesbitt submitted that the Tribunal had no interest in the proceedings that

had to be protected. It had no role to play and was not involved in any judiciable issue. The Tribunal was simply the body that heard

applications. Once an award was made the arrangements for its payments were dealt with separately under the Act and could not be

construed as affording the Tribunal the right to claim an interest in the conduct of any appeal. The Tribunal might be interested in the

result but had no interest in the process of the appeal. The scheme of the Act was that the Minister was the appropriate respondent

in any appeal and it was the Minister who was given rights to cross-appeal under the Act.

The Law and Conclusions

At the centre of this case is the interpretation of section 5, and in particular section 5(9) (a) of the 1997 Act. On this depends the

answer to the first two questions of law specified by the High Court. It is therefore essential to refer to the rules of interpretation, or

canons of construction, which have been established over time and which have been considered and applied in a number of decisions

of this Court and the High Court.

The learned High Court judge made it clear in his judgment that he relied on the judgment of this Court (Denham J.) in M.O’C v The

Minister for Health (unreported Supreme Court 31st July 2001). Counsel for the Minister in his submissions relied on the judgments of

Blayney J. and Denham J. in Howard v Commissioners of Public Works [1994] 1 IR 101.

The decision in Howard v Commissioners for Public Works turned on the interpretation of a number of sections of the Local

Government (Planning and Development) Act 1963. Blayney J. in his judgment (at page 151 to 153) spoke of the general principles to

be applied to the interpretation of Statutes as follows:-

“As there is no presumption either way in regard to whether the State is or is not bound by the Act of 1963, the interpretation of

the Act has to be approached in the light of the general principles to be applied in the interpretation of statutes.

‘The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention

expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be

necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case

best declare the intention of the lawgiver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other

document, has to determine the intention as expressed by the words used. And in order to understand these words it is

natural to enquire what is the subject matter with respect to which they are used and the object in view.’ [per Lord Blackburn

in Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394].’

Craies on Statute Law (1971) (7th ed.) at page 65.

This rule is expressed in very similar terms in Maxwell on The Interpretation of Statutes (12th ed., 1976) at p.28:-

‘The rule of construction is ‘to intend the Legislature to have meant what they have actually expressed.’ [per Parke J. in

R v. Banbury (Inhabitants) (1834) 1 Ad. & El. 136 at p.142] The object of all interpretation is to discover the intention of

Parliament, ‘but the intention of Parliament must be deduced from the languages used,’ [per Lord Parker C.J. in Capper

v. Baldwin [1965] 2 Q.B. 53, at p.61] for ‘it is well accepted that the beliefs and assumptions of those who frame Acts of

Parliament cannot make the law.’ [per Lord Morris of Borth-y-Gest in Davies Jenkins & Co. Ltd. V. Davies [1967] 2 W.L.R.

1139 at p.1156].’”

At page 152 Blayney J. continued:

“The rule in regard to construction by implication is stated as follows in Craies at p.109:-

‘If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication,

and to draw inferences or supply obvious omissions. But the general rule is ‘not to import into statutes words which are not to

be found there,’ [per Patteson J. in King v. Burrell (1840) 12 Ad. And El. 460, 468] and there are particular purposes for which

express language is absolutely indispensable. ‘Words plainly should not be added by implication into the language of a statute

unless it is necessary to do so to give the paragraph sense and meaning in its context.’ [per Evershed M.R. in Tinkham v. Perry

[‘1951] 1 T.L.R. 91, 92’

It is clear from this that the first condition that has to be satisfied before recourse can be had to construction by implication

is that the meaning of the statute should not be plain. It seems to me that that condition is not satisfied here. The meaning is

perfectly plain.”

Again at page 153 the learned judge continued:-

“In asking the Court to construe s.84 as relieving them from having to apply for planning permission, the Commissioners are

asking the Court to speculate as to the intention of the legislature in enacting s.84, something which no court may do. To cite

again Craies on Statute Law at p.66:-

'A general proposition that it is the duty of the Court to find out the intention of Parliament . . . cannot by any means be

supported' said Lord Simonds in 1957. Some fifty years before in Salomon v. Salomon & Co. Ltd. [[1897] A.C. 22, 38]

Lord Watson had said: "Intention of the legislature" is a common but very slippery phrase, which, popularly understood,

may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature

probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the

legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact,

either in express words or by reasonable and necessary implication.' After expounding the enactment, it only remains to

enforce it, notwithstanding that it may be a very generally received opinion that it 'does not produce the effect which

the legislature intended,' or 'might with advantage be modified'. The meaning which words ought to be understood to

bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural

meaning of the words used in the context in which they occur, that context including any other phrases in the Act which

may throw light on the sense in which the makers of the Act used the words in dispute.’"

Denham J. in her judgment in the same case (at p.162-163) also dealt with the principles of interpretation:

“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best

declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning

of the words. There is well established case law on this aspect of statutory construction.

Thus in In re MacManaway [1951] A.C. 161 at p. 169, Lord Radcliffe, in dealing with a reference for advice as to a question as

to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act, 1801, said:—

‘The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to

speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which

they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers

of the Act used the words in dispute.’

In Davies Jenkins and Co. Ltd. v. Davies [1968] A.C. 1097 at p. 1120 Lord Morris of Borth-y-Gest stated:—

‘I understand that it is accepted that when Parliament enacted s. 18 of the Finance Act, 1954, it must have proceeded

on the basis that it was not necessary for the purposes of s. 20 of the Finance Act, 1953, that the recipient company

should be trading at the time of the receipt of a subvention payment. This, in my view, neither relieves the courts from

giving free and untrammelled consideration to the interpretation of s. 20 nor does it furnish material for their guidance in

so giving it. It is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the

law.’

In R. v. Wimbledon Justices, ex parte Derwent [1953] 1 Q.B. 380, Lord Goddard C.J. stated at p. 384:—

‘We are not concerned with that because, although in construing an Act of Parliament the Court must always try to give

effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it

cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific

offence, it is not for this court to find other offences which do not appear in the statute.’”

Denham J. continued on p.163 as follows:

“Halsbury's Laws of England (4th ed.) (Vol. 44) states at paras. 863 and 864 respectively:—

‘Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the

words and sentences must be construed in their ordinary and natural meaning.

Speculation as to Parliament's intention is not permissible. If the result of the interpretation of a statute according to its

primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather

than for the courts to attempt the necessary amendment by investing plain language with some other than its natural

meaning to produce a result which it is thought the legislature must have intended.’

The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so

as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the

legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then

the court should not speculate but rather construe the Act as enacted.”

In M O’C v. Minister for Health (Supreme Court unreported 31st July, 2001) the issue was as to whether there was jurisdiction to

order interest pursuant to s.22 of the Courts Act, 1981 under the Hepatitis C Compensation Tribunal Act, 1997. Again the matter

turned on the interpretation of the relevant statutory provisions. Denham J. in her judgment (with which the other members of the

Court agreed) said at p.6 of her judgment:

“It is well established that effect should be given to clear and unambiguous words. The words of the statute declare best the

purpose of the Act.”

Denham J. went on to analyse in detail the actual wording of s.5 (1) of the 1997 Act, and concluded (at p.7):

“The wording of the sub-section sets out in some detail the power of the tribunal to make awards on the same basis as an

award of the High Court. ‘… any relevant statutes …’ are to be applied to the calculation of these awards. Clearly s.22 of the

Courts Act, 1981 is a relevant statutory provision in this sense. On a literal interpretation s.5(1) of the Hepatitis C

Compensation Tribunal Act, 1997 vests in the Hepatitis C Tribunal the jurisdiction under s.22 of the Courts Act, 1981.

Consequently, it is not necessary to take any further approach.”

The learned judge then went on to consider the purposive approach to the interpretation of the section, as follows:

“However, I am satisfied that a purposive approach would yield a similar result. In the Law Reform Commission report on

Statutory Drafting and Interpretation: Plain Language and the Law (LRC61-2000) at p.10, paragraph 2.03, as to the

relationship between the literal and purposive approaches to interpretation, it was stated:

‘It is important to state, at the outset, that the literal rule is, and must remain, the general governing principle in this

area: anything else would lead to chaos. Moreover, in most cases a literal construction will lead to the same result as a

purposive construction. However, the central question in this chapter is whether Court, in the minority of cases in which

the literal meaning of a provision is not consistent with the purpose of the relevant Act, should look beyond the literal

meaning, in order to give expression to the intended effect of the statute.’

Having considered the matter, including analysing case law in Ireland and abroad, the Commission recommended at p.21

paragraph 2.42:

‘… a provision which retains the literal rule is the primary rule of statutory interpretation. The other significant feature

of our proposed formulation is that it specifies exceptions to this primary approach, not only in cases of ambiguity and

absurdity, but also - and here is the slight change from the common law as expressed in some judgments – where a

literal interpretation would defeat the intention of the Oireachtas. The draft provision which we propose also indicates

that such an exception should only apply where, in respect of the issue before the court, the intention of the Oireachtas

is plain.’”

Having also analysed the section in accordance with the purposive approach, Denham J. reached the same conclusion as had been

reached through the literal approach.

It is of interest to note that in Bula v Crowley (unreported High Court 1st February, 2002) Barr J., in dealing with the construction of

the Statute of Limitations 1957, had this to say:

“I have no difficulty in accepting that, subject to long established tenets of construction, words in a statute should be

construed in accordance with their plain, ordinary meaning. The Court has no function in remedying error in circumstances

where legislation, though clear in its terms, is found to be defective.”

It may, I think, be safe to sum up the judicial dicta in this way. In the interpretation of statutes the starting point should be the

literal approach - the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance,

frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, self-contradiction, or even absurdity. In

the interpretation of a section it is also necessary to consider the Act as a whole. As was stated by Keane J. (as he then was) in

Mulcahy v. Minister for the Marine (High Court 4th November, 1994):

“While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an

enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the

literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully

reflect the true legislative intention gathered from the Act as a whole.”

I now turn to an examination of the terms of s.5 (9) (a) of the 1997 Act in the context of the Act as a whole.

As is set out in the long title, the central purpose of the Act is to award compensation to certain persons who have contracted

Hepatitis C. The background to its enactment, as described in the earlier part of this judgment, establishes that the Act also had the

purpose of remedying the perceived defects of the previous non-statutory scheme, in particular its lack of power to award

aggravated and exemplary damages, the taking into account of other benefits received by claimants, and the absence of a right to

appeal. While I am conscious of the danger of attributing particular intentions to the Oireachtas, it seems to me reasonable to assume

that a further aim of the Act was to provide a scheme which could deal with the large number of claims for compensation in a

consistent, orderly and reasonably expeditious manner.

Under the general scheme of the Act a claimant may apply to the Tribunal for an award of compensation without having to waive or

abandon his or her right to seek damages through an ordinary Court action (section 4(3)). The detailed procedure for the making of a

claim before the Tribunal is set out in section 4. Section 5 deals with the making of awards and subsequent procedures. Section 5(1),

which was considered and analysed by this Court in M.O’C v Minister for Health, provides in general principle that awards are to be

made on the same basis as an award of damages in the High Court. Further subsections deal with ancillary matters such as special

damages and costs.

Section 5(9) then refers to what is to follow when the Tribunal has made an award to a claimant and the claimant has been notified

of the award. Sub-section 5(9) (a) provides:-

“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 subsection (15).”

Under subsection (9)(b) if a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the

period of a month the claimant is to be deemed to have rejected the award. While I accept that the word “either” should properly be

used only where there are two alternatives, it seems to me that section 5(9) (a) in the normal and ordinary meaning of the words

used provides for three options each of which is open to the claimant, and each of which has a particular result within the scheme of

the Act. The claimant must decide which of the three options he wishes to exercise within a period of one month from the date on

which he has been notified of the award. A longer period for decision may be prescribed by the Minister. (Under section 1 “prescribed”

is defined as meaning prescribed by regulations made by the Minister.)

Firstly, the claimant may choose to accept the award. If this is the course chosen, then section 5(10) applies; the claimant must in

writing waive any right of action through the Courts and discontinue any other proceedings arising out of the circumstances of his

claim. Prima facie, it would seem to me that this combination of acceptance and waiver indicates finality as regards the claimant’s

claim. When the

claimant has executed this waiver and thus chosen to stay within the scheme of the Tribunal, he is to be paid his award within

twenty eight days of the notification to him of the award (Section 5(12)).

If the claimant rejects the award, or under section 5(9)(b) is deemed to have rejected the award because he has neither accepted

nor rejected it, it seems clear that he then moves out of the Tribunal scheme entirely and presumably will go on to rely on his right of

action in the Courts. This position is underlined by section 5(14) which provides that the Minister will not in that case rely on the

period of time when, to put it simply, the claimant was participating in the Tribunal scheme for the purposes of a defence under the

Statute of Limitations.

Thirdly the claimant is given the option of appealing the award “under subsection (15)”. In my view it is crucial that the option of

appealing is preceded by the word “or” in the subsection. The provenance of the phrase “or to appeal the award” becomes clear if

one considers the wording of the original non-statutory scheme. At paragraph 5(i) of that scheme it was provided:-

“If a claimant receives an award from the Tribunal, the claimant will have a period of one month from the date of receiving

notice of the making of the award during which the claimant can decide either to accept or reject the award”.

It seems likely that the parliamentary draftsman simply added the words “or to appeal…” after the phrase “either to accept or

reject”. I am confirmed by this view by the fact that the remainder of the wording of paragraph 5(i) is closely reflected in the wording

of subsections 5(9)(b) and 5(10) (a) and (b) of the 1997 Act.

Section 5(9)(a) speaks of the claimant appealing the award “under section 15.” Thus the claimant who chooses to appeal remains

within the scheme of the Tribunal and within the four walls of the Act. Under section 5(9)(b) a claimant who appeals the award under

subsection (15) within the period referred to in paragraph (a) is, understandably, also deemed to have rejected the award. The

claimant can thus either reject (or be deemed to reject) the award simpliciter and drop out of the Tribunal scheme or he can appeal

the award, which implies a rejection of the award, and remain within the scheme.

The bringing of an appeal against an award under section 5(15), as far as Court procedure is concerned, is governed by Order 105A of

the Rules of the Superior Courts. Rule 1 provides that such appeals are to be brought by way of Notice of Motion, thus reflecting an

intention to move by way of a relatively expeditious procedure. Rule 2(1) provides that where a claimant brings an appeal against an

award “such notice of motion shall be issued within one month from the date of receiving notice of the making of the award or

within such greater period as may be prescribed by the Minister.” This Rule reflects exactly the statutory time limit as set out in

section 5(9)(a). The “greater period” is to be prescribed by the Minister rather than by the Court precisely because it is a statutory

extension of the time limit rather than an ordinary extension of time by the Court under the Rules.

In the instant case, as I have set out in the earlier part of this judgment, the situation as regards time was complicated by the

additional period of time which elapsed before the coming into effect of Rule 105A. The principle, however, remains the same; the

Minister prescribed “a greater period” of time within which the claimant could exercise one of the three options, but the decision had

to be made by 23rd November 1998, one month after the date on which Order 105A came into force.

The learned trial judge rejected this literal interpretation of section 5(9) for reasons based on what he described as a purposive

interpretation of the Act. He appears to have begun his analysis of the Act with an assumption that the Oireachtas must have

intended to treat claimants who had received awards under the non-statutory scheme in as exactly the same way as claimants

receiving awards from the Tribunal. This, he felt, was a fair and equitable approach in accordance with the purpose of the Act. From

this assumption of equal treatment of both classes of claimants he deduced a somewhat complex interpretation of sections 5 and 6 of

the 1997 Act. In my view the learned trial judge fell into error in adopting this approach. It is clear from the dicta in Howard v

Commissioners of Public Works and from the authoritative texts quoted therein (see supra) that in the construction of Statutes the

starting point is the normal and ordinary meaning of the words used – the text of the Statute as enacted by the Oireachtas. In the

Act of 1997 the Oireachtas has itself made a clear distinction between the provisions applying to persons who received awards under

the non-statutory scheme (who are dealt with under section 6) and those who receive awards from the Tribunal (who are dealt with

under section 5). As part of this distinction a different time limit for appeal is provided for those who received awards under the non-

statutory scheme. There are other important differences in the treatment of the two types of claimant. As was submitted by counsel

for the Minister and counsel for the Tribunal there are perfectly understandable reasons which may have motivated the Oireachtas in

differentiating between the two classes of claimant. The crucial factor for the Court, however, in interpreting the Statute is that the

differentiation of the two classes of claimant was the policy actually adopted by the Oireachtas in the Act. It is a clear policy; it is

not ambiguous; it is not self-contradictory; it certainly cannot be described as absurd. It is not for this Court to assume that a

different and more equal approach is more suited to what the Court considers to be the purpose of the Act and to adjust the

construction of the actual words of the sections accordingly. This is to carry the purposive approach too far. It must be remembered

that in M.O’C v the Minister for Health (supra) Denham J. first approached the construction of section 5(1) of the 1997 Act through

literal, indeed actual word by word, interpretation and only later demonstrated that the purposive approach led to the same

conclusion.

Thus, as far as the second question specified by the High Court is concerned, it is my view that a claimant who wishes to appeal an

award by the Hepatitis C Compensation Tribunal is barred from doing so after the time specified in section 5(9)(a) of the 1997 Act has

passed. The answer to the first question is yes.

Strictly speaking, the second question arises only if the first question is answered in the negative. However, in the interests of

clarity, I consider it useful to indicate that I would also answer this question in the affirmative. As I have already explained above, my

view is that a claimant who has been notified of an award has, under section 5(9)(a), three options – to accept or to reject or to

appeal. Since the conjunction used in each case is “or” the options appear to be mutually exclusive. Indeed, far from a claimant being

able to accept an award and at the same time appeal it, under section 5(9)(b) a claimant who appeals the award under sub-section

(15) is deemed to have rejected the award.

I am strengthened in this view by the provisions of section 5(1) – the general principle that an award is to be made on the same basis

as an award of damages in the High Court. A Plaintiff in a personal injuries action in the High Court who has been awarded damages

by the Court may be dissatisfied with the amount of the award. If so, he has a right of appeal. What he cannot do is accept the

award in full, have it paid over to him, and in addition appeal against it. It is, of course, true that in such a situation in the High

Court the frequent practice is that some fraction of the award of damages may be paid out and the remainder of the order stayed

pending the hearing of the appeal. No such provision is made in the 1997 Act. It is not, however, for this Court to endeavour through

creative interpretation to fill this possible gap in the legislation.

I do not accept the submission of counsel for the claimant that an award is a “bundle of decisions” some or one of which may be

appealed. It seems to me that in the context of section 5(9)(a) an award of compensation is the actual amount which is to be paid to

the claimant. Clearly not all decisions made by the Tribunal are awards but an award is a decision for the purposes of section 5(15)

and it is a single decision.

I remain convinced that once the claimant has accepted the award he cannot in addition appeal against it. I would answer yes to the

second question.

I now turn to the third question – the locus standi of the Tribunal. Put briefly, I would accept that the Tribunal has locus standi for

the reasons contained in the submissions both written and oral of counsel for the Tribunal. Order 105A Rule 3(4) of the Rules of the

Superior Courts requires that the Tribunal be served with a copy of the appeal and bearing in mind the definition of a “party” in Order

125, the service of the proceedings on the Tribunal makes the Tribunal a party to the appeal. I would also accept that, while the

Tribunal does not, and should not, have an interest in contesting the appeal on its merits, it does have an interest in ensuring that

the procedure under the 1997 Act is correctly applied and implemented and in giving the fullest possible information in each case to

the Court. In this aspect of full information the Tribunal’s role is somewhat analogous to that of an amicus curiae. As was pointed out

by Mr O’Donnell, there are a number of examples in the legislation where Tribunals and persons exercising quasi-judicial functions who

are parties in appeals against their decisions and are entitled to participate in such appeals. It seems to me that question three

should also be answered in the affirmative.

In summary, therefore, I would allow the appeal and would answer the three specific questions set by the High Court as follows:

1 Yes.

2 Yes.

3 Yes.