Supreme Court allows appeal by claimant who accepted award, ruling acceptance does not bar appeal on specified questions of law.

THE SUPREME COURT

Record 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 MINISTER FOR HEALTH AND CHILDREN

AND THE HEPATITIS C COMPENSATION TRIBUNAL

Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 26th day of March 2003

In the notices of appeal to this court the party “D.B.” is described variously as “respondent/claimant” and “respondent” and the

Minister for Health and Children and the tribunal described as “appellant/respondent” or “appellant”. These descriptions though not in

any way inaccurate could cause confusion. I will, therefore, refer to the said D.B. as “D.B.” throughout this judgment, I will refer to

the Minister for Health and Children as “the Minister” and I will refer to the tribunal as “the tribunal”.

On the 15th of December, 1995 there was established a non-statutory scheme for the purpose of compensating certain persons who

had contracted Hepatitis C from the use of human immuno globulin-anti-D, whole blood or other blood products.

At a stage when the said non-statutory scheme was in force and there was not yet a statutory scheme, D.B. made an application to

the non-statutory tribunal claiming that he was entitled to compensation. After D.B. had lodged his application but before the hearing,

the Hepatitis C Compensation Tribunal Act, 1997 became law and under it the non-statutory tribunal was replaced by a statutory

tribunal with considerably wider powers as set out in the Act. The new statutory tribunal could not come into being under the Act

until a statutory instrument was made. By S.I. No. 443 of 1997 the 1st of November, 1997 was appointed as the day upon which the

Tribunal was to be established. As of that date i.e. 1st of November, 1997 D.B.’s claim had not been heard. As a consequence it fell

to be heard by the statutory tribunal pursuant to section 6(2) of the 1997 Act.

An award was made by the statutory tribunal in favour of D.B. on the 4th of November, 1997. On the 6th of November, 1997 pursuant

to the provisions of section 5(9)(a) of the 1997 Act, notice of the making of the award was sent by the tribunal to D.B.. On the 24th

of November, 1997 D.B. accepted in writing the award made pursuant to section 5(9)(a) of the Act and in accordance with section

5(10), D.B. agreed in writing and undertook 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.

A right of appeal to the High Court from an award of the statutory tribunal is conferred in certain circumstances by section 5(9) of

the 1997 Act. In purported pursuance of his rights under that subsection, D.B. lodged an appeal on the 22nd of April, 1999. The

appeal was commenced by originating notice of motion in the High Court. A date was fixed for the hearing of the motion but

approximately one week before that date, counsel for the Tribunal sought permission to appear at the hearing so as to argue that

there was no jurisdiction to entertain the appeal. The learned High Court judge reserved his judgment on this locus standi issue but in

the meantime permitted counsel for the Tribunal to make submissions to him at the hearing on a de bene esse basis.

When the appeal came on for hearing a preliminary objection was raised by the Minister. It was argued on his behalf -

1. That the court had no jurisdiction to hear the appeal on the grounds that D.B. had on the 24th of November, 1997 signed an

acceptance of the award made to him by the Tribunal thereby precluding an appeal having regard to the wording of section

5(9) of the 1997 Act to which I will return.

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

same subsection, there being a statutory time limit not capable of extension.

These submissions were supported by counsel for the Tribunal.

O’Neill J., after hearing arguments, reserved his judgment on these preliminary objections and adjourned the hearing of the

substantive appeal pending the determination of those issues. Although the learned High Court judge did not think so (and I will return

to his reasoning in due course) I am quite satisfied that each of the alternative objections depend as to their validity almost

exclusively on the wording of section 5(9) of the 1997 Act. The subsection reads as follows:-

“(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.”

Subsection (13) deals with minors and is not relevant but it is important to cite subsection (15) which reads as follows:

“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.”

It is important to note that an appeal against an award under section 5(9) is to be regarded as an appeal under subsection (15) and,

therefore, an appeal against a decision. At the hearing before the learned High Court judge and at the hearing of this appeal

significance was attached by counsel for D.B. to an alleged distinction between “an award” and “a decision”. In due course I will treat

of this matter in more detail but at this stage it suffices to state that, in my view, every award under the Act is clearly “a decision”

but not every “decision” is an award. An obvious example of a decision which is not an award is where the Tribunal considers that the

applicant does not fall within the Act. But there is a particular reason why counsel for D.B. wants to emphasize this alleged

distinction. He sees in it a possible way around the difficulty of time limits. I believe that his argument in this regard is ill-founded and

I will be explaining why but in the meantime, I would prefer to return to the text of section 5(9) and to a consideration of how it

should properly be interpreted.

There is no doubt that the subsection provides that the claimant shall have a period of one month or such greater period as may be

prescribed i.e. by ministerial statutory instrument within which to “decide in writing either to accept or reject the award or to appeal

the award under subsection (15).” It is not in contest in this case that the award was accepted. But counsel for D.B. argues that the

acceptance of the award does not preclude an appeal. In other words, he rejects the argument that there were three alternative

steps i.e. accept the award, reject the award or appeal the award. Mr. Nesbitt S.C., counsel for D.B., says that D.B. was perfectly

entitled to accept the award and also appeal.

I cannot find any ambiguity in the subsection. As a matter of plain English there are three alternatives, not two. The “or” between

“accept” and “reject” and the “or” between the word “award” and “to appeal” both derive from the same introductory words “may

decide in writing either to”. The grammar is not perfect as Mr. Nesbitt points out. The word “either” is normally only appropriate to

one choice. But an argument based on good grammar is only relevant if it can point to an alternative interpretation. In this case I

cannot see that there is any alternative interpretation. Indeed, a grammarian might just accept the use of the word “either” on the

basis that accepting an award and rejecting an award are similar categories of steps whereas an appeal is rather different. But

although that point can be made, I am inclined to agree with Mr. Nesbitt that the grammar is wrong. There is, however, a simple

explanation for this. Paragraph 5(i) of the non-statutory scheme (the paragraph being headed “Preservation of Right of Action”) reads

as follows:-

“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 claimant of any award under

the scheme.”

There was no right of appeal under the non-statutory scheme. The applicant had to decide either to accept or to reject and if he did

nothing within a particular period he was deemed to have rejected the award. In that situation the word “either” was obviously

appropriate. Almost certainly the draftsman of the statutory scheme overlooked the inappropriateness of the word “either” when he

was inserting the further option of appeal. It was simply tagged on to existing wording. In Crilly v. T and J Farrington Limited [2001] 3

IR 251 at 283 Denham J. said the following:

“In this case the Act is clear, there is no ambiguity and the section in issue has been construed in accordance with the

traditional canons of construction. The People (Director of Public Prosecutions) v. McDonagh [1996] 1 IR 565 decided that even

if an Act is not ambiguous, the legislative history, that is the legislative antecedents, may be considered by a court. I agreed

then and I agree now with Costello P.’s judgment that such an approach should not be excluded. A court has a discretion to

consider such legislative history.”

In my opinion when a legislative scheme replaces a non-legislative scheme and where there are obvious similarities of wording

between the two schemes the non-statutory scheme is for all practical purposes a legislative antecedent and part of the legislative

history. It can, therefore, be considered in aid of interpretation. But I am quite satisfied that even if the court had never been told

about what was in the non-statutory scheme and knew nothing about it, section 5(9)(a) is not open to any other interpretation even

if there is imperfection in the grammar.

In interpreting paragraph (a) it is important to bear in mind the terms of paragraph (b). That paragraph unambiguously provides that if

a claimant neither accepts nor rejects an award or appeals the award within the period set out in the previous paragraph the claimant

shall be deemed to have rejected the award. Nothing could be plainer. It would be wholly illegitimate to interpret the provision as

though it meant something quite different from what it says. Such an approach would directly contravene the principles laid down by

this court in Howard v. Commissioners of Public Works [1994] 1 IR 101. At p. 152 of the report Blayney J. cites with approval the

following passage from Craies on Statute Law (1971) (7th Ed.) at p. 109:-

“If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to 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’… 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”.

If on a reading of paragraph (a) there could be the slightest doubt (which I do not believe there is) on the question of whether an

applicant was entitled both to accept an award and to appeal it, that doubt becomes totally removed upon a reading of paragraph

(b). That paragraph makes it clear that not merely has a decision to appeal to be made within the time limit but that the appeal itself

is to be brought within the time limit but, of course, the question of an appeal or a time limit therefor does not arise at all if the award

is accepted.

I am, therefore, of the view that the time limit issue does not arise at all because there was simply no right of appeal from and after

the acceptance of the award. If there is no right of appeal then the time within which an appeal must be brought is irrelevant. But in

deference to the arguments of counsel and since it was indicated that it would be helpful if the court dealt with all the questions I will

now treat of the time limit aspect on the artificial but false assumption that there was a right of appeal.

It was accepted by all sides at the appeal that on the basis of previous decisions of this court an express statutory time limit could

not be extended even by invoking a rule of court permitting an extension of time limits. Under paragraph (a) a claimant is to 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 etc. The word “prescribed” is given the usual meaning of prescription by regulations

made by the Minister. It does not, therefore, include a rule of court. A regulation extending the time was made by the Minister by the

Hepatitis C Compensation Tribunal Act, 1997, Regulations, 1998 (S.I. No. 195 of 1998). The relevant regulation is Regulation 2 which

reads as follows:-

“It is hereby prescribed that a claimant shall, as well as the period referred to in section 5(9)(a) of the Hepatitis C

Compensation Tribunal Act, 1997, have a period of not later than one month from the date of commencement of Rules of

Court in relation to such appeals, during which the claimant may decide in writing either to accept or reject the award of the

Tribunal or appeal the award under subsection (15) of that section.”

Such Rules of Court were made by the Superior Courts Rules Committee and approved by the Minster for Justice, Equality and Law

Reform on the 14th of October, 1998 and it was provided that the new rule should come into operation on the 23rd of October, 1998.

If, therefore, there had been a right of appeal the time was extended by the statutory instrument to the 23rd of November, 1998. As

has already been mentioned, however, D.B. lodged his appeal on the 22nd of April, 1999. He was, accordingly, out of time even

making allowance for the extended time prescribed by the statutory instrument.

Counsel for D.B is fully aware of this time limit and the fact that the appeal was brought outside it but he tries to get around the

difficulty by an ingenious argument which I must now address. He has referred the court to section 5(15) of the 1997Act cited earlier

in this judgment. He points out that the right of appeal conferred by that subsection is a right to appeal “in respect of any decision”

and he further points out that the subsection by its terms does not contain any time limit. He then draws the conclusion from that

that the only time limit which would be operative would be a time limit contained in the Rules of the Superior Courts and that under

those rules he could apply for and obtain an extension. Now, in relation to an award the rules of court follow the statute and they

provide that 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”. The

rules then go on to make a significant distinction. They provide in Order 105A (2) that where an appeal against a “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. It is

perfectly clear from that that the rules-making committee realised that there was a statutory time limit in respect of appeals against

awards but there was no statutory time limit in respect of appeals against other forms of decision. It is perfectly obvious that in this

case the statutory time limit applied because the appeal is against an award. But Mr. Nesbitt tries to get around the difficulty by

saying that the assessment of general damages and the assessment of loss of earnings for the future etc. were all “decisions” made

by the tribunal at the hearing and that he was entitled to appeal those discrete decisions provided he could obtain an extension of

time under the rules and he was in fact given such an extension in the High Court.

I cannot accept this argument. The position would seem to be no different from the hearing of an ordinary personal injury action in

which various rulings and assessments are made by the trial judge but at the end of the day there is only one appealable decision. In

this case the only appealable decision was an “award” and that is subject to the statutory time limit. As I have already pointed out,

even on the extended statutory time limit D.B. was out of time with his appeal.

Finally, I turn to the question of the locus standi of the tribunal. As a general rule a tribunal is not made a party to a statutory appeal

from its decisions though it would always be a party in a judicial review. Nor am I aware of any precedent for a tribunal on its own

motion coming in on an appeal as an intervenient or being given a right of audience. But there is a simple explanation for this. The two

parties before the appeal body whether it be a court or a special appeal tribunal will have also have been parties before the tribunal

at first instance. Any point that arises therefore about the jurisdiction or behaviour of the tribunal can be adequately litigated by the

actual parties. In this case, however, there is an anomalous procedure whereby the State is not represented at the tribunal hearings

and, therefore, there is in effect only one party before the tribunal. When it comes to an appeal the matter becomes inter partes. In

the interest of fair procedures and having regard to the fact that under the Act the tribunal must be served with notice of the making

of the appeal, the tribunal ought to have a prima facie right to come before the High Court and seek to be heard on some point

particularly relevant to it. It would be a matter for the High Court to consider whether it is relevant and appropriate that the tribunal

be heard. In this case having regard to the alternatives set out in the Act and the result and confusion that would arise as far as the

tribunal is concerned if they were not alternatives, the tribunal had a legitimate interest in seeking to make representations before the

High Court and I consider that in the exercise of his discretion the learned High Court judge ought to have held that the tribunal had

locus standi in all the circumstances.

The learned High Court judge, in an elaborate judgment, came to very different conclusions on each of the issues than I have done.

The principal reason for this is that, with all respect, he never actually attempted to interpret section 5(9). Instead, he seems to

have considered first section 6 which contains special provisions to deal with those who had already accepted awards from the non-

statutory tribunal. The learned judge concluded that if he accepted the State’s arguments there would be some kind of extraordinary

discrimination as between those who had originally received awards from the non-statutory tribunal and persons who were before the

statutory tribunal in that, as he saw it, the former would have major advantages which could not have been intended by the

Oireachtas. First of all, I respectfully disagree with that opinion but even if it were correct it could not justify ignoring the clear

wording of section 5(9) in order to achieve a “purposive” interpretation. Such an approach would fly in the face of Howard v. the

Commissioners of Public Works cited above. The purposive interpretation may certainly be appropriate if on the ordinary canons of

construction there is an ambiguity. For the reasons which I have explained, in my opinion there was no ambiguity here. The learned

High Court judge never said there was an ambiguity. He seems to have looked at the entire Act and adopted a subjective view of

what the Oireachtas must have intended in the interests of fairness and equality. I cannot agree that that was a legitimate approach.

In advocating a purposive approach counsel for D.B. placed reliance on MO’C v. Minister for Health (unreported judgment of the

Supreme Court delivered by Denham J. on 31st July, 2001). For the reasons indicated by Denham J. in her own judgment in this

appeal, I am satisfied that there is no inconsistency between the views which I have expressed and the judgment in the MO’C case.

Before the non-statutory scheme came in, an unfortunate victim of Hepatitis C such as D.B. could not have recovered compensation

except by an action for negligence in the courts and in such an action negligence would have had to be proved. That right has never

been removed from these victims. But the Minister for Health decided by way of an additional remedy to introduce an executive

scheme under which claimants could obtain compensation without the necessary proofs and they could then decide whether they

wanted to take the award or not. If they decided to take the award they had to waive their right of action in the courts. If they did

not like the amount of the award they could reject it and go to the courts in the ordinary way. Any such scheme whether it

contained time limits or not was of advantage to the victims over and above their existing common law rights. However, in the course

of time there were criticisms of the scheme such as for instance that there was no power to award aggravated damages and that

there was no right of appeal. It was as a consequence of these criticisms that the Oireachtas decided to bring in a statutory scheme.

There was nothing oppressive in that statutory scheme containing strict time limits. Any such scheme was a substantial added benefit

to the victims over and above their ordinary common law rights no matter how strict the time limits were. There is, therefore, nothing

unreasonable or improbable in there being strict time limits. On the contrary, they would be perceived as a necessary element in such

a scheme where the victims were still to have the alternative route of going to the courts if they were unhappy with an award.

There was another problem facing the Oireachtas. Much of the criticism would have come from persons who had already gone to the

non-statutory tribunal and, therefore, to accommodate them special provisions had to be made in the Act. These were contained in

section 6. I respectfully disagree with the learned High Court judge that it would be in some way irrational if there was not complete

equality of result as between persons who had received awards from the non-statutory scheme and persons who received awards

from the statutory scheme. In fact there are some special provisions in relation to instalments etc. which are in the statutory scheme

which never applied and do not apply and could not apply to persons who have already received awards from the non-statutory

tribunal. Much play has been made of the fact that under the new Order 105A of the Rules of the Superior Courts any appeal brought

by a person pursuant to section 6(3)(e) of the 1997 Act shall be brought by originating notice of motion within six months from the

date of the commencement of the Rules or within such further period as might be permitted by the court under Order 122. But it was

entirely reasonable that persons who had received awards from the non-statutory scheme should be given an extended time for

appealing because they had to learn first of the very existence of the new Act and of any rights they might have. All of that could

take a considerable length of time and there was nothing discriminatory in giving them this longer period. Furthermore, this period was

not given by the Act itself. The Act simply gives them a right of appeal; it is the rules-making committee which quite rightly

prescribed the lengthy period.

Each category of persons, that is to say, those who have been awarded compensation by the non-statutory tribunal and those who

have been awarded compensation by the statutory tribunal have a bundle of rights under the Act suitable to their own positions. In

the case of those who have received awards from the non-statutory tribunal they are already “tribunalised” and they are simply given

additional rights within the tribunal system. Persons who are given awards, however, by the statutory tribunal can decide whether

they want to leave the tribunal system or remain tribunalised. Rejecting the award has the effect that they are no longer tribunalised.

Accepting the award or appealing permanently tribunalises the claimants. Under section 5(10) a claimant who accepts an award 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. Subsection

(18) is an equivalent subsection in relation to the bringing of appeals. It provides that 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. Indeed, the existence of this subsection reinforces still more the interpretation of subsection (9) which I have

regarded as clear and unambiguous.

By the order of O’Neill J. made the 11th of September, 2002 following on a judgment which had been delivered on the 31st of July,

2002 the learned judge granted leave to appeal to the Supreme Court on the following specified questions of law:-

1. Is the claimant who wishes to appeal an award by the Hepatitis Compensation Tribunal (the Tribunal) barred from doing so

after the time specified in section 5(9)(a) of the 1997 Act has passed?

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

3. Does the Tribunal have a locus standi to appear in an application to this honourable court or in an appeal?

This leave was granted pursuant to section 5(19) of the 1997 Act. That subsection provides that a decision of the High Court on an

appeal under the 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. It has been submitted on behalf of D.B. that he was entitled in his notice of appeal, not only to appeal on

those three issues but also to add any other matter of appeal following the well-known principle that where there is a statutory

provision to the effect that leave to appeal can only be granted if the judge certifies that his decision involved a point of law of

exceptional public importance and that it is in the interest of the public to bring the appeal, any other ground can be added if in fact

such certificate and leave is given. This subsection is quite differently worded. It does not provide for that type of certificate with

which practitioners are well familiar and which is contained in the Courts Acts in relation to appeals from the Court of Criminal Appeal

and in the planning and refugee legislation. It seems to me that subsection 18 by its unambiguous terms allows him appeal only on “a

specified question of law”. Reference in the order to a certificate is in fact inappropriate as no question of a certificate arises.

It is clearly appropriate to answer the second question in the learned High Court judge’s order before answering the first question.

Indeed, that is the order in which he himself dealt with the issues in his judgment. As is clear from my judgment I take the view that

D.B. was precluded from appealing once he accepted the award and that, therefore, the question of extension of time does not arise.

I also take the view that even if I were wrong about that and that there was a right of appeal it could not be brought because there

was a statutory time limit and the claimant brought his appeal outside of that time limit. Finally, I would be of the view for the

reasons which I have given that the Tribunal did have locus standi. I would, therefore, allow the appeal on all three grounds.