IESC 61 · Supreme Court

THE SUPREME COURT

[Appeal No: 2017 103]

O’Donnell J.

MacMenamin J.

O’Malley J.

Finlay Geoghegan J.

Irvine J.

Between/

M. O’S.

Applicant/Appellant

and

The Residential Institutions Redress Board and The Superior Courts Rules Committee and The Minister for Justice and

Equality

Respondents

Judgment of Ms. Justice Finlay Geoghegan delivered on the 6th day of December, 2018.

1. This is an appeal from an order of the High Court (McDermott J.) made on 5 May 2017 for the reasons set out in a written judgment

delivered on 24 April 2017: M. O’S. v. The Residential Institutions Redress Board and The Superior Courts Rules Committee and The

Minister for Justice and Equality [2017] IEHC 251. The High Court refused an application for judicial review of a decision of the

Residential Institutions Redress Board (“the Board”) of 9 January 2012. The Board’s decision had refused an extension of time for an

application to it pursuant to s. 8(2) of the Residential Institutions Redress Act 2002 (“the 2002 Act”).

2. This Court granted leave to appeal directly from the High Court pursuant to Art. 34.5.4 of the Constitution: M. O’S. v. The

Residential Institutions Redress Board and The Superior Courts Rules Committee and The Minister for Justice and Equality [2017]

IESCDET 127.

3. The appeal raises difficult questions in relation to what may or may not constitute “good and sufficient reason” for the purpose of

an extension of time under O. 84, r. 21(3)(a) of the Superior Courts Rules (as amended by S.I. No. 691 of 2011) and the vires of the

Superior Courts Rules Committee to amend O. 84, r. 21 by the insertion of sub-rules (3)(b)(i) and (ii). The issues pertaining to what

may constitute “good and sufficient reasons” on the facts of this appeal relate to an extension of time to challenge the decision of

the Board taken under s. 8 of the 2002 Act and that Act is central to certain of the issues.

Residential Institutions Redress Act 2002

4. As the long title indicates, the 2002 Act is to “provide for the making of financial awards to assist in the recovery of certain

persons who as children were resident in certain institutions in the State and who have or have had injuries that are consistent with

abuse received while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards…”.

5. The Act provides for the establishment of the Board on the establishment day which was subsequently specified to be 16

September 2002. The functions of the Board are set out in Section 5 and include at subs. 1(a) that the Board shall “make awards in

accordance with this Act which are fair and reasonable having regard to the unique circumstances of each applicant”. Section 7

provides for the making of awards by the Board to a person who makes an application and establishes to the satisfaction of the

Board:

“(a) proof of his or her identity,

(b) that he or she was resident in an institution during his or her childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have

occurred while so resident.”

If this is established, the Board shall make an award in accordance with Section 13(1). The scheme is a no fault scheme, as provided

for in Section 7(5);

“(5) An applicant shall not, when presenting an application to the Board, be required to produce to the Board any

evidence of negligence on the part of a person referred to in the application, by the employer of that person or a public

body.”

6. Section 8 as originally enacted provides:

“(1) An applicant shall make an application to the Board within 3 years of the establishment day.

(2) The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period

referred to in subsection (1).

(3) The Board shall extend the period referred to in subsection (1) where it is satisfied that an applicant was under a

legal disability by reason of unsound mind at the time when such application should otherwise have been made and the

applicant concerned makes an application to the Board within 3 years of the cessation of that disability.”

7. Section 8(2) is central to this appeal. Section 8(3) is not relevant on the facts. Section 8 was amended by the Residential

Institutions Redress (Amendment) Act 2011 which inserted new subss. (4) and (5). Subsection (4) provides:

“(4) Notwithstanding the provisions of this Act, the Board shall not consider an application under this section that is

made on or after 17 September 2011”.

Subsection (5) provided for the giving of notice six weeks in advance of 17 September 2011 but nothing turns on this.

The Facts

8. The relevant facts are not in dispute. They are set out in the statement of grounds, notices of opposition and verifying affidavits in

the High Court and summarised by the High Court judge. For the purposes of the appeal, it is sufficient to state the following.

9. The appellant was one of 17 children. At age 12, whilst playing truant from school he entered a neighbour’s house, stole some food

and a one crown coin. He was apprehended, brought to court and sentenced to two years in an industrial school. He was in the

industrial school from November 1962 to April 1964. Whilst there he states that he was subject to severe physical and sexual abuse

by identified and named brothers and suffered from neglect and emotional abuse. The statement of grounds and his affidavit set out

the impact of this on the appellant in adult life including the fact that he has had periods of imprisonment and suffered from sexual

dysfunction, which he considers led to the breakdown of his first marriage and to him doubting the paternity of his children from his

second marriage.

10. The appellant did not make an application to the Board within the initial three year period i.e. prior to 15 September 2005. He

made his first late application to the Board in 2008, which was refused on 28 May 2008.

11. In 2010, he instructed new solicitors and in November 2010, those solicitors made a further application. This was supported by

two reports from a consultant psychiatrist. This explained the use of repression by the appellant in order to cope with the memories

of his time in care and consequences relevant to a failure to make a timely application.

12. The Board granted an oral hearing on 21 November 2011, at which the appellant, his wife and consultant psychiatrist gave

evidence.

13. By a decision communicated by a letter dated 11 January 2012, the Board refused the application pursuant to s. 8(2) of the 2002

Act on the basis that it did not consider that there were exceptional circumstances within the meaning of the section such as to

allow it to exercise its discretion under the Act to extend the time.

14. Upon receipt of the decision, the appellant’s solicitor sought the advice of counsel as to whether “we could proceed by way of a

judicial review”. His solicitor deposes that advices were received and the applicant was told that they could not recommend that an

application for judicial review was likely to succeed and that, should proceedings be brought and prove unsuccessful, the applicant

would be exposed to significant legal costs associated therewith. No application for leave was sought.

15. It is common case that in January 2012, the High Court had previously delivered two judgments upholding the test applied by the

Board in determining whether “exceptional circumstances” existed for the purposes of s. 8(2) of the 2002 Act: J.O’B. v. The

Residential Institutions Redress Board [2009] IEHC 284, (O’Keeffe J.) and M.G. v. The Residential Institutions Redress Board [2011]

IEHC 332 (Kearns P.).

16. In November 2012, Hogan J. in the High Court in A.O’G. v. The Residential Institutions Redress Board [2012] IEHC 492 reluctantly

followed the judgments in J.O’B and M.G. on the basis that he was bound by authority to do so, whilst outlining why, as a matter of

principle, he did not find the reasoning of the Board and its approach under s. 8 of the 2002 Act to “exceptional circumstances”

convincing.

17. By letter dated 26 July 2014, the solicitors for the appellant requested that the Board reconsider the appellant’s application. This

request was refused by a letter dated 28 July 2014.

18. On 15 May 2015, the Supreme Court allowed the appeal from Hogan J.: A.O’G. v. The Residential Institutions Redress Board

[2015] IESC 41. The single judgment was delivered by Denham C.J. (with whom the other four members of the Court concurred). She

considered the meaning of “exceptional circumstances” in s. 8(2) of the 2002 Act and held at para. 39 that “in light of the general

tenor of the Act of 2002, which was remedial in nature and the absence of fault in the scheme, the terms ‘exceptional circumstances’

has to be interpreted accordingly”. However, the appeal was decided upon the basis that the evidence adduced met the criteria for

“exceptional circumstances” given by the Board itself and that the Board’s decision was irrational. The judgment did not set out a new

test for “exceptional circumstances”.

19. However, the solicitors for the appellant by a further letter of 24 November 2015 sought to have the Board reconsider the

decision in respect of the appellant in the light of the Supreme Court judgment in A.O’G. This was refused by letter dated 27

November 2015.

20. The final and most relevant judgment in relation to the meaning of “exceptional circumstances” in s. 8(2) of the 2002 Act is that

of the Court of Appeal, Hogan J. (Kelly and Edwards J.J. concurring) delivered on 3 February 2016 in J. McE. v. The Residential

Institutions Redress Board [2016] IECA 17. That judgment reversed a decision of the High Court which, following J. O’B. and M.G., had

upheld the refusal of the Board to extend time. Following the principles set out by the Supreme Court in A.O’G., Hogan J. held that the

provisions of the 2002 Act including the term “exceptional circumstances” should be construed as “widely and liberally as can fairly be

done” because the statute is remedial in nature. He concluded at para. 38;

“. . ., I am of the view that s. 8(2) of the 2002 Act should be given a broad and liberal interpretation as befits a

remedial statute of this kind. This means that an applicant seeking an extension of time need only demonstrate

the existence of exceptional circumstances simpliciter, with the standard of exceptionality measured by reference

to contemporary standards prevailing within the general public, as distinct from the more limited class of persons

who might have applied under the 2002 Act. It is not necessary for the applicant to go further and show that such

circumstances impeded or prevented him or her from making an application to the Board within the original three

year period or that such circumstances contributed to a lack of knowledge regarding the existence of either the

redress scheme or the Board itself.”

21. It is accepted that this judgment changed the test or approach required of the Board in determining whether “exceptional

circumstances” within the meaning of s. 8(2) of the 2002 Act exist from that previously applied and approved of by the High Court in

J. O’B and M.G.

22. On 18 March 2016, the appellant made an application, ex parte, in accordance with O. 84, r. 20 of the Superior Courts Rules for

leave to seek, by way of judicial review, an order of certiorari of the decision of the Board of 11 January 2012 and a declaration that

O. 84, r. 21(3)(b)(i) and (ii) (as amended by S.I. No. 691 of 2011) is ultra vires the second and third named respondents. Leave was

granted and an order was made extending the time within which to make the application until 18 March 2016. Whilst the High Court

order does not expressly so provide, it is accepted by the appellant that the order made extending time was without prejudice to the

respondents’ right to raise the issue of delay (including contending that an extension of time should not be granted) in its statement

of opposition in addition to other grounds of opposition. The second and third named respondents were joined only for the purpose of

the claim of ultra vires in relation to O. 84, r. 21(3)(b)(i) and (ii). Only the third respondent has participated.

High Court Hearing and Judgment

23. There was a full substantive hearing of the application for judicial review on the statement of grounds, notices of opposition and

affidavits filed. Notwithstanding that it was a full substantive hearing, the question of delay was dealt with by the trial judge by

considering the question as to whether the appellant was entitled to an order extending time (until 18 March 2016) pursuant to O. 84,

r. 21(3) as amended, and if not, whether sub-rule (3)(b)(i) and (ii) were ultra vires. The High Court refused the reliefs sought for the

reasons set out in the judgment and did so essentially on two grounds:

(i) The appellant failed to establish “good and sufficient reason” for an extension of time under O. 84, r. 21(3)(a) and did

not meet either of the criteria in sub-rule (3)(b) and hence should not be granted an extension of time; and

(ii) If he was required to so determine (which he was not), O. 84, r. 21(3)(b)(i) and (ii) is not ultra vires the Superior

Courts Rules Committee.

24. I will return in more detail to the reasons for each of these conclusions. However, it is relevant to note that the High Court judge

did not consider or determine the substantive application for certiorari and the contention made on behalf of the appellant that the

decision of the Board was invalid having regard to the proper construction of s. 8(2) in accordance with the judgment of the Court of

Appeal in McE. In the course of case management of the appeal, the Board helpfully clarified its position. It accepts that if the

appellant is successful in his appeal upon the basis that he was entitled to an order extending time under O.84, r. 21(3) (or such part

of it as may be intra vires the Rules Committee), he is entitled to succeed in his application for certiorari of the Board’s decision of 9

January 2012 and that the Court should remit the matter back to the Board for further consideration.

High Court Judgment

25. The trial judge refused the application for certiorari essentially because, in his view, the appellant did not establish a good and

sufficient reason for the extension of time in accordance with O. 84, r. 21(3). He determined that the approach of the Supreme Court

in A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88 to the issue of the retrospective effect of a declaration that a section of a

statute is inconsistent with the Constitution meant that, as a matter of principle, a change in relevant case law could not provide a

good and sufficient reason to extend the time pursuant to O. 84, r. 21(3) for a person who had failed to commence judicial review

proceedings to challenge an administrative decision within the relevant time limit. In doing so, he had particular regard to the

comparative position of a person who had commenced judicial review within the relevant time period but had not raised a relevant

point and his proceedings were finally determined prior to the relevant development in the case law.

26. The trial judge considered the application for a declaration that O. 84, r. 21(3)(b)(i) and (ii) are ultra vires the Superior Courts

Rules Committee. Whilst recognising that it was unnecessary for him to consider the point having regard to the decision reached that

the appellant had failed to establish good and sufficient reason for an extension of time he nevertheless continued to consider the

issue and ultimately concluded that it was intra vires the statutory power of the Rules Committee. At para. 56 of his judgment, he

stated:

“56. The Superior Court Rules Committee is vested with power to make rules of court for “all or any… pleading, practice

and procedure generally… in all civil cases.”. The court is satisfied that this includes the power to make rules as to the

time within which an application for leave to apply for judicial review must be brought and the circumstances in which an

extension of that period may be granted.”

Appeal

27. The appellant contends that the trial judge was in error in determining that as a matter of principle, a relevant development in the

case law of the courts could not constitute a good and sufficient reason for the extension of time pursuant to O. 84, r. 21(3). He

submits that such an approach is inconsistent with the case law of the Supreme Court in relation to the jurisdiction to be exercised

by the Court upon an application for an extension of time to bring judicial review proceedings. He relies in particular upon the

balancing exercise which a court is required to undertake when making such a decision and the potential restriction on the appellant’s

constitutional right of access to the courts.

28. On that issue, the Board supports the decision of the trial judge that there is a “bright line” principle which precludes a court

taking into account a relevant development in jurisprudence when determining whether an applicant has advanced good and sufficient

reasons for an extension of time pursuant to O. 84, r. 21(3).

29. On the vires question, the appellant submits that the trial judge was in error in not concluding that the insertion of O. 84, r. 21(3)

(b)(i) and (ii) was ultra vires the Rules Committee. The submission relies in particular upon the constitutional right of access to the

courts, the judicial function and discretion in determining an application for an extension of time and what is contended to be an

interference by the mandatory requirement that one of two conditions be satisfied in the exercise of that function. Reliance was

placed in particular upon the judgment of this Court in Blehein v. Minister for Health [2009] 1 I.R. 275.

30. The respondents and in particular, the third named respondent, submits that the new rule is intra vires and is a reflection of the

existing case law of the Superior Courts as to the manner in which the discretion to extend time to make an application for judicial

review ought to be exercised. Reliance is also placed upon the fact that the appellant does not challenge the vires of O. 84, r. 21(1)

or O. 84, r. 21(3)(a). It is submitted that it is illogical to contend that the further provisions are ultra vires and accept that the rules

committee may make a rule which specifies a time within which an application must be brought subject to a requirement of good and

sufficient reason for an extension of time.

31. Both issues on appeal depend upon a consideration of O. 84, r. 21 and the case law relating to both time limits for the bringing of

judicial review applications and the issue of delay as a factor in refusing as a matter of discretion a substantive relief sought. I now

turn to consider that rule.

Order 84, Rule 21

32. The current rules applicable to judicial review in O. 84 were inserted in 2011 by S.I. No. 691 of 2011. As with the prior rule, O. 84,

r. 20 provides for the making of an application for leave to bring judicial review by motion ex parte. That is of some relevance to a

consideration of r. 21 and the manner in which the courts have approached applications for extension of time, both at the leave stage

and subsequent to that. The Court is, of course, at liberty to direct that an application for leave be on notice and there are also

certain statutes which require applications for leave to be on notice. This judgment is not concerned with time limits or criteria for

extension of time fixed by an Act of the Oireachtas.

33. Rule 21 as inserted in 2011 provides:

“(1) An application for leave to apply for judicial review shall be made within three months from the date when grounds

for the application first arose.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding,

the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction

or proceeding.

(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an

application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied

that:-

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in

sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.

(4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard

to the effect which an extension of the period referred to in that sub-rule might have on a respondent or third party.

(5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf

of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the

period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons.

(6) Nothing in sub-rules (1), (3) or (4) shall prevent the Court dismissing the application for judicial review on the ground

that the applicant’s delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed

by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is

likely to cause prejudice to a respondent or third party.

(7) The preceding sub-rules are without prejudice to any statutory provision which has the effect of limiting the time

within which an application for judicial review may be made.”

34. Prior to that amendment, O. 84, r. 21 of the 1986 Rules provided:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months

from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the

Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding,

the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction

or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time

within which an application for judicial review may be made.”

35. In considering the case law which relates to the prior r. 21, it is of relevance to note that the requirement that an application be

made “promptly” was removed by the 2011 amendment; that the requirement for a “good reason” for an extension of time has been

amended to require both “a good and sufficient reason” for doing so and the additional requirements in para. (b) of sub-rule (3) which

are in contention. It is also of some relevance to the earlier case law that sub-rule (4) permits the court to “have regard to the

effect which an extension of the period referred to in that sub-rule might have on a respondent or third party”. Also, sub-rule (5)

expressly requires an application for an extension to set out the reasons for the applicant’s failure to make the application for leave

within the period prescribed by sub-rule (1). It must be recalled that such an affidavit requires to be provided on the initial ex parte

application. Finally, the new sub-rule (6) appears to be directed to the position of a court when considering a submission that the

application for judicial review, as distinct from the application for leave to apply for judicial review, should be refused by reason of

delay. Nothing turns on that sub-rule for the purpose of these proceedings, but it does perhaps emphasise the different ways and

points at which delay may be a factor in applications for judicial review.

36. This appeal is concerned with the decision of a court to extend time under r. 21(3). Whilst that extension had been granted by

McDermott J., who granted leave on an ex parte basis it is clear from his judgment that he revisited the issue, without objection, at

the substantive hearing. It is of some relevance that the issue decided by the High Court was on the basis of an extension of time to

apply for judicial review rather than any refusal of substantive relief by reason of a delay.

37. It is also common case that on the facts of this application there is no third party prejudice. It is therefore not relevant to

consider when third party prejudice is a relevant matter to be taken into account in determining an application to extend time to

grant leave as distinct from determining whether, as a matter of discretion, the substantive relief sought should or should not be

granted.

38. It is also the position that the Board has not relied on any specific prejudice to it. It has relied upon the statutory scheme

created by the legislation and in particular, the amendment in 2011 as precluding it from considering any application after 17

September 2011 and the fact that it only has a small staff and was close to finalising its work. The appellant’s first application was

made in 2008 and re-opened in 2010 or early 2011, with an oral hearing taking place in November 2011.

39. In order to determine whether the trial judge is correct in his determination that as a matter of principle, a relevant change in the

jurisprudence of the courts may not constitute good and sufficient reason for the extension of time, it is necessary to consider what

this Court has already determined to be the role and function of the court in determining an application for extension of time for leave

to issue judicial review.

40. In considering the earlier case law, it is relevant to bear in mind the distinction which I have sought to make between a decision

to refuse an extension of time for leave to bring judicial review (whether made at the ex parte stage or later, either on an application

to set aside the ex parte order or as part of the opposition in the substantive proceedings) and the refusal to grant the relief sought

by way of judicial review to which the applicant might otherwise be entitled following a full substantive hearing. In some instances,

the differences may appear small but the former may be considered as a restriction on access to the courts whereas in the latter, an

applicant has had full access to the courts and a consideration of his substantive claim but has been refused the substantive relief by

reason of delay in seeking same and in particular, the question of prejudice to the respondent or third parties always comes in to play

in those considerations.

41. The appellant, in common with many applicants who seek an extension of time for judicial review, seeks to rely upon the well

known statement of McCarthy J. in this Court in The State (Furey) v. Minister for Defence [1988] I.L.R.M. 89, where he stated:-

“I see no logical reason why delay, however long, should of itself disentitle to certiorari any appellant for that remedy

who can demonstrate that a public wrong has been done to him – that, for instance a conviction was obtained without

jurisdiction, or that, otherwise, the State has wronged him and the wrong continues to mark or mar his life.”

Those were proceedings under the old stateside procedure. A conditional order had been granted and the cause shown included an

allegation of delay. In the High Court, the conditional order was discharged. On appeal, the issue of delay was considered in the

context of the substantive right to the reliefs sought and any disentitlement to same by reason of the delay in pursuing the

application. The appeal was allowed.

42. In O’Flynn v. Mid-Western Health Board [1991] 2 I.R. 223, McCarthy J. was again a member of the Court in a judicial review

appeal but one to which O. 84, r. 21 of the 1986 Rules applied and where the applicant had been out of time. The High Court had

granted the order of certiorari and was reversed on appeal. The decision challenged was one step in a two stage procedure.

McCarthy J. at p. 239 on the question of delay stated:-

“There is ample ground for saying that both in principle and in precedent an application for judicial review should not fail

merely because it is out of time: The State (Furey) v. Minister for Defence [1988] ILRM 89. In principle it is right to

relieve against delay in challenging an administrative decision where the delay has not prejudiced a third party. Save for

the inconvenience it caused to the committee of inquiry the only prejudice caused by the delay between January and

September 1988, was to the applicants themselves. These considerations apply where the impugned decision has an

immediate effect on rights and is not merely a step in the process as in the case here. A decision adverse to the

applicants on this issue does not determine the complaint made against them. For these reasons, I would allow this

appeal on this ground [delay]”.

43. It may be relevant to observe that a separate judgment was given by Hederman J. in O’Flynn, who, at p. 236 in relation to the

question of delay, stated:

“Where the time limit prescribed by rules of court has passed (as was the case here) the judge should be furnished with

the reasons for the delay in the grounding affidavit and he should decide whether there are grounds for excusing the

delay. Even if leave is granted at the ex parte stage, nonetheless, when the trial judge comes to hear the matter he

must adjudicate on whether the delay was reasonable and such as may be excused or not. I am satisfied that in all the

circumstances of this case there was undue delay in applying for judicial review and for that reason, also, I would refuse

the relief sought.”

It is not clear what the ratio of the overall decision of the Supreme Court was in that Finlay C.J. and O’Flaherty J. agreed with the

judgments of Hederman and McCarthy JJ., whilst Griffin J. agreed with the judgment of Hederman J. and with the conclusions of

McCarthy J.

44. Be that as it may, it is clear that, following the judgments in de Roiste v. The Minister for Defence [2001] 1 I.R. 190 and in Dekra

Eireann Teoranta v. The Minister for the Environment and Local Government [2003] 2 I.R. 270, the statements of McCarthy J. in

both Furey and O’Flynn can no longer be regarded as good law. In Dekra, Fennelly J. in the course of considering the nature and the

extent of the burden to show “good reasons” referred to the above passage from McCarthy J. in O’Flynn and then stated:

“The proposition there enunciated can no longer be regarded as good law. The precedent upon which it was based, The

State (Furey) v. Minister for Defence [1988] I.L.R. M. 89, was disapproved by this court in de Roiste v. Minister for

Defence [2001] 1 I.R. 190. In his judgment, on p. 197, Keane C.J stated that the passage from The State (Furey) v.

Minister for Defence upon which the later dictum of McCarthy J. was founded, was clearly obiter. He went on to accept

the explanation of the relevant law contained in the judgments of Denham and Fennelly JJ. in the same case. It will

suffice if I refer to one passage from the judgment of Denham J. at p. 210:-

‘The time element in judicial review proceedings requires early application to court by an applicant. This is

indicated by the requirement that the application be made promptly, and in any event within three or six months

from when the grounds for application arose, unless there is good reason to extend the period within which the

application shall be made. This is a shorter time span than the time required in other proceedings, for example a

plenary summons. Time is more of the essence, more urgent, in judicial review proceedings. Indeed, in some

areas of judicial review, by statutory requirement, an application must be made within weeks. Thus, the case law

relating to dismissing proceedings for lack of prosecution has some, but not great, relevance to applications for

judicial review. Such cases may be helpful in analysing the reason for delay to see if it is a good reason and to

achieve a just decision.’

Although de Roiste v. Minister for Defence [1988] I.L.R.M. 89 was an extreme case on its facts, concerning an

application delayed for some 30 years, the judgments usefully address some points of distinction between the principles

applicable to delay in the context of judicial review and in the context of the dismissal of an action for want of

prosecution. In the first case, it is incumbent on the applicant to explain any delay on his part in moving the court and

the burden is upon him. In the second case, the plaintiff may commence his action within the limitation period laid down

by law. The burden of establishing that any alleged delay has been inordinate and inexcusable lies on the moving party,

ordinarily the defendant. Naturally, in each type of case, the court is called upon to strike a balance, in the interests of

justice, between a number of considerations.”

45. De Roiste, as pointed out by Fennelly J., was an extreme case of a delay of almost 30 years. Leave had been granted and delay

raised in the notice of opposition and appears to have been done so on a basis that the delay was “inordinate and inexcusable” which

is, of course, a ground relied upon in applications to dismiss plenary proceedings for delay, hence the above comments. However, the

judgments, in particular that of Denham J., consider in detail the discretion of the Court in judicial review, both in relation to the

question of extending time to grant leave and the requirement of good reasons therefor and also the question of granting or refusing

relief by way of judicial review at a substantive hearing. O. 84, r. 21 of the 1986 Rules applied at the time of de Roiste.

46. In de Roiste, Denham J. stated at p. 207:-

“The Rules of the Superior Courts, 1986, set out a scheme which indicates a specific, short, time span within which to

bring an application, whilst also retaining a discretion in the court to allow an application if there is good reason. The

discretion is rooted in the writs and common law. There have been many cases over the centuries where the nature of

the discretion of the court has been considered. In general, courts have stressed that the remedy is discretionary.”

She then referred to a number of particular decisions and continued at p. 208:-

“Thus, the general rule is that certiorari is a discretionary remedy. However, if, for example, a conviction was made

without jurisdiction the general course would be for the court to grant the application. There are no absolutes in the

exercise of a discretion. An absolute rule is the antithesis of discretion. The exercise of a discretion is the balancing of

factors - a judgment.

In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the

court may take into account factors such as; (i) the nature of the order or actions the subject of the application; (ii)

the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the

parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed;

(v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that

proceedings relating to the public law domain take place promptly except when good reason is furnished. Such list is not

exclusive. It is clear from precedent that the discretion of the court has ever been to protect justice…”

47. In de Roiste, Fennelly J. in his judgment also emphasised the exercise of discretion in an application for judicial review and in the

context of delay. He also agreed with the analysis of the relevant principles by Denham J. I recognise that the appeal in de Roiste

was considered in the context of an appeal from a decision of the High Court on a preliminary issue that the judicial review

proceedings, in respect of which leave had been granted, should be dismissed by reason of delay. Hence the question was whether

having regard to all the circumstances, the balance of justice did or did not require that the action proceed. That is made particularly

clear by the judgment of Keane C.J. Nevertheless, the judgments of Denham and Fennelly JJ., in emphasising the discretionary nature

of judicial review including applications to extend time for leave in judicial review, are relevant.

48. The approach in de Roiste was followed by the Court in the subsequent judgments in Dekra Eireann Teo v. the Minister for the

Environment [2003] 2 I.R. 270. That appeal concerned a different but analogous rule of the High Court; O. 84A, r. 4 as inserted by

the Rules of the Superior Courts (No. 4), (Review of the Award of Public Contracts), 1998, which provides:

“An application for the review of a decision to award or the award of a public contract shall be made at the earliest

opportunity and in any event within three months from the date when grounds for the application first arose unless the

Court considers that there is good reason for extending such period”.

49. The contract in question had been awarded to the notice party on 15 December 1998. Dekra had been informed by 16 December

and instituted proceedings on 25 March 1999 i.e. outside of the three month period. Leave was granted and when served, the notice

party brought an application to dismiss on the grounds that the applicant had failed to institute the proceedings within the prescribed

limitation period. In the High Court, that application was dismissed. On appeal it was allowed. There were two judgments, of Denham

and Fennelly JJ., with whom Keane C.J., McGuinness and Hardiman JJ. agreed. There were a number of issues in the appeal specific to

O. 84A and the award of public contracts in particular arising from the obligation to apply “at the earliest opportunity”. Nevertheless,

the approach of Denham and Fennelly JJ. to the question of the jurisdiction being exercised by the court where the applicant failed to

apply within the specified three months and where the court is constrained from extending the time unless it considers there is “good

reason”, is of considerable assistance to the issues to be determined in this appeal.

50. Both judgments approve of and apply the consideration given by Costello J. in O’Donnell v. Dun Laoghaire Corporation [1991]

I.L.R.M 301, to the term “good reason” in O. 84, r. 21 where, at p. 315 he stated:

“The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in

considering whether or not there are good reasons for extending the time I think it is clear that the test must be an

objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she

was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84,

r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the

delay. There may be cases, for example where third parties had acquired rights under an administrative decision which

is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation

for the delay the court might well conclude that this explanation did not afford a good reason for extending the time

because to do so would interfere unfairly with the acquired rights (The State (Cussen) v. Brennan [1981] I.R. 181).

Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires

decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the

situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his

right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in initiating

the proceedings.”

51. Each of the judgments set out clearly the obligation on a person who does not apply within the time limit to give good reasons

which both explain the delay and offer a justifiable excuse. However, both also emphasise the discretion exercised by the Court in

determining the application and the matters to be taken into account. Denham J. at p. 288 stated:

“In exercising its discretion in such applications the court retains its duty to protect the right of access to the courts.

However, there are special weightings which must be given. Thus the requirement under European and Irish law that

such applications be brought rapidly is important. So too is the nature of the contract under review. This public contract

calls into play the special importance of time and thus the nature of the prejudice to the parties if they are delayed. The

court may also consider any prejudice to the public, the common good.”

Later in her judgment at p. 289, having referred to the analysis of Costello J. in O’Donnell, she then stated:-

“I am satisfied that this analysis is applicable to the term "good reason" in O. 84A, r. 4. I apply the test to this case.

Thus, the applicant had to show that there were reasons which both explained the delay and offered a justifiable excuse.

The public contract in issue involved significant liabilities, obligations and expenditure which may raise important factors

for a court. The justice of the situation may raise issues such as prejudice to the notice party arising from the

expenditure and other undertakings in the contract.

Also, I am satisfied, concepts of the public good may be relevant as being prejudiced by protracted and delayed judicial

review. The common good could have a heavy weighting in reviews of this type, reflecting the requirement on any

applicant to move rapidly.”

52. On the facts of that case, Denham J. concluded that the applicant neither explained nor gave excuses which justified the delay.

There were therefore no good reasons given for extending the time limit and she allowed the appeal.

53. The approach of Fennelly J. was very similar. He emphasised the obligation to furnish good reasons and the obligation of the Court

to consider all the relevant circumstances. At p. 304 he stated:-

“An applicant who is unable to furnish good reason for his own failure to issue proceedings for judicial review “at the

earliest opportunity and in any event within three months from the date when grounds for the application first arose”

will not normally be able to show good reason for an extension of time. In particular, he cannot, without more, invoke

the absence of any prejudice to the opposing party as the sole basis for the suggested good reason.

The strictness with which the courts approach the question of an extension of time will vary with the circumstances.

However, public procurement decisions are peculiarly appropriate subject matter for a comparatively strict approach to

time limits. They relate to decisions in a commercial field, where there should be very little excuse for delay. I agree

with the trial judge that no more favourable consideration should be given to the applicant's application for an extension

of time by reason of the fact”

54. The foregoing decisions clearly require an applicant who does not apply for leave to issue judicial review within the time specified

in the Rules to furnish good reasons which explain and objectively justify the failure to make the application within the time limit and

which would justify an extension of time up to the relevant date.

55. However, they also emphasise the discretionary nature of the jurisdiction being exercised by the Court in determining any such

application, including as stated by Denham J. in Dekra, “its duty to protect the right of access to the courts”. As Fennelly J. makes

clear, the strictness with which the courts approach the question of an extension of time will vary with the circumstances. Denham J.

in de Roiste attempts to identify what may constitute relevant circumstances, albeit that it is not intended to be an exhaustive list of

matters which may be taken into account by a court. It will depend upon the nature and the facts of the particular application.

56. The approach of the Court in Re Art. 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360 should also be noted.

The Court, in upholding the constitutionality of the 14 day period to apply for judicial review, with provision for extension if the court

is satisfied there is “good and sufficient reason” for doing, stated at p. 394:-

“The Court is satisfied that the discretion of the High Court to extend the 14 day period is sufficiently wide to enable

persons who have regard to all the circumstances of the case including language difficulties, communication difficulties,

difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the

courts for the purpose of seeking judicial review in accordance with their constitutional rights.”

57. G.K. v. Minister for Justice [2002] 2 I.R. 418 indicates that one of the factors which a court may consider in the context of

determining whether there exists good and sufficient reason to extend the time is the underlying merits of the application, in the

sense at least of requiring demonstration of an arguable case. At p. 423, Hardiman J., in considering the phrase “good and sufficient

reason for extending the period” in s. 5(2)(a) the Illegal Immigrants (Trafficking) Act 2000 stated:-

“The statute does not say that the time may be extended if there were “good and sufficient reasons for the failure to

make the application within the period of 14 days”. A provision in that form would indeed have focused exclusively on the

reason for the delay and not on the underlying merits. The phrase actually used “good and sufficient reason for

extending the period” does not appear to me to limit the factors to be considered in any way and thus, in principle to

include the merits of the case.

On the hearing of an application such as this it is, of course, impossible to address the merits in the detail of which they

would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration

of an arguable case. In addition, of course, the question of the extent of the delay beyond the 14 day period and the

reasons if any for it must be addressed.”

58. Those comments, it is acknowledged, were made in a context where the point taken was that the applicant did not have an

arguable case. The present appellant is at the other end of the scale in that the Board accept that, if entitled to an extension of time

for leave to bring judicial review, the appellant is entitled to an order of certiorari having regard to the judgment of the Court of

Appeal in J. McE.

59. The above cases which deal with an extension of time pursuant to the prior O. 84, r. 21 or O. 84A, r. 4 and require the provision

of good reasons for the extension of time appear to me to apply equally to the current requirement in O. 84, r. 21(3), which requires

the Court to be satisfied that there is “good and sufficient reason” for the extension of time. I do not consider that the addition “and

sufficient” adds any particular additional requirement to the provision of good reasons as explained in the judgments cited. Rather, the

additional words emphasise or expressly provide for what follows from the judgments that the reasons offered must be sufficient to

justify the court exercising its discretion on all the relevant facts and circumstances to grant the extension sought.

60. I have concluded that the case law cited above, insofar as it applies to the extension of the time specified under O. 84 for the

bringing of judicial review proceedings, makes clear that the jurisdiction which the Court is to exercise on an application to extend

time is a discretionary jurisdiction which must be exercised in accordance with the relevant principles in the interests of justice. It

clearly requires an applicant to satisfy the Court of the reasons for which the application was not brought both within the time

specified in the rule and also during any subsequent period up to the date upon which the application for leave was brought. It also

requires the Court to consider whether the reasons proffered by an applicant objectively explain and justify the failure to apply within

the time specified and any subsequent period prior to the application and are sufficient to justify the Court exercising its discretion to

extend time. The inclusion of sub-rule (4) indicates expressly that the Court may have regard to the impact of an extension of time

on any respondent or notice party. The case law makes clear that the Court must also have regard to all the relevant facts and

circumstances, which include the decision sought to be challenged, the nature of the claim made that it is invalid or unlawful and any

relevant facts and circumstances pertaining to the parties, and must ultimately determine in accordance with the interests of justice

whether or not the extension should be granted. The decision may require the Court to balance rights of an applicant with those of a

respondent or notice party. The judgments cited do not, in my view, admit of a bright line principle which precludes a court taking

into account a relevant change in the jurisprudence of the courts when deciding whether an applicant has established a good and

sufficient reason for an extension of time. Further, the judgments cited above do not envisage any absolute rule in relation to what

may or may not be taken into account or constitute a good reason or a good and sufficient reason. The Court, in an application for an

extension of time, is exercising a discretionary jurisdiction and in the words of Denham J. in de Roiste, “[t]here are no absolutes in the

exercise of a discretion. An absolute rule is the antithesis of discretion. The exercise of a discretion is the balancing of factors - a

judgment.”

61. As a matter of common sense, one only has to consider the following facts, which undoubtedly are very different to those at

issue in this appeal, to understand that the above principles are inconsistent with any bright line exclusion of reliance upon a

development in relevant jurisprudence in an application for an extension of time. If the Court of Appeal judgment in McE., instead of

being delivered in 2016, had been delivered say, in April,2012 and the application for leave was made say one week after the expiry of

the three month limit, could it be said that, notwithstanding the fact that a decision was made not to challenge the Board’s decision

in reliance on earlier High Court judgments, the change in the relevant case law by virtue of the Court of Appeal decision could not

form part of a good and sufficient reason for a court to extend the time to challenge the decision of the Board by a matter of say,

one week? A court would, of course, have to consider also the explanation for why the decision was not challenged within the time.

Assuming that a court considered that explanation justifiable and that the Court of Appeal judgment did make a relevant change to

the prospect of success in the judicial review, I find it difficult to envisage that a court would refuse such an application where the

applicant is a person who is entitled to make a claim under the 2002 Act and what is at issue is a challenge to the decision of the

Board under s. 8(2) of the 2002 Act.

62. The judgment in Dekra demonstrates very clearly that there may be a different approach, for example, where the underlying

decision relates to the award of a commercial contract and the relevant EU provisions require very strict timelines and in addition, the

notice party, who has been awarded a contract, or even a respondent who is seeking to have work done by the award of a contract,

may be prejudiced by even short delays. The judgments in Dekra emphasise that each application for an extension of time must (as

has been stated in the earlier authorities) be decided having regard to all the relevant circumstances of the individual application.

63. The second reason for which I consider that the High Court was in error in determining that as a matter of principle, the 2016

decision of the Court of Appeal in J. McE. could not be taken into account when considering whether the appellant satisfied the Court

that there was a good and sufficient reason for the extension of time, is that it does not appear to me to follow from the judgments

of the Supreme Court in A. v. Governor of Arbour Hill Prison that, as stated by the trial judge at para. 37, “[t]he Supreme Court has

definitively rejected the retrospective application of decisions for the benefit of an applicant who did not or did not in a timely manner

seek relief”.

64. My primary disagreement with the trial judge is the use of the word “definitively”. The judgments do not in terms address the

retrospective application of a judgment to an administrative decision in respect of which judicial review has not been sought within

the time specified in the Rules of Court, but where there is provision for an extension of time. Nor do the judgments indicate an

absolute or definitive rule that a judgment may not be relied upon by a person who has been subject to a prior decision which now

appears to be invalid and in relation to which there are not finally determined proceedings.

65. It must be recalled that what was at issue in A. v. the Governor of Arbour Hill Prison was, as put by Murray C.J. at p. 142, “the

question of absolute or automatic retrospectivity on previous decided cases”. That general question identified was in the specific

context of the declaration made by the Supreme Court in C.C. v. Ireland [2006] 4 I.R. 1, that s. 1(1) of the Criminal Law Amendment

Act 1935 was inconsistent with the Constitution. That declaration was made on 23 May 2006. Mr. A., on a plea of guilty, had been

convicted in the Circuit Court on 15 June 2004 of unlawful carnal knowledge contrary to s. 1(1) of the 1935 Act. He was held under a

warrant pursuant to his conviction in Arbour Hill when on the 26 May 2006 he applied to the High Court pursuant to Art. 40.4.1 for his

release. He contended that he was no longer detained in accordance with law as the effect of the declaration in C.C. v. Ireland

meant that s. 1(1) of the 1935 Act, in accordance with Art. 50.1 of the Constitution, ceased to have legislative existence in 1937

and hence he had been charged and convicted of an offence which did not exist in law at the date of the alleged offence in 2003 or

at the date of his conviction in 2004. His contention was upheld by the High Court and his release from detention directed pursuant to

Art. 40.4.2. of the Constitution. The Supreme Court allowed the appeal and the reasons for the decision are given in five separate

judgments of the Court, Murray C.J., Denham, McGuinness, Hardiman and Geoghegan JJ. Whilst it is fair to observe that there are

some differences in approach, the ratio appears to be as set out by Murray C.J. at para. 17:-

“I do not accept that it is a principle of our constitutional law that cases which have been finally decided and determined

before our courts on foot of a statute which is later found to be unconstitutional must invariably be set aside as null and

of no effect.”

66. The primary focus of the judgments is the retroactive effect of a judicial decision invalidating a statutory provision and most

particularly its effect on cases, both criminal and civil, which have been finally decided and determined by the courts in reliance upon

the statute prior to the declaration of invalidity. As is clear from the judgments, the concept that a declaration of inconsistency with

the Constitution renders a statute void ab initio (if a post-1937 statute) or to have ceased to have legislative effect (if a prior-1937

statute) created the particular difficulty which had to be addressed.

67. The principles in relation to the retrospective effect of judicial decisions at common law are considered by Murray C.J. The trial

judge cites a longer extract from that part of his judgment. As appears they do have retrospective effect, but that effect is excluded

from cases already finally determined. At para. 36, Murray C.J. put it this way:

“36. Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which

decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied

occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to

the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or

otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the

ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is

to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the

retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common

law position.”

68. As appears from the foregoing, the decision of the Court of Appeal in J. McE. applies, in principle, retrospectively to all persons

who, prior to the judgment, suffered the same or similar wrong as did the plaintiff in that case. The relevant wrong is that the Board

made a decision on an application under s. 8(2) of the 2002 Act using an incorrect meaning of “exceptional circumstances”. The only

principled exception to the retrospective application of the judgment in J. McE. is to cases already fully or finally determined.

However, as pointed out by Murray C.J., some people may be precluded from obtaining a remedy for the wrong by reason of a

limitation period.

69. The appellant herein has not had this or any application to the court fully or finally determined. At the time of his application to

the High Court, he was, of course, outside of the three month period specified in O. 84, r. 21. However, that it is not an absolute

limitation period. It is a rule of court, which has, as was observed by Clarke J. in Shell E & P Ireland Limited v. McGrath [2013] 1 I.R.

247, the force of law. However, the time limit specified is subject to the possibility of an extension of time if the court is satisfied, in

accordance with the relevant law, that time should be extended.

70. The trial judge considered that it followed from the fact that a person who had already had his case finally determined is

precluded from relying upon a later judgment which makes a relevant change to the law, that a person who has not applied for judicial

review within the time specified in the Rules of Court may not rely upon the potential retrospective effect of the judgment in an

application to extend time. He considered it would place an applicant who never sought leave in a better position than a person who

had done so and their proceedings had been finally decided. This may be a factor to be taken into account in the exercise of

discretion on an application to extend time depending on the facts and circumstances, but does not create an absolute rule. A person

who has not commenced a claim which is the subject of an absolute limitation period is also in a different position.

71. Accordingly, it does not appear to me to follow from the judgments in A. v Governor of Arbour Hill Prison nor from the common law

position, that a person who is outside of a three month period and applies for an extension of time and seeks to rely inter alia as a

reason for the extension upon a change in the law by judicial decision, is in principle excluded from reliance upon the retrospective

effect of the new judicial decision on the administrative decision sought to be challenged. It is, of course, a separate question as to

whether a court will consider that the change in law effected by the judgment, when considered with all the other relevant facts and

circumstances, constitutes good and sufficient reason for an extension of time. There may be many instances in which it would not

be so considered, but there may be others in which it would.

Good and Sufficient Reason

72. I now turn to the more difficult question as to whether on all the facts and circumstances of this appeal, including the change in

construction of s. 8(2) of the 2002 Act in the judgment of the Court of Appeal in J. McE., the appellant has provided good and

sufficient reasons for an extension of time to challenge the decision given in January 2012 until 18March 2016. The onus is on the

appellant to give reasons which explain the delay and which satisfy the Court as being a justifiable excuse. In considering this latter

question, the Court is permitted, in accordance with the judgment of Denham J. in de Roiste to take into account a number of

factors, to which I will return.

73. The reasons given by the appellant are set out in the statement of grounds verified by him, the affidavit of his solicitor and a

second affidavit filed by him. These are that after the Board decision in 2012, legal advice was taken from counsel and advice given

on the basis of the then High Court decisions. The advice was such that as stated by the solicitor for the appellant at para. 12 of his

affidavit, “we could not recommend that an application for judicial review was likely to succeed and further that should proceedings

be brought and prove unsuccessful the applicant would be exposed to significant legal costs associated therewith”.

74. The appellant at paras. 6 and 7 of a replying affidavit sworn on 2 June 2016 states the following, in the context of responding to

averments on behalf of the Board that there were other applicants represented by the same solicitors who were prepared to

commence proceedings, notwithstanding the adverse High Court judgments:

“6. I acknowledge that I had previously hoped that the Board would re-open my case, given my circumstances.

Nevertheless I say and believe that in light of the fact that the High Court had given a particular interpretation to

the legislation governing the scheme, I was advised that a challenge would be unlikely to succeed. On foot of this

advice I did not want to run the risk of bringing proceedings with the probability of an award of costs being made

against me in the likely event of me being unsuccessful. I did not realise at the time, as I could not have realised,

that the case which appeared to be against me had been decided on an incorrect basis.

7. Unfortunately, however, the reality was that I am a person of very limited means and notwithstanding the fact

that I had been sexually abused as a child whilst in a residential institution covered by the Act, and therefore was

likely to have been entitled to redress had my late claim been accepted, I was unable to take the risks involved in

High Court litigation. I readily acknowledge that for some people the prospect of an award of costs against them

may have little or no impact, however for me the prospect of such an eventuality was a frightening one. It was

something I felt I could contemplate”.

75. The facts relied upon by the appellant are not challenged. Further, it is not suggested that there was no basis for the advice

given, having regard to the two earlier High Court judgments which had upheld the approach of the Board to s. 8(2) of the 2002 Act.

The appellant undoubtedly made a decision not to take judicial review proceedings. He explains that, having regard to his particular

circumstances, including his history of sexual abuse in respect of which he is seeking redress, that he felt unable to take the risks

involved in High Court litigation with advice which recommended, as he puts it, “that a challenge would be unlikely to succeed” and

“the probability of an award of costs being made against me in the likely event of me being unsuccessful”. That was the reason for

which he did not commence proceedings within the three month period. Thereafter, he appears to have continued to raise the

matters with his solicitors who sent two further letters in the intervening years to the Board, one following the Supreme Court in A.

O’G., but it was only following the Court of Appeal decision in J. McE. in 2016, where the prospects of success obviously appeared

much stronger, that he decided to take the risks of High Court litigation.

76. Those reasons and a consideration as to whether they constitute a justifiable excuse and a good and sufficient reason for

extending time must be considered in accordance with all the relevant facts and circumstances. On the facts of this appeal they

appear to me to include the following:

(i) It is not in dispute that the appellant is a person who was in an industrial school between 1962 and 1964; and

(ii) The appellant claims to have been seriously abused including by sexual abuse whilst in the institution by persons

whom he names; and

(iii) The appellant claims to have suffered injuries by reason of the abuse alleged and there is prima facie support for

this in the consultant psychiatrist’s reports furnished to the Board; and

(iv) The 2002 Act established a no fault redress scheme intended to compensate persons, such as the appellant,

who were in industrial institutions and claim to have been injured by reason of the type of matters advanced by the

appellant; and

(v) The Act of 2002 provided for a three year application period, but subject to the possibility of an extension of

time on establishing “exceptional circumstances”, until a cut-off date was inserted by the Residential Institutions

Redress (Amendment) Act 2011; and

(vi) The appellant first applied in 2008 and re-applied in 2010 and the Board agreed in 2011 to reopen the matter

with an oral hearing, but in its decision of 2012 rejected the late claim; and

(vii) The evidence proffered by or on behalf of the appellant in these proceedings, which has not been contested,

indicates that he is unfortunately a person who has had a very difficult life which he believes was caused by abuse

he suffered in the industrial school; and

(viii) The appellant took legal advice after receipt of the Board’s decision and made a decision not to seek judicial

review based upon advice that he was not likely to succeed and the probability of an order for costs if he failed.

The application for an extension of time and leave was made within approximately 1 month of the judgment of the

Court of Appeal in J. McE; and

(ix) The decision of the Board which he now seeks to challenge is one which it is accepted is not consistent with

the meaning of “exceptional circumstances” in s. 8(2) of the 2002 Act, as determined by the Court of Appeal in J.

McE.; and

(x) The Board did not seek leave to appeal the decision of the Court of Appeal in J. McE. to this Court: and

(xi) The Board has not identified any particular prejudice to it in an order granting an extension, other than the

administrative circumstances surrounding the finalisation of the work of the Board; and

(xii) There is no impact on any third party of the Court now granting an extension of time.

77. In addition to the above factual matters, it appears to me that the Court must consider the well established public policy in

requiring challenges to administrative decisions to be taken promptly. However, that policy must be considered on the particular facts

of this appeal, along with the public policy of the 2002 Act and the establishment of the Board for the purposes of administering a no

fault redress scheme for persons who are unfortunately, for the most part, a class of vulnerable and injured persons. A period of four

years is undoubtedly a very long period to extend time to challenge an administrative decision. It does require very exceptional

circumstances to make extension for such a period objectively justifiable. However, it appears to me when one takes into account all

of the factors set out above, that the appellant has put forward both reasons which explain the delay and which objectively justify

delaying the commencement of judicial review proceedings until after the judgment of the Court of Appeal. The application was made

within a reasonable period of the issuing of the judgment of the Court of Appeal.

78. In reaching that conclusion, I have had regard in particular as, Denham J. in de Roiste suggested, to the effect on both parties of

the order sought to be challenged. The effect on the appellant is that he, as a person who prima facie is entitled to pursue a claim

under the 2002 Act, is excluded by a decision on a late application under s. 8(2) which it is accepted is not in accordance with the

proper meaning of the section, following the judgment of the Court of Appeal in J. McE. That has the potential for a very significant

adverse impact on a person who already believes that he was injured and damaged by abuse in an industrial school. If leave is not

granted, he will be excluded from making a claim by a decision which it is accepted is inconsistent with the judgment of the Court of

Appeal in J. McE. The Board in 2012 undoubtedly made a decision which it considered to be in accordance with law, supported by the

earlier High Court judgments. However, it now very properly accepts that it is not so. The verifying affidavit sworn on behalf of the

Board indicates that following the judgment of the Court of Appeal, it has revisited other decisions in respect of which challenges had

already been made. From the Board’s perspective, if the 2012 decision remains unchallenged, whilst it may be closer to finalising its

work, it also is in the position that it has excluded an applicant from consideration of a claim by a decision which it now knows to be

not in accordance with law as stated by a judgment which it did not seek leave to appeal from. The judgment in J. McE. was not the

subject of any submissions to this Court on this appeal.

79. For all those reasons, whilst I agree, as stated by O’Donnell J. in his judgment, that on the facts of this appeal the relevant

factors “do not lead to an easy or clear-cut resolution”, I have concluded that the applicant has established that there are good and

sufficient reasons for extending the time. Hence, if the Court was only required to consider the application for an extension of time

under O. 84, r. 21(3)(a), then the order which should be made in accordance with the principles set out in the cited judgments is an

order to extend time. Hence, it is necessary to consider the proper meaning of O. 84, r. 21 (3)(b) and the vires issue.

Order 84, Rule 21(3)(b)

80. Order 84, Rule 21(3) provides:-

“(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within

which an application for leave to apply for judicial review may be made, but the Court shall only extend such

period if it is satisfied that: -

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period

mentioned in sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.”

81. The aspect of the appeal raises two issues; an interpretive issue and a vires issue. In my view they are not totally distinct, as

the interpretation of the somewhat unhappily worded sub-rule must be in accordance with the ordinary meaning of the words in the

context in which they are used. That context is the regulation of the power of the Court to grant leave to issue an application for

judicial review. The Rules Committee are also presumed to be acting in accordance with their statutory remit. It is, therefore,

necessary to consider the statutory remit of the Rules Committee and the substantive jurisdiction of the Court in relation to

applications for leave to issue judicial review.

82. Section 36(1) of the Courts of Justice Act 1924 (“the 1924 Act”) permits the making of rules for all or any of the following

matters:-

“Pleading, practice and procedure generally (including the entering-up of judgment and the granting of summary

judgment in appropriate cases) in all civil cases, including revenue cases and proceedings as to the validity of any law

having regard to the provisions of the Constitution and proceedings in the nature of a petition of right.”

83. The above power to make rules of court for the Superior Courts under section 36(1) of the 1924 Act is vested in the Rules

Committee with the concurrence of the Minister for Justice by virtue of s. 68 of the Courts of Justice Act 1936 (as applied by s. 48 of

the Courts (Supplemental Provisions) Act 1961) and s. 14 of the Courts (Supplemental Provisions) Act 1961.

84. It is common case that the powers of the Rules Committee are limited to making rules dealing with “pleading and practice and

procedure generally” and that judicial review is within the meaning of civil cases in s. 36 of the 1924 Act. The Court was referred to

the consideration given to the meaning of “practice and procedure” by the Supreme Court in The State (O’Flaherty) v. O’Floinn [1954]

I.R. 295 and in particular, by Kingsmill Moore J. at p. 304. That case concerned a rule of the District Court which purported to extend

a remand period of eight days fixed by statute to a period of fifteen days. The rule was held to be ultra vires. Kingsmill Moore J., in

considering whether such an extension did or did not fall within the meaning of “practice and procedure”, stated at p. 304:-

“What is meant by the words, "practice and procedure"? Broadly I would answer "the manner in which, or the machinery

whereby, effect is given to a substantive power which is either conferred on a Court by statute or inherent in its

jurisdiction." Such a definition may not remove all difficulties. A statute conferring a power on the Court may, at the

same time, circumscribe the generality and extent of such power by imposing a limitation which is in form procedural. It

can be said with force that a rule abolishing that limitation is a rule concerned with practice and procedure. Yes, but it is

not only concerned with practice and procedure if it operates to enlarge the extent of the substantive power, and so it

cannot be properly classed with the restrictive heading of a rule of practice and procedure.”

85. The above formulation has been cited and relied upon in several subsequent decisions, both in relation to the powers given the

Rules Committee by s. 36 of the 1924 Act and to the District Court Rules Committee by s. 91 of the 1924 Act; see Rainey v. District

Justice Delap [1988] I.R. 470, at 479. The first concept included, of providing for the manner whereby effect is given to the

substantive power, or as might be said, regulating the manner in which the substantive power of the Court is exercised, is expressed

in slightly different terms in subsequent judgments. In Holloway v. Belenos Publications Ltd. (No. 2) [1988] I.R. 494, Barron J. rejected

a challenge to the provisions of O. 31, r. 29 in relation to third party discovery. Having referred to the above extract from Kingsmill

Moore J. in The State (O’Flaherty) v. O’Floinn and one from Lavery J. in the same judgment, he stated at p. 498:-

“Applying these principles, it seems to me that a rule relating to orders for discovery is a rule regulating the exercise of

the inherent jurisdiction of the Court. There is no statutory authority permitting discovery on any particular basis save

that there can be no question of the rule modifying a statutory power. The power to order discovery is part of the

inherent jurisdiction of the Court and the rule is one giving altered effect to that inherent jurisdiction.”

86. Insofar as Barron J. interprets the principles of s. 36 of the 1924 Act as permitting regulation of an existing power or jurisdiction of

the Court in relation to practice and procedure, then I respectfully agree with him. I do not understand in the context of that

judgment that he is suggesting that the actual scope of the court’s power or jurisdiction can be altered by the Rules Committee. He is

clear that a rule may not modify a statutory power. Similarly, it appears to me that a rule may not modify, in the sense of excluding or

limiting in some significant way, a power which exists at common law or a power which forms part of the inherent jurisdiction of the

courts in the administration of justice.

87. In D.F. v. Commissioner of An Garda Síochána [2015] 2 I.R. 487, Charleton J. speaking for this Court rejected a contention that

O. 36, r. 7 of the Rules of the Superior Courts entitled a trial judge to order a trial by judge alone where there was an entitlement to

trial by jury pursuant to s. 1(3) of the Courts Act 1988. At para. 25 he stated:-

“That argument cannot succeed. The Superior Courts Rules Committee is not entitled to overrule the provisions of the

Act of 1988. That committee does valuable work in proceedings of the courts through establishing appropriate rules in

aid of the proper administration of justice. It is not a legislative body.”

88. I now turn to the jurisdiction or power of the Court which is being regulated by O. 84, r. 21(1) and (3). As pointed out by the

authors in Collins and O’Reilly, Civil Proceedings and the State (2nd ed., Round Hall, 2004) at p.102, “time limits, which are not

regarded as limitation periods, have always been a feature of remedies by way of judicial review…”. The discretionary nature of the

longstanding jurisdiction to grant such remedies is set out already in this judgment.

89. Order 84, sub-rules 21(1) and (3) are concerned with the application for leave, the first step in the procedure to obtain a remedy

by way of judicial review. The rules of court have long regulated the time within which applications for stateside remedies, including

certiorari or more recently judicial review, require to be brought. Such time limits fixed only by the rules have, however, always been

subject to the power of the Court to enlarge or indeed abridge same. Fennelly J. in de Roiste explained the then rule in the following

terms, at p. 221:-

“He was bound, however, to apply “promptly”. Furthermore, he was bound, at least prima facie, to apply for an order of

certiorari of the decision within six months of its making and otherwise, to explain his delay and to show that the delay

was justified. In the nature of things, short delay might require only slight explanation. The judicial review time limit is

not a limitation period. Prompt pursuit of a remedy is, however, a requirement of a judicial review application.”

90. The distinction between the general judicial review time limit of which he was speaking and a limitation period is important. There

are, of course, certain types of judicial review applications which are subject to a limitation period fixed by statute. This is not such

an application. The Oireachtas, in enacting the 2002 Act, did not limit the time within which or manner by which a decision of the

Board might be challenged, as has been done in respect of other bodies such as An Bord Pleanála. Any limitation period on a right of

an individual to seek a remedy or relief from the courts, by way of certiorari or otherwise, in respect of an allegedly invalid act by

which he claims to be wronged would require a legislative act, as is done in relation to planning decisions and asylum and immigration

decisions. As has been stated, the Rules Committee is not a legislative body and may not legislate.

91. However, as pointed out by O'Donnell J., time limits which are subject to the power of enlargement by the courts have been a

feature of the rules relating to judicial review at least since the Rules of the Supreme Court (Ireland) 1905. Order LXXXIV, rule 13, in

relation to what were then termed “Crown Office Rules”, required an application for the writ of certiorari to be made within six

months. However, rule 244 of the same order applied all of Order LXIV (Time) to all civil proceedings on the Crown side and part of it,

including rule 7 which gave power to “enlarge or abridge the time appointed by these rules”, to all criminal proceedings on the Crown

side.

92. The same pattern has applied in all subsequent rules of the Superior Courts, specifying what Fennelly J. describes as a “prima

facie” obligation to apply within a specified time coupled with a power to extend the time. More recently, there has been a change

from reliance upon the general provision for the extension of time currently in O. 122, r. 7, to a specific provision within O. 84 or other

relevant order concerning applications by way of judicial review. No submission was made that the appellant could seek an extension

in reliance on O. 122, r. 7 notwithstanding the existence of O. 84, r. 21(3).

93. It appears that the time within which a person is bound prima facie to apply for leave to issue an application for judicial review

may properly be considered as concerning “practice and procedure” and accordingly may be regulated by the Rules Committee.

However, as this is the initial application to the Court for a remedy in respect of an alleged wrong, any limitation of the right to apply

also affects a person’s right of access to the Court. As stated most clearly by Denham J. in de Roiste, judicial review is a

discretionary remedy; the exercise of discretion by the Court as to whether or not to grant a remedy or, at the initial stages, to grant

leave to apply for a remedy, involves the exercise by the Court of a judgment balancing a number of differing rights and factors.

There are no absolute rules.

94. Hence, it appears to me that the statutory remit of the Rules Committee to regulate the procedure, including in relation to time, in

accordance with which the court exercises its long standing jurisdiction to grant orders of certiorari and other reliefs by way of

judicial review, does not include a power to make rules which are, in truth and substance, an absolute limitation period for the

initiation of a leave application. Any such limitation period would be ultra vires the Rules Committee, as it would be the exercise of a

law-making function in respect of which the Oireachtas has exclusive jurisdiction. I recognise that in practice, the line between

regulating, in relation to time, the power of the Court to grant leave and imposing what is, in truth, a limitation period may not always

be obvious. Nevertheless, the distinction does exist in principle and I now next seek to apply that principle in interpretation of O. 84 r.

21(3) and insofar as necessary, the vires of sub-rule (3)(b) as properly interpreted.

95. In accordance with the ordinary meaning of the words used, sub-rule (3)(b) is only directed to “the circumstances that resulted

in the failure to make the application for leave within the [three month] period. . .”. It is not, by its words, directed to the entire

period during which the time is sought to be extended as is the requirement for good and sufficient reason in sub-rule (3)(a).

However, it is to be applied in the context of an application for an extension of time and therefore, it is in a context where a person

did not apply within the three month period but is now attempting to satisfy the Court that an extension should be granted up to the

date of application.

96. The second feature of the words used to which I would draw attention is the phrase “the circumstances that resulted in the

failure to make…”. The court is not directed or confined to considering “the reason for which” the application was not made within the

three month period, notwithstanding that the Rules Committee have in sub-rule (a) used the term “reason” in referring to the

requirement of a good and sufficient reason. Their intent in using different words in sub-rules (a) and (b) should be given effect.

97. The trial judge concluded that the circumstances which resulted in the appellant failing to apply within three months could not be

considered as outside of his control, as he made an “informed and reasoned choice”. I agree that his own decision not to apply having

taken legal advice and considered the risks pertaining to costs of an unsuccessful application was the proximate reason for which the

appellant failed to apply within three months. On a narrow interpretation of sub-rule (3)(b), I would agree with that conclusion on the

facts.

98. However, I have concluded that such a narrow interpretation of the sub-rule is not warranted. Rather, the proper interpretation

of the phrase “the circumstances that resulted in the failure”, in accordance with the words used in the context of regulating but not

limiting or excluding the power of the court to hear and determine applications for judicial review, is broader. It encompasses all the

relevant circumstances which resulted in the failure to apply within time.

99. Applying this meaning, I am in agreement with O’Donnell J. that, on the facts of this appeal, the absence of a decision of the

Court of Appeal similar to that in J. McE (with the consequence of altering the meaning of s. 8(2) of the 2002 Act from that stated in

the earlier High Court decisions) during the three month period forms part of the relevant circumstances which gave rise to the legal

advice received and decision taken by the applicant, which resulted in him not applying within the three month period. That was

outside of the control of the appellant.

100. I am also in agreement with O’Donnell J. that even giving to the phrase “the circumstances that resulted in the failure…” in sub-

rule (3) a broad interpretation, one could not exclude the possibility of a set of facts which might give rise to a court determining that

an applicant has established good and sufficient reason to extend time but has not been able to satisfy the court that the

circumstances that resulted in his failure to make the application within three months were either outside of his control or could not

reasonably have been anticipated by him. However, applying the proper interpretation to the sub-rule, it appears probable that in

most instances where a court has been satisfied of good and sufficient reason to extend time, it will also be in a position to make a

positive finding under sub-rule (3)(b) in relation to the circumstances which resulted in the failure to apply within the three month

period.

101. By reason of this conclusion, it is unnecessary to consider in these proceedings the appeal against the determination of the High

Court that O. 84, r. 21(3)(b) is intra vires the Rules Committee. Certain of the principles set out above are in addition to and may

differ from those considered and relied upon by the High Court judge in reaching his conclusion. However, it appears to me that any

consideration by this Court of a contention that the O.84, r.21 (3)(b) is ultra vires the Rules Committee should be left for

determination when, and if, it arises on the facts of the appeal. In this case the High Court judge had concluded that the applicant

had not satisfied him that he had established a good and sufficient reason to extend time and, therefore, his subsequent

consideration of the vires of sub-rule (3)(b) is obiter. It does not appear to me appropriate given the conclusion which I have

reached, that the applicant has also satisfied the requirements of sub-rule (3)(b), which I am aware is shared by a majority of my

colleagues, that this Court should express any view which would also be obiter on the vires of the sub-rule.

Conclusion

102. On the facts of this appeal, I have concluded that the applicant has satisfied the Court that there is a good and sufficient

reason to extend time and that the circumstances that resulted in his failure to make the application for leave within the three month

period were outside his control. Accordingly, I would allow the appeal; extend the time under O. 84 r. 21(3), to 18 March 2016 and

grant leave. Further having regard to the position of the Board set out in paragraph 24 above grant an order of certiorari of its

decision of 9 January 2012 and remit the matter to the Board.