Court of Appeal defines Circuit Court's appellate jurisdiction under s.148AA as an appeal on the record with limited deference.

Approved

No Redaction Needed

THE COURT OF APPEAL

Record Number: 2023/316

Neutral Citation Number [2025] IECA 202

Faherty J. Pilkington J. Butler J.

BETWEEN/

XERICO LIMITED

APPELLANT

- AND -

THE RESIDENTIAL TENANCIES BOARD

RESPONDENT

JUDGMENT of Ms. Justice Faherty delivered on the 15th day of October 2025

1. This is a Consultative Case Stated referred to the Court by His Honour Judge O’Connor, Judge of the Circuit Court, pursuant to s. 16 of the Courts of Justice Act 1947 for determination by the Court.

2. By notices of appeal dated 15 December 2022, Xerico Limited (hereafter, for ease of reference, “the appellant”) initiated twenty statutory appeals in the Circuit Court pursuant to s. 148AA(1) of the Residential Tenancies Act 2004 (“the 2004 Act”). Whilst the underlying facts in each case were different, the notices of appeal in each are identical and they seek to set aside sanction decision notices (“the decision notices”) issued by the Residential Tenancies Board (“the Board”). The Board is a statutory body established on 1 September 2004 pursuant to s.150 of the 2004 Act. Its functions are identified in s.151 and include “the resolution of disputes between tenants and landlords” (s.151(1)(a)) and “the investigation of landlords and the imposition of sanctions in accordance with the provisions of Part 7A” (s.151(1)(ba)).

Discussion and Decision

3. The Case Stated concerns the interpretation of Part 7A of the 2004 Act. Part 7A was enacted by the Residential Tenancies (Amendment) Act 2019 which provides in the long title that the Board is to be conferred with additional powers “to carry out investigations of landlords and impose administrative sanctions”. Part 7A provides for a detailed procedural process to be undertaken by the Board when investigating a complaint under that part. It requires the Board to investigate complaints of “improper conduct”. Improper conduct is defined in Schedule 2 of the 2004 Act and for the purposes of this Case Stated, it includes a breach of the rules on “rent pressure zones” in respect of which a landlord can be investigated by the Board and subject to administrative sanction.

An overview of the statutory process

4. The main steps of the statutory process under Part 7A may be summarised as follows ((a)-(m)): -

(a) A person makes a complaint in writing to the Board alleging that improper conduct by a landlord has occurred or is occurring (s.148T), or the Board may “of its own volition” cause an investigation to be carried out (s. 148U(1)). The latter was the case here. Whether an investigation is carried out on foot of a complaint or of its own volition, in any event the Board “shall appoint an authorised officer and a decision maker”.

(b) The authorised officer (“AO”) is appointed pursuant to s.148U(2).

(c) Pursuant to s.148V, the AO must (1) give a notice in writing to the landlord of the matters to which the investigation relates; (2) give the landlord copies of any documents relevant to the investigation; and (3) afford the landlord an opportunity to respond within 21 days from the date on which the landlord received the notice or such further period not exceeding 21 days as the AO allows.

(d) The AO has extensive powers to carry out the investigation (s. 148S). The primary obligation is to gather all the evidence relating to the alleged improper conduct.

(e) The AO’s powers include power to “enter, inspect, examine and search” any premises where he or she has reasonable grounds for believing any activity in connection with the letting or tenancy is carried on (s.148S(a)), remove records from a premises which an AO considers is necessary for an investigation (s.148S(b)), require any person at the premises to provide the AO with such assistance as he or she may require (s.148S(d)) and to require a landlord “to provide an explanation of a decision, course of action, system or practice or the nature or content of any records” (s. 148S(f)). An AO may also request a person who “in the authorised officer’s opinion” possesses information that is relevant to the investigation to provide that information to the AO or to attend before an AO to “answer fully and truthfully any questions put to the person by the [AO]” (s.148S(6)).

(f) For the purposes of an investigation, an AO may conduct an oral hearing. A landlord may also request an oral hearing (s.148S(14)). If an oral hearing is held there is power to take evidence on oath, request the attendance of a person(s), and allow persons attending to be examined and cross-examined.

(g) Section 148X of the 2004 Act, in relevant part, is in the following terms: - “(1) Subject to subsection (3), where an authorised officer has completed an investigation, the authorised officer shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records provided to the authorised officer pursuant to any requirement under section 148S, any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 148S(14) or otherwise)—

(a) prepare a draft of the investigation report, and

(b) give to the landlord to whom the investigation relates and, if the investigation arose following receipt of a complaint, the complainant—

(i) a copy of the draft of the investigation report,

(ii) a copy of this section, and

(iii) a notice in writing stating that the landlord and complainant (if any) may, not later than 21 days from the date on which the notice was respectively received by them, or such further period not exceeding 21 days as the authorised officer allows, each make submissions in writing to the authorised officer on the draft of the investigation report.

(2) Subject to subsection (3), an authorised officer who has complied with subsection (1) shall, as soon as is practicable after—

(a) the expiration of the period referred to in subsection (1)(b)(iii), and

(b) having—

(i) considered the submissions (if any) referred to in subsection (1)(b)(iii) made before the expiration of that period on the draft of the investigation report concerned, and

(ii) made any revision to the draft of the investigation report which, in the opinion of the authorised officer, is warranted following such consideration, prepare the final form of the investigation report and submit it to the decision maker appointed by the Board under section 148U with any such submissions annexed to the report.” The AO will indicate in the report whether improper conduct has occurred. What is noteworthy is that what the landlord receives is a draft of the investigation report upon which the landlord may make submissions for the AO to consider and then to make revision if he or she considers a revision is warranted. The landlord does not receive the final form of the investigation report which the AO sends to the

decision maker together with any submissions the landlord may have made on the draft report. In his submissions to the Court, counsel for the appellant described the investigation phase as “tightly controlled” where the content of what the decision maker receives is ultimately determined by the AO.

(h) The decision maker is independent in his or her role and function (s. 164A(a)). The decision maker considers the report of the AO, together with the submissions of the landlord and complainant on the draft report (if any) (s. 148Y(5)). As is clear from s.148X(3), the AO is precluded from addressing the issue of sanction.

(i) Section 148X(4) provides that when the decision maker has considered the final investigation report (and any submissions annexed thereto), he or she shall decide to do one of the following:- “(4)(a) if he or she is satisfied that improper conduct by the landlord has occurred or is occurring, may, subject to subsection (9) and section 148Z impose a sanction on the landlord as he or she thinks fit in the circumstances of the case;

(b) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring but is of the opinion that a further investigation of the landlord is warranted, shall direct the Board to cause a further investigation on the matters to which, in the opinion of the decision maker the further investigation should relate;

(c) if he or she is not satisfied that improper conduct by the landlord has occurred or is occurring and is not of the opinion that a further investigation of the landlord is warranted, and the investigation arose—

(i) following the receipt of a complaint by the Board, shall dismiss the complaint,

(ii) on the volition of the Board, shall decide that no further action under this Part is warranted.”

(j) Section 148X(6) is in the following terms:-

“(6) Where the decision maker has considered an investigation report (and any submissions annexed thereto) submitted to him or her under subsection (2), the decision maker may, if he or she considers it proper to do so for the purposes of assisting him or her to make a decision under subsection (4), or for the purposes of observing fair procedures, for those purposes—

(a) conduct an oral hearing and give to the landlord and, if the

investigation arose following receipt of a complaint, the

complainant—

(i) a copy of the investigation report (and any submissions

annexed thereto), and

(ii) a notice in writing stating that the landlord and

complainant may, not later than 14 days from the date on

which the notice was respectively received by them, or such

further period not exceeding 14 days as the decision maker

allows, each make submissions in writing to the decision

maker on the investigation report,

or

(b) give to the landlord and, if the investigation arose following receipt of a complaint, the complainant a copy of the investigation report and the notice referred to in paragraph (a)(ii).”

(k) If the decision maker decides to convene an oral hearing the hearing must be in accordance with the procedures identified in Schedule 3, Part 2 of the 2004 Act. This includes power to take evidence on oath, request the attendance of a persons, and allow persons attending to be examined and cross-examined. I will address the decision maker’s powers pursuant to s. 148X(4) and s. 148X(6) in more detail later in the judgment.

(l) A notable feature of the procedure provided for in Part 7 is that it is the decision maker who decides on sanction. As set out in s. 148X(11), “sanction” is defined as “(a) a direction in writing to the landlord to pay to the Board a sum specified in the direction not exceeding €15,000, by way of financial penalty for the improper conduct… , (b) a direction in writing to the landlord to pay to the Board a sum specified in the direction not exceeding €15,000 being all or part of the costs incurred by the Board…”. Unless the decision maker engages with the landlord on sanction they will not have heard from the landlord on the question of sanction save such submission (if any) as the landlord might have made on the question of sanction in their engagement with the AO under s. 148X(1) of the 2004 Act.

(m) By s.148X(10), the decision maker must as soon as practicable after making a

decision give notice in writing of the decision and the reasons for it to the Board. Once in receipt of the notice of the decision, the Board must then prepare a written record of it (“the decision notice”) and issue it to the landlord (s. 148Y(1)).

5. Overall, the process provided for in Part 7A may be described as a bifurcated one, involving first the investigation by the AO and secondly the decision-making phase of the process.

6. The statutory right of appeal by the landlord to the Circuit Court is set out in s.

148AA of the 2004 Act in the following terms: -

“148AA. (1) A landlord the subject of a decision under subsection (4)(a) or (5) of section 148X by the decision maker to impose a sanction on the landlord may, not later than 21 days from the giving by the Board to the landlord of the decision notice, appeal to the Circuit Court against the decision.

(2) The Circuit Court may, on the hearing of an appeal under subsection (1) by a landlord, consider any evidence adduced or argument made, whether or not adduced or made to an authorised officer or the decision maker.

(3) Subject to subsection (4), the Circuit Court may, on the hearing of an appeal under subsection (1) by a landlord—

(a) either—

(i) confirm the decision the subject of the appeal,

(ii) set aside the decision the subject of the appeal, or

(iii) set aside that decision and replace it with such other decision as the Court considers appropriate, which may be a decision— (I) to impose a different sanction on the landlord, or (II) to impose no sanction on the landlord, and

(b) make such order as to costs as it thinks fit in respect of the appeal.

(4) The Circuit Court shall, for the purposes of subparagraph (i) or (iii)(I) of subsection (3)(a), take into consideration the matters referred to in section 148AD.

(5) An appeal under subsection (1) shall be brought before a judge of the Circuit Court for the time being assigned to the Circuit in which the appellant resides or carries on any profession, trade or business.”

7. Pursuant to s. 148AC(1), the decision of the Circuit Court on an appeal is “final” except that the Board or the landlord may, by the leave of the Circuit Court, appeal against the decision to the High Court on a point of law.

The statutory process as applied to the appellant

8. Here, the investigation in each case was conducted by two AOs appointed by the Board pursuant to s.148U(2). Although provided for in s. 148S(14) of the 2004 Act, the appellant did not seek an oral hearing before the AOs. Following the conclusion of the investigations by the AOs, a decision maker appointed by the Board under s.148U(1) determined that in each case the appellant had engaged in improper conduct within the meaning of s. 148R of the 2004 Act. As we see, pursuant to s. 148, the question of sanction is left entirely to the decision maker (in the event that the decision maker is satisfied that improper conduct has or is occurring).

9. The decision notices duly issued to the appellant by the Board upheld the allegations of improper conduct (within the meaning of s. 148R of the 2004 Act) to the effect that the appellant had, in the view of the Board and the decision maker, unlawfully increased the rent contrary to s.19(4) of the 2004 Act. The said provision prohibits a landlord from increasing the rent under the tenancy of a dwelling within a “rent pressure zone”, within the meaning of s.19(7) of the 2004 Act, by more than 4% in any twelve-month period.

10. Notwithstanding that provision is made in s. 148X(6) for the decision maker to do so, the decision maker did not conduct an oral hearing or send the final investigation report to the appellant prior to reaching her decision. The decision-making process invoked here was that provided for in s. 148X(4).

11. Whilst it is the case that the submissions the appellant sent to the AOs on the draft report, and which were duly attached to the investigation report which the AOs sent to the

decision maker, included a portion on “sanction”, those submissions were essentially a “shot in the dark” since when filing same the appellant had no idea what findings regarding the alleged improper conduct were going to be made by the AOs and/or the

decision maker.

12. The appellant availed of its right of appeal to the Circuit Court. The same grounds of appeal are pursued in each case and are extensive. For present purposes, it is neither necessary nor appropriate to rehearse them in this judgment. In respect of each appeal, the appellant seeks an order pursuant to s.148AA(3)(a)(ii) of the 2004 Act “setting aside the sanction decision notice” and “replacing the decision” with “a decision that the appellant has not been guilty of any improper conduct”.

13. On 13 June 2023, the Circuit Court directed that certain issues would be determined on a preliminary basis as follows: - “(1) What is the proper scope of the appellate jurisdiction of the Circuit Court on a statutory appeal under section 148AA of the Residential Tenancies Act 2004?

and,

(2) Is a statutory appeal to the Circuit Court, brought pursuant to section 148AA of the Residential Tenancies Act 2004, a de novo appeal?”

14. The parties selected two appeals as “pathfinder” cases for the purpose of determining the preliminary issues. Those appeals are properties 11 (7 Eastmoreland Lane, Ballsbridge, Dublin 4) and 19 (Apartment 4, 95 Ranelagh Road, Dublin 6). In those cases, the appellant was sanctioned by the decision maker, in the sum of €5000 and €850, respectively, by way of financial penalty for improper conduct, and in the case of property 19, also directed by the decision maker to pay €1000 in costs.

The Case Stated

15. The hearing of the preliminary issues before the Circuit Court took place on 27 July 2023. In the course of that hearing, a discussion occurred as to whether it would be appropriate for a case to be stated to the Court of Appeal pursuant to s.16 of the Courts of Justice Act 1947. It was agreed that it would be appropriate to refer a case stated and the terms of same were agreed between the parties and duly approved by His Honour Judge O’Connor on 31 October 2023. The Case Stated was signed on 9 November 2023.

16. The two questions which are being asked of the Court are: -

“(a) What is the proper scope of the appellate jurisdiction of the Circuit Court on a statutory appeal under section 148AA of the Residential Tenancies Act 2004?

(b) If the appeal is an appeal against error, in what circumstances may the Circuit Court consider evidence that was not before the Board?”

17. With reference to the first of the questions, the position of the appellant (as initially set out in its written submissions to this Court) was that an appeal pursuant to s.148AA(1) is a de novo appeal or, in the alternative, a “hybrid” appeal comprising an appeal “on the record” with the possibility that evidence may also be called on appeal. In its oral submissions, whilst not entirely abandoning its base line point that the appeal provided for is a de novo appeal, the appellant conceded that the more realistic approach is that the appeal provided for is an appeal on the record with “hybrid” elements including a right to have new evidence considered subject only to the discretion vested in the Circuit Court to admit such evidence. On the other hand, what the Board says is that the appeal provided for is an appeal against error.

18. The Case Stated comes to the Court against the backdrop where in Wow Investments Limited v. Residential Tenancies Board [2022] IECC 3, the landlord in that case did not dispute the Board’s contention that the appeal provided for under s. 148AA was an appeal against error and, hence, the Circuit Court (His Honour Judge O’Connor) proceeded on that basis. As we see, in the present case, the appellant contends for a different construction of s. 148AA(1) to that upon which the decision in Wow Investments Limited proceeded.

The s.148AA appeal

19. In order to frame the parties’ respective views as to the nature and scope of the appeal provided for in s.148AA, it is useful firstly to consider the applicable jurisprudence on statutory appeals. A useful starting point is Clarke J.’s (as he then was) categorisation in Fitzgibbon v Law Society of Ireland [2014] IESC 48, [2015] 1 I.R. 516 of statutory appeals into four main categories – the de novo appeal, an appeal on the record, an appeal against error and an appeal on a point of law. Clarke J. also adverted to the concept of a “hybrid appeal” of which more anon. It is worth bearing in mind that the appellations “appeal on the record”, “appeal against error” and “hybrid appeal” are adjectival descriptions by the courts and not found in any statute although provision for a de novo appeal and an appeal on a point of law may be found in various legislative enactments.

De novo appeal

20. According to Clarke J., two characteristics define a de novo appeal, namely (i) “the

decision taken by the first instance body” is “wholly irrelevant” and (ii) the appeal body “is required to come to its own conclusion on the evidence and materials properly available to it”. Thus, it remains for the parties to present to the appellate body whatever evidence may be considered necessary. Clarke J. noted that the “use of the term ‘de novo appeal’ and similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body”.

21. De novo statutory appeals are rare. As Hogan and Morgan point out in Administrative Law in Ireland, Round Hall (5 ed, 2019) at p. 671, “It is now well-settled that an appeal from a regulatory body will generally not be de novo”. As we see, neither party suggests that the de novo appeal is in issue here.

Appeal on the record

22. As Clarke, J. points out in Fitzgibbon, an appeal on the record shares one of the characteristics of a de novo appeal in that “the appellate body must come to its own conclusions as to the proper result of the issues before it without regard to the decision made by the first instance body”. The difference between a de novo appeal and an appeal on the record is that the evidence and materials which are properly relied on by the appellate body in an appeal on the record “are the same as those which were before the first instance body”. Clarke J. observed that there may be some limitations on the proper availability of an appeal on the record, stemming from the fact that no new evidence is adduced at the appeal.

23. As we see, the appellant’s contention is that what is provided for in s. 148AA is an appeal on the record with “hybrid” elements, as previously referred to.

24. In response to the appellant’s submission that what is envisaged by s.148AA “is more likely to be an appeal on the record”, the Board contends that given that the Circuit Court is empowered by s.148AA(2) to receive evidence “whether or not adduced or made to an authorised officer or the decision maker”, an appeal on the record is unlikely to be the correct scope of the appeal in issue here. The Board’s position is that the appeal provided for is “an appeal against error” with a limited right to adduce additional evidence. The Board says that such an interpretation would be in line with numerous authorities in relation to a range of different statutory appeals. I will return to this argument in due course.

Appeal against error

25. Clarke J. opined that the “critical distinction” between an appeal against error and either a de novo appeal or an appeal on the record “is that the appellate body [in an appeal against error] does have regard to the determination of the first instance body and must, in order for the appeal to be allowed, be satisfied that the first instance body was in some way in error.” Furthermore, depending on the level of expertise in the area concerned “the appellate body may accord appropriate weight to any expert determinations of the first instance body”.

26. The standard of review in an appeal against error was considered in Orange Ltd v. Director of Telecoms (No.2) [2000] 4 I.R. 159 where the Supreme Court had to consider s. 111(2B)(i) of the Postal and Telecommunications Services Act 1983 which provided: - “A person may…appeal to the High Court against the decision concerned…and the High Court may confirm the decision or direct the Minister, …to refrain from granting…the licence concerned…” The Supreme Court held that the provision did not provide for a full unqualified assessment of the merits of the decision, and in this regard Keane C.J. stated, at pp. 184- 185: - “In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its adjudication for that of the first defendant. It is accepted that at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first defendant was being challenged by way of judicial review.”

27. He went on to opine that the applicable standard of review was that an appellant must show “as a matter of probability that, taking the adjudicative process as a whole, the

decision reached was vitiated by a serious and significant error or a series of such errors. In arriving at a conclusion on that issue, the High Court would necessarily have regard to the degree of expertise and specialised knowledge available” to the decision maker. This is the standard of review which the Board argues applies to the appeals the appellant has brought to the Circuit Court.

28. Thus, as we see, in an appeal against error the task of the court is to look for error on the part of the decision maker, whereas in an appeal on the record, the task of the court is to make up its own mind “as to the proper result of the issues before it”. The “hybrid appeal”

29. At para. 124 of Fitzgibbon, Clarke J. explained the concept of a “hybrid appeal” in the following terms: “There is no reason in principle, although it would be preferable if rules made express reference to this, why there might not be a hybrid appeal where, in substance, the appeal is against error or on the record but where the appellate body is expressly or by necessary implication allowed to conduct an oral hearing limited to hearing evidence which the appellate body would need to hear itself in order to be able to come to an independent judgment on questions of contested fact. At the level of principle, either the appellate body must be bound by any sustainable finding of fact at first instance or the appellate body must have the facility to hear evidence itself.”

Appeal on a point of law

30. There is established jurisprudence as to what the term “appeal on a point of law” means. In Petecel v The Minister for Social Protection [2020] IESC 25, O’Malley J. observed that “an appeal on a point of law is the narrowest of the four categories of statutory appeals identified by Clarke J. in Fitzgibbon v. Law Society” (para. 106). Neither party contend that this is the type of appeal that arises here. What does s. 148AA provide for?

31. Given, therefore, that an appeal on a point of law is not the type of appeal provided for pursuant to s.148AA and a de novo appeal having all but been ruled out by the appellant, the question is where, if at all, in Clarke J’s. taxonomy in Fitzgibbon does the appeal provided for in s.148AA lie.

32. This requires an exercise in statutory construction by the Court “in accordance with the relevant and well-established canons of construction” (as per McKechnie J. in Fitzgibbon (at para. 70)). As Hogan and Morgan explain in “Administrative Law in Ireland”, determining the scope of an appeal “will invariably require a close analysis of the text, surrounding context and animating purpose of the relevant statutory scheme”. Moreover, “factors such as the purpose of the appeal and the statutory context are more relevant”. In Fitzgibbon, McKechnie J. considered the scope of the appeal “as reflecting the nature of the review, the test involved and the format of the appeal”. (para. 58)

33. Consistent with the established jurisprudence, I consider that the requisite analysis as to the scope of the appeal calls for what is described as a “text in context” approach rather than looking mainly to the provisions of s. 148AA(1) as urged by the appellant.

34. Whilst not saying that a contextual analysis of the provisions is not relevant, the appellant submits that the exercise here requires a “textual” analysis of s. 148AA on the basis that the statutory provision in question undoubtedly informs the scope of the appeal (the appellant emphasising in this regard the text of s. 148AA(1) and the use of the word “appeal” ). It contends that its argument in this regard is supported by the dicta of Cooke

J. in Rye Investments Ltd v Competition Authority [2009] IEHC 140.

35. What was under consideration in that case was s. 24 of the Competition Act 2002. Section 24(1) provides for an appeal to the High Court against a determination of the Competition Authority. Pursuant to s. 24(4), “[a]ny issue of fact or law concerning the determination concerned may be the subject of an appeal”. However, with respect to an issue of fact, the High Court “may not receive evidence by way of testimony of any witness and shall presume, unless it considers it unreasonable to do so, that any matters accepted or found to be a fact by the Authority in exercising the relevant powers under section 22 were correctly so accepted or found”. Section 25(5) goes on to provide that notwithstanding subsection (4), the High Court, on the hearing of an appeal, “may receive evidence by way of the testimony of one or more witnesses if it considers it was unreasonable for the Authority to have accepted or found as a fact any matter concerned”. Section 24(7) permits High Court, if it thinks fit, to (a) annul a determination; (b) confirm a determination; or (c) confirm a determination with modifications.

36. As regards the foregoing, at para. 5.5 of his judgment Cooke, J. observed: - “It is well settled that where the Oireachtas creates a statutory remedy by way of review or re-examination of a decision taken by an administrative or quasi-judicial tribunal, the primary rule for determining the nature and scope of that review is that of construing the words used by the legislature. In particular, where the statute expressly employs the term “appeal” rather than limiting the remedy explicitly to “judicial review” or to an appeal on a point of law, it is of primary importance to determine whether the Oireachtas intended the court to have power to substitute its own view of the merits of the contested decision for that of the decision-maker if it judges that the decision was incorrect on its merits and not merely wrong in law.”

37. From his construction of the words used in s. 24, Cooke J. concluded (at para. 5.6) that the appeal provided for in s. 24 “may raise both the question ‘is it lawful or unlawful’ and the question ‘is it right or wrong’”. He went on to observe that “it is equally clear that the procedure is not expressly an appeal by way of rehearing of the original notification in which the decision of the court fully replaces that of the Authority and, in this respect, the provisions can be contrasted with, for example, the procedure for review of an application for planning permission when appealed to the Planning Board…”. He was further satisfied that an appeal of limited scope was envisaged by the obligation on the High Court to (so far as practicable) hear and determine the appeal within two months and “more significantly” having regard to the provisions of s. 24(4), pursuant to which the High Court must presume that matters of fact have been correctly accepted or found by the Authority and which precludes the High Court from hearing witnesses on any issue of fact unless it has first been satisfied that the Authority was unreasonable in its finding or acceptance of that fact. As Cooke J. noted, however, where the High Court is satisfied that the presumption has been rebutted, the court can re-open and re-decide issues of fact and that in principle the court could “in principle and exceptionally substitute its own new findings of primary fact for those of the Authority”.

38. The appellant submits that having regard to the exercise envisaged by Cooke J. in Rye Investments, there can be no doubt but that the Oireachtas envisaged, pursuant to s. 148AA(1), something much more than an appeal against error particularly in circumstances where s. 144AA(3) of the 2004 Act provides that a decision can be entirely replaced by the Circuit Court substituting its own view. It further relies on Dunne v. Minister for Fisheries [1984] I.R. 230, where Costello J. proceeded on the premise that the jurisdiction on appeal should be wider than the court’s powers when exercising its inherent jurisdiction at common law of review.

39. Thus, the appellant’s position is that there is nothing in the 2004 Act that expressly restricts the right of or the scope of the appeal to the Circuit Court as provided for in s. 148AA(1) and no limitation on the kind of evidence that may be adduced on appeal (subject only to the discretion of the Circuit Court to admit same), a topic to which I will return. The appellant also places reliance on the dicta of Denham J. in Board of Management of St Molaga's National School v Secretary General of the Department of Education and Science [2011] 1 I.R. 362 where it was said, at para. 25, that “the term ‘appeal’ is not obscure” and that “the concept of an appeal is a full hearing on the merits with the jurisdiction to make a determination on the issues raised. An appeal goes beyond a review of a decision-making process.” Of particular significance here, the appellant says, is the provision for the Circuit Court to “set aside … and replace” a decision in its entirety with a decision which the Circuit Court “considers appropriate”. It submits that this statutory language envisages something more than an appeal against error.

40. In essence, the appellant contends that the Board’s position fails to take appropriate account of the language used in the 2004 Act and the applicable jurisprudence concerning the categorisation of statutory appeals. In particular, it emphasises the broad remit of the Circuit Court pursuant to s. 148AA(2) where the Circuit Court “may” on the hearing of an appeal by a landlord “consider any evidence adduced or argument made, whether or not addressed or made to an authorised officer or the decision maker”. It is submitted that, here, the Oireachtas has given the appellant an unrestricted entitlement to call evidence on appeal. All of that, the appellant argues, when taken with the broad range of remedies provided for in s. 148AA(3), is of significance to the scope of the appeal which the appellant contends for. Whilst the appellant does not contend that the absence of a power of remittal in s. 148AA(3) is conclusive of the appeal not being an appeal against error, it says that it is nevertheless a fairly strong indicator that something other than an appeal against error was intended by s. 148AA.

41. In arguing that the provisions of s. 148AA(2) and (3) are, effectively, dispositive of the Board’s contention that what is provided for is an appeal against error, the appellant references the decision of Clarke J. in Nz.N v Minister for Justice and Equality [2014] IEHC 31, I JIC 2702:- “31. The powers of the Court on an appeal against a revocation of refugee status is to determine whether the decision to revoke the declaration was correctly made and should be confirmed, or whether the decision was wrong and should be withdrawn. The Court can consider all the evidence which was before the Minister and hear oral evidence from the appellant and any witnesses called by either party in determining the appeal. The Court can come down to its own view as to whether the decision to revoke is appropriate or should be withdrawn.

32. …The Court is not empowered to ask the Minister to re-consider the decision and the Court must come to its own decision confirming the Minister’s original

decision to revoke the appellant’s refugee status or restoring the appellant’s status by directing the Minister to withdraw the revocation of the declaration. The Court does this on the evidence which was before the Minister and any additional evidence presented on the appeal.”

42. The appellant also cites Barry v Medical Council [2007] IEHC 74, 3 JIC 0207, a case where the High Court was required to consider the provisions of the Medical Practitioners Act 1978. With reference to the appellate regime provided for under the Medical Practitioners Act 1978, Charleton, J. commented as follows, at para. 6: - “This court is obliged to hold a complete rehearing of the matter and to assess for the first time the case against the doctor, including the credibility of witnesses, the proper interpretation of the evidence, the gravity of the conduct proven and the appropriate penalty.”

43. This is the analysis, the appellant says, which should apply “mutatis mutandis” to the jurisdiction under s.148AA(1) of the 2004 Act.

44. Whilst on its face, s. 148AA appears to confer a substantial discretion on the Circuit Court on how an appeal is to be conducted, I note that the case law establishes that the fact that an appeal provision is unrestricted (as it is here) does not necessarily mean that it must be an unfettered appeal. This is clear from the dicta of Keane C.J. in Orange v. Director of Telecoms (No.2). Moreover, in M. & J. Gleeson & Co. v. Competition Authority [1999] 1 ILRM 401, while noting that in s. 9 of the Competition Act 1991 “the word ‘appeal’ is not cut down or restricted in any way”, Kearns J. nevertheless rejected the submission that because it appeared in “unfettered and unrestrained terms” the word “appeal” required a wide interpretation. There, the High Court held that the appeal provided for was one against error.

45. In Carrickdale Hotel Ltd. v. Controller of Patents [2004] IEHC 83; 2004 3 I.R. 410, the relevant appeal provision provided: - “An appeal shall lie to the High Court from any award made by an arbitrator in pursuance of a reference under this section to which the parties to the dispute did not consent and the High Court may make such order confirming, annulling or varying the award of the arbitrator as it thinks fit.”

46. Having reviewed the authorities, Laffoy J. concluded that the appeal provided for was an appeal against error stating: - “…I consider that the test to be applied on this appeal …is whether the plaintiff has established as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or series of such errors. In applying the test regard must be had to the degree of expertise and specialist knowledge which the adjudicator has. (para. 17)

47. Another decision of note is Utmost PanEurope DAC v. FSPO [2020] IEHC 538. What was under consideration there was s. 64 of the Financial Services and Pensions Ombudsman Act 2017 which provides that a party to a complaint before the Ombudsman “may appeal to the High Court against the decision or direction of the Ombudsman”. Simons J. concluded, with reference to the 2017 Act, that “[n]otwithstanding that the right of appeal…[is] stated in general terms, the courts have consistently held that the appeal is not intended to take the form of re-examination from the beginning of the merits of the

decision appealed from” (para. 44).

48. This too has been the approach of the courts in relation to an appeal under s. 26(1)(d) of the Data Protection Acts 1988-2018. The section provides that “an appeal may be made to and determined by the Circuit Court against …a decision of the Commissioner in relation to a complaint under s. 10(1)(a) of this Act”. In Nowak v. Data Protection Commissioner [2016] 2 I.R. 585, the Supreme Court (per O’Donnell J. (as he then was)) considered that the application of the test set out in Orange Ltd v Director of Telecoms (No.2) was the appropriate standard in relation to s. 26 appeals under the Data Protection Acts and so held that a decision under the Data Protection Acts will be set aside on appeal “if it is wrong in law or if it vitiated by a serious error or series of errors” (para. 29). Here, the Board, relying on the case law just referred to, says the Circuit Court is not required to allow a full appeal on the merits, or indeed even the narrower appeal permitted by Dunne v Minister for Fisheries [1984] I.R. 230, on which the appellant relies.

49. Bearing in mind the parties’ respective positions, I consider that the approach of the Court, applying the text in context approach, is to ascertain what factors inform the ultimate meaning of s. 148AA(1), which provides for an appeal to the Circuit Court from a

decision of the decision maker under s. 148X(4) or (5) of the 2004 Act.

50. In Fitzgibbon, McKechnie J. observed, at para. 73, that “[w]here the legislature confirms a right to a statutory appeal, it must evidently be assumed that this was intended to have some meaning and some purpose”. Moreover, where judicial review is also independently available, the provision of an appeal “must be considered as conferring some additional benefit(s) on the appellant”. Like Clarke J., McKechnie J. was of the view that between the availability of a full appeal and an appeal on a point of law, “one can find several other variable forms of appeal”. He noted, however, that “the availability of such a right does not mean that all reviews, by way of appeal, are necessarily the same” and in this regard he cited Costello J. in Dunne v Minister for Fisheries [1984] I.R. 230 to the effect that “in every case the statute in question must be construed” (para. 73).

51. At para. 74, McKechnie J considered that the requisite interpretation exercise required the court to have regard to “the actual words and attendant details” of the statute. He observed that on occasions the appeal provision may be quite specific “dealing with law or fact or how evidence tendered at first instance may be received” (as was the case in Rye Investments Ltd. v. Competition Authority) whilst in other cases the appeal provision may be quite general. In the case of a general appeal provision, McKechnie J. warned that “care must be taken to avoid an overly strict or narrow view of common words which are commonly found in this type of statutory provision, as for example ‘to confirm’, ‘to annul’, ‘to modify’, or the like. Such words are not conclusive as to the scope of judicial intervention.”

52. Here, however, the appellant argues that it would not be correct to “guillotine” the remedy provisions from the consideration of the scope of the appeal in circumstances where the Circuit Court can substitute its own view for that of the decision maker.

53. At para. 75 of Fitzgibbon, McKechnie J. opined that in addition to the terminology used in the legislation, one must also consider matters such as “the nature of the body in question, the knowledge and expertise within it – by reference to its purpose – the subject matter of its remit, the type of decision(s) involved, and the impact and consequences thereof for the addressee(s); the proceedings and the type of process involved in, and giving rise to, the decision under appeal must also be considered. These are but some of the factors which will inform the provision’s ultimate meaning. In the instant case it is of considerable significance to note that the appellant had a full right of participation in, and in fact heavily engaged with, the statutory process, which gave rise to the adverse decision now standing against her.”

54. Fitzgibbon itself concerned sanctions imposed by the Complaints and Clients Relations Committee pursuant to s. 11(1) of the Solicitors (Amendment) Act 1994. In her judgment in that case, Denham C.J. was of the view (upholding the High Court) that the appeal provided for was an appeal against error. She stated, at para. 21, “[h]aving made provision for oral evidence, as provided by statute, Kearns P. then indicated the form of the appeal, i.e. that it was not an appeal de novo. This is entirely in conformity with the section and the proposed form of order” (p. 526).

55. In also finding that the appeal provided for was an appeal against error, McKechnie

J. stated, with reference to the relevant statutory provisions: “These provisions, in my view, must be viewed against a background within which a full investigation of the complaint has already been undertaken by the Committee. The process involves the allegation being put to the solicitor in question and affording her the opportunity to respond, to submit all relevant documentation, to give evidence, or to have evidence called on her behalf, to be represented by solicitor and counsel and to make both written and oral submissions, as to fact and law. The Committee in turn, before making any adverse finding, must endeavour to resolve the dispute by agreement: only if that fails does it issue a formal decision. Therefore, prior to any appeal there has been an exhaustive exploration of the issue, with the respondent solicitor having the rights above mentioned. In discharging the Society’s obligations, the Committee must at all times act fairly: it must abide by the rules of natural and constitutional justice, with its functions being subject to judicial review. That being so, it is entirely unsurprising that the appeal from such a process should be restricted in form. The limitation in my view does not in any way impinge upon or undermine the rights of the appellant.” (para. 87)

56. From the authorities just referred to, when it comes to statutory appeals, it is clear that the courts appear to lean in favour of such appeals being appeals against error. However, the fact that an appeal against error is the norm in the regulatory context cannot of course exclude the requisite statutory interpretation exercise by this Court. As put by O’Malley J. in Petecel v. The Minister for Social Protection [2020] IESC 25, at para. 106, “[q]uestions as to the scope of the jurisdiction of the High Court in a statutory appeal must always be answered by reference to the terms of the statute creating that jurisdiction.” In Fitzgibbon, McKechnie J warned against the temptation to seek to achieve uniformity with other statutes, unless “the context so permits and clearly so provides”. Similarly, in Pecetel. at para. 106, O’Malley J. opined that “[t]he fact that one Act uses similar terminology to another may be helpful but is not necessarily determinative.”

57. Notwithstanding the outcome in Fitzgibbon, where the appeal provided for was found to be an appeal against error, the appellant relies on McKechnie J.’s roadmap at paras. 73-75 in aid of its argument that what is provided for in s. 148AA is an appeal on the record with “hybrid” elements.

58. I turn again to the Board’s arguments. In its written submissions the Board points to the fact that the appeal in s.148AA “is grounded in a consideration of the decision” which, it submits, is apparent from the fact that the Circuit Court “may confirm the decision”, “set aside the decision” or “set aside the decision and replace it with such other decision as the Court considers appropriate …”. Another of the Board’s arguments is that other provisions of the 2004 Act reinforce the conclusion that an appeal under s. 148AA is an appeal against error. In this regard, it references ss. 84(5), 100 and 104 of the 2004 Act all of which provide for the determination of the “dispute” between the parties as opposed, it says, to the language used in s.148AA where the appeal to the Circuit Court is rooted in the

decision of the Board. It also points out that there are a number of examples in the 2004 Act which expressly provide for a de novo hearing and submits that this differentiation in treatment is relevant to determining what was intended by the Oireachtas in s.148AA. (On the other hand, the appellant says that the use of “decision” in the section does no more than denote the thing being appealed). In its oral submissions, the Board did not pursue the above points with any great force, acknowledging that its argument in these regards was largely directed to the appellant’s contention that what s. 148AA(1) provides for is a de novo appeal (a position now all but abandoned by the appellant).

59. With regard to the appellant’s argument that the appeal provided for in s. 148AA must be construed as a “hybrid” type of appeal i.e. an appeal on the record with a statutory entitlement to have additional evidence considered, the Board submits that the facility for additional evidence to be adduced is not determinative of the appeal not being an appeal against error since in an appeal against error, there is also a right to adduce additional evidence, which is clear from the case law. Hence, the fact that s.148AA(2) allows the Circuit Court to receive additional evidence on appeal is not inconsistent with the appeal being an appeal against error. In this regard, the Board cites Clarke J. in Fitzgibbon: - “The default position is, therefore, that the appellate body considers the record of the proceedings at first instance (and in the absence of any rules permitting further evidence or materials to be produced only that record) and considers whether the first instance body came to a correct or sustainable decision on the basis of that record.” (para. 120)

60. The Board also cites M. & J. Gleeson & Co. v Competition Authority as an example of a case where the appeal provided for was found, effectively, to be an appeal against error even where additional evidence was allowed to be adduced. There, Kearns J. allowed oral testimony from expert witnesses and other witnesses notwithstanding that there was no express provision in the relevant statute allowing for the hearing of oral evidence. This, the Board says was also the position adopted in Fitzgibbon and Carrickdale Hotel Limited v Controller of Patents.

61. Thus, the fact that an appellate court can receive and consider additional evidence does not necessarily inform the scope of the appeal. Moreover, the Board points out that in Rye Investments, which concerned an appeal against error, the statute in question there expressly permitted additional evidence to be adduced. In those circumstances, the Board’s position is that the provision in s. 148AA(2) of the 2004 Act for additional evidence is simply reflective of the case law concerning appeals against error.

62. The Board also argues that the absence in s. 148AA(3) of any provision empowering the Circuit Court to remit the matter back to the decision maker cannot be suggestive of the appeal not being an appeal against error in circumstances where there was similarly no power to remit provided for in the respective legislative enactments at issue in Carrickdale, Rye Investments and Fitzgibbon, yet, in those cases the appeals in issue were found to be appeals against error.

63. Considerable reliance is also placed by the Board on the dicta of Finnegan P. in Ulster Bank Investment Funds Limited v Financial Services Ombudsman [2006] IEHC 323, in answer to the appellant’s contention that the entitlement in s. 148AA(2) to adduce evidence in the Circuit Court is inconsistent with the appeal being an appeal against error.

64. Ulster Bank Investment Funds Limited was concerned with the interpretation of certain provisions of the Central Bank Act, 1942. The relevant provisions (since repealed) were as follows: “57CL.— (1) If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned may appeal to the High Court against the finding.

(2) The Financial Services Ombudsman can be made a party to an appeal under this section.

(3) An appeal under this section must be made—

(a) within such period and in such manner as is prescribed by rules of court of the High Court, or

(b) within such further period as that Court may allow. 57CM.— (1) The High Court is to hear and determine an appeal made under section 57CL and may make such orders as it thinks appropriate in light of its determination.

(2) The orders that may be made by the High Court on the hearing of such an appeal include (but are not limited to) the following:

(a) an order affirming the finding of the Financial Services Ombudsman, with or without modification;

(b) an order setting aside that finding or any direction included in it;

(c) an order remitting that finding or any such direction to that Ombudsman for review.

(3) If the High Court makes an order remitting to the Financial Services Ombudsman a finding or direction of that Ombudsman for review, that Ombudsman is required to review the finding or direction in accordance with the directions of the Court.

(4) The determination of the High Court on the hearing of such an appeal is final, except that a party to the appeal may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts).” Notably, there was no provision in the legislation for the adducing of additional evidence.

65. In construing the above provisions, Finnegan P. opined: -

“1. Section 57CL provides for an appeal to the High Court by the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned. Subsection (2) provides that the Financial Services Ombudsman can be made a party to the appeal. It is thus envisaged that the appeal may be conducted between the complainant and the regulated financial service provider concerned the Financial Services Ombudsman not being a party. A full appeal on the merits will ordinarily be between the parties to the original hearing the deciding body not being a party. In judicial review on the other hand the deciding body will normally be a party or at least a notice party with the option of taking part in the proceedings. Section 57CL(2) in providing that the Financial Services Ombudsman can be made a party is an indicator, albeit not a strong one, that the Legislature envisaged something more akin to a review rather than a full appeal on the merits.”

66. Whilst, having regard to the standard of review, Finnegan P. considered it appropriate that the appeal should proceed on the basis of the materials that were before the FSO, nevertheless he accepted that the court had a discretion on application to permit further evidence to be introduced where it was satisfied that it was necessary or appropriate “in the interest of justice”. In determining where the interest of justice lay, he considered that regard should be had to Murphy v Minister for Defence [1991] 2 I.R. 161. In the latter case, the general principles set by the Supreme Court for the admission of evidence were that: -

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.

67. Having made reference to Murphy, Finnegan P. went on to state: - “However in the interests of justice regard should be had to the nature of the deciding body whose decision is being appealed: the proceedings before that body may well lack much of the formality which will attend a hearing before the High Court and which the Supreme Court will principally be concerned. Any issue may arise on appeal which could not arise at a hearing for example an issue as to the extent of expertise of the deciding body. Thus a more flexible approach than that adopted by the Supreme Court on the admission of further evidence will be required.”

68. The Board contends by analogy that as the appeal under s. 148AA is an appeal against the decision of a regulator it is a review of the decision maker’s decision with the capacity to admit additional evidence and thus not an appeal on the merits or on the record. It also submits that irrespective of whether the appeal here is found to be an appeal against error or an appeal on the record, the test for adducing additional evidence should be that set out by Finnegan P. in Ulster Bank Investment Funds Limited. Thus, insofar as the appellant relies on the provision of s.148AA(2), the Board’s position is that the Circuit Court is not mandated to accept new evidence, rather it has a discretion whether to do so or not. This, it is said, is apparent from the wording of the subsection. It describes the Circuit Court judge as the “gate keeper” with a discretion to admit evidence that was not before the AOs or the

decision maker. This, it says, can be contrasted with an appeal from an adjudicator to a tribunal under s. 100 of the 2004 Act where the parties themselves decide what evidence is appropriate to advance their case

69. Questioned by the Court as to how, for the purposes of s. 148AA(2), the Circuit Court judge is to approach his or her discretion to admit evidence, counsel for the Board submitted that the Circuit Court will be informed by the approach of the Supreme Court in Murphy v. Minister for Defence but conceded that the approach of the Circuit Court will not be as strict an approach as taken in Murphy v. Minister for Defence for the reasons set out by Finnegan P. in Ulster Bank Investment Funds Limited.

70. The appellant’s response to the Board’s reliance on Ulster Bank Investment Funds Limited is that the legislative provisions at issue in that case were entirely consistent with the appeal provided for being appeal against error and, in this regard, it cites s. 57CM(3) of the Central Bank Act 1942 which provides for the power of remittal which the appellant says is indicative of the appeal being an appeal against error. On the other hand, the provisions of the 2004 Act, the appellant says, codify a principle which is at odds with Ulster Bank Investment Funds Limited. Hence, it does not agree with the Board’s submission that the provisions of s. 148AA(2) and (3) of the 2004 Act do no more than give effect to what Finnegan P. says in Ulster Bank Investment Funds Limited. It reiterates that what is provided for essentially by s. 148AA(2) is the right of the landlord to adduce further evidence and argument subject only to the discretion of the Circuit Court judge.

71. Whatever the nature of the appeal provided for by s. 148AA, and I will come to that shortly, I do not agree with the Board that the procedures provided for in s. 148AA (2) and

(3) equate to the position in Ulster Bank Investment Funds Limited, or that the dicta of Finnegan P. can be said to be dispositive of the appeal in the present case being an appeal against error. Nor am I persuaded by the Board’s argument that the test set down in Murphy (or indeed a diluted version of that test) is the applicable test for the admission of additional evidence under s. 148AA of the 2004 Act.

72. First and foremost, the legislation in issue in Ulster Bank Investments Limited made no provision for the admission of evidence on appeal. Hence, in that case, Finnegan P. was operating from the default position that new evidence would not be admitted unless, upon application, it was in the interests of justice to do so. This is to be contrasted with the express statutory provision in s. 148AA(2) for the admission of “any evidence”. Importantly, and whilst I do not necessarily succumb to the appellant’s argument that the provisions of s. 148AA(2) necessarily decouple any consideration by the Circuit Court as to whether the evidence sought to be adduced on the appeal was given to the first instance

decision maker, s. 148AA(2) appears to confer a substantial power on the Circuit Court on how the appeal is to be conducted and, within the confines of that power, the Circuit Court judge has an express statutory authority to receive and consider “any evidence” adduced or argument made whether or not adduced or made to the AO or the decision maker, subject only to the exercise of the judge’s discretion to admit such evidence. It is, of course, important to note that the admission of such evidence or argument is at the discretion of the Circuit Court judge and, so, contrary to the appellant’s argument, is not the “right” or “entitlement” of the landlord to call such evidence.

73. That, of course, is not to say that the Circuit Court judge is at large in the exercise of his or her discretion. The exercise of the discretion in any given case will depend on the circumstances of the case and I would venture to suggest, having regard to the provisions of s. 148X(4) and (6) of the 2004 Act, that it will depend, in some regard at least, of what occurred at the decision-making phase. If for example, the landlord had an oral hearing before the decision maker and, so, a full opportunity to be heard (the s. 148X(6)(a) process), then one can envisage that the scope for a landlord to have “any evidence” admitted would be considerably narrower than, for example, in a situation where the

decision maker arrived at his or her conclusions pursuant to the process provided for in s. 148X(4) of the 2004 Act. I should say that these provisions are discussed more fully below.

74. In exercising his or her discretion, the Circuit Court judge will also have to bear in mind that what is provided for in s. 148AA is not a de novo appeal. I consider that an appellate court would be entitled to take account of the fact that a first instance decision maker had received and accepted sworn evidence on an issue, if a party sought at the appeal stage to give diametrically opposed evidence on appeal. I would emphasise, however, that my observations in the foregoing regards do not detract from my view that the appeal provided for in s. 148AA(1) is not to be equated with what was at issue in Ulster Bank Investment Funds Limited, for the reasons already set out.

75. Returning again to the nature and scope of the appeal provided for in s. 148AA(1), importantly, aside from the provisions of s. 148AA itself, there are other factors in the statute which inform the nature and scope of the appeal provided for in s. 148AA(1), namely, the powers of the AO and the decision maker under Part 7A, to which I now turn. The powers of the AO and the decision maker, and the landlord’s engagement therewith, as an indicator of the scope of the appeal provided for in s. 148AA(1).

76. One of the principal arguments relied on by the Board in aid of its contention that the appeal provided for in s. 148AA is an appeal against error relates to the extensive powers of the AO to investigate a complaint and collect evidence. With reference, by way of example, to one of the pathfinder cases (Record Number 2022/549), it points to the process followed in that case, adverting to the notice of investigation that was served on the appellant, the fact that two AOs were appointed to investigate, and the extensive exchange of correspondence which occurred between the appellant and the AOs. It highlights the fact that the appellant did not request an oral hearing pursuant to s. 148S(14), albeit it accepts that the AOs too did not appear to consider that an oral hearing was necessary. It points to the draft investigation report sent by the AOs to the appellant in respect of which submissions were invited, and to the fact that the appellant made such submissions, and that, thereafter, the AOs finalised their investigation report which then issued to the

decision maker with the appellant’s submissions on the draft report attached thereto.

77. The Board acknowledges, however, that at this second stage of the bifurcated process, the decision maker did not offer the appellant the opportunity to make submissions on the final investigation report or to attend an oral hearing notwithstanding that both those processes are provided for in s. 148X(6) of the 2004 Act, and that she proceeded to determine the matters without utilising those processes. Nevertheless, the Board’s position is that the appellant exercised what the Board describes as the appellant’s full rights of participation in the Part 7 process.

78. In Fitzgibbon, full participation in the statutory process was “of considerable significance” in determining the scope of the appeal provided for in the statute under discussion. It was considered by McKechnie J. to be one of factors “which will inform the provision’s ultimate meaning”. Here, the Board says that the appeal provided for s.148AA must be viewed against a background “within which a full investigation of the complaint has already been undertaken” (as per McKechnie J. in Fitzgibbon). Accordingly, in the within cases, following the completion of the process provided for under Part 7A, the Board (again borrowing the phraseology of McKechnie J. in Fitzgibbon at para. 87) says that it is “entirely unsurprising that the appeal from such a process should be restricted in form”.

79. The appellant counters this argument by pointing to s. 148X(6) of the 2004 Act which, it says, is framed in such way as may lead to a situation where, at the election of the

decision maker, the landlord may not get to have an input either on the issue of the alleged improper conduct or the question of sanction at the decision-making stage (as indeed was the case here).

80. In response, the Board submits that the scope of the appeal should not be determined by the Court referring to how the decision maker exercised the discretion provided for in s. 148X (6). In other words, the Board’s position is that the nature and scope of the appeal is not determined by the procedures that were conducted before the decision maker, rather it is to be determined by the statutory scheme itself.

81. Whilst it is axiomatic that the nature and scope of the appeal fall to be determined by looking at the scheme provided for in the 2004 Act and not by reference to any particular case, in my view, it does not follow that the Court should determine the nature and scope of the appeal absent a consideration of s. 148X(6). Section 148X(6) (and s. 148X(4)) form part of the scheme envisaged by the 2004 Act. Importantly, in Fitzgibbon, one of the factors which McKechnie J. said fell to be considered when considering the nature and scope of a statutory appeal was “the proceedings and type of process involved in, and giving rise to, the decision under appeal” (para. 75). (Emphasis added)

82. Before further addressing this issue, I hasten to add that there was no legal defect in what the decision maker did here: what she did was within jurisdiction. Issuing a decision following receipt from the AO of the final investigation report with the appellant’s submissions on the draft investigation report attached was entirely permissible under the 2004 Act (see s. 148X(4)).

83. However, whereas the investigative process conducted by an AO under the 2004 Act necessarily involves full participation by the landlord, the decision-making process, as we see, has an extensive suite of powers not all of which may be invoked by the decision maker to ensure optimum participation by the landlord. Therefore, the question for the Court is whether it can be said that the interpretation of the right of appeal under s. 148AA contended for by the Board can be said to be compatible with the statutory scheme provided for under Part 7A in circumstances where it is open to the decision maker under the 2004 Act to arrive at his or her decision purely on the basis of the material contained in the final investigation report furnished by the AOs and unseen by the landlord (the S.148X(4) process), as was the case here, and where it was not incumbent on the decision maker to afford the landlord the options provided for in s.148X(6).

84. It bears reiterating that the decision maker has three options under s. 148X. First, there is provision for the holding of an oral hearing whereby the landlord is provided with a copy of the final investigation report and the submissions attached thereto and invited to make submissions (s. 148X(6)(a)). Secondly, the decision maker has the option of giving the landlord a copy of the final investigation report with submissions attached and inviting submissions from the landlord (s. 148X(6)(b)). Thirdly, the decision maker may simply proceed to a decision on receipt of the final investigation report (and whatever submissions a landlord may have made on the AO’s draft report) he or she receives from the AO (s. 148X(4). As I have said, this is what occurred here.

85. Thus, because of the way Part 7A of the 2004 Act is structured, in the absence of a

decision maker exercising his or her discretion and offering the landlord either the opportunity either to make submissions in writing or attend at an oral hearing, the landlord is left essentially without the means to make submissions to the decision maker either on the information contained in the final investigation report upon which the decision maker will base his or her decision whether to uphold the AO’s finding of improper conduct, or on the sanction that might be imposed by the decision maker if the AO’s findings are upheld.

86. Here, the route adopted by the decision maker was that provided for in s. 148X(4), where the decision maker considered the final form investigation report prepared by the AOs (and the appellant’s submissions on the draft report attached thereto) and then proceeded to make a decision based on the final investigation report. The appellant did not get to see the final investigation report and only got to see the decision notice issued by the Board. The appellant describes the final investigation report as “a procedural black box” to which it did not have access. It submits that if the Board is correct that the appeal provided for is against error only, then that gives rise to conceptual difficulties concerning the appellant’s ability to identify errors in the decision-making process, unless it has access to and sees the basis on which the decision maker makes the final decision.

87. I accept that is the case. In circumstances where the process provided for in s. 148X

(6) of the 2004 Act was not invoked by the decision maker, the appellant was not able to participate in an oral hearing before the decision maker with the benefit of the final investigation report. Nor was the appellant given the final investigation report and invited to make submissions. (I understand it also to be the case after lodging its appeal to the Circuit Court the appellant requested sight of the final investigation report, but this request was not acceded to.)

88. Although the process utilised by the decision maker (issuing a decision after receipt of the AOs’ investigation report with the appellant’s submissions on the draft investigation report attached) is provided for ins. 148X(4), the lack of any opportunity having been given to the appellant to ascertain the basis upon which the decision maker arrived at her

decision begs question as to how can the appeal provided for in s. 148AA be confined to merely an appeal against error in such circumstance?

89. Against the legislative backdrop described above, the appellant makes the very persuasive point that the scope of the appeal provided for in s. 148AAof the 2004 Act must be such as fits all of the procedural routes (including s. 148X(4)) that are available to the

decision maker under Part 7 of the Act. In other words, the scope of the appeal falls to be determined by reference to what the statute permits.

90. In my view, in the context of a process where the appellant did not get the final investigation report, did not get to make submissions to the decision maker and did not get the outcome of the decision making process (save the decision notices), the Board’s argument that an appeal provided for in s. 148AA is an appeal against error only fails to address how the appellant is expected to identify, for the purposes of such appeal, any error in respect of which an appeal may lie. In essence, if the decision which is sought to be appealed is made via the process provided for in s. 148X(4) (as indeed it was here), the landlord may not be able to identify errors in the decision-making process (i.e. the second part of the bifurcated process provided for in Part 7) such as, for example, that the decision arrived at was not supported by the material before the decision maker. This is because the landlord will not know what was involved in the decision-making process other than what is set out in the decision notice. In effect, pursuant to the process provided for by s. 148X(4), the landlord only has sight of the decision maker’s interpretation of the final report and not the final investigation report itself.

91. Thus, if s. 148X(6) provides for the landlord to make submissions, either orally or in writing, to the decision maker, but also provides in s. 148X(4) for a decision to be made by the decision maker absent any opportunity for the landlord to make such submissions, then in the event of the processes provided for in s. 148X(6) not being invoked by the decision maker (in whose discretion that decision lies), s.148AA (1) of the 2004 Act requires to be interpreted as empowering the Circuit Court on appeal to arrive at a different decision to that of the decision maker, and not just to review whether the decision is vitiated by a serious or significant error or a series of such errors. This interpretation of s. 148AA(1) is necessary in order to accommodate the difficulty that is likely to arise for a landlord in identifying errors where the procedure in s. 148X(4) is the one utilised by the decision maker in coming to his or her decision.

92. In summary, therefore, notwithstanding that the procedure utilised by the decision maker is provided for in the 2004 Act, for the Board to say that the appeal provided for in s. 148AA is just an appeal against error seems to me to be extraordinarily restrictive in circumstances where the appellant did not get the opportunity to see the final investigation report or participate further by making submissions either orally or in writing on the final investigation report to the decision-maker notwithstanding that there is provision for same in s. 148X(6) of the 2004 Act.

93. In its submissions to the Court, the Board relied on what is said by McKechnie J. at para. 87 of Fitzgibbon, namely that if there has been a “full investigation” of the complaint, “it is entirely unsurprising that the appeal from such a process should be restricted in form”. It is, of course, of significance that in Fitzgibbon, the appellant was found to have enjoyed a full right of participation before the Fitness to Practice Committee. As noted by McKechnie J., “[t]he process involves the allegation being put to the solicitor in question and affording her the opportunity to respond, to submit all relevant documentation, to give evidence, or to have evidence called on her behalf, to be represented by solicitor and counsel and to make both written and oral submissions, as to fact and law.” In that circumstance, it is not difficult to understand why the Supreme Court concluded that the appeal provided for in the relevant legislation was an appeal against error. As we see, however, here, the provisions of s. 148X of the 2004 Act are framed in such a way that a landlord may not get an opportunity to fully participate in the processes provided for in s. 148X, as indeed was the case here.

94. Thus, for the reasons set out above, I reject the Board’s argument that the appellant in this case can be said to have “heavily engaged” with the statutory process, or that there has been “an exhaustive exploration of the issue”, in the sense those words are used by McKechnie J. in Fitzgibbon. The Board’s contention that the appellant enjoyed full participation in the Part 7 process is not sustained.

95. The appeal provided for in s.148AA must, at the very least, be construed in sufficiently broad terms to permit an appellant to be heard on the findings of improper conduct and the issue of sanction where the appellant has not been heard by the decision maker prior to the decision maker furnishing the decision to the Board. Confining the appeal to an appeal against error would not achieve this in circumstances where the emphasis in such appeal in on an error in the decision of the decision maker and not on what should be the proper result of the issue before the appellate body.

96. It is also difficult to reconcile the Board’s refusal to provide the appellant with a copy of the final report for the purposes of the Circuit Court appeal with its contention that the appeal is limited to an appeal against error. An appeal against error necessarily involves the appellate body examining the entirety of the decision-making process to determine if the decision maker made an error or a series of errors which vitiate the

decision. That in turn necessarily requires that the appellate body have access to the material which was before the decision maker. Refusal to provide the final report limits the ability of an appellant to contend for an error and indeed that of the appellate body find an error in the decision under appeal.

97. In summary, therefore, the manner in which s. 148X of the 2004 Act is framed, coupled with the nature of the remedies provided for in s. 148AA(3) (which includes provision for the Circuit Court to substitute its own adjudication for that of the decision maker something which Cooke J. in Rye Investments described as “of primary importance in determining the scope of a statutory appeal”), are, to my mind, compelling indicators that the appeal provided for in s. 148AA(1) falls to be construed as an appeal on the record which is supplemented by the express statutory provision in s. 148AA(2) for the adducing of additional evidence. The provisions of s. 148AA(2) ensure that the limitations on the proper availability of an appeal on the record which Clarke J. referred to in Fitzgibbon do not arise, and, indeed, answer the Board’s contention that the absence of a facility in an appeal on the record to call additional evidence made it unlikely that the appeal provided for in s. 148AA(1) was such appeal.

Curial Deference

98. In its submissions to the Court as to how the appeal in s. 148AA should be construed, the Board highlighted what McKechnie J. references (at paras. 75 and 78 of Fitzgibbon) as the necessity for “curial deference” to be shown by the courts where the Oireachtas has established a specialist body with expertise (as is the position here, the Board argued) such that, as said by Barron J. in Orange Ltd v Director of Telecoms (No.2) (citing Hamilton C.J. in Henry Deeny & Sons Ltd v. The Minister for Social Welfare [1987] 1 I.R. 34, at p. 371), “the courts should be slow to interfere with the decisions of expert administrative tribunals”.

99. The Board also referenced Keane C.J. in Orange Ltd v. Director of Telecoms (No. 2) that in arriving at a conclusion that a decision was reached by “a serious and significant error or series of such errors”, the court “will necessarily have regard to the degree of expertise and specialised knowledge available to the first defendant.”

100. According to the Board, Part 7A of the 2004 Act deals with a regulatory process relating to rent pressure zones. The combined process (the AO and the decision maker) constitutes, the Board argued, a process of a specialist nature to which the courts should give curial deference which, as the case law has said, indicates that the statutory appeal provided for should be read as an appeal against error.

101. In this regard, counsel for the Board pointed to s. 148Y of the 2004 Act which provides that the decision maker’s decision is the decision of the Board. There is no further step to be taken once the Board receives the decision save that the Board is mandated to make a written record of the decision. Counsel submitted that when looked at as a whole, the procedure was the type of regulatory process that is suggestive of curial deference by the courts, which in turn suggests that the appeal provided for was an appeal against error.

102. On the other hand, the appellant’s position was that the function of the Board is prescribed in the long title to the 2004 Act as being a body conferred with “powers and functions of a limited nature in relation to [landlord and tenant] disputes”. It contended that to the extent that any expertise can be ascribed, it could not be expertise beyond the resolution of disputes pertaining to landlords and tenants. It argued that the statutory appeal at issue here does not comprise such a dispute but rather arises from the investigations by the Board into alleged breaches of regulatory standards. It also argued that the investigations provided for do not fall within any specialist expertise of the Board and that that is reflected in the appointment of an external “decision maker”.

103. The Board’s response to this argument was to point out that the fact that the decision makers are not staff members should not have bearing on the specialist nature of the function being carried out. It pointed out that in Fitzgibbon, Denham C.J. (at para. 21) rejected the contention that the Complaints and Clients Relations Committee of the Law Society, being composed of a majority of lay members, could not be a specialist body, stating that the Committee was “a specialist committee in its work” and opining that the fact that “there are a majority of lay members does not detract from its specialist nature”. That was also the view of McKechnie J. in that case. The Board also cited Orange, Ulster Bank Investments Limited, Carrickdale and Novak as examples of cases where the expertise and specialist knowledge of the respective decision makers in those cases was acknowledged and considered an indicator that the appeals under consideration in those cases were appeals against error.

104. Whilst I accept that the courts have treated curial deference as a factor which is suggestive of appeals against the decisions of such specialist bodies being appeals against error, in my view, even if it can be said that the exercise conducted by the AOs and

decision maker (a lawyer) here was a specialist exercise, that cannot be dispositive of the nature of the appeal in this case. This is for the reasons which I have already set out earlier in this judgment which, in my view, trump any consideration of curial deference being a deciding factor as to the nature and scope of the appeal in this case even accepting (as I for the reasons set out below) that some degree of curial deference may arise even in the context of an appeal on the record).

105. As I have intimated, there may be scope for some deference by the Circuit Court to the decision under appeal. I note that in medical misconduct cases, the courts have shown a degree of curial deference to the opinions of the Fitness to Practice Committee and the Medical Council even though a de novo appeal is provided for in the relevant legislation. If there is scope for deference to be shown in the case of a de novo appeal, then that must also be the case in an appeal on record, provided, of course, there is opinion of a specialist nature to be taken account of. I do not propose in this Case Stated to opine on the degree of deference that might be afforded by the Circuit Court to a decision under appeal pursuant to s. 148AA, it being a matter for the Circuit Court (in the first instance) to adjudicate on the level of expertise of either the AOs or the decision maker.

106. I would, however, observe that whilst I am of the view that some deference may be shown by the Circuit Court to the AO and the decision maker in the context of that court’s consideration of how the AO and the decision maker came to establish “improper conduct” for the purposes of the legislation (and in the case of the decision maker, how he or she determined the sanction to be imposed), there may, in truth, be scope for only limited deference to be shown by the Circuit Court judge. This is because in an appeal on the record (which as I have said is what is provided for here), the Circuit Court is reaching its own conclusion or, other words, making up its own mind.

107. The salient factor, here, for the purposes of this Case Stated, is that whatever curial deference might be afforded to the AO and the decision maker by the Circuit Court, that factor cannot be determinative of the nature of the appeal provided for in s. 148AA, for the reasons I have already set out.

Answers to the questions posed in the Case Stated

108. For all of the reasons set out above, I would answer the questions posed on the Case Stated as follows: - “(a) What is the proper scope of the appellate jurisdiction of the Circuit Court on a statutory appeal under section 148AA of the Residential Tenancies Act 2004?” The proper scope of the appellate jurisdiction of the Circuit Court on a statutory appeal under s. 148AA of the 2004 Act is that the appeal provided for is an appeal on the record which is supplemented by the provisions of s. 148AA(2) of the 2004 Act. “(b) If the appeal is an appeal against error, in what circumstances may the Circuit Court consider evidence that was not before the Board?” By reason of the answer to (a) above, this question no longer arises.

Costs

109. As the appellant has largely prevailed in the argument it canvassed in this Case Stated, it would seem to follow that it should be awarded its costs. If, however, either party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within 21 days of the receipt of the electronic delivery of this judgment, and a short costs hearing will be scheduled, if necessary. If no indication is received within the 21-day period, the order of the Court, including the proposed costs order, will be drawn and perfected.

110. As this judgment is being delivered electronically, Pilkington J. and Butler J. have indicated their agreement therewith and the orders I have proposed.