High Court dismisses appeal as untimely; no jurisdiction to extend time or grant extension due to lack of bona fide intention.

THE HIGH COURT

[APPROVED] [2025] IEHC 410

[NO REDACTION NEEDED] 2024 646 MCA

BETWEEN

JASON CAHILL

APPELLANT

AND

RESIDENTIAL TENANCIES BOARD

RESPONDENT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 18th day of July 2025 Index

1. Introduction………………………………………………………………………..3

2. Factual Background……………………………………………………………….4

3. Mr Cahill’s Appeal………………...………………………………………………7

4. The Relevant Provisions of the 2004 Act………………………………………..10

5. The Relevant Authorities…………………………………………………….…..11

6. Decision on Application………………………...………………………………..15

7. Conclusions and Preliminary View on Costs…………………………………...17

1. Introduction

1. This is my judgment on an issue raised by way of a preliminary objection by the Respondent, the Residential Tenancies Board (the “Board”), in its statement of opposition in these proceedings. The issue is whether the appeal brought by the Appellant, Mr. Cahill, under section 123(3) of the Residential Tenancies Act 2004 (as amended) (the “2004 Act”) from a determination order made by the Board and dated 28 February 2024 (the “Determination Order”) was brought within the required time period contained in section 123(8) of the 2004 Act, being “the period of 21 days beginning on the date that the determination order concerned [was] issued to the parties”.

2. The Originating Notice of Motion constituting Mr. Cahill’s appeal was issued and filed in the Central Office of the High Court on 20 December 2024. The Board claims, by way of preliminary objection, that the appeal was brought well outside the 21-day time period in section 123(8) of the 2004 Act and that it should be dismissed on that basis. The Board’s position is that a long line of case law establishes that the court has no jurisdiction to extend the 21-day time period and that, since Mr. Cahill’s appeal was brought outside that time period, his appeal should be dismissed. In the alterative, and without prejudice to that principal contention, the Board maintains that if the court does have the power to extend the 21 day time period, the Court should decline to do so on the basis that the criteria set out in cases such as Seniors Money Mortgages Ireland DAC v Gately and McGovern [2020] IESC 3, [2020] 2 IR 441, are not satisfied in this case.

3. Mr. Cahill accepts that he received a copy of the Determination Order and a copy of the Report of the Tenancy Tribunal (the “Tribunal”) on 7 March 2024 and that his appeal was not brought until 20 December 2024, although he stated in his submissions to the Court that he made several attempts to bring his appeal in the period between his receipt of the Determination Order and other material from the Board and the date on which the motion was issued.

4. For the reasons set out in this judgment, I have concluded that on the basis of the wellestablished case law and, most notably, the recent dicta of Murray J. in his judgment in the Supreme Court Kirwan v O’Leary and Ors [2023] IESC 27, the court does not have any jurisdiction to extend the 21-day time period. Since Mr. Cahill’s appeal was brought several months outside that period, his appeal is clearly out of time and must, for that reason, be dismissed. Even if, contrary to what I accept is the correct position, the court does have a jurisdiction to extend the time period, I would not have extended the period in this case in circumstances where none of the guiding criteria set out in Seniors Money are satisfied and where the balance of justice does not, in all the circumstances of the case, require that an extension of time to appeal be granted to Mr. Cahill.

2. Factual Background

5. In March 2023, a complaint was referred to the Board for resolution in relation to the tenancy of a dwelling in Limerick. The complaint was made by the landlords and it concerned a tenancy in which Mr. Cahill was the tenant. The complaint was initially dealt with by way of adjudication. The adjudication took place in May 2023. The adjudicator found that a notice of termination served by the landlords in January 2023 was valid and required Mr. Cahill to vacate and give up possession of the dwelling. The adjudicator also directed Mr. Cahill to pay the sum of €480 to the landlords within 21 days in respect of rent arrears. Mr. Cahill was also directed to continue to pay any further outstanding rent at a specified rate.

6. Mr. Cahill appealed against the outcome of the adjudication in July 2023. A Tribunal was constituted to hear the appeal pursuant to sections 102 and 103 of the 2004 Act. The hearing of the appeal was initially scheduled for 8 September 2023. It was adjourned on a number of occasions on the application of Mr. Cahill, most recently on 4 December 2023, before ultimately proceeding by way of an oral hearing before the Tribunal on 12 January 2024. Mr. Cahill did not attend the hearing. He was in contact prior to the hearing stating that he was unwell and would not be attending. Mr. Cahill did make written submissions and provided documentation to the Tribunal to be considered in his appeal. The Tribunal decided to proceed with the hearing and to deal with Mr. Cahill’s arguments on the basis of the written documentation which he had submitted.

7. The Tribunal made its determination in relation to Mr. Cahill’s appeal on 22 December 2024 and prepared a report setting out its determination (the “Report”) which it notified to the Board that day. A Determination Order dated 28 February 2024 was then made by the Board pursuant to section 121 of the 2004 Act.

8. In summary, in the Determination Order, it was determined that: -

(1) Mr. Cahill had failed in his obligations under section 16(a)(i) of the 2004 Act to pay the rent as it fell due and directed him to pay the sum of €1,341.00 to the landlords within 28 days of the date of issue of the Determination Order;

(2) Mr. Cahill was also directed to pay the sum of €1,000 to the landlords within 28 days of the date of issue of the Determination Order in respect of damages for breach of tenant obligations pursuant to section 16(h) of the 2004 Act for alleged anti-social behaviour;

(3) A notice of termination served on 13 January 2023 in respect of the tenancy was valid;

(4) Mr. Cahill had been overholding in the dwelling since 13 February 2023 and he was directed to vacate and give up possession of the dwelling within 14 days of the date of issue of the Determination Order;

(5) Mr. Cahill was directed to continue to pay any further rent outstanding to the landlords from 12 January 2024 at a specified rate.

(6) The landlords were directed to refund the security deposit of €220 to Mr. Cahill on gaining vacant possession of the dwelling, less any amounts properly withheld in accordance with the provisions of the 2004 Act.

9. A copy of the Report of the Tribunal together with a copy of the Determination Order was issued by the Board to Mr. Cahill and to the landlords on 5 March 2024. The documentation was sent by registered post and was received by Mr. Cahill on 7 March 2024. The documentation was sent under cover of a letter from the Board dated 5 March 2024. In that letter, a member of staff in the Tribunal Section of the Board stated: - “This Determination Order shall, on expiry of a period of 21 days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to section 123(3) of the Residential Tenancies Act 2004. The determination of the High Court on any such appeal in relation to the point of law concerned shall be final and conclusive.”

10. Mr. Cahill sent an email to the Board on 7 March 2025 in which he acknowledged receipt of the documentation. He expressly referred to the Determination Order and stated that he was “disgusted with it”. He briefly explained why. He then said: - “I want to appeal this decision but I am not going to the High Court for a case involving

480 euros the judges would laugh at it.” He asked that he be provided with a “proper and more realistic option to appeal”.

11. In an email sent in response on 7 March 2024, a member of staff of the Board informed Mr. Cahill that, as outlined in the cover letter of 5 March 2024, the Determination Order could be appealed on a point of law to the High Court within 21 days from the date on which the decision was issued to the parties. He was informed that if he wished to appeal, it was open to him to seek legal advice on the matter. That statement was repeated in a further email sent later that day in response to another email from Mr. Cahill. In a further email that evening, Mr. Cahill appeared to suggest that he was not intending to appeal to the High Court from the Determination Order but that he did wish to bring a case against the members of the Tribunal individually and he sought details of the identities of the Tribunal members. In a response sent on 12 March 2024, the official in the Board requested Mr. Cahill to refrain from contacting the Tribunal members directly. She reiterated to Mr. Cahill that if he believed that he had grounds to appeal from the Tribunal’s decision to the High Court on a point of law, it was open to him to bring such proceedings and to seek legal advice on the matter and on any other remedies that might be available to him.

12. Mr. Cahill did ultimately decide to appeal. The notice of motion comprising his appeal was issued and filed in the Central Office on 20 December 2024, more than nine months after the Determination Order was issued to and received by him. In his responding submissions at the hearing of the application before me on 14 July 2025, Mr. Cahill stated that he made seven or eight attempts to bring his appeal, but his documentation was rejected on each occasion by the Central Office as being incorrect or defective. However, in fairness, Mr. Cahill accepted that his first contact with the Central Office came “well past” or “well outside” the 21-day period. It should be said that none of this was put on affidavit in response to the Board’s preliminary objection, but no objection was raised on behalf of the Board to Mr. Cahill explaining that situation to the Court.

3. Mr. Cahill’s Appeal

13. As already noted, Mr. Cahill’s appeal was brought when his Notice of Motion was issued and filed in the Central Office on 20 December 2024. In his Notice of Motion, he set out the following alleged point of law: - “The order has false information and tribunal procedures were not followed by the tribunal …”. The motion also sought an order extending the time for bringing the appeal.

14. Mr. Cahill’s motion was grounded on a short affidavit which he swore on 27 August 2024 (which was filed in the Central Office on 20 December 2024). In that affidavit, he requested that the Determination Order be reversed on the following grounds: - “I was unable to attend Tribunal due to illness. Medical cert was given in correct time period. False evidence was given. RTB rules for evidence-based decisions was not followed. My representative was listed present at tribunal when he was not. Bullying to attend tribunal when sick. RTB evidence rules not followed. RTB Tribunal rules not followed. Conflict of interest with tribunal.” Mr. Cahill clarified that the reference to his representative being listed as being present at the Tribunal when he was not was a reference to the hearing before the tribunal on 4 December 2023 when the hearing was further adjourned at Mr. Cahill’s request.

15. In response to Mr. Cahill’s appeal, the Board filed a Statement of Opposition containing a preliminary objection. The preliminary objection was that the appeal was brought out of time having regard to the provisions of sections 123(3) and 123(8) of the 2004 Act in that more than 21 days elapsed between the issue to Mr. Cahill on 5 March 2024 of the Determination Order the subject of the appeal and the commencement of the appeal on 20 December 2024. It was further pleaded in the Statement of Opposition that, as a matter of law, the court does not have any jurisdiction to extend the time for bringing the appeal.

16. Without prejudice to that principal objection, the Board pleaded that if there is a jurisdiction to extend the time for bringing an appeal such as this, the Court should exercise its discretion not to extend the time in circumstances where:

(a) The evidence is that Mr. Cahill did not form a bona fide intention to appeal under section 123 of the 2004 Act within the relevant 21-day period;

(b) On the contrary, the evidence is that Mr. Cahill formed an intention not to appeal within that time period;

(c) There is no good or sufficient explanation for Mr. Cahill’s failure to appeal within the 21-day period; and

(d) There are no arguable grounds of appeal.

17. The Statement of Opposition also raised a number of further preliminary objections and points in relation to the form and context of Mr. Cahill’s notice of motion. It further pleaded that the appeal did not raise any point of law. The Board reserved its right to provide further points of opposition in the event that the Court did not exceed to its preliminary objections.

18. The Board’s Statement of Opposition was supported by an affidavit sworn by Padraig McGoldrick, Acting Deputy Director of the Board, on 18 March 2025. In his affidavit, Mr. McGoldrick set out the facts relevant to the preliminary objections raised by the Board. In particular, he set out the relevant timeline which I have summarised earlier in this judgment and exhibited the relevant documentation.

19. Mr. Cahill did not swear any replying affidavit in response to Mr. McGoldrick’s affidavit. He did, however, provide certain documents in advance of the hearing which were made available to the Court. The documentation included a transcript of the Tribunal hearing on

12 January 2024, certain of the material which was exhibited to Mr. McGoldrick’s affidavit, some correspondence Mr Cahill had with An Garda Síochána, various emails, Ulster Bank customer receipts, medical and a number of dental certificates and part of an internal document from the Board referring to obligations on members of staff at the Board. I informed Mr. Cahill that I would review that documentation when considering the papers for the purposes of my judgment. I have done so. None of the documentation is, in my view, relevant to the preliminary objection raised by the Board on the timing of the appeal.

20. I heard the Board’s preliminary objection during the Cork Personal Injuries Sessions on

14 July 2025. The Board sought to dismiss Mr. Cahill’s appeal on the grounds that it was out of time and that the court had no power to extend the time for bringing the appeal. Mr. Cahill resisted the Board’s application and professed a difficulty in responding to the submissions made by counsel on behalf of the Board which made reference to some provisions of the 2004 Act and several cases. I explained that I would carefully consider all of the submissions and would read the cases before reaching my decision on the Board’s application. I have now done so and have concluded that Mr. Cahill’s appeal must be dismissed on the basis that it was brought several months outside the 21-day time period referred to in section 123 of the 2004 Act and that the court has no power to extend the time for bringing the appeal. If the court did have such power (which it does not), I would nonetheless have refused to extend the time on the basis that the guiding criteria considered in Seniors Money and in other more recent cases are not satisfied in this case and that the balance of justice does not, in the circumstances of this case, require that time be extended.

4. The Relevant Provisions of the 2004 Act

21. The most relevant provisions of the 2004 Act for present purposes are sections 123(2), (3),

(4) and (8).

22. Section 123(2) provides: -

“A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).”

23. Section 123(3) states: -

“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”

24. The term “relevant period” (as used in section 123(2) and (3)) is defined in section 123(8) as meaning “the period of 21 days beginning on the date that the determination order concerned is issued to the parties”.

25. Section 123(4) provides that the determination of the High Court on an appeal brought under section 123(3) “shall be final and conclusive”.

26. Section 88 of the 2004 Act is referred to in a number of the relevant cases. That section provides that the Board has the power to extend the time limited by any provision of the 2004 Act for the referral of a dispute to it for resolution or for an appeal under section 100 to the Tribunal against a determination of an adjudicator under section 97(4)(a) (section 88(1)). Section 88(2) provides that the Board shall not extend the time concerned unless the applicant for such extension “shows good grounds for why the time should be extended”.

27. Section 88 is referred to in some of the cases to show that if the Oireachtas had intended the court to have a jurisdiction to extend the time for a party to appeal to the High Court from a determination of the Tribunal, it would have included a provision similar to section

88. The absence of such a similar provision has been relied on in some of the cases to demonstrate that the Oireachtas clearly did not intend that the court would have such a power to extend the time to appeal to the High Court under section 123.

5. The Relevant Authorities

28. Counsel for the Board referred to a number of cases in support of its contention that the 21-day time limit contained in section 123 of the 2004 Act is an absolute time limit which cannot be extended by the court and that, since Mr. Cahill’s appeal was not brought within that time period, the appeal should be dismissed.

29. Hogan J. in his judgment for the Court of Appeal in Keon v Gibbs [2017] IECA 195 expressed the view (albeit obiter) that section 123(3) of the 2004 Act provides for a strict 21-day time limit which is not capable of extension. That was the conclusion reached by Noonan J. in the High Court in Noone v Residential Tenancies Board [2017] IEHC 556. Having referred to the dicta of Hogan J. in the Court of Appeal in Keon, Noonan J. stated: “The wording of s. 123(3) and (8) is clear on its face and an appeal must be brought within 21 days of the date that the determination order is issued. By any reckoning, the appellant was outside the 21 day period in bringing this appeal. There does not appear to me to be any ambiguity in the wording of the section which might be said to leave open the possibility of the court having a discretion to extend the time. Had the Oireachtas intended that such a discretion be available to the court, it could have expressly so provided. …” (per Noonan, J. at para. 21). Noonan J. referred to section 88 of the 2004 Act as an example of where the Oireachtas made clear that there was a power to extend the time for certain steps to be taken under that Act. He held that if the Oireachtas had intended to provide for a similar power to extend time on the part of the court in the case of an appeal to the High Court, “it would presumably have done so in similar terms” (para. 22).

30. A similar conclusion was reached by McDonald J. in the High Court in Dada v Residential Tenancies Board [2018] IEHC 378. McDonald J. held that he was required by reason of the principles in Re Worldport Ireland Ltd (in liquidation) [2005] IEHC 189, to take the same approach as was taken by Noonan J. in Noone. However, he added that, in his view, the approach of Noonan J. was “absolutely correct” and that the reasoning given by Noonan

J. for his decision was “compelling”. He held that the 21-day time limit was an absolute time limit which could not be extended by the court. He addressed various other arguments made in support of a contention that the court did have jurisdiction to extend the time and rejected those arguments.

31. A similar approach has been taken in a number of subsequent decisions of the High Court including Halbherr v Residential Tenancies Board [2018] IEHC 595 (Meenan J.), Abeyneh v Residential Tenancies Board [2023] IEHC 81 (Bolger J.) and Olaszewski v Residential Tenancies Board [2025] IEHC 113 (Bradley J.).

32. I accept that, on the basis of these authorities, the position is well established. The 21-day time limit in section 123(8) of the 2004 Act within which to appeal from a determination of the Board to the High Court under section 123(3) is an absolute time period which is not capable of being extended by the High Court.

33. That position was confirmed (albeit obiter) by Murray J. in his majority judgment for the Supreme Court in Kirwan v O’Leary [2023] IESC 27. The issue decided by the Supreme Court in that case was whether the court could extend the time for an appeal pursuant to section 7(12A) of the Solicitors (Amendment) Act 1960 (as amended) (the “1960 Act”) to the High Court from a decision of the Solicitors Disciplinary Tribunal that no prima facie case of misconduct was disclosed against a solicitor against whom a complaint was made. Section 7(12B) provides that such an appeal “shall be made” within 21 days of the receipt of notification in writing of the decision. The Supreme Court decided by a 3:2 majority that the High Court does have the power to extend the 21-day period prescribed by section 7(12B) of the 1960 Act and that an application to extend the time is governed by Order 122 Rule 4 RSC. The principles by reference to which the court will decide whether to extend the time are those discussed by the Supreme Court in Seniors Money.

34. Relevant for present purposes, however, are the obiter statements of Murray J. in relation to section 123 of the 2004 Act. In seeking to establish the intention of the Oireachtas in relation to the time period for appealing a particular decision to the High Court and whether the period can be extended, Murray J. observed as follows, at para. 71 of his judgment: - “When the Oireachtas intends the time period to be absolute, this is easily made clear: it is not uncommon for legislation to provide that legal proceedings ‘shall not be brought after …’ a specified date. Sometimes the specific provision will not expressly state that the period is absolute, but it will nonetheless be evident from the text of the statute as a whole that this was the parliamentary intent. So, there are provisions which state that the decision of a statutory body shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made within the relevant period. Provisions of this kind are consistent only with the imposition of an absolute and non-extendable time period. Conversely, the Oireachtas may expressly provide in the statute providing for a right of appeal, that the period fixed by the legislation for bringing an appeal may be extended.”

35. As an example of a provision in a statute which provides that the decision of a statutory body shall become binding on the parties concerned on the expiry of the relevant time period contained in the statute for appealing, unless before the expiry of that time period, an appeal is brought in relation to the relevant decision, Murray J. referred in a footnote to section 123(2) of the 2004 Act. It will be recalled that that is the subsection which provides that a determination order embodying the terms of a determination of the Tribunal “shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3)”. The “relevant period” is, of course, the 21-day period referred to in section 123(8).

36. Murray J. stated that a provision of the kind set out in section 123(2) is “consistent only with the imposition of an absolute and non-extendable time period” (at para. 71). That statement is entirely consistent with the long line of case law, which I have referred to earlier, which provides that the 21-day time period for bringing an appeal under section 123(3) is absolute and cannot be extended. I also observe that Murray J. made express reference to several of the cases concerning the time limit in section 123 of the 2004 Act, including Keon, Noone, Dada, and Abeyneh, at paragraph 2 (footnote 2) of his judgment without in any way suggesting that those decisions were wrong or inconsistent with the

decision in Kirwan that the particular time period in section 7(12B) could be extended. In a judgment delivered on 16 June 2025, I extended the time for appealing the relevant

decision in that case; Kirwan v O’Leary and Ors. [2025] IEHC 337.

37. In my view, the obiter statements of Murray J. in Kirwan in relation to section 123 of the 2004 Act and particularly those in relation to section 123(2) provide strong support for the position set out in the case law referred to above.

38. The position, therefore, is that the 21-day time period for appealing a determination order embodying the terms of a determination of the Tribunal under section 123 of the 2004 Act is an absolute time period which cannot be extended by the court.

6. Decision on Application

39. The application of the statutory provisions and the legal principles discussed in the previous two sections of the judgment means that I must decide the Board’s preliminary objection on time in its favour. The undisputed facts are that Mr. Cahill’s appeal was commenced when his notice of motion was issued and filed in the Central Office on 20 December 2024, many months after the expiry of the 21-day period beginning on the date that the Determination Order was issued to the parties. That means that Mr. Cahill’s appeal is out of time. The effect of the cases discussed earlier is that the court does not have any power to extend that time period. Therefore, Mr. Cahill’s appeal must be dismissed. The case law (including the recent dicta of Murray J. in the Supreme Court in Kirwan) is very clear that the 21-day time period for bringing an appeal under section 123 of the 2004 Act is an absolute and non-extendable time period.

40. Even if, contrary to that established position, I were to take the view that the court has the power to extend the time period by applying the principles most set out in Éire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] I.R. 170 and discussed and applied in Seniors Money and Murphy v Law Society [2023] IECA 310 (which I do not), I would, in any event, refuse to extend the time to appeal in this case.

41. I am not satisfied that any of the guiding criteria set out in Éire Continental and discussed and considered in Seniors Money and Murphy are satisfied in this case. Nor am I satisfied that the balance of justice would require that an extension of time, if possible, be granted. The delay in actually issuing the notice of motion constituting the appeal was almost nine months. There is no evidence that Mr. Cahill formed a bona fide intention to appeal within the 21-day time period. In fact, the evidence, as disclosed in the contemporaneous email correspondence, is that Mr. Cahill decided not to appeal from the Determination Order to the High Court but rather to bring proceedings against the individual members of the Tribunal, but he subsequently changed his mind. There is no evidence that he formed a bona fide intention to appeal within the relevant period. Nor is there any good or sufficient explanation for his failure to appeal within that time period. There is no suggestion of mistake or anything of that kind. Finally, I am not satisfied that Mr. Cahill has put forward any arguable grounds of appeal. None of the matters alleged (in terse and succinct form) in the notice of motion and in Mr. Cahill’s grounding affidavit afford a good ground of appeal from the Determination Order. The evidence does not disclose that balance of justice would require the time to be extended, even if that were possible. I would therefore refuse to extend the time for appealing, even if there was a power to do so (as I similarly refused to do in Property Services Regulatory Authority v Dooley [2023] IEHC 419, another case mentioned by Counsel for the Board in his submissions).

7. Conclusions and Preliminary View on Costs

42. In conclusion, therefore, since Mr. Cahill’s appeal was not brought within the requisite 21- day time period in section 123 of the 2004 Act, I must accede to the Board’s preliminary objection and dismiss Mr. Cahill’s appeal.

43. I will make an order, therefore, dismissing the appeal.

44. Since the Board has been entirely successful in the preliminary objection which it raised to Mr. Cahill’s appeal, my provisional view is that the Board is entitled to its costs of the application and of the proceedings. If Mr. Cahill wishes to dispute that provisional view, he should provide a short written submission to the Registrar setting out his reasons within

7 days of the electronic delivery of this judgment. If he does not do so, I will make an order for costs in accordance with this provisional view. If he does, I will consider that submission and any response from the Board (which should be provided within 7 days of receipt of a submission from Mr Cahill) and I will decide the question of costs in a separate ruling.