High Court allows appeal on point of law against Residential Tenancies Board determination order.

THE HIGH COURT

[2025] IEHC 477

[Record No. 2024/434 MCA]

BETWEEN

LUCY FRIEDMAN

APPELLANT

AND

THE RESIDENTIAL TENANCIES BOARD

AND

GILLIAN DRAPER, ROBERT DRAPER, GEORGE DRAPER AND

VIVIAN DRAPER

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT of Mr Justice Barr delivered electronically on the 11th day of August 2025.

Introduction.

1. In this application, the respondent submits that the appellant’s appeal should be struck out as being out of time.

2. The timeline of events is not in dispute between the parties. Following a hearing before a tenancy tribunal held on 4 March 2024 and 13 May 2024, the Tribunal issued its report on a preliminary issue wherein it found that it did not have jurisdiction to deal with the appellant’s complaint because she had named the wrong people in that complaint as being her landlords. That report was forwarded by the Tribunal to the respondent.

3. On 30 July 2024, the respondent sent its determination order by post to the parties. The appellant received it on 31 July 2024. Under the relevant provisions of the Residential Tenancies Act 2004 (as amended) (hereinafter ‘the 2004 Act’) she had 21 days within which she could appeal the determination order on a point of law to the High Court. The respondent asserts that this period commenced on the date on which the determination order was posted to the appellant, being 30 July 2024, and expired on

19 August 2024.

4. On 20 August 2024, the appellant filed her originating notice of motion in the Central Office of the High Court by way of appeal on a point of law against the determination order. The respondent submits that the appeal herein is out of time and should be struck out on that basis.

5. The appellant submits that she issued her appeal within time. Alternatively, if the court finds that she was out of time, it is submitted that s.123 of the 2004 Act can be construed as providing for an extension of time and that the court should extend time for the lodgement of her appeal herein. In the further alternative, she argues that if she is out of time, and s.123 of the 2004 Act is not susceptible to an extension of time, it represents an unconstitutional interference with her constitutional right to litigate.

6. The Attorney General was added as a party due to the fact that in resisting this application brought by the respondent, the appellant has challenged the constitutional validity of s. 123 of the 2004 Act.

7. Thus, the issues which arise for determination on this preliminary application are: (1) whether the respondent is correct in its assertion that the 21 day appeal period started on the date that the determination was sent by post to the appellant.

8. If that issue is determined in favour of the respondent, the further issues that arise for determination are: (2) whether the court can extend the time for bringing such an appeal; and if not, (3) whether the appellant can challenge the constitutional validity of the section by way of an appeal on a point of law from a determination of the respondent; and if she can, (4) whether the section so construed is contrary to the provisions of Bunreacht na hÉireann.

The First Issue.

9. On behalf of the respondent, Mr Harmon BL referred to a number of relevant statutory provisions. The first of these was s.123(3) of the 2004 Act which provides: “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.”

10. Under s.123(8), ‘relevant period’ is defined as ‘the period of 21 days beginning on the date that the determination order concerned is issued to the parties’.

11. It was submitted on behalf of the respondent that case law was clear that the provisions of the 2004 Act provided that the 21 day appeal period commenced on the date when the determination order was ‘issued’ by the respondent, which has been consistently held to be the date on which the determination order was sent by post to the parties: see Halbherr v RTB [2018] IEHC 595; Almazani v RTB (unreported McDonald J, 25 June 2018); Enners v RTB [2023] IEHC 216; Abeyneh v RTB [2023] IEHC 81; and O’Driscoll & Anor v RTB [2025] IEHC 283.

12. It was submitted that not only was this line of authority correct in law in its interpretation of the relevant sections in the 2004 Act, but also that under the principles set down in Hughes v Worldport Communications Inc [2005] IEHC 189, this Court should follow that established line of authority and hold that the appeal period in this case commenced on 30 July 2024, meaning that the appellant’s appeal herein was out of time.

13. In responding to this issue, the appellant and the Attorney General were ad idem. Both submitted that the line of cases relied upon by the respondent was incorrect in law insofar as those cases had reached an interpretation of the phrase “issued to the parties” in s.123 of the 2004 Act, which ignored the provisions of s.25 of the Interpretation Act 2005.

14. Section 25 of the Interpretation Act 2005 (hereinafter ‘the 2005 Act’) provides as follows: “Where an enactment authorises or requires a document to be served by post, by using the word ‘serve’, ‘give’, ‘deliver’, ‘send’ or any other word or expression, the service of the document may be effected by properly addressing, prepaying (where required) and posting a letter containing the document, and in that case the service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

15. It was further submitted that this Court should depart from the earlier decisions of the High Court on this issue as the matter came within one of the recognised exceptions to the principles in the Worldport case, in that a court of equal jurisdiction can depart from an earlier judgment in the same jurisdiction if it is satisfied that since the date of the first judgment, there had been a material change in the law, either by virtue of the enactment of new statutory provisions, or by the delivery of a significant judgment of one of the superior courts or by the Court of Justice of the European Union, which changed the law in a material sense.

16. It was submitted that the decision of the Supreme Court in Kirwan v O’Leary [2023] IESC 27 made it clear that pursuing a statutory appeal on a point of law engages an appellant’s right to litigate.

17. It was submitted that that decision further provided that this Court should adopt a strict construction of any provisions that impose restrictions or otherwise curtail that right, Therefore, the court should adopt the interpretation of “issued to the parties” in s.123 of the 2004 Act, which is least restrictive of the exercise of that right; meaning that the court should adopt the interpretation of that phrase as provided for in s.25 of the 2005 Act; meaning that the appellant herein is not out of time.

18. It was submitted that the earlier decisions relied upon by the respondent, did not address this argument based on the decision in Kirwin v O’Leary; therefore, the court was free to depart from the earlier line of authority in this case.

The Law.

19. As the court is being asked to depart from an established line of authority in the High Court, it will be necessary to look at these decisions in some detail.

20. The first relevant decision is Halbherr v RTB, which was delivered on 12 February 2018. At issue in that case was the date on which the determination order had been issued by the respondent pursuant to the provisions of s.123 of the 2004 Act.

21. The respondent had argued that the determination of the Residential Tenancies Board (hereinafter ‘the RTB’) issued when it was posted; whereas the appellant argued that time did not begin to run until the determination had been delivered. Reliance was placed by the appellant in that case on the provisions of s.25 of the 2005 Act.

22. Meenan J held that as a determination was ‘issued’ rather than ‘served’ or ‘given’ or expressions to that effect, it had to follow in accordance with s.123(8) of the Act of 2004, that time started to run on 18 July 2017, being the date of posting of the determination order, and it ended on 7 August 2017, which was the day before the appellant lodged his appeal in the High Court.

23. Meenan J went on to hold that the 2004 Act did not contain any provision whereby the court could extend the time within which an appeal could be brought. He noted that the appellant had submitted that although the determination order may have issued on the date of posting, he did not have notice of it until some days later. Therefore, he maintained that the 21day appeal period did not begin to run until he had received the determination. The judge did not accept that submission. He concluded as follows at para. 9: “I accept the submissions made on behalf of the Board. It is clear that s.123(8) of the Act of 2004 refers to the date that the determination ‘issued’, there is no reference to a determination having been ‘served’, or the use of some other term, as would bring section 25 of the Interpretation Act 2005 into play.”

24. The judge went on to hold that it followed from his finding in relation to when the determination order issued that the appeal was not brought within the time provided for by the Act of 2004. As there was no provision in that act for extending the time within which an appeal could be brought, he dismissed the appeal.

25. Almazani v RTB was a case decided only a few months after the Halbherr

decision had been handed down. The Almazani case is not reported. However, the court was furnished with a transcript of the ex tempore judgment delivered by McDonald J on 25 June 2018.

26. The court noted that under s.123(8) of the 2004 Act, the “relevant period” meant the period of 21 days beginning on the date that the determination order concerned was “issued to the parties”. The first issue that the court had to determine was what the words “issued to the parties” meant. Was it the date that the letter was sent to the party concerned or was it the date that it was received by him? In giving his ruling against the appellant in that case, McDonald J stated as follows:

“Now it seems to me that if I were deciding this case for the first time without the benefit of pre-existing authority I would probably have determined this by reference to an indeterminate period i.e. the date when the document would have been received in the ordinary course of post. I would have done that on the basis of s.25 of the Interpretation Act 2005. [He then set out the provisions of s.25 of the 2005 Act]… Had I been considering this without the benefit of authority I would have considered that s.25 applied in this case in circumstances where the language of the statute is not, as Mr Almazani has contended, is not the date of issue of the determination but instead the language of the statute refers to the date on which the determination is issued to the parties. Those words “issued to the parties” seem to me to be very similar to the language used in s.25 of the Interpretation Act 2005 and I would in those circumstances have held that the relevant time at which the determination in this case was issued to the parties was the date when the determination was received in the ordinary course of post.

However, the matter is not devoid of authority. There is a very recent

decision of my colleague Mr Justice Meenan on 12 February 2018 in a case called Halbherr v Residential Tenancies Board where he determined that the date on which the determination was issued to the parties is in fact the date on which it was sent, in this case the 25 August 2018. Having regard to the Worldport line of authority I believe that I am compelled in the circumstances to follow the decision of my colleague Mr Justice Meenan and to hold that in this case the date on which the determination was issued to the parties was 25 August 2017.”

27. McDonald J went on in the course of his ex tempore judgment, to advise the appellant that he may wish to apply for leave to appeal to the Supreme Court on this issue. While he granted the costs of the application against the appellant, he placed a stay on the order in the event that the appellant applied to the Supreme Court for leave to appeal his decision.

28. In Abeyneh v RTB, which was delivered down on 16 February 2023, Bolger J followed the line of cases which had held that the date of issue of the determination order was the date that it was posted by the RTB to the parties. However, the central issue in that case was whether the High Court had any jurisdiction to extend time for the bringing of an appeal against a determination order. The court held that the High Court did not have any such jurisdiction to extend time for the bringing of a statutory appeal.

29. A similar conclusion was reached by Heslin J, when delivering the judgment in Enners v RTB, delivered on 28 April 2023, where he applied the dicta of Meenan J in the Halbherr case. He stated as follows at paras. 3-5:

3. It is clear from the foregoing that the will of the Irish people, as expressed through legislation enacted by the Oireachtas, is to lay down a strict 21-day time limit for the bringing of an appeal.

4. Furthermore, the said 21-day time limit commences when the tribunal’s

decision is ‘issued to’ the relevant person. Section 123 plainly does not use the words received by the relevant person.

5. On a literal analysis, it would be to do violence to the plain meaning of the word used, and would involve departing from what the legislature intended, where this Court to interpret the words ‘issue to’ as meaning ‘received by’.

30. The most recent case to deal with the issue as to when a determination order is issued by the RTB, is the decision in O’Driscoll v RTB, which was handed down by Roberts J on 16 May 2025. In the course of her judgment, she found that the determination order was issued on the date that it was posted by the RTB. She stated as follows at paragraphs 14-17: “14. It is clear that the relevant period for appeal runs from and begins on the date the determination order “is issued to the parties”. I respectfully agree with the decision of Heslin J in Enners v Residential Tenancies Board [2023] IEHC 216 where he distinguished between “received by” and “issued to” as distinct and different concepts. He notes at para 4 of his judgment that s.123 plainly does not use the words received by the relevant person. This can be clearly distinguished from other statutory provisions which specify that time runs from the date of receipt of notice of a matter to be appealed against – for example s.7(12B) of the Solicitors (Amendment) Act 1960.

15. The same point was made by Meenan J in in Halbherr v Residential Tenancies Board and McCann [2018] IEHC 595 where he stated: “It is clear that s. 123(8) of the Act of 2004 refers to the date that the determination “issued”, there is no reference to a determination having been “served”, or the use of some other term, as would bring s. 25 of the Interpretation Act 2005 into play.

16. I accept that the word “issued” may have a broader meaning in common parlance but this word has to be interpreted here not in that context but rather in the context of the legislation in which it appears

17. I therefore hold that the date of “issue” of a determination order is the date on which the relevant order is posted or otherwise sent. It is not relevant for the purposes of s.123 of the 2004 Act when a party receives the order. This is what the statute provides.”

31. In the course of her judgment, Roberts J referred to the decision of the Supreme Court in Kirwan v O’Leary, but solely in relation to the question of whether the High Court had jurisdiction to extend the time within which an appeal could be brought against a determination order. She held that based on the authority of that case, the High Court had no such jurisdiction to extend time.

32. Finally, the decision in Kirwan v O’Leary & Ors, dealt primarily with the issue as to whether the court had jurisdiction to extend statutory time limits generally. The court held that whether such jurisdiction existed depended very much on the circumstances surrounding the length of the time period within which an appeal could be brought; whether words had been used in the statute which might admit of a jurisdiction to extend time; and the practical matters that had been taken into account by the Oireachtas when fixing the particular statutory appeal period.

33. In the course of delivering the majority judgment, Murray J referred at a footnote to para.71 to s.123 of the 2004 Act, as an example of an absolute time period for an appeal which could not be extended by the court.

34. Murray J made a number of important comments in relation to the existence of a constitutional right to litigate. He held that that could arise even in the context of a limited statutory appeal on a point of law to the High Court. He stated as follows at paras. 89 & 90: “89. Viewed one way, none of this is wrong per se. What it does not take account of, however, are the related considerations that once the Oireachtas has conferred a cause of action it has triggered the right to litigate of those who may avail of it, that once that right is engaged a statutory provision that regulates it will be construed strictly, and the fact that the language used in the provision in issue in this case does not clearly or unambiguously preclude the co-existence of a power of the Court to extend time. If, as was found in Law Society v. Tobin the direction that a litigant ‘may appeal…within a period of 21 days’ does not preclude an extension of time, then neither does the language ‘may appeal… within the period specified in subsection (12B)’ when combined with ‘an appeal… shall be made within’. These might as easily be construed as fixing the time for an appeal as of right, as they could be read as absolutely precluding any appeal outside that time.

90. The decision of the court in White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545, makes it clear that the fact that the appeal to the High Court is purely statutory in origin does not mean that there is not also in this case an important constitutional right in play….”

35. Murray J went on at paragraph 92 to state that the question of interpretation fell to be resolved not by reference to the so-called double construction rule, but instead by treating the engagement of the right to litigate as generating a principle of strict construction. He stated that strict construction required the adoption of a meaning that gives effect to a vital constitutional interest where the legislation does not clearly and unambiguously rule it out. The learned judge summarised his conclusion in this regard at para.105 (vi) in the following way: “(vi) By granting a right of appeal against the decision of the SDT, the Oireachtas has engaged the applicant’s constitutional right to litigate. The fact that the right to proceed to Court to appeal the decision in question is statutory does not affect this. Having confirmed that right, a provision which restricts it must be strictly construed. Here, the language of s.7(12B) does not preclude the possibility of an extension of time and, having regard in particular to the specific context in which that provision operates viz the regulation of the solicitors’ profession, it is appropriate that the section should be interpreted as enabling the grant of an extension of time for the making of an appeal in an appropriate case.”

Discussion and Conclusions.

36. As the court has been urged to follow the principles set down in the Worldport case, it will be helpful to begin by looking at those principles. In the decision at first instance in that case, Clarke J (then sitting as a judge of the High Court) stated: “It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. Huddersfield Police Authority ûv- Watson [1947] K.B. 842 at 848, Re Howard’s Will Trusts, Leven & Bradley [1961] Ch.

507 at 523. Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered.”

37. These principles were adopted by the Supreme Court in Kadri v Governor of Mountjoy Prison [2012] IESC 27 where the decision of Clarke J (as he then was) endorsed the principles in the Worldport case and stated:

“2.1 The jurisprudence of the High Court regarding the proper

approach of a judge of that Court when faced with a previous decision of another judge of that Court is consistent. The authorities go back to the decision of Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50. Similar views have been expressed in my own judgment in In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, by Kearns P. in Brady v. D.P.P. [2010] IEHC 231, and most recently by Cross J. in B.N.J.L. v. Minister for Justice, Equality & Law Reform [2012] IEHC 74 where Worldport was expressly followed.

2.2 It seems to me that that jurisprudence correctly states the proper approach of a High Court judge in such circumstances. A court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance with that jurisprudence, for so doing.”

38. These principles have been reiterated in subsequent cases: see A & Others v Minister for Justice & Equality [2020] IESC 70 (per Dunne J at para. 63; Charleton J at para 8) and A, SS & I v Minister for Justice & Equality [2021] 3 IR 140 (paras. 151 & 152).

39. Having considered the authorities referred to by the respondent, the court is satisfied that the submissions made by the appellant and the Attorney General on the correct interpretation of s.123 of the 2004 Act are correct. This Court is compelled to depart from the Halbherr line of authority which has determined that the date of issue of a determination order is the date of posting of it by the RTB, for the following reasons: first, on an appeal under the 2004 Act on a point of law, this court is the final court of appeal; as such it is freer to depart from earlier decisions of the High Court. Secondly, the decisions in the Halbherr line of authority appear to interpret “issued to the parties” in s.123 of the 2004 Act, as being synonymous with ‘sent to the parties’.

40. That being so, it is difficult to understand how the provisions of s.25 of the 2005 Act do not therefore regulate the ascertainment of the commencement of the relevant appeal period.

41. Section 25 of the 2005 Act is designed to provide clarity when the statutory provision authorising the service or delivery or sending of a document by post is silent as to when such service or delivery is deemed to have been effected when the document is sent by post.

42. The section provides that in these circumstances delivery or service is deemed to have been effected “at the time at which the letter would be delivered in ordinary course of post”.

43. The provisions of s.25 of the 2005 Act relate to an enactment that authorises or requires a document to be served by post by using the words “serve, give, deliver and send” and importantly goes on to say “or by any other word or expression”. I hold that this includes the word “issued” as used in s.123 of the 2004 Act.

44. Accordingly, I hold that on a correct interpretation of s.123 of the 2004 Act, when read in conjunction with s.25 of the 2005 Act, the words “issued to the parties”

as used in s.123 of the 2004 Act, means that the determination order was issued to the parties on the date when it was deemed to have been received by them in the ordinary course of post.

45. The third ground on which I would depart from the earlier line of authority is due to the fact that in the decision of Kirwan v O’Leary, the Supreme Court held that the existence of a statutory right of appeal, albeit limited in nature, confers a right to litigate on the person to whom the right of appeal is given.

46. The decision in Kirwan v O’Leary was only referred to in the O’Driscoll case, when it was cited in connection with the finding by the learned trial judge that the High Court does not have jurisdiction to extend the appeal period provided for under s.123 of the 2004 Act.

47. Thus, the important issue of the correct approach to the interpretation of a statutory provision that could, on one construction, be seen as restricting a person’s right to litigate and the requirement to apply the strict construction approach to statutory interpretation in such circumstances, was not addressed in the earlier decisions, for the good reason that all but one of these decisions predated the decision in Kirwan v O’Leary. As already noted, the one decision that post-dated Kirwan, only referred to it on a separate point.

48. I hold that as the appellant has been given a statutory right to appeal against a determination order of the respondent, which appeal is an appeal on a point of law to the High Court, a constitutional right to litigate has been engaged.

49. That being the case, I am satisfied that having regard to the decision of the Supreme Court in the Kirwan case, this Court should adopt the strict construction approach when construing the words “issued to the parties” in s.123 of the 2004 Act.

50. I am further satisfied that applying that approach to the interpretation of that phrase in s.123 of the 2004 Act, the court should hold that on a correct interpretation of the phrase “issued to the parties”, the provisions of s.25 of the 2005 Act should apply, as they provide a less restrictive calculation of the appeal period provided for under the 2004 Act.

51. Accordingly, I hold that correctly interpreted, the provisions of s.123 of the 2004 Act provide that the determination order is deemed to be issued to the parties on the date when in the ordinary course of post it would have been delivered to the parties.

52. Adopting this date ensures that account can be taken of any intervening acts which were not the fault of the recipient. If the court were to adopt the date of posting as being the date on which the determination order was issued to the parties and thereby represented the commencement of the 21 day period within which a party could appeal to the High Court on a point of law, that could have the effect that through no fault of their own, the person receiving the determination order may not actually receive it within the ordinary course of post until after the expiry of the 21day period.

53. This could happen if, for example, the letter enclosing the determination order was mislaid for an appreciable period in the sorting office of An Post. Alternatively, it could occur if through the fault of the postal delivery service, the letter was delivered to an address that was very similar to that of the addressee, but which was in fact in a different part of the city and therefore they did not receive it until a perhaps a significant time later when redelivered to the correct address, or perhaps not at all. This potential injustice is obviated by the interpretation in accordance with s.25 of the 2005 Act, which deems service to have been effected on the date on which it would be delivered in the ordinary course of post “unless the contrary is proved”. This is a valuable fail-safe provision designed to ensure that injustice is not done to the intended recipient of the determination order, if they can establish that for some reason it was not delivered to the correct address.

54. In this case, the date of delivery has been established by the documents exhibited to the affidavit of Ms Linda Creighton, the Acting Head of Disputes at the RTB, sworn on 10 December 2024, which clearly established that the determination order was delivered to the appellant on 31 July 2024. That being the case, the appellant’s appeal is within time.

55. I find that the filing by the appellant of her originating notice of motion on 20 August 2024, as evidenced by the stamp of the Central Office of the High Court thereon, establishes that her appeal herein has been brought within the 21-day period provided for in s.123 of the 2004 Act, because the 21-day period only commenced on 31 July 2024.

56. Before concluding, I would like to address some of the practical concerns raised by Ms Rosemary Steen, a director of the RTB, in her affidavit sworn on 10 July 2025. In that affidavit, Ms Steen stated that it had been a long-standing practice of the RTB to issue determination orders made under s.123 of the 2004 Act by recorded express post to the parties. She stated that by proceeding by this method, the respondent created a verifiable record of the date on which the determination order was sent. The verifiable record of the date on which the order was sent in the context of proving the date on which the “relevant period” of 21 days provided for in s.123 (8) of the 2004 Act, was of importance in establishing when that period began to run.

57. Ms Steen went on to state that by issuing the determination orders by recorded express post, this provided clarity in relation to proving the date on which the determination order “issued to the parties” pursuant to s.123 of the 2004 Act and accordingly from what date the appeal period began to run. She stated that this was important because pursuant to s.123 (2) of the 2004 Act, the determination order becomes binding on the parties upon the expiration of the “relevant period” of 21 days.

58. Ms Steen stated that there had been certainty in relation to when a determination order had been deemed to have been “issued to” the parties, when it had been sent by post since at least 2018 when the Halbherr judgment had been delivered. She stated that the respondent was very concerned that some alternative meaning of “issued to” was being contended for. She believed that any meaning of “issued to” that was different to that from Halbherr line of case law, would cause serious practical effects and difficulties for the respondent.

59. Ms Steen went on to state that it would potentially make the date on which the relevant appeal period began to run rather amorphous as it would depend on factors outside the control of the RTB. That would have the practical difficulty of making it harder to understand when the determination order became binding on the parties. Which would impact not only on the parties but also on the respondent, because the respondent had enforcement functions in relation to determination orders pursuant to s.124 of the 2004 Act.

60. She also believed that if the respondent had to effect personal service on parties as a means of ascertaining with certainty the date on which the determination order was delivered to them, this would involve the respondent incurring substantial additional costs, which would ultimately be borne by the taxpayer, by landlords through tenancy registration fees and by parties through the fees charged by the RTB for dispute resolution. Finally, she stated that if it were the case that the appeal period only began to run from when the determination order was actually delivered to the parties, that could have the perverse effect that a party could frustrate delivery and thereby postpone the commencement of the relevant appeal period. She stated that that would be undesirable.

61. I accept that given the relevant appeal period and the statutory provision that a determination order shall only become binding upon the expiry of that period with an appeal not having been lodged in the interim, and the desirability of achieving clarity and certainty for the parties as to where they stand in relation to a particular determination order; it is desirable that the commencement of the appeal period should be capable of being ascertained with certainty.

62. I cannot agree with Ms Steen’s assertion that adopting the date of posting is the only way of doing this. I say that for two reasons: first, under the method utilised in the present case of recorded express post, a date of delivery was in fact provided. That is clearly shown in the documents exhibited to Ms Creighton’s affidavit. Thus, even utilising the respondent’s current preferred method of delivery, would give certainty as to the date of delivery of the letter, which in turn gives certainty to the commencement of the relevant appeal period.

63. Secondly, I note from a perusal of the An Post website, that if a party uses a digital stamp on the envelope containing the determination order, they will receive an email after the letter has arrived at its destination, confirming delivery to that address. The sender of the letter can also get an app notification or an SMS message confirming delivery.

64. These methods of posting are not registered post, which requires the addressee, or someone on his/her behalf, to sign for the letter. They are methods of posting whereby the letter is delivered in the ordinary course of post, but with recorded delivery. That being the case, these methods of posting give clarity and certainty as to the date on which the addressee is deemed to have received the letter in the ordinary course of post.

65. Therefore, I do not see that the effect of this judgment will be to add greatly, or even at all, to the costs incurred by the respondent in effecting service of its determination orders on relevant parties.

66. As the first issue has been resolved in favour of the appellant, it is not necessary for the court to address the remaining issues.

Proposed Final Order.

67. Having regard to the findings made in this judgment, it is proposed that the final order should be to refuse the respondent’s application to strike out the appellant’s appeal as being out of time.

68. As this judgment has been delivered electronically, the parties shall have until

3 October 2025 to furnish brief written submissions on the terms of the final order and on costs and on any other matters that may arise.

69. The matter will be listed for mention at 10.30 hours on 10 October 2025 for the purpose of making final orders.