High Court certifies two points of law regarding time extension procedures and post-leave conduct in immigration appeals.

APPROVED [2026] IEHC 441

THE HIGH COURT

JUDICIAL REVIEW

2024 1047 JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS

(TRAFFICKING) ACT 2000

IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015

BETWEEN

G. (ANGOLA) (LEAVE TO APPEAL)

APPLICANT

AND

INTERNATIONAL PROTECTION APPEALS TRIBUNAL

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 July 2026

INTRODUCTION

1. This judgment is delivered in respect of an application for a certificate permitting an appeal to the Court of Appeal pursuant to the Illegal Immigrants (Trafficking)

Act 2000. The moving party is the Minister for Justice, Home Affairs and Migration (“the Minister”).

PROCEDURAL HISTORY

2. These judicial review proceedings relate to a decision to refuse to recognise the applicant as a refugee or as a person entitled to subsidiary protection. The

decision was made, on appeal, by the International Protection Appeals Tribunal (“IPAT”). The IPAT held, in effect, that the applicant’s claim lacked “general credibility”.

3. Section 5 of the Illegal Immigrants (Trafficking) Act 2000 stipulates that an application for leave to apply for judicial review of a decision of the IPAT shall be made within the period of twenty-eight days commencing on the date on which the person was notified of the decision concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made. On the facts of the present case, the twentyeight-day period expired on 11 July 2024. The application for leave was not “made” until 15 August 2024. This is some five weeks after the expiration of the time-limit. It was necessary, therefore, for the applicant to seek an extension of time.

4. Leave to apply for judicial review was granted by order of the High Court on

9 December 2024. The order granting leave did not finally determine the timelimit issue. Rather, leave was granted without prejudice to the determination at the substantive stage of any point which could have been contended for by the respondents at the leave stage, including any point in relation to time-limits. This is now the standard form of order in the immigration list.

5. In consequence, two issues remained for determination at the substantive hearing: first, whether the applicant had established good and sufficient reason for an extension of time under section 5 of the Illegal Immigrants (Trafficking) Act 2000; and, secondly, whether the impugned decision of the IPAT was invalid on the substantive grounds advanced. Those issues came on for hearing together before this court. The application for an extension of time was not determined as a preliminary issue in advance of the substantive judicial review. The parties addressed the court on both the time-limit objection and the merits of the challenge at the same hearing. Judgment was reserved.

6. The principal judgment was delivered on 11 March 2026, G. (Angola) (Assessment of Credibility) v. International Protection Appeals Tribunal [2026] IEHC 143. For the reasons explained in the principal judgment, this court held that the IPAT’s decision was vitiated by error of law. The IPAT had failed properly to apply the principles governing the assessment of the applicant’s general credibility.

7. The proposed appeal to the Court of Appeal relates to a different aspect of the principal judgment, namely, the decision to extend time for the bringing of the judicial review proceedings. This court held that there is “good and sufficient reason” for extending time in this case. The reasons for this decision are set out in detail in the principal judgment (at paragraphs 2 to 17). It is sufficient for present purposes to summarise the reasons as follows.

8. The first reason is that the failure to make the leave application within the twenty-eight-day time-limit has not caused any actual delay to the proceedings coming on for substantive hearing. As part of this reason, weight was attached to the respondents’ conduct in failing to deliver their opposition papers within the time stipulated in the order granting leave by reference to Order 84, rule 22(4). The opposition papers should have been filed in January 2025; in the event, they were not filed until the end of June 2025.

9. The second reason is that the potential prejudice to the applicant, were an extension of time refused, would be disproportionate to any prejudice to the respondents were an extension granted.

10. The third reason entailed consideration of the underlying merits of the judicial review proceedings. This third reason became the primary focus of the submissions on the application for leave to appeal. It is appropriate, therefore, to set out the relevant passages from the principal judgment in full:

“The third reason is closely related to the second. In the

present case, the application for an extension of time and the

substantive judicial review were heard together, i.e. as part

of an omnibus hearing. (It will be recalled that the grant of

leave had not determined the time-limit point conclusively).

The practical consequence of this procedural history is that

this court has had the benefit of full argument on the

substantive judicial review prior to its ruling on the time-

limit point.

There is some debate as to the extent, if any, to which the

court is entitled to have regard to the underlying merits of the

judicial review proceedings in deciding whether to extend

time. Certainly, in a case where an application for an

extension of time is addressed in advance of the trial of the

action, the merits will generally only be relevant if the claim

for judicial review lies at either end of a spectrum, i.e. the

claim is either unarguable or unanswerable. Were it

otherwise, an application for an extension of time would be

converted into a trial of the merits, defeating at least part of

the purpose of the rule giving rise to the necessity to seek an

extension of time in the first place (Arthropharm (Europe) Ltd v. Health Products Regulatory Authority (cited above)).

Different considerations pertain in cases, such as the present,

where the application for an extension of time has been heard

in tandem with the substantive judicial review. It would be

artificial for the trial judge, having heard the proceedings in

full, to close his or her mind to the underlying merits of the

case. It would be disproportionate to refuse an application

for judicial review in immigration proceedings, which the

court has determined to be well founded on the merits, on the

basis that the leave application was out-of-time by a number

of weeks. The disbenefit to the applicant, i.e. the loss of an

opportunity to a proper determination of their claim for

international protection, would be out of all proportion to any

benefit to the public interest in the expeditious resolution of

legal challenges. This is especially so where the non-

compliance did not cause any actual delay. This is illustrated by the circumstances of the present case.

The objective which the statutory time-limit had been

intended to achieve, namely the prompt resolution of legal

challenges to immigration decisions, has not been realised.

A legal challenge to an immigration decision, which had

been made in June 2024, has only been resolved by March

2026. This court has concluded, for the reasons outlined in

the balance of this judgment, that the IPAT’s decision to

refuse international protection is invalid. The refusal of an

extension of time would only serve to penalise the Applicant

by denying him a lawful determination of his application for

international protection. There would be no countervailing

benefit to the public interest.

For completeness, it is necessary to refer to the main

precedent relied upon by the Respondents in relation to an

extension of time, namely, the judgment of the High Court

(Barr J.) in G.K. v. International Protection Appeals

Tribunal [2022] IEHC 204. The precedent is distinguishable

from the circumstances of the present case on the grounds

that this court has concluded that the application for judicial

review is well founded.”

11. Following delivery of the principal judgment, counsel on behalf of the Minister indicated an intention to apply for leave to appeal. Directions were given as to the exchange of written submissions. The written submissions were duly filed and the application for leave to appeal was heard on 25 June 2026.

POINTS OF LAW UPON WHICH LEAVE TO APPEAL IS SOUGHT

12. The Minister has proposed five draft points of law as follows:

(1) Did the Court err when deciding to grant an extension of time as regards the weight it attributed to the mitigating factors supporting an extension of time identified in the judgment where the case law establishes that delay by legal advisers will not prima facie be a good and sufficient reason to extend time?

(2) In circumstances where there is such delay by legal advisers, is the default position in law such that an extension of time should not be granted?

(3) What weight ought to be afforded to the Court’s consideration of the merits of the case in determining whether to refuse or grant an extension of time where the Court has had an opportunity to hear the substantive proceedings?

(4) Whether the Court is correct to find that there is a lack of prejudice to the Minister where the proceedings have been brought out of time?

(5) Whether, in considering an extension of time, the Court is entitled to have regard to factors other than those advanced by the Applicant on affidavit or otherwise?

LEGAL TEST

13. Section 5(6) of the Illegal Immigrants (Trafficking) Act 2000 (as amended in 2014) provides as follows:

“(a) The determination of the High Court of an

application for leave to apply for judicial review to

which this section applies, or of an application for

such judicial review, shall be final and no appeal

shall lie from the decision of the High Court to [the

Court of Appeal] in either case except with the leave

of the High Court which leave shall only be granted

where the High Court certifies that its decision

involves a point of law of exceptional public

importance and that it is desirable in the public

interest that an appeal should be taken to [the Court

of Appeal].

(b) This subsection shall not apply to a determination of

the High Court in so far as it involves a question as

to the validity of any law having regard to the

provisions of the Constitution.”

14. The leading judgment on the interpretation of the statutory criteria governing the grant of leave to appeal remains that of the High Court (MacMenamin J.) in Glancré Teoranta v. An Bord Pleanála (No. 2) [2006] IEHC 250 (“Glancré”). The judgment was delivered in the context of the Planning and Development Act 2000, but the wording of the planning legislation is almost identical to that under the immigration legislation. The Glancré principles are regularly applied to applications for leave to appeal under the immigration legislation.

15. The judgment in Glancré sets out ten principles or considerations as follows:

“1. The requirement goes substantially further than that

a point of law emerges in or from the case. It must

be one of exceptional importance being a clear and

significant additional requirement.

2. The jurisdiction to certify such a case must be

exercised sparingly.

3. The law in question stands in a state of uncertainty.

It is for the common good that such law be clarified

so as to enable the courts to administer that law not

only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial

review i.e. in circumstances where substantial

grounds have not been established a question may

arise as to whether, logically, the same material can

constitute a point of law of exceptional public

importance such as to justify certification for an

appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the

High Court and not from discussion or consideration

of a point of law during the hearing.

6. The requirements regarding ‘exceptional public

importance’ and ‘desirable in the public interest’ are

cumulative requirements which although they may

overlap, to some extent require separate

consideration by the court (Raiu).

7. The appropriate test is not simply whether the point

of law transcends the individual facts of the case

since such an interpretation would not take into

account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which

mean inter alia that ‘exceptional’ must be given its

normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an

applicant simply by raising a question as to the point

of law. Rather the authorities appear to indicate that

the uncertainty must arise over and above this, for

example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must

be identified. This would suggest a requirement that

a point to be certified be such that it is likely to

resolve other cases.”

16. Following on from the establishment of the Court of Appeal in October 2014, an appeal from a decision of the High Court in respect of a challenge to an immigration decision might, in principle, be brought before either the Court of Appeal or the Supreme Court.

17. The gateway to the Supreme Court differs in four significant respects from that which controls access to the Court of Appeal. First, access to the Supreme Court is controlled by the Supreme Court itself; the High Court has no function in this regard and cannot grant leave to appeal. Secondly, the criteria for leave to appeal are different for the two appellate courts. In one respect, the criteria for leave to appeal to the Supreme Court are less onerous: it is enough that the

decision of the High Court involves a “matter” of “general public importance”, which is a lesser standard than a “point of law” of “exceptional public importance” under section 5 of the Illegal Immigrants (Trafficking) Act 2000. In another respect, however, the criteria are more onerous: there is an additional requirement to satisfy the Supreme Court that there are exceptional circumstances warranting a direct appeal to it. Thirdly, the application to the Supreme Court is a paper-based application, i.e. the Supreme Court usually determines the matter on the basis of the written notices filed by the parties, and there is not normally an oral hearing. Fourthly, access to the Supreme Court cannot be limited by legislation, whereas there can be legislative exceptions to the Court of Appeal’s jurisdiction: Pepper Finance Corporation v. Cannon [2020] IESC 2, [2022] 1 IR 128 (at paragraph 31).

18. The Supreme Court in Grace v. An Bord Pleanála [2017] IESC 10, [2020] 3 IR 286 stated that it would be appropriate for High Court judges, in considering whether to grant a certificate for leave to appeal, to at least have regard to the new constitutional architecture. More specifically, the High Court should have regard to the fact that an appeal to the Supreme Court under the leapfrog provisions of Article 34.5.4° is open, but also have regard to the fact that an appeal to the Court of Appeal should remain the more normal route for appeals from the High Court.

19. Notwithstanding the differences between the constitutional test and the statutory test governing access to the two appellate courts, the Supreme Court’s case law on the determination of an application for leave to appeal provides valuable guidance to the High Court. In particular, the distinction drawn between

(i) the interpretation of, and (ii) the application of, legal principles can usefully be applied by analogy. The case law of the Supreme Court indicates that it will not normally be enough for a putative appellant to complain that the High Court did not properly apply established legal principles to the particular facts of the case. Rather, the basis of any appeal will normally have to be that the legal principles relied upon by the High Court judge were themselves incorrect.

STRUCTURE OF JUDGMENT

20. The balance of this judgment is structured as follows. First, two points of law which fulfil the statutory criteria for certification are identified. The first of these points derives from the third draft point of law proposed by the Minister. The second arises from the related issue of the relevance of post-leave procedural history to the assessment of prejudice and good and sufficient reason. Next, the judgment explains why leave to appeal is being refused in respect of all the remaining draft points of law.

PART 1: POINTS OF LAW CERTIFIED

(1) Extension of time and underlying merits

21. The distinctive feature of the present proceedings is that the extension of time issue was not disposed of at the leave stage. Instead, the application for an extension of time and the substantive judicial review were heard together, i.e. as part of an omnibus hearing. In consequence, this court was fully apprised of the underlying merits of the judicial review proceedings prior to its ruling upon the application to extend time.

22. This sequencing gives rise to a point of law which has not been squarely addressed in the corpus of case law on the extension of time in judicial review proceedings. The case law is typically concerned with circumstances where an extension of time is determined on an ex parte basis, in the context of a lengthy list of leave applications. In such a scenario, the judge adjudicating on the application for an extension of time will only have a limited appreciation of the underlying merits of the judicial review. It would run the risk of turning the preliminary hearing into a miniature trial were the leave judge to descend to the detail of the underlying merits. This would result in there being two lengthy hearings in the same set of proceedings in those cases where leave is granted.

23. The pragmatic approach which has been adopted in the case law is that—save in those cases which lie at either extreme of the spectrum—the court adjudicating upon the application for an extension of time has no role in determining the underlying merits. This is subject to the proviso that the underlying merits will be a relevant factor at the extremes, i.e. where a case is unarguable on the merits or where it is accepted that the applicant for judicial review would prevail on the merits if an extension were granted. See Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109 (at paragraphs 123 to 125).

24. The precedent that most closely resembles the circumstances of the present case is M O’S v. Residential Institutions Redress Board [2018] IESC 61, [2019] 1 ILRM 149. There, the Supreme Court attached material weight to the respondent decision-maker’s concession as to the consequence which would follow if time were extended. Finlay Geoghegan J., delivering the majority judgment, explained that the respondent had confirmed that if granted an extension, the applicant would succeed on the underlying merits. The majority judgment treated the case as being at the other end of the scale from an unarguable case. This factor was not treated as automatically determinative: the majority judgment considers all relevant circumstances, including the explanation for the delay, the nature of the statutory scheme, the absence of thirdparty prejudice, and the public policy favouring prompt challenges to administrative decisions. Nevertheless, the accepted strength of the underlying merits formed an important part of the overall balance which led the majority to conclude that “good and sufficient reason” for an extension of time had been established.

25. The majority judgment might, therefore, be read as providing support for the proposition that a court which is adjudicating on an application for an extension of time is entitled to attach weight to the underlying merits where the outcome is known to the court. This is the interpretation applied in the principal judgment.

26. There is, however, an alternative interpretation open. The present case differs from that of M O’S in one, potentially significant, respect as follows. The Supreme Court’s knowledge of the outcome on the underlying merits derived from an express concession made by the respondent. Once this concession had been made, it would have been impossible to ignore same. It was presented to the Supreme Court as a fait accompli and involved no adjudication by the court upon the underlying merits.

27. In the present case, by contrast, this court’s knowledge of the outcome derives from the court’s own adjudication upon the underlying merits. The principal judgment proceeds on the basis that it would be artificial for the trial judge, having heard the proceedings in full, to close his or her mind to the underlying merits of the case when adjudicating upon the application for an extension of time.

28. Crucially, a different approach has been adopted by other judges of the High Court who have presided over omnibus hearings. In at least two recent judgments, trial judges have adjudicated upon—and refused—an application for an extension of time at the outset of their judgments, without any advance consideration of the underlying merits, notwithstanding that those merits had already been argued in full before them. See G.K. v. International Protection Appeals Tribunal [2022] IEHC 204 (Barr J.) and M. v. Chief International Protection Officer [2024] IEHC 623 (Heslin J.). It should be noted that the court in G.K. went on to consider the underlying merits de bene esse but only did so after having refused an extension of time.

29. It follows that there is a divergence at the level of the High Court as to the approach to be adopted to an application for an extension of time in the context of an omnibus hearing. As discussed above, the precise point of law which arises has not yet been addressed, in terms, by the appellate courts. The point of law is one which is capable of affecting a very large number of cases. This is because it has become common practice for the judge hearing a leave application in immigration cases to reserve any application for an extension of time to the trial judge. It is in the public interest that the uncertainty be resolved by permitting an appeal to the Court of Appeal so as to enable the courts to administer the law not only in the instant case, but in future such cases.

30. Accordingly, the following point of law will be certified for appeal: In circumstances where an application for an extension of time has been reserved to the substantive hearing, and the underlying merits have been argued in full, is the trial judge required to determine the application for an extension of time first, without regard to the underlying merits; or, alternatively, is the trial judge entitled to have regard to his or her conclusion on the underlying merits as one factor in the overall assessment of whether there is good and sufficient reason to extend time?

(2) Extension of time and procedural history post-leave

31. The practice of reserving any application for an extension of time to the trial judge gives rise to a further distinctive feature as follows. The trial judge will have knowledge not only of the circumstances in which the proceedings were commenced, but also of the progress of the litigation subsequent to the grant of leave. In the present case, for example, this court knew that there had been a delay of five to six months on the part of the respondents in the filing of opposition papers. This factor was taken into account in assessing whether the grant of an extension of time could be said to cause any actual prejudice to the respondents.

32. The case law establishes that the conduct of a respondent is one of the factors to be taken into consideration in adjudicating upon an application for an extension of time. This forms part of the broader discretionary assessment required by the case law, which directs the court to consider all relevant circumstances, including the conduct of the parties, the existence or absence of prejudice, the public interest in promptness and finality, and the consequences of granting or refusing an extension.

33. It was submitted on behalf of the Minister that, in this context, “conduct” must mean something more than a delay in delivering a statement of opposition: it requires some adverse behaviour, procedural default, or act by the respondent which unnecessarily prolonged the litigation.

34. With respect, I cannot accept this submission. It is apparent from the case law on the extension of time that a court may have regard to a broad range of factors. Having regard to this case law, it would be artificial to say that “conduct” must reach a threshold of severity before it can be taken into consideration. It certainly does not have to reach a threshold of “misconduct” before it can be regarded as relevant. The failure to deliver a pleading in the time prescribed by a court order is undoubtedly an aspect of a party’s “conduct” of proceedings. It may or may not carry significant weight in the particular case, but it cannot be excluded from consideration as legally irrelevant because it fails to reach some vague threshold of “misconduct”.

35. The Minister advances a second, narrower argument by reference to the object of the statutory time-limit. It is said that the object of the time-limit is not merely to ensure the prompt disposal of proceedings once commenced, but to secure the early establishment of certainty as to the validity of immigration decisions, so that such decisions may be implemented. Reliance is placed in this regard on the judgment in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 IR 360. On this analysis, it is said that post-leave delay on the part of a respondent is not equivalent to delay on the part of the applicant in commencing his judicial review proceedings.

36. The issue is not whether the respondent’s post-leave conduct is relevant at all: the case law confirms that it may be. The true question is the weight properly to be attributed to it, having regard to the statutory purpose of the twenty-eight-day time-limit. In particular, a distinction may have to be drawn between relying on post-leave delay as evidence that no actual prejudice has been caused, on the one hand, and relying on it as a reason which offsets or excuses the applicant’s failure to commence proceedings within the statutory period, on the other.

37. Accordingly, the following point of law will be certified for appeal: In circumstances where an application for an extension of time has been reserved to the substantive hearing, may the High Court take account of the respondent’s post-leave conduct of the proceedings as part of the overall assessment of prejudice and good and sufficient reason, and, if so, what constraints are imposed by the legislative intent underpinning the statutory time-limit?

PART 2: POINTS OF LAW REFUSED CERTIFICATION

Delay by an applicant’s legal representatives

38. The first and second proposed points of law may conveniently be addressed together. Both points are advanced on the premise that where the delay in instituting the judicial review proceedings is attributable to an applicant’s legal advisers, then the court should treat refusal of an extension of time as the default position.

39. The difficulty with this formulation is that it fails to disclose a point of law in respect of which there is any uncertainty. In truth, the Minister’s contention is not that the law in this area is uncertain, but that the principal judgment erred in its application of well-established principles to the present case.

40. With respect, the existence of the contended-for error, even if it proved to be well founded, cannot ground a successful application for leave to appeal. It is not enough that the determination of the High Court may be erroneous. The statutory scheme envisages that judicial review proceedings will normally terminate at the level of the High Court. An appeal is only permissible in circumstances where the High Court’s decision involves a point of law of exceptional public importance and where it is desirable in the public interest that an appeal should be taken to the Court of Appeal. The legislation thus seeks to strike a balance between the objective of expedition and the objective of infallibility. An automatic right of appeal in all cases would provide a safeguard against possible error on the part of the High Court but would introduce a further layer of adjudication, with the attendant delay. A contention that the trial judge may have erred in the assessment of the facts, or in the weight attributed to a factor in the balance, does not of itself give rise to a point of law of exceptional public importance.

41. The certification jurisdiction is not intended to provide a general appeal from an evaluative conclusion with which a party disagrees. The legislation envisages that an appeal will only be appropriate where necessary to clarify an uncertainty in the law so as to enable the courts to administer that law not only in the instant, but in future such cases.

42. There is no uncertainty as to whether delay by an applicant’s legal representatives may be taken into account in the determination of an application for an extension of time. The governing principles are clear. Such delay will not ordinarily, without more, constitute good and sufficient reason for an extension of time. The case law does not, however, establish an inflexible rule that delay by legal representatives can never be relied upon as a factor in support of an extension of time. It can be taken into account in conjunction with other factors. In S. v. Minister for Justice, Equality and Law Reform [2002] 2 IR 163, for example, a short extension of time had been granted in circumstances where the delay had been caused largely by the applicant’s legal advisers, but the delay had not caused prejudice to the State.

43. It should also be recalled that the constitutionality of the original fourteen-day time-limit was upheld precisely because the High Court’s discretion to extend time was sufficiently wide to avoid injustice. The Supreme Court in Re Illegal Immigrants (Trafficking) Bill 1999 (cited above) expressly contemplated that difficulties relating to language, communication, legal advice, legal aid, access to documents, and other circumstances could justify an extension where reasonable diligence had been shown.

44. It follows that a court adjudicating upon an application for an extension of time remains obliged to consider all relevant circumstances and to determine whether, in the interests of justice, there is good and sufficient reason to extend the statutory period. The fact that delay is attributable to an applicant’s legal representatives may be relevant if combined with other considerations.

Assessment of prejudice

45. The fourth draft point of law asks whether the court was correct to find that there was a lack of prejudice where the proceedings had been brought out of time. The Minister submits that the State is prejudiced whenever proceedings subject to section 5 are commenced outside the statutory period, because the delay undermines the legislative objective of securing early certainty as to the validity of immigration decisions.

46. Again, the draft point of law fails to disclose a point of law in respect of which there is any uncertainty. It is well established that prejudice to a respondent or a third party is a factor to be considered in adjudicating on an application to extend time. In Thomson v. An Bord Pleanála [2025] IESC 31, the Supreme Court reiterated that the existence of good and sufficient reason is to be assessed by reference to a holistic consideration of all relevant circumstances. Woulfe J. expressly identified prejudice to opposing parties, third parties, or the public interest as one of the factors which may militate against an extension. The judgment also confirms that the weight to be assigned to the various factors is a matter of assessment and balance on the particular facts of the case.

47. The principal judgment did not hold that potential prejudice to a respondent is irrelevant. Rather, this court concluded that the refusal of an extension of time would cause significant prejudice to the applicant by precluding him from challenging an invalid refusal of international protection, whereas no corresponding prejudice to the respondents had been demonstrated. The court also had regard to the fact that the delay in instituting the proceedings had not caused any material delay in the proceedings coming on for hearing. Whether that assessment was right or wrong on the facts is not a certifiable point of law.

48. As discussed at paragraphs 31 to 37 above, the narrower question of whether the High Court may take account of the respondent’s post-leave conduct of the proceedings as part of the overall assessment of prejudice and good and sufficient reason will be certified for appeal.

Factors other than those on affidavit

49. The fifth proposed point of law asks whether, in considering an application for an extension of time, the court is entitled to have regard to factors other than those advanced by the applicant on affidavit or otherwise.

50. With respect, the answer to the question posed is supplied by the case law. It is apparent from Thomson v. An Bord Pleanála [2025] IESC 31 (at paragraphs 63–

80 and 82–96) that a court is not confined to the particular factors expressly advanced by an applicant on affidavit or otherwise. Rather, a statutory discretion to extend time for good and sufficient reason has always been understood as entailing a broad discretion, to be exercised in accordance with the relevant principles and in the interests of justice. The statutory language is not directed merely to whether there was good and sufficient reason for the failure to make the application for leave within the prescribed period, but rather to whether there is good and sufficient reason for extending the period. That formulation does not limit the factors to be considered but requires the court to have regard to all relevant facts and circumstances.

51. The judgment in Thomson v. An Bord Pleanála explains that a court must take a “holistic view of the relevant circumstances”. Those circumstances may include the decision sought to be challenged, the nature of the claim made that it is invalid or unlawful, the explanation for the delay, the conduct of the parties, any prejudice to a respondent or notice party, the rights and interests of third parties, the public interest in certainty and finality, any countervailing public interest favouring the ventilation of the issues, and, in an appropriate case, the merits of the proposed challenge. The weight to be assigned to those factors is a matter of judgment, assessment and balance on the particular facts of the case. There is no absolute rule; an absolute rule is the antithesis of discretion.

52. The evidential burden borne by an applicant is to furnish good reasons which explain and objectively justify the failure to make the application within the time-limit, and which would justify an extension of time up to the relevant date. The applicant must satisfy the court of the reasons why the application was not brought both within the time specified and during any subsequent period up to the date upon which the application for leave was brought. Those reasons must “objectively explain and justify” the delay and be sufficient to justify the exercise of the discretion to extend time. (M O’S v. Residential Institutions Redress Board).

53. This evidential burden is not coterminous with the evaluative function of the court. The range of circumstances to which the court is to have regard includes matters well beyond the proper scope of an affidavit filed by an applicant. The court may, and where relevant should, take account of the wider legal and factual context, including objective considerations of prejudice, public interest, finality, the conduct of the respondent, and the integrity of the process under challenge. In particular, the court, in weighing the public interest, is entitled to have regard to factors such as legislative intent and the common good.

54. In conclusion, the proposed point of law does not satisfy the statutory criteria for certification. There is no uncertainty in the law: the answer to the question posed is supplied by the case law.

CONCLUSION AND PROPOSED FORM OF ORDER

55. The High Court hereby certifies that its decision on 11 March 2026 involves the following two points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal:

(1) In circumstances where an application for an extension of time has been reserved to the substantive hearing, and the underlying merits have been argued in full, is the trial judge required to determine the application for an extension of time first, without regard to the underlying merits; or, alternatively, is the trial judge entitled to have regard to his or her

conclusion on the underlying merits as one factor in the overall assessment of whether there is good and sufficient reason to extend time?

(2) In circumstances where an application for an extension of time has been reserved to the substantive hearing, may the High Court take account of the respondent’s post-leave conduct of the proceedings as part of the overall assessment of prejudice and good and sufficient reason, and, if so, what constraints are imposed by the legislative intent underpinning the statutory time-limit?

56. As to legal costs, it is proposed to make an order directing that the applicant is entitled to recover his costs of the application for leave to appeal. Although leave to appeal has been granted, the fact remains that the applicant has been successful on the underlying merits of the proceedings at the level of the High Court. The grant of leave merely signifies that the certified points of law meet the statutory threshold. Of course, in the event that the appeal is successful, then it will be a matter for the Court of Appeal to make whatever order it considers appropriate in respect of the costs below.

57. As to the balance of the costs, i.e. the costs incurred prior to the application for leave to appeal, it is proposed to award the costs of the substantive judicial review proceedings to the applicant, with a stay on execution (but not adjudication) pending the determination of the appeal.

58. If either party wishes to contend for a different form of costs order than that proposed, they should notify the High Court Registrar within fourteen days of today’s date and arrange to have the matter relisted before me.

Appearances

Michael Conlon SC and Garry O’Halloran for the applicant instructed by Trayers & Company Solicitors David Conlan Smyth SC and James Kane for the respondents instructed by the Chief State Solicitor