Supreme Court held appeal limited to specified question of law under s.5(19) of Hepatitis C Compensation Tribunal Acts 1997 and 2002.

THE SUPREME COURT

[Appeal No: 204/2008]

Clarke J.

MacMenamin J.

Laffoy J.

In the matter of an appeal pursuant to section 5(15) of the Hepatitis C Compensation Tribunal Acts 1997 and 2002

Between/

L. O’S.

Applicant/Respondent

and

The Minister for Health and Children

Respondent/Appellant

Judgment of Mr. Justice Clarke delivered the 9th July, 2015.

1. Introduction

1.1 The Hepatitis C Compensation Tribunal was set up, as its name implies, to provide compensation arising out of the consequences

of a series of scandals involving the contamination of blood products. The applicant/respondent (“Mr. O’S”) brought a claim under the

provisions of the legislation referred to in the title of these proceedings. Thereafter, an appeal was brought, again in accordance with

the terms of that legislation, to the High Court. One of the issues which arose before the High Court was the extent of the

entitlement of Mr. O’S to recover damages in respect of nervous shock. In that context, the respondent/appellant (“the Minister”)

asserted before the High Court that s.5(3A) of the Hepatitis C Compensation Tribunal Act 1997 (as inserted by the 2002 amending

legislation) (“the 1997 Act”) required the tribunal (and, on appeal, the High Court) to “have regard to any decisions of the High Court

or the Supreme Court enunciating principles of law relating to the award of damages for post-traumatic stress disorder or nervous

shock”. On that basis, it was argued that the Court was required, in the context of hearing the appeal insofar as it related to the

nervous shock issue, to have regard to the principles set out by Hamilton C.J. in Kelly v. Hennessy [1995].3 I.R. 253. The trial judge,

Hanna J., took the view that those principles, while fully applicable in the context of an action claiming damages for negligence,

necessarily had to be adapted in the context of the statutory scheme for compensation with which he was concerned.

1.2 After the appeal had been decided, the Minister applied to the trial judge for leave under s.5(19) of the 1997 Act to appeal to this

Court. It will be necessary to refer to the precise terms of that subsection in due course. For present purposes, it is sufficient to note

that Hanna J. gave leave and specified, in accordance with the section, the following question of law:

“Given the provisions of Section 5 (3A) (a) and Section 5 (3A) (b) of the legislation, does Sub-Section S.7 of S.4 of

the Act obviate addressing the issue identified and enumerated at number 5, at page 259 of Kelly –v- Hennessy

[1993] IR 253?”

1.3 Mr. O’S was advised that the appeal actually filed on behalf of the Minister sought to go beyond an appeal confined to the

specified question of law referred to by the trial judge in his order. In that context, a motion was brought before this Court, the

object of which was to seek to clarify the scope of appeal permitted to the Minister in the context of this case. An oral hearing

ensued, and this judgment is directed to the issues which thereby arose.

1.4 In substance, the net issue which this Court has to consider is as to whether, as a matter of law, the Minister is confined on his

appeal to the question of law specified by the trial judge in his order. As there is a constitutional backdrop to that question, I propose

to start by reviewing the position under the Constitution.

2. The Constitution

2.1 I should start by noting that this appeal was brought prior to the 33rd Amendment to the Constitution coming into force. The

appeal is, therefore, concerned with the regime which was in place prior to the Court of Appeal coming into existence. However,

similar considerations would be likely to arise in respect of the current regime, although there will, necessarily, be some points of

difference.

2.2 In its previous form, Article 34.4.3 of the Constitution provided that this Court should have appellate jurisdiction from all decisions

of the High Court “with such exceptions and subject to such regulations as may be prescribed by law”. I had recent occasion to

consider this provision in Christian Brothers High School v. Mary Stokes (on behalf of John Stokes, a minor) and the Equality Authority

[2015] I.E.S.C. 13 at para. 6.13 where, having reviewed the relevant jurisprudence in the area, I noted that it was clear from the

authorities to which I had referred that “the constitutional status of the right of appeal to this Court is such that an exception to

that right requires clear and unambiguous wording.”

2.3 Counsel for Mr. O’S did not disagree with that broad proposition, and accepted that the standard by reference to which a statute

which excludes or regulates the right of appeal to this Court from the High Court should be judged is one which leans in favour of

there being an appeal, and, in the context of a limitation on the appeal, leans in favour of conferring the broadest right of appeal. For

the latter point, see again the recent judgment of this Court in Governey v. Financial Services Ombudsman [2015] I.E.S.C. 38.

2.4 Counsel did, however, argue that the question of whether an exclusion or limitation on a constitutional right of appeal has been

validly created can be assessed by reference to whether it is clear and unambiguous from the Act concerned taken as a whole that

the legislative intention was to exclude or regulate the appeal entitlement in a particular way.

2.5 I am satisfied that counsel was correct in that submission. Obviously, the principal focus of any consideration as to whether there

has been a proper exclusion or limitation on an otherwise constitutionally guaranteed right of appeal must be on the specific legislative

provision which is said to create the exclusion or limitation concerned. However, that is not to say that a court cannot or should not

consider the legislation as a whole for the purposes of ascertaining whether it can truly be said that there has been an exclusion or

limitation which is sufficiently clear to meet the constitutional test to which I have referred. I propose to apply those principles to an

analysis of the legislation, with which the Court is concerned in this case.

3. Subsection (19)

3.1 As noted earlier, the limitation on the entitlement of either party to appeal to this Court is specified in s.5(19) of the 1997 Act.

That section is in the following terms:-

“A decision of the High Court on an appeal under this section shall be final, save that, by leave of the Court, an

appeal from the decision shall lie to the Supreme Court on a specified question of law”.

3.2 It is the extent to which that subsection, taken in the context of the legislation as a whole, can be said to limit any appeal to this

Court to the “specified question of law”, on which this issue turns.

3.3 Before addressing the specific wording of subs.(19), it is worth noting that attempts to restrict or exclude a right of appeal to this

Court from the High Court have been expressed by the legislature in differing formulas over the years. The Constitution clearly confers

on the Oireachtas the right to exclude or regulate an appeal from the High Court to this Court or, under the new regime in place since

the 33rd Amendment came into effect, to the Court of Appeal. Obviously, there are different ways in which it might be considered

appropriate to bring about such exclusions or restrictions. In some cases it may be considered appropriate to exclude the right

entirely. In other cases some limited form of appeal may be considered to be appropriate. On that basis, it could not be suggested

that only one formula of words should be used, for the desired legislative result may itself be different from case to case. However, it

does have to be said that use of different language in different legislative measures designed to achieve the same end is a recipe for

confusion. In that context, it is worth taking a brief trip through some of the relevant legislative provisions. I will start with s.29 of

the Courts of Justice Act 1924, (“the 1924 Act”) which is in the following terms:-

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine

shall be final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-

General shall certify that the 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 Supreme Court, in which case an appeal may

be brought to the Supreme Court, the decision of which shall be final and conclusive.”

3.4 That section was interpreted as permitting an appellant, provided that leave was given, to raise any point which was open on the

appeal (see People (Attorney General) v. Giles [1974] I.R. 422, People (Director of Public Prosecutions) v. Shaw [1982] I.R. 1, People

(Director of Public Prosecutions) v. Lynch [1982] I.R. 64, People (Director of Public Prosecutions) v. Kelly (No. 2) [1983] I.R. 1). The

reasoning which led to that interpretation was that the section was, in substance, in two parts. First, it was necessary that there be

a certificate to demonstrate that “the 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 Supreme Court”. Second, the section allowed, once that certificate was given,

that “an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive”.

3.5 The wording of the section, therefore, envisaged that once the relevant certificate had been given, what followed was simply an

appeal to this Court rather than an appeal which was confined to whatever question had persuaded the Court of Criminal Appeal to

issue the relevant certificate.

3.6 Very similar wording was used by the Oireachtas in enacting s.50(4)(f)(i) of the Planning and Development Act 2000 which

provides as follows:-

“The determination of the High Court of an application for leave to apply for judicial review, or of an application for

judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court 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 Supreme Court.”

A similar construction to that which had been given to s.29 of the 1924 Act, was placed on that section by this Court in Clinton v. An

Bórd Pleanála [2007] 1 I.R. 272.

3.7 It should be noted in the same context that the position in respect of planning matters has now been altered by the insertion of

s.50A into the legislation by virtue of the Planning and Development (Strategic Infrastructure) Act 2006. That section provides as

follows:-

“(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10)

the Supreme Court shall-

(a) have jurisdiction to determine only the point of law certified by the Court under subsection 7…”

3.8 On the other side of the ledger, as it were, there are sections which have been held to completely exclude any appeal to this

Court. In respect of decisions of the High Court acting as a court of appeal from the Circuit Court, s.39 of the Courts of Justice Act

1936 provides as follows:-

“The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final

and conclusive and not appealable”.

3.9 That section was re-enacted in sections 48(1) and (3) of the Courts (Supplemental Provisions) Act 1961. It has consistently been

held that the section concerned provides an absolute barrier to any appeal from the High Court hearing a circuit appeal, including from

the High Court on Circuit (see Eamonn Andrews Productions Ltd. v. Gaiety Theatre Enterprises Ltd. [1973] I.R. 295, W.J. Prendergast

and Son Ltd. v. Carlow County Council [1990] 2 I.R. 482, B(N) v. B(M) [2002] I.E.S.C. 31, and P(L) v. P(M) [2002] 1 I.R. 219). It

should, in passing, be noted that, in the statutory regime relating to the conduct by the High Court of appeals from the Circuit Court,

there is provision for a case stated to this Court. It must, of course, be acknowledged that the only issue which this Court can

properly consider on a case stated is the issue which is referred to this Court by the High Court judge who invokes the case stated

procedure.

3.10 Other sections of legislation have also provided for almost absolute barriers. Section 123(4) of the Residential Tenancies Act

2004 provides as follows:-

“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and

conclusive."

It should, however, be noted that s.123 was considered by this Court in Canty v. Private Residential Tenancies Board [2008] 4 I.R.

592. While this Court held that there was no appeal against the decision of the High Court on the substantive matter in issue, it did

hold that an appeal against an order for costs made in the High Court was not excluded by the section in question.

3.11 In like vein, s.7A(7) of the 1997 Act as inserted by s.4 of the Hepatitis C Compensation Tribunal (Amendment) Act 2006 says the

following:-

“The decision of the High Court on an appeal under subsection (5) shall be final and conclusive”.

That section has not been the subject of any judicial consideration as yet. However, for completeness, it should be noted that

s.7A(7) relates to a different type of appeal in the context of the 1997 Act to the appeal to which this judgment relates, which

arises, as already noted, under s.5(19) of the 1997 Act and is concerned with the appellate process following on from a decision of

the compensation tribunal. On the other hand, the sort of appeals which are dealt with by s.7A(7) arise out of the appellate process

in respect of decisions of the scheme administrator.

3.12 An intermediate case can be found in the provisions of the Central Bank Act 1942 (as amended), which came to be considered

by this Court in Governey. The relevant subsections of s.57 of that Act are as follows:-

“CL(1) If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial

service provider concerned may appeal to the High Court against the finding.”

“CM(4) The determination of the High Court on the hearing of such an appeal is final, except that a party to the

appeal may apply to the Supreme Court to review the determination on a question of law (but only with the leave

of either of those Courts).”

3.13 Two things should be emphasised about the view which this Court took of those provisions in Governey. First, there is nothing in

the text of any of those provisions which suggests that the appeal is to be limited to cases involving points of any particular level of

importance. Unlike, for example, the provisions in relation to the former Court of Criminal Appeal or those which apply in the planning

context there is no requirement for a certificate specifying the important nature of the issues sought to be appealed. Second, and

curiously, the section permits leave to be given either by the High Court or by this Court. This feature was commented on in the

judgments in Governey.

3.14 Against that backdrop, it is necessary to look at subs.(19). It should be noted that the wording of subs.(19) is similar to that

used in some other legislation, most particularly that dealing with the appellate process which arises in respect of professional

disciplinary matters. So far as the researches of counsel were concerned, the similar or identical wordings used in those other

legislative regimes have not been the subject of any judicial consideration to date. As will, however, appear later in this judgment, it

is the case that subs.(19) itself has been the subject of some judicial consideration. However, it is first necessary to address the

arguments raised by counsel on both sides as to the proper analysis of the text of the subsection. Counsel for the Minister placed

particular emphasis on the fact that what can be appealed against, in the context of an appeal permitted under subs.(19), is “the

decision”, being the entire decision of the High Court. In that sense, it is said that there is an analogy with the criminal and planning

provisions which permit an unqualified appeal once the lower court is prepared to certify that an issue of sufficient importance arises.

However, I am not satisfied that this comparison is accurate precisely because there is no need for the High Court judge hearing an

appeal from the Tribunal in a case such as this to be satisfied, as a condition of granting leave to appeal to this Court, that the

question of law which might be specified in granting leave meets any particular threshold. Therefore, there is no basis in a regime

such as this for making a distinction between a certification or specification issue, which operates only as a condition precedent, as it

were, and the appeal itself which arises after the condition precedent is satisfied but which is not limited to the issue which allowed

the condition precedent to be met.

3.15 Counsel for Mr. O’S argued that the words “on a specified question of law” would be entirely redundant unless they were

intended to confine the appeal to that question of law. In my view, that point is well made. While it is true that what is permitted is

an appeal “from the decision”, it is equally true that that appeal can only be “on” the specified point of law. No wider appeal is

permitted. The only reasonable meaning of the word “on” is that the appeal must be based “on” that point of law and must, therefore,

be confined to it.

3.16 There can be no doubt, therefore, that the ordinary and natural meaning of subs.(19) is that it purports to confine any appeal to

one which is based on, and only on, the specified question of law. In that regard, it is important to note one of the judgments of this

Court in D.B. v. Minister for Health and Children and anor [2003] 3 I.R. 12, where Geoghegan J., having noted that the High Court

judge in that case (O’Neill J.) had specified three questions of law, went on to say the following, at p. 64:-

“It has been submitted on behalf of [D.B.] that he was entitled in his notice of appeal, not only to appeal on those

three issues but also to add any other matter of appeal following the well-known principle that where there is a

statutory provision to the effect that leave to appeal can only be granted if the judge certifies that his decision

involved a point of law of exceptional public importance and that it is in the interest of the public to bring the

appeal, any other ground can be added if in fact such certificate and leave is given. This subsection is quite

differently worded. It does not provide for that type of certificate with which practitioners are well familiar and

which is contained in the Courts Acts in relation to appeals from the Court of Criminal Appeal and in the planning

and refugee legislation. It seems to me that subs. (18) by its unambiguous terms allows him appeal only on ‘a

specified question of law’. Reference in the order to a certificate is in fact inappropriate as no question of a

certificate arises.”

3.17 While neither Denham nor McGuinness JJ., who also delivered judgments in D.B., touched on the point, it is also clear that the

two other members of the Court, being Murray and Hardiman JJ., agreed with all of the judgments.

3.18 In any event, and whether or not it is possible to argue that the point was definitively decided in D.B., it seems to me that the

reasoning of Geoghegan J. is clear. Subsection (19) is very differently worded to those sections which have been held to confer a full

right of appeal provided that an appropriate certificate is given even though the basis on which the certificate may have been given

related to a narrow question or questions.

3.19 It remains to consider, finally ,whether it could be said that there is a sufficient doubt or ambiguity about the meaning of subs.

(19) so as to invoke the constitutional principle to which reference has already been made. In my view there is not. Like Geoghegan J.

in D.B., I am satisfied that the wording of subs.(19) is clear and unambiguous and is designed to confine any appeal to the question of

law specified in the order giving leave.

3.20 There is one final question with which I should deal for it may have some relevance to the further progress of this appeal.

4. A Further Comment

4.1 In the course of argument, counsel for the Minister made the point, correct so far as it goes, that the issues which he wished to

raise on the appeal which went beyond the narrow focus of the point of law specified in the High Court judge’s order (which, it will be

recalled, related solely to point 5 in Hennessy) were nonetheless involved with the same area of law, being the extent to which the

general principles, which would apply in a negligence action giving rise to nervous shock, required to be adapted in the context of

compensation claims under the 1997 Act. However, it seems to me that subs.(19) is clear. It is only the specified question of law

which can be raised. If the trial judge had specified a wider range of issues in analogous areas then those too could have been raised.

4.2 However, I would make one minor caveat to that general statement. Sometimes points cannot be hermetically sealed. It may be

necessary for a court, in answering one question, to touch at least tangentially on other analogous questions. The proper import of

subs.(19) seems, however, to be clear. It is only if the appellant succeeds on the specified point of law that this Court has

jurisdiction to allow the appeal and to interfere with the order appealed against. However, in considering whether the appellant should

succeed on the specified question of law, it may be that the Court can legitimately stray into other areas where a consideration of

those areas is essential to the Court’s determination on the specified question of law. To the extent that such a detour may be

necessary, the Court can embark upon it. But it must remain clear that the result of the appeal can only derive from the view which

this Court takes on the specified question of law.

5. Conclusions

5.1 For the reasons set out in this judgment, I am, therefore, satisfied that s.5(19) of the 1997 Act is in sufficiently clear and

unambiguous terms to confine any appeal to this Court to the question of law specified in the order of the High Court giving leave.

5.2 The result of any appeal can only be determined by reference to the answer to that specified question of law. However, the Court

may, as a matter of necessity, be required to consider wider issues, but only as an aid to answering that specified question of law

and not as a stand-alone ground of appeal which runs the possibility of the appeal being successful on that basis independent of the

specified question of law.

5.3 In the light of this judgment, I would propose to hear counsel further on how the substance of this appeal should progress to an

early conclusion.