This question was answered with a clear “yes” by Mr. Justice Hedigan in the High Court on 8 March, 2013. In his judgment, Hedigan, J. was emphatically of the view that this was the plain effect of the provisions of sections 27(1) and 27(2) of the Interpretation Act 2005.
Clarification and confirmation of this point is of importance to our legal system. It is also important for anyone who might wonder (where the legislature has not been specific about this)
what effect a repeal of legislation has on anything that was duly done, or anything that happened, while the legislation was in force; and / or
what effect a repeal of legislation has on bringing, or continuing, civil or criminal proceedings in relation to these things after the legislation has been repealed.
Hedigan, J.’s ruling arose in proceedings called The Commission for Communications Regulation v An Post, in which Mason Hayes & Curran is acting for the Commission (“ComReg”), in its capacity as the State’s postal sector regulator.
The proceedings were brought by ComReg in 2012 under Regulation 18 of the European Communities (Postal Services) Regulations 2002, after their revocation.
Prior to this, in 2004, ComReg had issued a quality-of-service direction (the “Direction”) to An Post under the Regulations, requiring An Post to deliver domestic post on the day after its posting, in 94% of cases. In the event of non-compliance, the Regulations provided for complementary enforcement mechanisms, including the issuing of notifications of non-compliance, setting deadlines for remedying non-compliance, and applications to the High Court to direct compliance and impose financial penalties in light of non-compliance.
In 2009, under the Regulations, ComReg issued a statutory notification to An Post, in which ComReg informed An Post of its finding that An Post had not complied with the Direction, and in which it gave An Post until 31 December, 2010 to remedy its non-compliance.
However, at the end of 2010, An Post’s next-day delivery performance still fell below the required 94%. When this performance figure became available in May, 2011, ComReg informed An Post by letter that it had not complied with the Direction, and that it had not remedied its non-compliance by the deadline of 31 December, 2010. In those circumstances, the 2002 Regulations provided that ComReg could apply to the High Court to seek to have the High Court direct An Post to comply with the Direction, and to order it to pay a financial penalty in light of the non-compliance.
On 2 August, 2011, the Communications Regulation (Postal Services) Act 2011 was enacted. The 2011 Act revoked and replaced the 2002 Regulations. It did not say what effect, if any, its enactment or its revocation of the Regulations was to have.
Following the revocation of the Regulations, in December, 2011, ComReg formally formed the opinion of non-compliance, and decided to apply to the High Court, pursuant to the now-revoked Regulations, seeking orders directing compliance and imposing a financial penalty of approximately €12,000,000. In reliance on section 27 of the Interpretation Act 2005, ComReg issued its proceedings under these revoked Regulations in February, 2012. Some time thereafter, An Post raised the preliminary issue of whether ComReg was permitted to maintain the proceedings, given that the Regulations had been repealed.
This is the issue upon which Hedigan, J. gave judgment on 8 March, 2013.
The Issue before the Court
The judgment turned on the proper interpretation and application of sections 27(1) and 27(2) of the Interpretation Act 2005. These, like other provisions of the Interpretation Act, apply to legislation (including statutory instruments, such as the 2002 Regulations and statutes such as the 2011 Act), unless a contrary intention appears in the legislation concerned.
In order to understand the judgment, it is necessary to set out the provisions of sections 27(1) and (2) in full:
(1) Where an enactment is repealed, the repeal does not—
(a) revive anything not in force or not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.”
Hedigan, J. noted that the 2011 Act which had revoked and replaced the Regulations had no ‘saving’ provisions and was silent on the question of what was, or was not, to be carried forward, or what the effect of revocation would be. Accordingly, he found that, as no contrary intention appeared in the 2011 Act, the ‘default’ provisions of the Interpretation Act were to apply.
Applying the primary rule of statutory interpretation, Hedigan, J. felt the provisions of the Interpretation Act were to be interpreted literally, and, in doing so, he had no difficulty in finding that An Post’s argument was misconceived.
In that regard, he stated as follows:
“…[t]he literal interpretation of the Interpretation Act seems to me to be clear. In the context relevant in this application, proceedings under an enactment repealed may be instituted and any penalty … in respect thereof may be imposed as though the enactment had not been repealed…
There appears to be no ambiguity that demands resolution. I would have thought that, were [An Post’s] argument to be correct, then either the Oireachtas did not know what it was doing when it repealed the pre-existing regime, or it intended to wipe clean the slate in relation to regulation of the postal service, which would have been in violation of the European Communities [Postal Services] Directive. Either scenario is untenable. The first involves an assumption the Court ought not to make; the second is highly improbable, and a course of action not to be lightly assumed by any court. Had the Oireachtas intended to wipe the slate clean, then in my judgment it would have done so in language that was clear. Thus, the regime established prior to the 2011 Act seems one that was continued for the purposes of enforcement in relation to any actions duly done or suffered under the Act, nor does the repeal affect any obligation or liability accrued or incurred under the pre-existing enactment.”
Hedigan, J. also referred to an issue canvassed before him at the hearing in light of the previous decisions of the High and Supreme Courts in Start Mortgages v Gunn & Ors.,  IEHC 275, and in Minister for Justice, Equality and Law Reform v Tobin,  IESC 37, respectively. These decisions were to the effect that, in order for a right to sue after repeal of legislation to be acquired before repeal, a right had to have become vested, or a critical “something” must have been done, or happened, before repeal to ensure that the right to sue became “vested.” Once such a right became vested before repeal, proceedings could then properly be brought afterwards, in the manner intended by section 27(2) of the Interpretation Act.
In this connection, Hedigan, J. stated as follows:
“Applying that conclusion here, the case clearly favours [ComReg]. The right to issue proceedings in respect of non-compliance had accrued or become vested in [ComReg] by the [31st December, 2010 – the deadline for An Post remedying its non-compliance], prior to the repeal, and was carried over by s.27 of the Interpretation Act. [ComReg] thus was entitled to institute proceedings in respect of the obligation and liability.”
An Post had argued that, as the 2002 Regulations referred to ComReg’s entitlement to bring court proceedings where it formed an opinion of non-compliance, a formal opinion of non-compliance was required to be arrived at before revocation in order for a right to sue to have become vested. In that regard, it argued that such an opinion was only formed when ComReg decided to bring proceedings against An Post in December, 2011, some months after the 2002 Regulations had been revoked. However, Hedigan, J. found that, on the facts, ComReg had in any event formed the requisite opinion in May, 2011, when it stated this in correspondence with An Post, but that, even if it had not done so, the formation of an opinion was not an essential ingredient for ComReg to have acquired the right to bring proceedings before revocation. The important question was whether the factual ingredients enabling it to bring proceedings were in place before revocation. If so (as was the case here), a cause of action accrued, and the right to sue became vested, before revocation.
Finally, Hedigan, J. found that ComReg was not only entitled to bring the enforcement proceedings under the revoked Regulations to direct compliance by An Post, but also to seek to have the Court impose a financial penalty on An Post pursuant to those Regulations. In this regard, An Post had additionally submitted that, prior to the revocation of the Regulations, ComReg had not, and could not have, acquired the right to impose this penalty. Having held that ComReg could maintain these proceedings because the right to do so had become vested before the revocation of the Regulations, Hedigan, J. ruled that the wording of the Interpretation Act “…could scarcely be clearer…” in relation to ComReg’s entitlement here. Referring to the “plain and literal meaning” of both the 2002 Regulations and section 27(2) of the Interpretation Act, he noted that the 2002 Regulations clearly permitted the inclusion by ComReg within its court application of a further application seeking the imposition of a financial penalty, and that the Interpretation Act clearly provided that ComReg’s proceedings could properly be instituted, and the penalty provided for could properly be imposed in those proceedings, as if the Regulations had not been revoked.
To view the judgement, please click here.
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