Supreme Court Rules on Extending Statutory Appeal Time Limits

The Supreme Court recently considered whether the High Court could extend a statutory time limit for an appeal against a decision of the Solicitors’ Disciplinary Tribunal (SDT).[1]

The Supreme Court determined that while the appeal at the centre of the case had been made outside the prescribed 21-day appeal period, the relevant statutory provision did not preclude the possibility of an extension by the High Court.

Background

A complaints was made to the SDT, seeking an inquiry into alleged misconduct by partners in a solicitors’ firm. The SDT decided that, on the face of it, there was no case of misconduct. Under the Solicitors (Amendment) Act 1960, a complainant is permitted to appeal that finding to the High Court within 21 days of receiving the written notification of the finding.

The High Court determined that the appeal had been made out of time because the relevant provision, section 7(12B) of the 1960 Act, used the wording “shall be made”. This made it clear that the appeal had to brought within 21 days. The Court said it was important that there was no provision giving it a right to extend the time limit, which the Oireachtas could have included if that had been its intention.

The Supreme Court did not agree.

Supreme Court decision

In considering whether section 7(12B) precluded the possibility of extending the time for an appeal, the Supreme Court noted that:

• It is easy for the Oireachtas to make clear when it intends the time period to be absolute. For example, legislation can state that legal proceedings “shall not be brought after …” a specified date. Even if this is not stated, it might be obvious from the text of the legislation as a whole that the intent was for the appeal period to be absolute.
• A difficulty arises where the legislation does not explicitly allow, or preclude, an extension, and there is nothing in the text of the statute viewed as a whole to indicate what is permitted. The question in these cases is whether a time limit using wording such as “shall be made within” or “may appeal within” means that time may never be extended, or that it may always be extended.
• There is no general answer to this question that can be applied to all statutory provisions using this type of wording. However, viewing each statutory scheme from the perspective of the constitutional right to litigate enables the identification of some considerations that are relevant to the interpretation of such provisions.
• In this regard, the conferring of a statutory right of appeal by the Oireachtas engaged the appellant’s constitutional right to litigate, and any provision regulating that right must be strictly construed. In this case, the language of section 7(12B) did not preclude the possibility of an extension of time and, having regard, in particular, to the specific context in which the provision operates ie the regulation of the solicitors’ profession, it was not inconsistent with a power for the High Court to extend the time for making an appeal, in appropriate cases.

Guiding principles

Mr Justice Murray said that when exercising its jurisdiction to extend the time limit under section 7(12B), a court should be guided by the following:

• The court has a discretion in determining whether or not to grant an extension of time for an appeal
• The critical inquiry in applying that discretion is directed to the balance of justice, and
• The discretion must be exercised having regard to where that balance lies in all the circumstances of a particular case

Three questions guide the exercise of that discretion:

1. Whether the applicant formed a bona fide intention to appeal within the prescribed time;
2. Whether the failure to appeal within that time is explicable by reference to some factor akin to a mistake; and
3. Whether there are arguable grounds of appeal.

Mr Justice Murray emphasised that the above principles are no more than a guide in exercising discretion. He stated that it remains flexible and circumstance dependant, and must be considered in the context of the reasons for the extension and the relevant statutory context.

Conclusion

• Regulators and other public sector bodies tasked with administrative decision-making will be aware of similar appeal provisions in their legislation, which may or may not deal with the time limit for appeals against decisions of that body. It is possible that the Supreme Court’s judgment will be relied on for purportedly out-of-time appeals. This is particularly the case where the appeal provision is similarly silent on the possibility or otherwise of the appeal period being extended, or does not exclude this possibility in very clear terms.
• However, the Supreme Court’s decision was heavily influenced by the relevant statutory context in the case. This was the regulation of the solicitors’ profession, in which the High Court has a special interest since solicitors are officers of the court.
• In addition, the Supreme Court indicated that the power to extend is exercisable only in exceptional cases, for example where a person had a genuine intention to appeal within the relevant time limit, but circumstances beyond their control meant that this could not be done.
• Therefore, in another case, involving a different statutory context, it might not be appropriate to extend a statutory time limit for an appeal to the High Court. However, that possibility cannot be ruled out – particularly where the appeal provision does not use language such as the appeal “shall not be brought after …”.

For more information and expert advice on the potential implications of this decision for your organisation, please contact a member of our Public, Regulatory & Investigations team.

People also ask

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Kirwan v O’Leary & Others [2023] IESC 27.