Locations
Following on from Fieldfisher Ireland LLP's "Fitness to Practise Autumn/Winter Series - Part 2" webinar which took place on 14 December 2023, we discuss below the recent Supreme Court case of Kirwan v O'Leary & Ors [2023] IESC 27, which considered the Court's jurisdiction to extend the statutory appeal period in the context of section 7(12B) of the Solicitors (Amendment) Act, 1960 (the "1960 Act").
Background
Mr Kirwan, the Applicant/Appellant submitted two complaints to the Solicitors Disciplinary Tribunal ("SDT") about his former solicitors. The SDT determined in October 2020 that neither complaint disclosed a prima facie case of misconduct. Mr Kirwan exercised his right of appeal to the High Court under section 7(12B) of the 1960 Act, which provides:
“[a]n appeal against a finding of the Disciplinary Tribunal under subsection (12A) of this section shall be made within 21 days of the receipt by the appellant of notification in writing of the fact.”
Mr Kirwan had sent his appeal papers to the Registrar of the High Court via registered post within the 21-day time period. However, the motions were ultimately only issued by the Central Office after the 21-day time period expired. While Mr Kirwan had argued that he had made the appeals within time because he had sent the appeal papers to the Registrar within the relevant time period, Irvine P., in the High Court, held that the appeal was not "made" until his motions had issued from the Central Office. Therefore, the appeals were not made within the period specified in section 7(12B) of the 1960 Act. Irvine P held that the time limit imposed by section 7(12B) of the 1960 Act was mandatory and could not be extended by the Court. Irvine P's judgement contains a detailed and careful analysis of the applicable statutory provisions and relevant authorities.
Mr Kirwan appealed Irvine P's decision to the Supreme Court. The Supreme Court agreed to hear the appeal on two grounds:
- When the appeal was "made" for the purpose of section 7 of the 1960 Act; and
- Whether if the appeal was made out of time, the court was permitted to extend the time to appeal.
Supreme Court Ruling
The events arose during the Covid-19 Pandemic during which papers were permitted to be lodged with the Central Office by post or document exchange further to Practice Direction HC90[1].
Mr Kirwan argued that Irvine P had erred in deciding that the appeals were not “made” until the motions issued from the Central Office. He submitted that the appeals were “made" once his email attaching the notices of motion and affidavits were sent to the Registrar on 29 October 2020. Alternatively, he submitted that the appeal was “made” once the registered letter enclosing the original motions and affidavits was received by the Central Office on 30 October 2020.
A. When the appeal was "made"
Mr Justice Murray, with whom all judges agreed on this issue, was satisfied that even taking the most liberal interpretation of the law possible, the appeal was not made within 21 days. He held that the last day within the 21 day period fixed by statute was 29 October 2020.
Insofar as an argument was made that the appeals had been made when the email was sent to the Registrar on 29 October 2020, Murray J found that the Practice Direction and relevant rules of court simply did not allow for documents to be delivered to the Central Office by way of email.
Murray J held that the relevant rules could not reasonably be interpreted as permitting the Court to treat the posting of the motions and affidavits as the date of filing.
By the time of the delivery of the documents to the Central Office by registered post on 30 October 2020, the statutory appeal period had expired.
Murray J., giving Practice Direction HC90 and Order 117A the most liberal construction possible, held that the appeal papers were not “filed” by 29 October 2020, i.e. within the 21 day period. Murray J. was therefore not required to decide whether Irvine P had been correct in holding that the appeal was not “made” when the papers were delivered to the Central Office by registered post but rather when the motions had issued. However, Murray J did acknowledge that generally speaking an appeal would be “made” once the appropriate proceedings issue from the relevant court office. Although Murray J did note that there is English authority suggesting that delivery of relevant documentation to the specified office in accordance with the court's rules may be sufficient to stop time running.
B. The Power to Extend Time
There was a divergence of opinion in the Supreme Court on this issue, with the majority decision of Murray J holding that the language used in Section 7 of the 1960 Act did not oust the court's jurisdiction to extend time to appeal in an appropriate case, while the dissenting judgment of Woulfe J was of the opinion that it did.
The Court held:
- The language in section 7(12B) of the 1960 Act was open to interpretation and does not preclude the possibility of an extension of time. Murray J emphasised that the Oireachtas could easily have expressed with clarity that it intended for an appeal period to be absolute by saying for example that proceedings “shall not be brought after…” or by providing that the decision shall become binding on the parties unless an appeal is made within the period provided. Murray J held that while use of the term “shall be made” suggested that the intention was to exclude an appeal outside of the period, it did not necessarily negate the prospect of the period being extendable;
- By granting a right of appeal in respect of a decision of the SDT, the constitutional right to litigate was engaged. Having conferred that right, Murray J concluded that the case fell to be resolved “by treating the engagement of the right to litigate as generating a principle of strict construction";
- Having regard to the specific context in which section 7 of the 1960 Act operates and stressing the unique relationship between the jurisdiction of the High Court and supervision of the solicitors’ profession, it is appropriate that section 7 should be interpreted as enabling an extension of time to appeal in an appropriate case.
Obiter Comments
Murray J made obiter comments suggesting that the existence of a confirmation process should not have any bearing on the interpretative question. However, he commented that where a confirmation hearing has proceeded without an appeal being brought, an applicant who seeks to extend time "will face an unsurmountable hurdle in obtaining an extension: it is hard to see how the Court could ever entertain a collateral attack on orders made under s. 8 [of the 1960 Act]". Therefore, this highlights why confirmation applications should be made promptly by regulatory bodies.
Conclusion
An Order was made setting aside the Order of Irvine P and remitting Mr Kirwan's case to the High Court to allow it to decide whether to grant an extension of time.
While the decision is specific to the solicitor's profession, it is of general importance as the court has clarified a person's constitutional right to litigate is engaged where they are afforded a statutory right to appeal from an administrative decision. Given the significant number of provisions on the statute book in which appeal periods are fixed, it specifically addresses the specific issue of whether, and if so, appeal periods can be extended. Further, the Court reaffirmed that generally speaking an appeal will be "made" when appeal papers issue from the appropriate office.
The majority judgment of Murray J is available here.
The dissenting judgment of Woulfe J is available here.