THE SUPREME COURT
[Appeal No: 204/2008]
In the matter of an appeal pursuant to section 5(15) of the Hepatitis C Compensation Tribunal Acts 1997 and 2002
The Minister for Health and Children
Judgment of Mr. Justice Clarke delivered the 9th July, 2015.
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:
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
2.2 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  IESC 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  IESC 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)
3.3 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:-
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:-
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:-
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:-
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:-
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:-
“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).”
3.14 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  3 IR 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:-
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
4.2 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.
5.2 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.