High Court of Ireland Decisions

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Cite as: [2003] IEHC 12

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Aer Rianta CPT v Commission for Aviation Regulation [2003] IEHC 12 (4 June 2003)

THE HIGH COURT

[2001 No. 707 J.R.]

BETWEEN

AER RIANTA CPT

APPLICANT

AND
COMMISSION FOR AVIATION REGULATION

RESPONDENT

AND AER LINGUS LIMITED AND RYANAIR

NOTICE PARTIES

JUDGMENT of O'Sullivan J. delivered the 4th of June, 2003.

In this judgment I am dealing with the applicant's request for a certificate of appeal under section 38 (5) (a) of the Aviation Regulation Act 2001 ("the 2001 Act"). The application arises out of my judgments herein dated 16th January and 3rd April of this year respectively. These are taken as read. The relevant portion of the subsection provides

"The determination of the High Court of an application for leave to apply for Judicial Review as aforesaid or of an application for such Judicial Review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court or the Supreme Court certifies 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."

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The questions now advanced by the applicant are as follows:

1. What is the proper nature and extent of the jurisdiction of the High Court (and, in the event of an appeal, the Supreme Court) to review the validity of a determination of the respondent made pursuant to section 32 of the 2001 Act on grounds of unreasonableness and/or on grounds of error (other than error of law) and/or on grounds of non-compliance with section 5 (4) of the Act?

2. Having regard to the provisions of the Air Navigation and Transport (Amendment) Act 1998 ("the 1998 Act") and the provisions of the 2001 Act to what extent, in what circumstances and on what basis, is the respondent entitled to exclude any of the applicant's CAPEX projects or costs relating thereto from the recoverable CAPEX programme for the purposes of making a determination made under section 32 of the 2001 Act?

3. For the purpose of determining the level of historical CAPEX to be included in the RAB, does the 2001 Act entitle the respondent to disallow projects (or portion thereof) or costs (or portion thereof) notwithstanding the fact that they were:

(a) approved and/or

(b) contractually committed to and/or

(c) commenced and/or

(d) completed

prior to the commencement of the 2001 Act and/or prior to the making of the original determination and if so, what regard ought the

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respondent to have in making that determination to the aforementioned matters?

4. Does the 2001 Act preclude the respondent from considering post determination information on a review by it on a reference back by the appeal panel?

It will be noted from the foregoing that there is an appeal from the decision which I am now making. This distinguishes the 2001 Act from many other Acts and I am informed the same provision arises only in the Transport Act 2001. Accordingly I propose to set out my determination in relation to each of the four questions proposed by the applicant. Mr. Gallagher S.C. on behalf of the applicant submits in relation to the first question that whilst the Irish jurisprudence on irrationality review is settled and recent there is no authoritative decision on the application of that jurisprudence to the determination of a specialist regulator and in particular to a determination allegedly involving egregious error and failure to implement his own clearly stated intentions.
Mr. Gleeson S.C. submits that the law is clearly settled and accordingly a question which might once have been characterised as of exceptional public importance has ceased to be such and certainly there is no public interest in having the issue determined on appeal. The 2001 Act clearly contemplates a question of exceptional public importance which nonetheless would be refused a certificate because it is not desirable in the public interest that it should be appealed and he suggests that such a category would be questions recently determined by the Supreme Court.
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In my opinion the law is clear and its application to specialist tribunals has been recently made clear by the Supreme Court. The applicant relies, inter alia, on the fact that there is some authority in the United Kingdom and particularly in the United States exhibiting a different approach by those courts. This does not seem to me of itself to raise a question that the High Court can identify given the authoritative statements on the topic by the Supreme Court. Nor is there any suggestion in Irish jurisprudence that the well established principles applicable to irrationality review are different when it comes to reviewing the determination of a regulator. Accordingly I refuse to certify the first question.
Before passing from this question I should make reference to the inclusion in the question as drafted of a reference to section 5 (4) of the Act. This subsection imposes upon the Commission an obligation that its determinations shall be objectively justified non-discriminatory proportionate and transparent. In the management of the case a number of challenges relating to the procedures adopted by the respondent were deferred for adjudication until after the matters dealt with in the two judgments referred to at the outset of this judgment. These challenges relied, inter alia, on section 5 (4) of the 2001 Act. They were subsequently abandoned by the applicant and accordingly section 5 (4) was not subjected to as full and focused a scrutiny as it would have been had these challenges been under consideration. Having said that it is also true to say that in my judgment of the 16th January, 2001 I did indeed deal with submissions made by the applicant in relation to section 5 (4) but in the overall context of a challenge related to the irrationality jurisdiction of the court. In these circumstances I consider that it is not appropriate to certify the first question or part thereof for appeal under section 38 (5) of the 2001 Act in the present case.
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The applicant submits in relation to the second question that it involves not only fundamental issues of statutory interpretation of the 2001 Act itself but also of the Air Navigation and Transport (Amendment) Act, 1998 ("the 1998 Act") and, more particularly, the interaction between these two Acts. The interpretation of this question will govern all future determinations by the respondent and will accordingly apply again and again in the future not only at the quinquennial reviews and, it may be, the midterm reviews, but also, at least indirectly, in relation to appeals. The applicant points out that both parties here represent significant sections of the public and also that the amounts of money are very significant involving some €900m under this question.
The respondents submit that the statutory interpretation ruling applies and can only apply to these two parties. It is of no general application and the judgment cannot assist other regulators or operators who are governed by different statutes. It must follow that the judgment cannot involve a point of law of exceptional public importance. The fact, relied upon by the applicants, that this is the first time that these issues of statutory interpretation have been decided by the High Court, cannot of itself mean that the determination qualifies for a certificate under this heading because that would mean that every time a statutory interpretation point arose under the 2001 Act there would have to be a certificate. This flies in the teeth of the policy of the Act itself which is primarily that there would be no appeal. In fact no question of statutory interpretation can constitute an issue of public law of exceptional public importance because it involves only the two parties to this suit.
In my opinion the question of statutory interpretation and in particular of the interaction between the two statutes does raise a question of exceptional public importance. Both parties are entrusted with major significant public interest duties:
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the correct interpretation of the two Acts and the interplay between them will govern their relations into the future. The issue is clearly an important point of public law. In my opinion it is more than that: it is a point of exceptional public importance by reason of the significant public interest affected by the determination. I agree with Ms. Justice Finlay Geoghegan that whilst the two criteria here under consideration are cumulative they may also overlap to some extent. (See Raiu v. The Refugee Appeals Tribunal and Ors. Unreported Judgment delivered 26th February, 2003, page 5 paragraph 3).

In the present case the very significant role that airports play in the Irish economy, the very large figures involved, and the non-economic interest of large numbers of the public in the development of national airports fall more readily to be considered under the heading of whether it is desirable that the important point of public law be appealed to the Supreme Court: nevertheless these factors should also in my view be considered by the court when determining whether that important point of public law is exceptionally important.
Another factor is that any decision on this question will affect future determinations between these parties and thereby the public interest and a further factor is that the interaction between the 1998 and 2001 Acts clearly presented counsel on both sides with considerable food for thought because that interaction has not been comprehensively addressed in the later statute. In addition there is a degree of complexity involved in this question of statutory interpretation which taken together with a consideration of the very significant economic and socio-economic interests involved puts the question which is already of public importance into the exceptional category.
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With regard to the second criterion namely whether it is desirable in the public interest that an appeal on this point should be taken to the Supreme Court I have no hesitation in confirming that it is so desirable. Clearly the public interest involved on each side of the case is very significant; it is clearly in the public interest that the question of statutory interpretation should be determined early in the life of the 2001 Act with the greatest possible authority. A further consideration is that such an authoritative ruling would certainly inhibit the possibility of further expensive litigation addressed to the same point. Accordingly I am prepared to certify the second question.
With regard to the third question, counsel for the applicant submits that this question which deals with the application of the well established principles dealing with retroactive application of enactments involves a large sum of some €60 million. It is acknowledged, however, that the question is not so patently important in the statutory sense as the first two.
For the respondent it is submitted that there can be no question of this issue being of exceptional public importance or of it being in the public interest that it be appealed to the Supreme Court.
In my view the principles of law involved have been clearly stated and no new question arises. My decision on this issue does not involve a point of law of exceptional public importance and I decline to certify it for appeal.
The final question asks whether the respondent is prohibited from considering post determination information on a review by it on a reference back by the appeal panel.
The applicant submits that this will become an important point in the future in practice especially if interested parties are encouraged by the outcome of this case to
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direct their energies towards an appeal panel rather than towards Judicial Review. It is submitted that in my judgment I acknowledge that there are strong arguments either way on this question and that therefore it is desirable in the public interest that it be appealed to the Supreme Court.

The respondent submits that there is no issue of exceptional public importance: rather, merely an issue of statutory interpretation which has been determined and that should be an end of it.
In my opinion the test which I should apply to the first limb of the certification requirement is not whether I have some doubts (as I do) about my conclusion but rather whether the determination involves a point of law of exceptional public importance. I think my determination does involve a point of law of public importance but I cannot say that it is exceptional. If I had got over this hurdle I would have concluded that it was desirable that it be appealed because of my own doubts or perhaps more properly, because of the strength and validity of the arguments which I rejected. In the circumstances I must refuse to certify the fourth question for appeal.
In the result I certify for appeal under section 38 (5) of the 2001 Act the following question:

"Having regard to the provisions of the Air Navigation and Transport (Amendment) Act 1998 and the Aviation Regulation Act, 2001 to what extent, in what circumstances and on what basis, is the respondent entitled to exclude any of the applicant's CAPEX projects or costs relating thereto from the recoverable CAPEX programme for the purposes of making a determination under section 32 of the Aviation Regulation Act of 2001?"