BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Driscoll & Anor v Residential Tenancies Board (Approved) [2025] IEHC 283 (16 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC283.html
Cite as: [2025] IEHC 283

[New search] [Printable PDF version] [Help]

 

 

THE HIGH COURT  

[2025] IEHC 283

2024 /327MCA

IN THE MATTER OF AN APPEAL ON A POINT OF LAW PURSUANT TO SECTION 123(3) OF THE RESIDENTIAL TENANCIES ACT 2004

BETWEEN:

KATHERINE J. O'DRISCOLL and KEITH M. O'REILLY

APPELLANTS

AND

 

THE RESIDENTIAL TENANCIES BOARD

RESPONDENT

 

JUDGMENT of Ms. Justice Eileen Roberts delivered on 16 May 2025

Introduction

1.      This judgment addresses the questions as to (1) precisely when time commences running for the purposes of an appeal against a determination of the Respondent ("RTB") and (2) what action on the part of an appellant constitutes the commencement of an appeal.

2.      The matter was heard by way of preliminary hearing on 28 April 2025. The court was asked to determine whether the appeal brought by the Appellants against a determination of the RTB was taken outside the "relevant period" of 21 days provided for in section 123(8) of the Residential Tenancies Act 2004 ("the 2004 Act").

3.      If the appeal in this case was made out of time then the appeal must fail for that reason. If the appeal was made within time then it should proceed to a substantive hearing on the merits before the High Court.

4.      For the reasons outlined in this judgment I determine that the appeal taken by the Appellants was issued outside the relevant period prescribed by the 2004 Act.

 

The relevant facts

5.      On 2 May 2024 the Tenancy Tribunal constituted by the RTB convened a hearing of the tenancy dispute between the Appellants and their landlord, Ms Murray (the "Landlord").  On 22 May 2024, the Tribunal notified the RTB of their determination made in accordance with s.108(1) of the 2004 Act.

6.      The RTB made its determination in accordance with s.121 of the 2004 Act by order dated 29 May 2024 (the "Determination Order").

7.      The. Determination Order was posted by the RTB to each of the Appellants on 13 June 2024.

8.      The uncontradicted evidence of the Appellants is that they each received the RTB correspondence dated 13 June (enclosing a copy of the Determination Order) on 14 June 2024.

9.      On 3 July 2024 the Appellants stamped an originating notice of motion and grounding affidavit seeking to appeal the Determination Order to the High Court on a point of law pursuant to s.123 of the 2004 Act. The grounding affidavit was sworn by the first named Appellant on 2 July 2024. The notice of motion is dated 3 July 2024.  A document attached to the motion refers to the "Appeal Filing Date" as 3 July 2024 and to "Duration" as "20 days from determination".

10.  The High Court Central Office date stamped the motion and affidavit as "filed" on 4 July 2024.

11.  RTB say that the appeal is out of time. They say that day 1 commences on 13 June 2024 (being the date of posting the Determination Order). On that basis, the statutory 21 day period permitted for an appeal expired on 3 July 2024.  They say that the Appellants' appeal was not made until 4 July 2024 and so was outside the statutory period, albeit by a single day.

12.  The Appellants say their appeal was made within time. They advance various arguments in that regard. In brief, they say time commences on receipt of the Determination Order and not on its posting. They say that all parties have to be notified of the Determination Order. They say in any event that their appeal was issued on 3 July 2024.

 

The relevant statutory provisions and legal analysis on the time to appeal

13.  The relevant statutory provisions are set out in s. 123 of the 2004 Act and provide as follows:

"Binding nature of determination orders.

123.—...

(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).

(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.

....

(8) In this section "relevant period" means the period of 21 days beginning on the date that the determination order concerned is issued to the parties...."

 

14.  It is clear that the relevant period for appeal runs from and begins on the date the determination order "is issued to the parties".  I respectfully agree with the decision of Heslin J in Enners v Residential Tenancies Board [2023] IEHC 216 where he distinguished between "received by" and "issued to" as distinct and different concepts. He notes at para 4 of his judgment that s.123 plainly does not use the words received by the relevant person. This can be clearly distinguished from other statutory provisions which specify that time runs from the date of receipt of notice of a matter to be appealed against - for example s.7(12B) of the Solicitors (Amendment) Act 1960.

15.  The same point was made by Meenan J in in Halbherr v Residential Tenancies Board and McCann [2018] IEHC 595 where he stated : "It is clear that s. 123(8) of the Act of 2004 refers to the date that the determination "issued", there is no reference to a determination having been "served", or the use of some other term, as would bring s. 25 of the Interpretation Act 2005 into play"

16.  I accept that the word "issued" may have a broader meaning in common parlance but this word has to be interpreted here not in that context but rather in the context of the legislation in which it appears.

17.  I therefore hold that the date of "issue" of a determination order is the date on which the relevant order is posted or otherwise sent. It is not relevant for the purposes of s.123 of the 2004 Act when a party receives the order. This is what the statute provides.

18.  However, a point I do not believe has been previously considered by the courts is what happens if the relevant order is sent on different dates to different parties - recognising that s.123(8) refers to the date that the determination order is "issued to the parties".

19.  S.75 of the 2004 Act deals with Interpretation of Part 6 of the 2004 Act (of which s.123 is part) and provides at s. 75(4) that

"(4) References in this Part to a party, without qualification, are references to—

(a)   a party to the dispute or disagreement concerned,..."

20.  The Appellants say they don't know the date the Determination Order was posted to the Landlord. At the hearing of the application there was no evidence before the court on this point as the relevant details had been redacted by the RTB.

21.  A determination order becomes binding "on the parties concerned" unless there is an appeal "by any of the parties concerned" within the relevant period which itself is measured by reference to when the determination is "issued to the parties".  While I was advised by counsel that it is the practice of the RTB to issue determination orders to all parties to a dispute at the same time, I requested that an affidavit be sworn exhibiting the proof of posting to the Landlord in advance of my completing this judgment. That affidavit was provided, and it confirms that the Determination Order was sent by the RTB to both the Landlord and her agent by registered post on the 13 June 2024 - being the same date as it was posted to the Appellants.

22.  Had the Determination Order been sent to the Landlord on a different date I believe this could have impacted the calculation of the relevant period for the purposes of s.123(8) of the 2004 Act. I do not accept that s.123(8) should be read as referring only to the issue of a determination order to the party who appeals. Neither do I accept that there could be different relevant periods for different parties entitled to appeal the same determination order.  Therefore, I believe that the RTB should, in future cases, provide, on request by any party intending to appeal, confirmation that all parties were issued with the relevant determination order on the same date. If different dates of issue apply in a particular case it seems to me that time should then be counted from the latest date any one of the parties was sent the relevant determination order.

23.  In the present case because it has been confirmed that the Determination Order was sent or issued by the RTB to all parties on 13 June 2024, that is the date from which the relevant period for appeal runs.

24.  It is well established law that the time limit specified in s.123 of the 2004 Act is an absolute one and that the court does not have jurisdiction to extend it, even if an application for an extension of time were made by an appellant - see the decision of Noonan J in Noone v Residential Tenancies Board & Roe [2017] IEHC 556. That position was not altered by the judgment of the majority of the Supreme Court in Kirwan v O'Leary [2023] IESC 27 where Murray J noted at Para 71 and footnote 12 of his judgment:

 "So, there are provisions which state that the decision of a statutory body shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made within the relevant period. Provisions of this kind are consistent only with the imposition of an absolute and non-extendable time period" and "This is the formula used in s. 123(2) of the Residential Tenancies Act 2004, and it leaves no room for doubt but that the period for appeal is absolute".

25.  For present purposes therefore, day 1 of the relevant 21 day period for appeal commenced on 13 June 2024 and the relevant period thus expired on 3 July 2024. The court has no jurisdiction to extend this period.

 

 

 

When did the appeal issue ?

26.  I respectfully agree with the statement by Bolger J in  Abeyneh v RTB [2023] IEHC 81 where at para 10 she said: "The appeal is made on the date on which the Notice of Motion is filed".

27.  This view was also confirmed in MCK v. H. [2002] WJSC-HC 5092 where Finnegan P. held (at p. 5) that a motion is brought when it is filed in the Central Office pursuant to the Rules of the Superior Courts.

28.  The Appellants did not make their appeal in this case until 4 July 2024, being the date on which the Central Office stamped their originating motion as "filed". It does not matter that the grounding affidavit was sworn on an earlier date or that the motion and affidavit were both stamped for stamp duty purposes on 3 July. The Appellants could swear, date and stamp their documents at any time - but those documents did not constitute an operative appeal for the purposes of stopping the running of the relevant appeal period until they were filed (issued) with the Central Office on 4 July 2024.

29.  4 July 2024 was one day outside the relevant period prescribed in s.123 of the 2004 Act. While this may appear harsh to the Appellants, who are unrepresented parties, the terms of a non-extendable statutory time limit are either met or they are not and thus the position is a binary one in terms of compliance.  This is what the legislature has prescribed in the 2004 Act and indeed was the same outcome outlined in Abeyneh on the facts of that case.

30.  An important part of the context for the relevant period is that the appeal provided for in section 123(3) of the 2004 Act is not a general one but rather one confined to an appeal on a point of law. Parties will have had the benefit of the first instance decision and the de novo appeal to the Tenancy Tribunal before the question of an appeal pursuant to s.123(3) arises. There must be certainty as to the binding effect of determination orders.

 

 Conclusion and Orders to be made

31.  For the reasons outlined in this judgment I am satisfied that the Appellants did not make this appeal within the time limit provided by the 2004 Act and there is no provision in the 2004 Act or otherwise permitting this court to extend the time to appeal the Determination Order. For those reasons this appeal must fail.

32.  I will list the matter for mention on Thursday 22 May at 10.30am to hear any submissions on legal costs and to make final orders.

 

 

 

 

 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010