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Cite as: [2002] IESC 6

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Judgment Title: S. -v- Minister for Justice, Equality & Law Reform & Ors

Neutral Citation: [2002] IESC 6

Supreme Court Record Number: 164/01

High Court Record Number: 2000 No. 110IA

Date of Delivery: 30/01/2002

Court: Supreme Court

Composition of Court: Keane C.J., Denham J., McGuinness J., Geoghegan J., Fennelly J.

Judgment by: Keane C.J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Keane C. J.	Appeal allowed - set aside High Court Order
Fennelly J.

Outcome: Allow And Set Aside

THE SUPREME COURT

Keane C.J.
Denham J.
McGuinness J.
Geoghegan J.
Fennelly J.

IN THE MATTER OF AN INTENDED JUDICIAL REVIEW

BETWEEN

ANTHONY BENSON 107 & 115/01
APPLICANT
AND
THE GOVERNOR OF THE TRAINING UNIT GLENGARRIF PARADE DUBLIN
RESPONDENT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
NOTICE PARTY/RESPONDENT

BETWEEN

MOHAMMED AHMED SAALIM 164/01 APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE, EQUALITY, LAW REFORM, INTERIM REFUGEE APPEALS AUTHORITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

JUDGMENT delivered the 30th day of January, 2002 by Keane C.J.
This appeal raises a net but important point on the construction of s.s.(2) and (3) of s.5 of the Illegal Immigrants (Trafficking) Act 2000. That section contains provisions dealing with the right of access to the courts of persons affected by the operation of the Refugee Act 1996 and the Immigration Act 1999 who wish to challenge the operation of those statutes.

The text of both subsections is set out at a later point in this judgment. At this stage, it is sufficient to note that s.s(2) requires that an application for leave to apply for judicial review in respect of certain specified matters be made within the period of 14 days commencing on the date on which the person was notified of the act in question, unless the High Court considers that there is good and sufficient reason for extending that time. It also requires that the application be made by motion on notice to the Minister for Justice, Equality and Law Reform (hereafter “The Minister”) and any other person specified by the High Court.

S.S.(3) then provides that the determination of the High Court of an application for leave to apply for judicial review or of the application itself is to be final and that no appeal is to lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court. That leave is only to be granted where the High Court certifies that its 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.

The applicant in the first case is a citizen of Nigeria. He came to Ireland on 15th March 1999 and was granted permission to work on 6th June 2000, while his application for refugee status, which he had made on arrival, was pending. That application was refused, as was his appeal against the refusal and on 30th June 2000 the applicant’s solicitor furnished reasons in writing to the Minister as to why his client should not be deported. A deportation order was made in respect of him on the 27th July 2000 and, on the 4th December 2000, notice of this having been made was sent to an address in Dublin at which the applicant had formerly been residing. On the 14th February 2001, a notice of motion was served on his behalf on the Minister and the Attorney General seeking inter alia
“An order extending pursuant to s.5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 the time within which the applicant may issue and serve a notice of motion seeking relief by way of judicial review.”

This application came on for hearing before Finnegan J., as he then was, and on 2nd April 2001, in a written judgment, he refused to make the order sought extending the time, but placed a 28 day stay upon the enforcement of the deportation order so as to enable representations to be made to the Minister, arising from the fact that the applicant’s partner was at that stage expecting the applicant’s child in June of this year. The applicant has appealed to this court from the refusal by the learned High Court judge to extend the time.

The applicant in the second case came to Ireland from Somalia on the 19th January 1997. He was refused refugee status on the 1st March 2000 and an appeal against that refusal was rejected on the 31st July 2000. On the 22nd December 2000, a notice of motion was issued and served on the respondents seeking an extension of the time within which to apply for relief by way of judicial review in respect of both the decision of the Minister refusing him refugee status and the decision on appeal. In respect of the former decision, the application was also refused by Finnegan J in a written judgment on April 2nd 2001. In the same judgment, he extended the time in respect of the decision on appeal pursuant to Order 84 Rule 21 of the Rules of the Superior Courts.

In the second case, arguments were then advanced to the learned High Court judge as to whether the leave of the High Court was required to the bringing of an appeal from his refusal to extend the time and, if so, whether such leave should be granted. In a written judgment delivered on the 10th May, he concluded that such leave was required and that it should not be granted in that case, since he was not satisfied that his refusal involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken from that decision to this court. He was, however, satisfied that his decision that such leave was required in the case of a refusal to extend the time did raise a point of law of exceptional public importance and gave leave to appeal that decision. As an appeal to this court was brought in each of these cases from the decision by the learned High Court judge refusing to extend the time, it is clearly convenient to determine at the outset the point common to both cases, i.e., as to whether such an appeal lay without the leave of the High Court.

At this point, the relevant statutory provisions should be set out in full.
Section 5(2) and (3) of the 2000 Act provides that

“(2) An application for leave to apply for judicial review under the Order [Order 84 of the Rules of the Superior Courts] in respect of any of the matters referred to in s.s.(1) shall
(a) 1be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the order concerned unless the High Court considers that it has good and sufficient reason for extending the period within which the application shall be made, and
(b) be made by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.
(3) (a) 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 except with the leave of the High Court which leave shall only be granted were the High Court certifies that its 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.
(b) This subsection shall not apply to a determination of the High Court insofar as it involves a question as to the validity of any law, having regard to the provisions of the Constitution.”

It is not in dispute that the acts in respect of which the extension of time for the institution of judicial review proceedings was refused were among the matters referred to in s.5(1).

Article 34.4.3º of the Constitution provides that
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law”.

The syntax of s.s.2(a) leaves something to be desired. The use of “shall”

in the last clause of subparagraph (a) was appropriate only if the imperative mood was being employed again. If the indicative mood was being employed, “will” would have been appropriate rather than “shall”. Presumably the subjunctive mood was intended and the closing words should read “should be made”.
The critical provision is, however, that contained in s.s(3)(a). I do not think that I do any injustice to the argument advanced on behalf of the applicants in saying that it rests essentially on the proposition that the “determination” referred to in that subparagraph is a final judicial conclusion, after an examination of the merits, of either an application for leave to apply for judicial review or the application for judicial review itself. An application for an order extending the period within which the application is to be made, on the other hand, does not necessarily involve any examination of the merits of the application and, accordingly, cannot be regarded as a “determination” of the application. Where the court decides that there is good and sufficient reason for extending the time, it must necessarily proceed to a second and, as was urged, separate or discrete application, i.e., as to whether leave should be granted and it was only the second such adjudication which could be said to be the determination of the application for leave within the meaning of s. 5(3)(a).

The policy considerations underlying these provisions were explained as follows in the decision of this court in In Re: Article 26 of the Constitution and s.s. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] IR 360 at p.392:
“..... the court is satisfied that the objectives of the Bill as regards the 14 day limitation period can be reasonably inferred from the provisions of the Bill. There is a well established public policy objective that administrative decisions, particularly those taken pursuant to detailed procedures laid down by law, should be capable of being applied or implemented with certainty at as early a date as possible and that any issue as to their validity should accordingly be determined as soon as possible. (Brady -v- Donegal County Council [1989] ILRM 282, Irish Asphalt Limited -v- An Bord Pleanala [1996] 2 IR 179 and KSK Enterprises Limited -v- An Bord Pleanala [1994] 2 IR 128 at p.135). Furthermore, it may be inferred from the Bill and the surrounding circumstances that the early establishment of the certainty of the decisions in question is necessary in the interests of the proper management and treatment of persons seeking asylum or refugee status in this country. The early implementation of decisions duly and properly taken would facilitate the better and proper administration of the system governing seekers of asylum for both those who are ultimately successful and ultimately unsuccessful.”

It would be remarkable if the Oireachtas, in seeking to attain those objectives, had severely circumscribed the right to appeal to this court from decisions by the High Court on the merits of applications for judicial review, but had allowed an unrestricted right of appeal where an applicant was, by definition, already out of time. It is all the more surprising when one has regard to the obvious fact that, given the momentous consequences for the persons concerned, decisions to refuse asylum or refugee status are decisions quintessentially of a nature calculated to give rise to judicial review proceedings and to an appeal to this court, almost as a matter of routine, where they are refused by the High Court on the ground that they are out of time. It is difficult to discern any rational basis for such a legislative choice by the Oireachtas and none was suggested in the course of argument in this court, other than the unquestionable importance of the conferring of a jurisdiction to extend time, in the context of the severe limitation on the right of appeal generally.

The latter is, no doubt, an important consideration. However, it must also be remembered that the order in respect of which it is suggested an unrestricted right of appeal was now to be given is an order of a discretionary nature in respect of which, prior to the decision of this court in Morelli, Vella -v- Morelli [1968] IR 11, the right of appeal to this court was regarded as in any event severely inhibited. The decision of this court that, having regard to the provisions of Article 34.4.3º, those restrictions must be regarded as having been swept away, left unaffected the general principle that different considerations were still applicable to appeals of that nature: see, in particular the observations of Budd J at p.29.

However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in this case, there is the additional factor that the right of appeal to this court provided for in Article 34.4.3º may only be removed or abridged by a statutory provision which is clear and unambiguous. (See The People (Director of Public Prosecutions) -v- O’Shea [1982] IR 384 and Hanafin -v- Minister for the Environment [1996] 2 IR 321.)

As already noted, in both of the cases under appeal, the applicant served a notice of motion seeking an order extending the time within which he might issue and serve a notice of motion seeking relief by way of judicial review. In the first case, the notice of motion was headed “in the matter of an intended judicial review...”. In his judgment dealing with the issue as to whether the leave of the High Court was required for an appeal, the learned High Court judge said:
“An application for an extension of time can be taken separately from the application for leave by a notice of motion seeking only that relief or can be sought as one of the reliefs in the notice of motion seeking leave. The procedure adopted should not be in any way determinative of the nature of the application and should not influence me in construing the Act”.

If it be the case that such an application can be made either separately in a notice of motion claiming that relief only or can be sought as one of the reliefs in the notice of motion seeking leave, I have no doubt that the learned High Court judge was correct in his view that the procedure adopted in any particular case cannot be determinative of the proper construction of the sections under consideration and, in particular, the issue that has arisen on this appeal.

The question as to whether such an application can be made separately was not the subject, it would seem, of any arguments in the High Court. Having regard to the course the proceedings have taken, it would clearly not be right for this court to decide the matter on the basis that no such application could be made as a separate application before any proceedings were in being, as was done here. I would, however, have serious doubts as to whether it could be so made. Section 5(3)(a) refers to two applications only, an application for leave to apply for judicial review and an application for judicial review itself. Similarly, s.5(2) refers to one application alone, an application for leave to apply for judicial review. There is nothing whatever in the section to indicate that an applicant, where he is out of time, may - still less must -make a preliminary application for an extension of time before any proceedings are in being.

No rules of court have been made prescribing the procedure to be adopted where the application for leave is out of time. There is, so far as I am aware, only one instance in which the Rules of the Superior Courts expressly authorise the making of an application where there are no proceedings in being i.e., where liberty is sought to issue and serve proceedings out of the jurisdiction. That rule simply reflects the circumspection with which, in the light of the well established principles of private international law, the courts will allow their processes to be used against the citizens of other jurisdictions. It is also the case that, in urgent ex-parte applications for interim injunctions, chancery judges have on occasions, when the central office is closed and the extreme urgency of the position requires it to be done, accepted an undertaking on behalf of the plaintiff to issue a plenary summons as soon as the office is open. I find it difficult to suppose that the entire framework of the statutory scheme under consideration must be read as permitting an application to be made even where no proceedings are in being. I would expressly reserve for consideration in a case where it is fully argued the question as to whether any such preliminary application can, in the absence of express statutory authorisation, be made where no proceedings are in being.

For the purposes of the present case, however, it is sufficient to say that it is not in any way a necessary part of the statutory scheme put in place by s.15 that the application for an order extending the time must be made at a stage when there is no application for leave in being and I see no reason to attribute any such intention to the legislature. Such a construction of the relevant provision would, indeed, only serve to frustrate the policy underlying these provisions to which I have already referred, i.e., to ensure the early implementation of decisions as to asylum or refugee status duly and properly taken. If, for example, the failure of the applicant to bring the application within the 14 day period was principally attributable to some error in administration on the part of the Minister and the latter was not raising any objection to the extension of time, it would be remarkable to impose on the applicant an obligation to bring a preliminary application to the court for an order extending the time involving wholly unnecessary further delay. I have no doubt that, where a notice of motion seeking relief by way of judicial review has not been issued within the 14 day period, the applicant may then issue and serve a notice of motion claiming the relief by way of judicial review together with an order extending the period within which the application may be brought. One would, of course, expect that part of the application to be dealt with before the court embarks on an adjudication of the issue as to whether leave to apply for judicial review should, in any event, be granted since the court’s decision on the extension of time issue may be - and I use the word advisedly - determinative of the issue as to whether leave should be granted to apply for judicial review.

This conclusion is unaffected by the particular language used in s.5(2), i.e.,
“An application for leave to apply for judicial review... shall.... be made within the period of 14 days...”

That does not in any way preclude the making of such an application after the period has expired incorporating a claim for an order extending the time. Such language is commonplace in limitation provisions, such as the Statute of Limitations 1957, where the language used is
“No action shall be brought.... after the expiration of .... years...”
It has never been suggested that the use of such language necessitates an application being made to the court before any such proceedings are issued. It is, of course, the case that, since such provisions are concerned with adversarial litigation, the action will not be dismissed as being out of time unless the statute is expressly pleaded. But that is not a distinction of any significance: we are also concerned here with adversarial litigation in which the Minister is in the posture of the defendant and it would be unlikely in the extreme that the court would decline to extend the time of its own motion where the Minister accepted that there was good and sufficient reason for the delay.

It is clear beyond argument that if the order extending the time can be included as one of the reliefs sought in a notice of motion seeking leave to being an application for judicial review and the decision to refuse such an order is properly regarded as determinative of the application for leave within the meaning of s.5(3)(a), the same consequences would have to follow, whatever the form in which the application was brought. One could not possibly attribute to the legislature an intention drastically to circumscribe the right of appeal from a refusal to extend the time in the case of one procedure but not in the case of the other.

The issue, accordingly, resolves itself into one as to whether, in a case where an applicant issues and serves a notice of motion after the expiration of the 14 day period seeking leave to apply for judicial review and an order extending the time for making the application, a decision of the High Court to refuse to grant an extension constitutes the “determination” by that court of the application for leave.

It is relevant to note, in this context, that the application for leave is not made at the stage when it is moved in court: it is made when the notice of motion is filed in the central office and served on the relevant respondents. That was so held by this court in KSK Enterprises Limited -v- An Bord Pleanala [1994] 2 IR 128, construing the somewhat analogous provisions of s.82 of the Local Government (Planning and Development) Act 1963 as amended by s.19(3) of the Local Government (Planning and Development) Act 1992. Under that legislation, an application for leave to apply for judicial review in respect of certain planning decisions had to be made within the period of two months commencing on the date on which the decision was given. This court rejected an argument that the application for leave was not made until such time as it was actually moved in court or, at the least, appeared in a court list and was accordingly out of time if not “made” in that sense within the two month period. If the applicants in this case had filed and served a notice of motion seeking relief by way of judicial review and an order extending the time within which it could be made, that application would then have been “made” within the meaning of s.5(2)(a), although the actual hearing of the application in court would not have taken place in the ordinary way until some time later. If, however, the application for leave is “made” within the meaning of s.5(2)(a) at that point in time, it follows inevitably that it must at some stage thereafter be the subject of a “determination” within the meaning of s.5(3)(a). It seems difficult to resist the conclusion that where the High Court is not satisfied that there is good and sufficient reason for extending the period within which the application should be made, the application for leave to apply for judicial review is thereby necessarily determined and, in the language of the section, finally determined.

The applicants relied on a statement in the judgment of this court In Re: Article 26 of the Constitution and In Re: s.s. 5 and 10 Illegal Immigrants (Trafficking) Bill 1999 that:
“There is nothing in the section which would prohibit the person concerned from applying for an extension of the 14 day period before that actual 14 day period had elapsed.”

That dictum did not form part of the ratio of that decision and, to the extent that it lends support to the proposition that the putative plaintiff/applicant in any proceedings can make an application to the court before the proceedings are instituted without any express statutory authorisation, might require reconsideration. It is, however, relevant to point out that what was under consideration at that point in the judgment was the relatively lengthy time frame within which, in the normal course of events, applications for asylum are generally under consideration. In addressing the argument that the limitation period was unduly short, the court emphasised that a person would have initiated the entire procedure at least 5 weeks prior to the making of the deportation order and that this was indeed the statutory minimum: in practice, as was made clear in the judgment, the period is usually significantly longer. So much so, indeed, that a putative applicant for judicial review would, in the typical case, be well aware of the matters which he/she would wish to place before the court in an application for judicial review. Such a person might well issue the application in a relatively bald form, including a claim for an order extending the time, before the expiration of the 14 day period but defer serving it until such time as he/she had assembled the materials which it was thought necessary to place before the court. I am satisfied that no greater significance than that can be attached to that particular observation.

It was argued that, where such an application was made before the expiration of the 14 day period and refused by the High Court, an appeal would inevitably lie to this court, since it could not be said that the decision of the High Court constituted a determination of the application for leave. In the event of the High Court refusing to extend the period, it would still be possible for the applicant to apply for leave before the expiration of the 14 day period and hence the decision of the High Court was not in any sense determinative of that application.

The fact, however, that the decision by the High Court of an application brought within the 14 day period to extend the time is not determinative of the application for judicial review is of no assistance to the applicants in the present case. It is not determinative in such a case, precisely because it is, in theory at least, still possible for the applicant to apply for judicial review before the expiration of the 14 day period. That is not the case, where, as here, the application for leave is not brought until after the expiration of the 14 day period. In such a case, the decision by the court that there is not good and sufficient reason for extending the time would appear, on one view, to be determinative of the application for leave itself.

The suggestion that the Minister has an untrammelled right to appeal from an extension of the time and that to deny the applicant a corresponding right of appeal from a refusal to extend the time would be to construe the provisions in an invidious and discriminatory fashion does not withstand close scrutiny. Where an order extending the time is one of the reliefs sought in the application for leave, the granting by the High Court of such an order will be followed by an adjudication on the merits of the application. If the application for leave is then granted, that is determinative of the application and the Minister may only appeal with the leave of the High Court. If the application for leave is not granted, any appeal by the Minister from that part of the High Court order which extended the time would be moot and could not be entertained by this court. The supposed anomaly can, accordingly, only arise where the applicant has made his application by way of a distinct preliminary application to the court before any proceedings are even issued. Assuming that such a procedure is permissible - and I reiterate my doubts as to whether it is - there is nothing invidious or discriminatory in permitting the Minister to appeal from the decision of the High Court to grant the extension: the applicant can avoid any such invidious or discriminatory result by simply incorporating his claim for an order extending the time in his application for leave. I know of no reason why he should not bring his proceedings in that form and none has been suggested.

The applicants also sought to rely on the recent decision of this court in G.K. & M.M. and Z.M. & P.K. -v- The Minister for Justice, Equality and Law Reform and Others (Unreported; judgment delivered 17th December 2001). In that case, an application to the High Court for leave to extend the time to apply for judicial review was granted in the High Court but leave was given to the respondents to bring an appeal to this court. The application related to two decisions, in respect of the first of which this court held that no basis for extending the time had been established. In relation to the second, a question arose as to whether, assuming the delay in making the application was excusable, the court, in considering whether the extension of time should be granted, should have regard to the merits of the application for leave itself. It was held by this court that, in circumstances where the court is called upon to exercise a jurisdiction of this nature, the merits of the substantive application may be relevant: thus, in the case of a clearly unarguable claim, there could normally be no good and sufficient reason for extending the time.

The applicants rely in particular on two passages in the judgment of Hardiman J, with whom Denham J and Geoghegan J agreed. In the first, speaking of the power of the High Court to extend the time, he said:
“This is a special statutory jurisdiction and it is in my view sui generis. Elucidation of the principles governing its exercise may be drawn from the jurisprudence which has developed in relation to other powers of a cognate nature, but none are directly analogous. Examples include the jurisdiction to extend time for appealing, or for the taking of a particular step in litigation and the jurisdiction to strike out a claim in the exercise of the court’s inherent jurisdiction. These various powers are not directly analogous to each other.”

That passage does not seem to me to be of any assistance to the applicants in the present case. The fact that the jurisdiction conferred on the court to extend the time is special in its nature and sui generis has no relevance to the question as to whether, where the court declines to exercise it in favour of an applicant, its decision can be said to be determinative of the application for leave itself.

The applicants also relied on the following passage in the judgment of Hardiman J:
“On the hearing of an application such as this it is of course impossible to address the merits in the detail [in] which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition, of course, the question of the extent of the delay beyond the 14 day period and the reasons if any for it must be addressed.”

It would appear that in that case the application to extend the time had been made in advance of the application for leave itself. However, it is obvious that no issue of any sort arose in that case as to whether an order extending the time could also be claimed in the notice of motion seeking leave to apply for judicial review and the court was not concerned with the issue that has arisen in this case. This passage lends no support to the arguments on behalf of the applicants in the present case.

I would, accordingly, have considerable doubts as to whether an application for leave to apply for judicial review only comes into existence at the stage at which the court holds that there was good and sufficient reason for bringing it outside the limitation period. If that is not how the section should be read, it is difficult to see how the court’s refusal to extend the time can be other than determinative of the application for leave. However, as the judgments of other members of the court demonstrate, an argument can undoubtedly be advanced with some plausibility that it cannot be said to have been made until after the court has extended the time and that, accordingly, the refusal to extend the time cannot be regarded as determinative of the application for leave. In these circunstances, it follows inevitably that the provisions in question cannot be regarded as having clearly and unambiguously excluded the constitutional right of appeal to this court.

I would, accordingly, allow the appeals and proceed to consider whether there were good and sufficient reasons in either or both cases for extending the time.

JUDGMENT delivered the 30th day of January, 2002 by FENNELLY J.

I agree with the judgment of Geoghegan J. These additional remarks concern the nature of the right of appeal with which this case is concerned.
Section 5(1) of the Illegal Immigrants (Trafficking) Act, 2000 restricts to fourteen days the period within which a person wishing to challenge one of the measures there listed must apply for judicial review. This is, without question, a severe restriction on the constitutional right of access to the courts of affected persons. I do not understand the judgment of the Court on the reference to it by the President pursuant to Article 26 of the Constitution (In the matter of the Illegal Immigrants (Trafficking) Bill, 2000 ) to have questioned this proposition as it was advanced to it in the arguments of counsel assigned by the Court (see page 389 of the judgment). Counsel had placed particular reliance on the judgment of Costello J in Brady v Donegal County Council [1989] I.L.R.M. 282. In that case the plaintiff had challenged the constitutionality of the two month time limit imposed by section 82 (3A) of the Local Government (Planning and Development) Act, 1963 as amended by section 42 of the Local Government (Planning and Development) Act on the bringing of proceedings to question the validity of planning decisions. Costello J said:

“A law which imposes a very short time limit which may well deprive a plaintiff of a judicial remedy before he knew he had a cause of action can obviously cause considerable hardship. But if the plaintiff's ignorance of his rights during the short limitation period is caused by the defendant's own wrong-doing and the law still imposes an absolute bar unaccompanied by any judicial discretion to raise it there must be very compelling reasons indeed to justify such a rigorous limitation on the exercise of a constitutionally protected right. The public interest in (a) the establishment at an early date of certainty in the development decisions of planning authorities and (b) the avoidance of unnecessary costs and wasteful appeals procedures is obviously a real one and could well justify the imposition of stringent time limits for the institution of court proceedings. But if the statute now being considered contained the suggested saver these objectives could be achieved in the vast majority of cases. Certainly the public interest would not be quite as well served by a law with the suggested saver as by the present law, but the loss of the public interest by the proposed modification would be slight while the gain in the protection of the plaintiff's constitutionally protected rights would be very considerable. I conclude therefore that the present serious restriction on the exercise of the plaintiff's constitutional rights imposed by the two-month limitation period cannot reasonably be justified. Unmodified, the subsection is unreasonable; being unreasonable it is unconstitutional, and I will so declare."

Referring to the restriction as so described, the Court in the Article 26 reference accepted that where “a limitation period is so restrictive as to render access to the courts impossible or excessively difficult it may be considered unreasonable in the sense Costello J. found the rigid rule in Brady v Donegal County Council... to be unreasonable, and therefore unconstitutional.” (page 393).
The Court had pointed out, however, that, as Costello J had also emphasised, the legislation impugned, in that case, contained “ no provision permitting the courts to extend the time for the bringing of judicial review proceedings by affected persons who, through no fault of their own, were unaware of relevant facts until after the expiration of the limitation period.” The presence in the section of the act under review of such a power to extend time was, it appears to me, crucial to the Court’s conclusion that the limitation was, in spite of Brady, constitutional. The Court continued (page 393):

"In applying that test in this case, the court acknowledges that there are likely to be cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own, (as in Brady v. Donegal County Council), are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days. This is a situation with which the courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged by the Bill is not the shortest with which the courts have had to deal.

Moreover, the discretion of the court to extend the time to apply for leave where the applicant shows "good and sufficient reason" for so doing is wide and ample enough to avoid injustice where an applicant has been unable through no fault of his or hers, or for other good and sufficient reason, to bring the application within the fourteen day period. For example counsel assigned to the court have argued that the complexity of the issues, or the deficiencies and inefficiencies in the legal aid service, may prevent the applicant from being in a position to proceed with his application for leave within the period of fourteen days.

However, where this has occurred through no fault of the applicant, it may be advanced as a ground for extending the time for applying for leave for judicial review.

The court is satisfied that the discretion of the High Court to extend the fourteen day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights.”

The power of the court to extend the time for the bringing of a judicial review application is, as is clear from the above passage, of potentially decisive importance for the protection of the constitutional right of access to the courts of persons affected by decisions vital to their interests.
The Court did not, however, consider the question which is now before the Court. That question - whether the right of appeal to the Supreme Court is restricted by being made subject to the need for the leave of the High Court - is, however, closely linked to the Court’s conclusion that the fourteen-day limitation is not so unfair and unreasonable as to be unconstitutional because it is rescued by inclusion in the legislation of what Costello J., in the passage quoted above, described as a “saver.” That is so because the power to extend the time is the key by which an affected person may gain access to the court in the form of a right to make an application for judicial review.
I do not think it is straining language to say that the refusal of an extension of time is not a “determination [by] the High Court of an application to apply for judicial review...” for the purposes section 5(3)(a) of the act. There is, I would agree, considerable force in the view of the Chief Justice that a decision to refuse an extension of time has the effect of determining the application, where, as here, the application is made out of time and cannot succeed unless the High Court agrees to enlarge the time. However, several considerations of principle demonstrate that the application for an extension of time is distinct from the substantive application for leave to apply for judicial review. The need to apply for an extension of time does not, as a matter of principle arise in every case. It arises only where the applicant has been or perceives himself as being unlikely to be in a position to make the leave application in good time. In practice, of course, it is the former situation which almost invariably occurs. It is rare indeed that an application for an extension is made within the permitted period. Where that period is a mere fourteen days, it will be extraordinarily unlikely. It is interesting to note, however, that the standard rule of the European Court of Justice is that an application for an extension of the time within which to make an application or to file a pleading will not be entertained outside the time.
The fact that the extension of time application is, in principle, distinct is illustrated by the fact that the Court accepted in the Article 26 reference, as the Chief Justice noted, that a separate application could be made for an extension within the fourteen day period. This point is further underscored in the judgment of Geoghegan J., where he points to the distinct character of the matters which will need to be considered on such an application an extension of time. This view gains further support from the remark of Hardiman J. that this "is a special statutory jurisdiction which is in [his] view sui generis". (GK, MM and ZM v PK, Supreme Court, 17th December 2001). There is a further decisive consideration. As Geoghegan J. also points out, where the respondent objects to an order which is made granting an extension, there is nothing to prevent that party from appealing such an order. Section 5(3)(a) does not apply. The reason is that the order granting the extension of time does not determine whether leave will be granted. Some troublesome anomalies flow from treating the refusal of an extension of time as a determination of an application for leave. Firstly, it is clear, that an order granting an extension is not to be treated as amounting to the determination of an application. It seems equally clear that an order refusing an extension will be treated as not determining the application for leave, if the extension application is made within the fourteen days. On the other hand, an order refusing leave after the expiry of the time will be treated as determining the application for leave. In my view, that interpretation of the section is both inconsistent and discriminatory. It is not an acceptable approach to the interpretation of a provision claimed to limit the right of an affected person to access to the courts.
It is not necessary for me to repeat the references made by Geoghegan J. to the decided cases on the interpretation of Article 34 section 4 subsection 3 of the Constitution. These cases show that this Court has been correctly vigilant in its interpretation of this important constitutional guarantee of access to the court, whose establishment is mandated by the Constitution as the final appellate court. This is not to preserve some institutional prerogative of the Court itself, but to protect the constitutional right of litigants to bring an appeal against judicial decisions affecting them. The notion that double degree of jurisdiction is an important part of the normal judicial system is widespread in modern legal systems. It is not necessarily a fundamentally guaranteed right (see Toth v Austria 14 EHRR 551 (1991) ). It is, however, recognised throughout the legal structure of this State. It should not be lightly encroached upon or invaded by ambiguous language. The least that is required is that, if the right is to be excluded, this should be done by clear and unambiguous words.
I agree, therefore, with Geoghegan J that the appeals should be entertained..