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Cite as: [2003] 3 IR 12, [2003] IESC 22

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THE SUPREME COURT

No. 322/2002

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

BETWEEN/

D.B.

Claimant/Respondent

and

THE MINISTER FOR HEALTH AND CHILDREN

AND THE HEPATITIS C COMPENSATION TRIBUNAL

Appellants

[Judgments delivered by Denham J., McGuinness J., and Geoghegan J.; Murray J. and Hardiman J. agreed with all judgments.]

Judgment delivered on the 26th day of March, 2003 by Denham J.

^st

^nd

^th

High Court Declarations

On the 11^th September, 2002, the High Court declared that:

(i) Section 5(9)(a) of the Hepatitis C Compensation Tribunal Act, 1997 does not give rise to a statutory time limit of one month on the making of an appeal to the High Court;

(ii) The acceptance of an award of the Tribunal pursuant to s. 5(9) of the Act does not exclude an appeal to the High Court under s. 5(15) of the Act;

(iii) The Tribunal does not have a locus standi to appear on this application or in this appeal;

(iv) This court has jurisdiction under O. 122(7) of the Rules of the Superior Courts to extend time for the beginning of this appeal;

(v) Time for the bringing of this appeal expired under O. 105A r. 2(1) of the Rules of the Superior Courts on the 22^nd November, 1998;

(vi) This Court will exercise its discretion in favour of extending the time for the bringing of this appeal to the 23^rd April, 1999.

4. High Court Leave to Appeal

The High Court gave leave, pursuant to s. 5(19) of the Hepatitis C Compensation Tribunal Act, 1997, for an appeal to be taken to the Supreme Court on the following specific questions of law:

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time specified in s.5(9)(a) of the 1997 Act has passed?

(ii) If not, is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

(iii) Does the Tribunal have a locus standi to appear in an application to the High Court or in an appeal?

The High Court ordered that the Minister and the Tribunal have leave to appeal the decision to the Supreme Court on the said specified questions of law.

5. Grounds of appeal

The Minister appealed on the following grounds:

1. That the learned High Court judge failed to apply the correct test in determining whether or not the time limit set out in s. 5(9)(a) of the 1997 Act was mandatory or merely directory;

2. That the learned High Court judge erred in law in holding that the claimant's appeal from the award of the Tribunal was not barred notwithstanding that the time prescribed by s. 5(9)(a) of the 1997 Act had already expired;

3. That the learned High Court judge erred in law in failing to give the words used in s. 5 of the 1997 Act their natural and ordinary meaning. The learned High Court judge did not correctly construe and interpret the provisions of s. 5 of the 1997 Act;

4. That the learned High Court judge erred in law in failing to hold that s. 5(9)(a) of the 1997 Act imposes a statutory time limit of one month for the bringing of appeals against awards of the Tribunal;

5. That the learned High Court judged erred in law and in fact in holding, in relation to the time limits for appeal, that the intention of the Oireachtas was to treat equally those claimants whose claims had been dealt with by the Tribunal established by the 1997 Act and those whose claims had been dealt with by the non-statutory tribunal in existence prior to the enactment of the 1997 Act;

6. That the learned High Court judge failed to have regard to the difference in position between those claimants who, prior to the 1997 Act, had accepted awards from the non-statutory tribunal and those claimants who, subsequent to the enactment of the 1997 Act, obtained an award from the Tribunal established pursuant to that Act;

7. That the learned High Court judge erred in law in holding that the High Court had jurisdiction under the Rules of the Superior Courts to extend the time for appealing an award of the Tribunal;

8. Further or in the alternative, that the learned High Court judge erred in law and in the exercise of his discretion by extending the time for bringing an appeal by the claimant to the High Court;

9. That the learned High Court judge erred in law in the manner in which he interpreted O. 105A of the Rules of the Superior Courts;

10. That the learned High Court judge erred in law in holding that the acceptance by the claimant of the award of the Tribunal under s. 5 of the 1997 Act did not preclude the claimant from appealing the award to the High Court.

The Tribunal appealed on the following grounds:

1. That the learned High Court judge erred in law in holding that O. 105A r. 3(a) of the Rules of the Superior Courts does not make the Tribunal a party to an appeal or application or give it a locus standi in any appeal or application.

2. That the learned High Court judge misdirected himself in law and erred in law in holding that the full facts of the proceedings before the Tribunal are ascertainable in the High Court without the involvement of the Tribunal, and that consequently the Tribunal was not a party to, or did not have locus standi to participate in the application.

3. That the learned High Court judged erred in law in holding that the Tribunal has no interest in the outcome of the appeal or any application preliminary thereto and that consequently the Tribunal was not a party to, or did not have locus standi to participate in, the application.

4. That the learned High Court judge erred in law in holding that the Tribunal is not a party to this appeal and does not have a locus standi in this appeal and application.

5. That the learned High Court judge erred in law in construing and interpreting s. 5 of the 1997 Act and in particular s. 5(9)(a) notwithstanding the natural and ordinary meaning of the words used therein to permit the Claimant/Respondent to make application to the High Court notwithstanding the expiry of the time prescribed by the said s. 5 and/or the acceptance by him of the Tribunal's award within the said time.

6. That the learned High Court judged erred in law in holding that the claimant's appeal from the award of the Tribunal was not barred notwithstanding the expiry of the time prescribed by s. 5 of the 1997 Act and/or the acceptance by him of the Tribunal's award within the said time.

7. That the learned High Court judge misdirected himself and erred in law in failing to hold that s. 5(9)(a) of the 1997 Act imposes a statutory time limit of one month on the bringing of appeals against awards of the Tribunal.

8. That the learned High Court judge erred in law in holding that O. 105A r. 2(1) of the Rules of the Superior Courts creates a one-month time limit for appeals taken by claimants against awards of the Tribunal in the absence of any time limit contained in s. 5(9)(a) of the 1997 Act;

9. That the learned High Court judge erred in law in holding that the Court had jurisdiction under O. 122(7) of the Rules of the Superior Courts to extend the time for the bringing of the appeal;

10. That the learned High Court judge erred in law in the manner in which he interpreted s. 6 of the 1997 Act.

11. That the learned High Court judge erred in law in holding with regard to the applicable time limits for an appeal that it was intended by the Oireachtas to achieve parity or equality between claims disposed of under the non-statutory scheme in existence prior to the 1^st November, 1997 and claims disposed of under the statutory scheme established on the 1^st November, 1997.

12. That the learned High Court judge erred in law in holding that it was not the intention of the Oireachtas to create a one month statutory time limit on appeals to the High Court pursuant to s. 5(9)(a) of the 1997 Act.

13. That the learned High Court judge erred in law in holding that an acceptance of an award pursuant to . 5(9)(a) of the 1997 Act does not exclude an appeal being made against that award to the High Court.

6. Facts

The claimant is a person entitled to compensation from the State by reason of the circumstances of his having contracted Hepatitis C. On the 7^th March, 1996, the claimant applied to the non-statutory Tribunal established to compensate certain persons who had contracted Hepatitis C from the use of certain blood products supplied within the State. On the 1^st November, 1997, the non-statutory Tribunal was dissolved and the statutory Hepatitis C Compensation Tribunal was established in accordance with the Hepatitis Compensation Tribunal Act, 1997, hereinafter referred to as the Act of 1997. Section 6 of the Act of 1997 provided for the dissolution of the non-statutory Tribunal on establishment day. The Act of 1997 also provided that any claim which immediately before the establishment day was pending before the non-statutory Tribunal should be heard and determined as if it was a claim under the Act of 1997. The claimant's claim had been commenced but not heard before the establishment of the Tribunal. Pursuant to s. 6(2) of the Act of 1997, the claimant's claim was deemed to be a claim made under the statutory Tribunal. The claimant's claim was heard by the Tribunal on the 4^th November, 1997 and he was awarded compensation. On the 24^th day of November, 1997, the claimant made a written acceptance of the award. Under s. 5(10)(a) of the Act of 1997, the claimant was required (as a condition of accepting the award) to agree in writing to waive any right of action which he might otherwise have against any party and to discontinue any other proceedings instituted by him arising out of his infection with Hepatitis C. On 22^nd April, 1999, the claimant brought the Notice of Motion to appeal the award which is in issue in this appeal. I shall address the three questions in the order set out by the High Court.

7. First question

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time specified in s. 5(9)(a) of the 1997 Act has passed?

In order to determine the first question it is necessary to construe the words of

s. 5(9)(a) of the Act of 1997 and then to apply the construction to the claim of the claimant. This is the core of the case. The case turns on the interpretation of this section.

The Act of 1997 applies to the claimant, even though he made his claim initially to the non-statutory Tribunal. This arises because of s. 6 of the Act of 1997 which states:

"6. – (1) On the establishment day the non-statutory scheme Tribunal shall stand dissolved.

(2) Any claim which, immediately before the establishment day, is pending before the non-statutory scheme Tribunal shall be heard and determined as if it was a claim made under this Act.

(3) A person who has had a claim for compensation determined by the non-statutory scheme Tribunal may -

(a) apply to the Tribunal to hear evidence at the discretion of the Tribunal which was not made available to the non-statutory scheme Tribunal in calculating the award made to that person,

(b) apply to the Tribunal to hear evidence on any statutory or non-statutory benefits which she or he has received or is entitled to receive which were taken into account by the non-statutory scheme Tribunal in assessing an award to that person,

(c) apply to the Tribunal for an award of aggravated or exemplary damages or an amount to be paid to her or him from the Fund,

(d) apply to the Tribunal for the adjustment of any award made by the non-statutory scheme Tribunal to an award to which she or he would have been entitled had section 2(1)(a) of the Civil Liability (Amendment) Act, 1996, been in force at the time of making the award, or

(e) appeal an award."

The establishment day was 1^st November, 1997 and on that day the non-statutory scheme Tribunal was dissolved. The claim of the claimant was immediately before the establishment day pending before the non-statutory scheme Tribunal and thus s. 6(1) and s. 6(2) apply to the claim of the claimant. His claim was heard and determined as if it was a claim made under the Act of 1997. Thus s. 5(9)(a) of the Act of 1997 applies to the claim of the claimant. However, s. 6(3) does not apply to the claimant as his claim was not determined by the non-statutory scheme Tribunal.

8. Construction of the statute

The Act of 1997 provides some definitions. These are to be found in s. 1. Relevant definitions include the following; "Award" means an award of compensation. This is relevant as s. 5(9)(a) of the Act of 1997 states:

"… where the Tribunal makes an award …"

Thus the award in the subsection is an award of compensation. Section 1 defines "prescribed" as meaning prescribed by regulations made by the Minister. "The Minister" means the Minister for Health. Thus the term "prescribed" in the subsection refers to prescribed regulations by the Minister for Health. "The non-statutory scheme Tribunal" is defined as the Compensation Tribunal for certain persons who have contracted Hepatitis C within the State from Anti-D Immunoglobulin, whole blood or other blood products established by the Minister on the 15^th December, 1995.

It is necessary to consider the precise words of s. 5(9)(a). In construing statutes, words should be given their natural and ordinary meaning. The approach taken by the courts to the construction of statutes was described by Blayney J. in Howard v. Commissioners of Public Works [1994] 1 I.R. 101. He emphasised that the cardinal rule for the construction of statutes was that they be construed according to the intention expressed in the acts themselves. If the words of the statute are precise and unambiguous then no more is necessary than to give them their ordinary sense. When the words are clear and unambiguous they declare best the intention of the legislature. If the meaning of the statute is not plain then a court may move on to apply other rules of construction; it is not the role of the court to speculate as to the intention of the legislature. In that case I held also that statutes should be construed according to the intention expressed in the legislation and that the words used in the statute declare best the intent of the Act. I took a similar approach in M. O'C v. Minister for Health (Unreported, Supreme Court, 31^st July, 2001) holding that it was well established that in construing statutes effect should be given to clear and unambiguous words, for the words of the statute best declare the purpose of the Act. In addition, in that case, I noted that a purposive approach would have yielded a similar result.

Section 5(9)(a) of the Act of 1997 states:

"Subject to subsection (13), where the Tribunal makes an award to a claimant, the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under sub-s. 15."

The words in s. 5(9)(a) are plain, they are precise and unambiguous. Thus the natural and ordinary meaning of the words apply for they declare best the intention of the legislature. A literal approach should be taken to the section. I shall consider the section word by word and its application to the claimant.

The words "subject to subsection (13)" are not directly relevant to this case as sub-s. 13 refers to an award to a minor and the claimant is not a minor. The words "where the Tribunal makes an award to a claimant" are plain and clear. The "award" as defined in the Act of 1997 means an award of compensation. An award of compensation was made by the Tribunal to the claimant in this case on 4^th November, 1997 and notice of the making of the award was sent by the Tribunal to the claimant on the 6^th November, 1997.

The words "the claimant shall have a period of one month" are clear. This initial time span available to the claimant is one month. Section 5(9)(a) provides that the claimant "shall" have a period of a month (or a greater time as prescribed by the Minister for Health). The period of one month is an integral and indispensable part of the scheme. The words are plain and unambiguous. It is a clear statutory time limit for the scheme. It is a statutory time bar. I am satisfied that this is a mandatory provision. I am satisfied that the time limits expressed in the subsection are mandatory express statutory time limits. Thus actions must occur within these set limits. In fact the claimant did accept the award on 24^th November, 1997.

Section 5(9)(a) provides for an extended time limit. The words "or such greater period as may be prescribed from the date of receiving notice of the making of the award" are governed by the term "prescribed". "Prescribed" has been specifically defined in the Act of 1997 as being prescribed by regulations made by the Minister for Health. Subsequent to the acceptance of the award by the claimant the Minister did prescribe an extended time; see Hepatitis C Compensation Tribunal Act, 1997, Regulations 1998 (S.I. No. 195 of 1998). This extension of time is analysed by McGuinness J. and Geoghegan J. in judgments in this case. I agree with their analysis and that the time extended by the statutory instrument was to 23^rd November, 1998. However, the claimant did not appeal within such a time. The claimant appealed by Notice of Motion dated 22^nd April, 1999.

The period prescribed in the subsection was thus one month or the extended time prescribed by the Minister. There follow then key words of s. 5(9)(a). These words are:

". . . during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15)."

Once again these are clear words. They are precise and there is no ambiguity. The claimant may make a decision about the award. He may decide in writing. The claimant has three choices. They are presented as alternatives. The claimant may decide to accept or reject the award. Alternatively, the claimant may decide to appeal the award under sub-s. 15. Subsection 15 states:

"An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross-appeal any such appeal."

This provides for an appeal to the High Court in respect of any decision. It is an appeal within the scheme.

The claimant is thus given three alternative choices in relation to the award, one of which may be an appeal. However, the Oireachtas clearly established a time limitation for the decision as to the award under s. 5(9)(a). This time factor is an important aspect of this scheme of compensation. The scheme and section requires a clear situation at the termination of the time allotted: the claimant may have decided to accept or reject the award or alternatively to have appealed the award.

The fact that a clear decision is sought to be established under the statutory scheme in the time allotted is emphasised by s. 5(9)(b). By that section if a claimant has neither accepted nor rejected an award or appealed the award, the claimant shall be deemed to have rejected the award. Thus, the statute establishes a scheme where within the month, or the period prescribed, a clear decision is reached by the claimant or is deemed to be reached by law. In effect, either the claim of the claimant then proceeds in the Tribunal scheme or it does not. The claim is either 'tribunalised' or it is not.

Whereas s. 5(13) is not directly relevant to the claimant's case it is a useful analogy in that it emphasises the establishment of a clear statutory scheme requiring that the matter be determined within the specified time. Thus s. 5(13) provides:

"(13) In the case of an award to a claimant who is a minor or in the case of a settlement for a claimant who is a minor, the acceptance of the award shall be subject to the approval of the High Court, which approval shall be sought within one month of the notification of the making of the award, and the claimant shall have one month from the date of such approval within which to accept or reject such approved award. The High Court may direct that where it considers any part of such an award, in respect of aggravated or exemplary damages, is too low, that the claimant shall apply to have a payment made from the Reparation Fund in lieu of such damages."

Thus, here too clear time limits are established and required to be met.

In essence, s. 5(9)(a) of the Act of 1997 gives to a claimant the option of using the Tribunal to achieve an award in lieu of going to the courts. It is a statutory scheme. The scheme established in clear and unambiguous language in s. 5(9)(a) that there is a time limit within which to make a decision under the scheme. There is a fluidity at the initial steps of the scheme. Claimants may apply to the Tribunal for an award. This does not affect their right to apply to court. Indeed, time is frozen while such a claim is made. However, once the award is made to the claimant, the claimant has the specified time in which to decide to stay within the tribunal system or not. There are three choices and they are put in the form of two main alternatives under the statute. Claimants may either accept or reject the award. Alternatively they may appeal the award under sub-s. 15. The words are plain and clear. The claimant must do one of these three alternatives. If he accepts the award he has taken one of the alternatives and cannot proceed otherwise. If he rejects the award he has made his choice and may then move into another arena. If he appeals then he has chosen to stay within the Tribunal scheme; he has tribunalised his claim. However, these choices must be taken within the time frame clearly set out in the Act. If he does not made a choice then, as set out previously, he is deemed to have rejected the award. Thus under the scheme a decision either in fact or by law is made within the time frame of the subsection.

The words of s. 5(9)(a) are clear and unambiguous. The words mean what they say. Consequently a literal approach should be taken to their construction. Applying a literal interpretation it is clear that the Act sets a mandatory time limit within which a decision as to the award had to be made by the claimant.

The claimant received an award. The claimant decided to accept the award, his decision was made within the one month period. This was one of the three alternative choices which he was entitled to make within one month. Later the Minister extended the time for appeal. The claimant did not purport to appeal within that time. It is clear from the plain words of s. 5(9)(a) that a claimant is barred from appealing an award of the Tribunal after the time set out in the statutory scheme has elapsed. Thus I would answer the first question affirmatively.

I am satisfied that the words in s. 5(9)(a) of the Act of 1997 are clear and unambiguous and that the learned trial judge erred in taking a purposive approach to the interpretation of the statute. Further, the learned trial judge erred in analysing the statute in a general way from a concept of parity or equality between claimants proceeding at different times and under different provisions. The plain language of the statute makes the intention of the Oireachtas clear. The Oireachtas treated applicants under the different Tribunals differently. The schemes were different. The clear and unambiguous words of the statute set out the law. The Oireachtas intended to treat non-statutory scheme Tribunal claimants in a different manner as to time limits within which to appeal. This was provided for in the plain language of s. 5(9)(a).

9. Second Issue

If not, is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

As I have answered the first question affirmatively, the second question does not require a decision. However, for the sake of completeness, I am satisfied that, as is apparent from the construction of the section set out previously in this judgment, applying the same construction of the section results in an affirmative answer to this question. As stated previously, under the statutory scheme the claimant has three choices after an award is made. These choices are in the alternative. These choices have to be made within the mandatory time frame. The choices are to accept or reject the award. Or, alternatively, to appeal the award. Consequently, a claimant who has accepted an award of the Tribunal is barred from appealing the award. As the claimant accepted the award in this case he is barred from appealing the award.

10. Third Issue

Does the Tribunal have a locus standi to appear in an application to the High Court or on an appeal?

The Minister did not object to the Tribunal being heard but made no submissions in relation to this issue. On behalf of the claimant submissions were filed which concluded that in the absence of any specific provision allowing the Tribunal to appeal or some other overreaching interest of justice demanding an appearance on the appeal, the Tribunal has no locus standi.

Order 105(A) r. 3(4) of the Rules of the Superior Courts requires that the Tribunal be served with a copy of the appeal. I am satisfied that in this case the service of the appeal serves to make the Tribunal a party. Order 125 of the Rules of the Superior Courts defines a 'party' as including:

"… every person served with notice of or attending any proceedings, although not named on the record."

In this case the Tribunal was served with the pleadings. Consequently the Tribunal has locus standi.

While it may be that in many cases the Tribunal would have nothing to add to the argument in others it may have a very significant submission or argument to present to a court. This situation would include such cases as where the functioning and administration of the Tribunal are in issue. As the Tribunal is an independent Tribunal the Minister would not be in a situation to represent the Tribunal. It is for the Tribunal to ensure that the procedure is correctly applied and implemented in the Tribunal, and, consequently, that it be heard in the appeal process. Thus I am satisfied that the Tribunal has a locus standi to appear in an application to the High Court or on an appeal.

11. Conclusion

I am satisfied that the answers to the questions specified by the High Court should be in the affirmative, as follows:

(i) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time specified in s. 5(9)(a) of the Act of 1997 has passed?

Answer: Yes.

(ii) [If not], is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

Answer: Yes.

(iii) Does the Tribunal have a locus standi to appear in an application to the High Court or in an appeal?

Answer: Yes.

Consequently, I would allow the appeal.

THE SUPREME COURT

No. 322/2002

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF THE HEPATITIS COMPENSATION TRIBUNAL ACT, 1997

AND IN THE MATTER OF SECTION 6(3)(E)

AND IN THE MATTER OF SECTION 5(15) OF THE HEPATITIS COMPENSATION ACT, 1997

BETWEEN

D.B.

CLAIMANT/RESPONDENT

AND

THE MINISTER FOR HEALTH AND CHILDREN AND THE HEPATITIS C COMPENSATION TRIBUNAL

APPELLANTS

Judgment of Mrs Justice McGuinness delivered the 26th day of March 2003

This is an appeal by the Minister for Health and Children, the respondent/appellant ("the Minister") and the Hepatitis C Compensation Tribunal ("the Tribunal") from the judgment of the High Court (O'Neill J.) delivered on the 31^st July 2002.

Background

The legislative and factual background to the proceedings is set out by O'Neill J. in his judgment. There is also further reference to it in the written legal submissions of the parties. In summary it is as follows.

On 15^th December 1995 a non-statutory scheme was set up to compensate certain persons who had contracted Hepatitis C from the use of Human Immunoglobulin-Anti-D, Whole Blood or Other Blood Products. D.B., whom I shall call "the claimant", made application to this non-statutory Tribunal for compensation.

The non-statutory Tribunal had no power to award aggravated or exemplary damages. In calculating its awards this Tribunal took into account any statutory or non-statutory benefits to which a claimant had already or would in the future become entitled, or had received or would receive as a result of the condition which gave rise to the claim. There was no appeal from an award of the non-statutory Tribunal. These aspects of the jurisdiction of the non-statutory Tribunal led to considerable public agitation and in due course to the enactment of the Hepatitis C Compensation Tribunal Act 1997 ("the 1997 Act") which became law on the 21^st May 1997. I shall refer to the relevant provisions of the 1997 Act later in this judgment. The basic purpose of the 1997 Act was to set up a new statutory Tribunal which, pursuant to section 2 of the Act, was established on 1^st November 1997.

The 1997 Act, inter alia, remedied the above mentioned aspects of the jurisdiction of the non-statutory Tribunal which had given rise to publicly expressed grievances on the part of sufferers from Hepatitis C caused by blood products administered within the State.

Under section 6 of the 1997 Act the non-statutory Tribunal was dissolved on the day that the statutory Tribunal was established. Section 6 also provided that any claim which was pending before the non-statutory Tribunal immediately before 1^st November 1997 was to be heard and determined by the statutory Tribunal in the same way as other claims made under the 1997 Act.

D.B., the claimant in the present proceedings, had made a claim before the non-statutory Tribunal on 7^th March 1996. His claim had been commenced but not heard before 1^st November 1997. It therefore fell to be treated as a claim made under the 1997 Act.

On 4^th November 1997 the claimant's application came on for hearing before the Tribunal and an award was made in his favour. On 6^th November 1997 notice of the making of the award was sent by the Tribunal to the claimant. On 24^th November 1997 the claimant accepted in writing the award which had been made and also undertook in writing to waive any right of action which he might otherwise have had against any party arising out of the circumstances of his claim and to discontinue any proceedings instituted arising out of the circumstances of his claim. In addition to accepting the award the claimant applied pursuant to section 11 of the 1997 Act to have an amount paid to him from the Reparation Fund, which sum would be 20% of the total amount of the award made to him, in lieu of the Tribunal assessing and awarding aggravated or exemplary damages to him. On 16^th December 1997 the Tribunal wrote to the solicitors for the claimant enclosing two cheques, one in respect of the amount of the award in the second in respect of the 20% from the Reparation Fund.

At the time of the establishment of the statutory Tribunal there were no Rules of Court dealing with appeals from the Tribunal to the High Court. These were subsequently provided under Statutory Instrument No. 392/98 which set out the relevant procedure in Order 105A of the Rules of the Superior Courts. This Order came into effect on the 23^rd October 1998. In order to facilitate those to whom awards had been made by the Tribunal during the period before Order 105A came into effect, the Minister by Statutory Instrument No. 195/98 made regulations enlarging the time limit for claimants to accept or reject awards or to appeal to the High Court. The time limit was enlarged to a period of one month after the date of commencement of the relevant Rules of Court, that is, to 23^rd November 1998.

Section 6 of the 1997 Act dealt with claims which had been made and awards which had been made under the non-statutory scheme. Subsection (3) (e) of this section allowed a person who had received an award under the non-statutory scheme to appeal this award to the High Court. Order 105A Rule 5 provides that any such appeal "shall be brought by originating notice of motion within six months from the date of the commencement of these rules or within such further period as may be permitted by the court under Order 122." Order 122 gives the Court a general discretion as to extension of time limits. Since Order 105A came into operation on 23^rd October 1998, persons bringing an appeal under section 6 of the 1997 Act were therefore given until 23^rd April 1999 to commence their proceedings.

The claimant in the instant case commenced an appeal by way of originating Notice of Motion on 22^nd April 1999. His Notice of Motion was headed "In the Matter of the Hepatitis C Compensation Tribunal Act 1997 and In the Matter of Section 6(3) (e) and In the Matter of Section 5(15) of the Hepatitis C Compensation Tribunal act 1997". In his Notice of Motion he sought an Order "appealing the award of general damages" and also an Order "appealing so much of the determination of the Compensation Tribunal herein as relates to the allowance for future loss of earnings". His Notice of Motion was grounded on the affidavit of his solicitor, in which it is averred that the appeal was brought pursuant to the provisions of section 5(15) of the Act of 1997.

When the claimant's appeal came on for hearing before the High Court a preliminary application was made by the respondent Minister. The Minister argued:

1. That the Court had no jurisdiction to hear the appeal on the grounds that the Appellant had on the 24^th November 1997 signed an acceptance of the award made to him by the Tribunal and

2. even if the Court had jurisdiction to hear the appeal, the appeal was brought out of time having regard to the provisions of section 5(9)(a) of the Act and that this being a statutory time limit was not one which was capable of extension.

Shortly before the High Court hearing Counsel for the Tribunal had sought permission to be heard on the above preliminary issues; O'Neill J. acceded to that application. At the hearing before him of the preliminary issues, however, Counsel for the claimant also argued that the Tribunal had no locus standi in the proceedings. This matter also, therefore, was heard and determined by the learned High Court judge.

The learned High Court judge gave judgment on the 31^st July 2002. On 11^th September 2002 he made an order declaring that:

(I) section 5(9)(a) of the Hepatitis C Compensation Tribunal Act 1997 does not give rise to a statutory time limit of one month on the making of an appeal to the High Court;

(II) the acceptance of an award of the Tribunal pursuant to section 5(9) of the Act does not exclude an appeal to the High Court under section 5(15) of the Act;

(III) the Tribunal does not have a locus standi to appear on this application or in this appeal;

(IV) this Court has jurisdiction under Order 122(7) of the Rules of the Superior Courts to extend time from the beginning of this appeal;

(V) time for the bringing of this appeal expired under Order 105 Rule 2(1) of the Rules of the Superior Courts on the 22^nd day of November 1998;

(VI) this Court will exercise its discretion in favour of extending the time for the bringing of this appeal to the 23^rd day of April 1999.

Section 5(19) of the 1997 Act provides that a decision of the High Court on an appeal under that section is to be final, save that by leave of the Court an appeal from the decision is to lie to this Court on a specified question of law. On application to him by the Minister, O'Neill J. gave leave to appeal his decision to this Court on the following specific questions of law:

(I) Is a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal barred from doing so after the time specified in section 5(9)(a) of the 1997 Act had passed?

(II) If not, is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

(III) Does the Tribunal have a locus standi to appear in an application to the High Court or in an appeal?

The Grounds of Appeal

Both the Minister and the Tribunal served Notices of Appeal setting out their grounds of appeal in connection with these three specified questions of law.

The grounds of appeal relied upon by the Minister were as follows:

1. That the learned High Court judge failed to apply the correct test in determining whether or not the time limits set out in section 5(9)(a) of the 1997 Act was mandatory or merely directory;

2. that the learned High Court judge erred in law in holding that the claimant's appeal from the award of the Tribunal was not barred notwithstanding that the time prescribed by section 5(9)(a) of the 1997 Act had already expired;

3. that the learned High Court judge erred in law in failing to give the words used in section 5 of the 1997 Act their natural and ordinary meaning. The learned High Court judge did not correctly construe and interpret the provisions of section 5 of the 1997 Act;

4. that the learned High Court judge erred in law in failing to hold that section 5(9)(a) of the 1997 Act imposes a statutory time limit of one month for the bringing of appeals against awards of the Tribunal;

5. that the learned High Court judge erred in law and in fact in holding, in relation to the time limits for appeal, that the intention of the Oireachtas was to treat equally those claimants whose claims had been dealt with by the Tribunal established by the 1997 Act and those whose claims had been dealt with by the non-statutory Tribunal in existence prior to the enactment of the 1997 Act;

6. that the learned High Court judge failed to have regard to the difference in position between those claimants who, prior to the 1997 Act, had accepted awards from the non-statutory Tribunal and those claimants who, subsequent to the enactment of the 1997 Act, obtained an award from the Tribunal established pursuant to that Act;

7. that the learned High Court judge erred in law in holding that the High Court had jurisdiction under the Rules of the Superior Courts to extend the time for appealing an award of the Tribunal;

8. further or in the alternative, that the learned High Court judge erred in law and in the exercise of his discretion by extending the time for bringing an appeal by the claimant to the High Court;

9. that the learned High Court judge erred in law in the manner in which he interpreted Order 105A of the Rules of the Superior Courts;

10. that the learned High Court judge erred in law in holding that the acceptance by the claimant of the award of the Tribunal under section 5 of the 1997 Act did not preclude the claimant from appealing the award to the High Court.

The grounds of appeal relied on by the Tribunal were as follows:

1. That the learned High Court judge erred in law in holding that Order 105A Rule 3(4) of the Rules of the Superior Courts does not make the Tribunal a party to an appeal or application or give it a locus standi in any appeal or application.

2. That the learned High Court judge misdirected himself in law and erred in law in holding that the full facts of the proceedings before the Tribunal are ascertainable in the High Court without the involvement of the Tribunal, and that consequently the Tribunal was not a party to, or did not have locus standi to participate in the application.

3. That the learned High Court judge erred in law in holding that the Tribunal has no interest in the outcome of the appeal or any application preliminary thereto and that consequently the Tribunal was not a party to, or did not have locus standi to participate in, the application.

4. That the learned High Court judge erred in law in holding that the Tribunal is not a party to this appeal and application and does not have a locus standi in this appeal and application.

The remainder of the grounds of appeal relied on by the Tribunal reflect the grounds which are relied upon by the Minister.

The Hepatitis C Compensation Tribunal Act 1997

Since the issues before this Court largely concern the interpretation of the Act of 1997, it is helpful to set out here the relevant statutory provisions.

In its long title, the Act is described as:-

"An Act to provide for the establishment of a Tribunal to be known as the Hepatitis C Compensation Tribunal to award compensation to certain persons who have contracted Hepatitis C within the State from Anti-D Immunoglobulin, other blood products or blood transfusion and to provide for connected matters."

Section 1, the interpretation section, where relevant provides as follows:-

"'Award' means an award of compensation;

'The non-statutory scheme Tribunal' means the Compensation Tribunal for certain persons who have contracted Hepatitis C within the State from Anti-d Immunoglobulin, whole blood or blood products established by the Minister on the 15^th day of December 1995;

'prescribed' means prescribed by regulations made by the Minister."

Section 3 provides for the setting up of the Tribunal and for its membership, powers and other matters.

Section 4 deals with claims before the Tribunal. Subsection (1) sets out the persons who may make claims.

Subsection (2) provides:-

"4(2) Where a person has received an award from any Court or a settlement in respect of an action arising out of any circumstances which could give rise to a claim before the Tribunal, the person shall not be entitled to make a claim to, or be heard by, the Tribunal or receive any settlement under section 8 in respect of those circumstances."

Subsection (3) provides that the making of a claim to the Tribunal does not involve the waiver of any other right of action by the claimant. Thus, though persons who have already dealt with their claims for compensation through the ordinary courts system may not also apply to the Tribunal, the actual making of a claim before the Tribunal does not prevent a claimant from commencing an action in court.

The remainder of section 4 deals with details of the making of claims.

Subsection (7) provides that-

"a claimant is not to be required to produce to the Tribunal any evidence of negligence on the part of a relevant agency or other person in respect of his or her claim."

Subsection (14) provides for time limits for the making of an application. The normal time limit is a three year period after the occurrence of various events but under subsection (15) the Tribunal has discretion to extend the time limits where they are exceptional circumstances.

The principal section the interpretation of which is at issue in the present proceedings is section 5 which where relevant provides as follows:

"5(1) An award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damage in the law of tort and any relevant statutory provisions (including Part IV of the Civil Liability Act, 1961), and including, subject to section 11, consideration of an award on the basis which reflects the principles of aggravated or exemplary damages.

(2) …

(3) An award in respect of aggravated or exemplary damages may be made by the Tribunal where a claimant establishes a legal entitlement to such against a relevant agency or the Minister.

(4) Subject to subsection 8, the Tribunal shall decide upon the amount of any award it may make to a claimant.

(5) Where the Tribunal makes an award to a claimant it shall award to the claimant any reasonable costs and expenses the claimant has incurred in taking her or his claim.

(6) …

(7) …

(8) …

(9)(a) Subject to subsection (13), where the Tribunal makes an award to a claimant, the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15).

(b) If a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the period referred to in paragraph (a), the claimant shall be deemed to have rejected the award.

(10)(a) Where a claimant accepts an award (including a provisional award of the Tribunal), the claimant must agree in writing to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the claimant arising out of the circumstances of the claimant's claim before the Tribunal.

(b) An award of the Tribunal shall not be paid to a claimant unless she or he complies with this subsection.

(11) …

(12) Where a claimant chooses to accept an award of the Tribunal, the amount of the award shall, subject to this section, be paid to the claimant within 28 days of receipt by the Tribunal of notification of acceptance of the award.

(13) …

(14) Where a claimant does not accept an award within the time and in the manner provided in this section, and proceeds with any right of action she or he may have, the Minister or a relevant agency will not in such proceedings to which it is a party rely for the purpose of the Statutes of Limitation, 1957 and 1991, upon the period between the date of the claimant's application to the Tribunal and the date upon which the claimant abandoned his or her claim, was adjudged not entitled to compensation under this Act, or was last entitled to accept any award made by the Tribunal (whichever of such dates is the later) in bar of any right of recovery under such proceedings.

(15) An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross-appeal any such appeal.

(16) An appeal shall lie to the High Court by the Minister or a relevant agency in respect of an award of aggravated or exemplary damages.

(17) …

(18) Where a claimant makes an appeal under subsection (15), the claimant must agree in writing to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the claimant arising out of the circumstances of the claimant's claim before the Tribunal.

(19) A decision of the High Court on an appeal under this section shall be final, save that, by leave of the court, an appeal from the decision shall lie to the Supreme Court on a specified question of law."

Section 6 of the Act deals with the dissolution of the former non-statutory Tribunal and the transfer of claims that had been made to it. Subsections (2) and (3) of the section are relevant and provide as follows:

"6(2) Any claim which, immediately before the establishment day, is pending before the non-statutory scheme Tribunal shall be heard and determined as if it was a claim made under this Act.

(3) A person who has had a claim for compensation determined by the non-statutory scheme Tribunal may –

(a) apply to the Tribunal to hear evidence at the discretion of the Tribunal which was not made available to the non-statutory scheme Tribunal in calculating the award made to that person,

(b) apply to the Tribunal to hear evidence of any statutory or non-statutory benefits which she or he has received or is entitled to receive which were taken into account by the non-statutory scheme Tribunal in assessing an award to that person,

(c) apply to the Tribunal for an award of aggravated or exemplary damages or an amount to be paid to her or him from the Fund,

(d) …

(e) appeal an award".

Section 7 of the Act gives the Minister a general power to make regulations giving effect to the Act. Section 11 establishes the Reparation Fund. Where a claimant accepts an award from the Tribunal in respect of general or special damages or accepts an offer of settlement in that regard he or she, instead of seeking aggravated or exemplary damages, can apply to this Fund for an additional payment of 20% of the total of the general and special damages award.

A number of the provisions of Order 105A of the Rules of the Superior Courts are also relevant. The Order provides that appeals under section 5(15) or 5(16) of the 1997 Act are to be brought by way of originating notice of motion. Order 105(A) Rule 2 sets out a number of time limits as follows:-

"2(1) Where an appeal against an award is brought by a claimant, such notice of motion shall be issued within one month from the date of receiving notice of the making of the award or within such greater period as may be prescribed by the Minister.

(2) Where an appeal against the decision of the Tribunal is brought (other than an award) such notice of motion shall be issued within one month from the date of the decision.

(3) Where an appeal is brought by a claimant, the Minister may cross-appeal within one month of the date of service of the notice of motion upon the Minister. Such cross-appeal shall be taken by way of a notice of motion. An appeal by any party shall put the matter appealed against fully in issue and a notice of cross-appeal shall not be required on that issue by any other party.

(4) Where an appeal is brought under section 5(16) of the Act by the Minister or a relevant agency, such appeal shall be brought within one month of the date of the making of the award of aggravated or exemplary damages.

(5) Any appeal brought by a person pursuant to section 6(3)(e) of the Act shall be brought by originating notice of motion within six months from the date of the commencement of these Rules or within such further period as may be permitted by the court under Order 122."

Since reference was also made in argument to the non-statutory scheme Tribunal and its powers, it is useful to set out here section 5 of the document establishing the non-statutory scheme. This is the relevant section:-

"5(I) The making of a claim to the Tribunal under the Scheme will not involve a waiver of any right of action. If a claimant receives an award from the Tribunal, the claimant will have a period of one month from the date of receiving notice of the making of the award during which the claimant can decide either to accept or reject the award. If a claimant neither accepts nor rejects the award within that period, the claimant will be deemed to have rejected the award. Only if the claimant accepts the award will the claimant be required to agree to waive any right of action which the claimant may otherwise have had against any party arising out of the circumstances of the claimant's claim and to discontinue any other proceedings instituted by the claimant. The execution of such a written agreement will be a condition precedent to the payment of any award under the scheme.

(2) …

(3) Where a claimant does not accept an award within the time and in the manner provided in this scheme and proceeds with any right of action he or she may have, the State will not in such proceedings to which it is a party rely for the purposes of the Statutes of Limitation upon the period between the date of the claimant's application to the Tribunal and the date upon which the claimant abandoned his or her claim, was adjudged not entitled to compensation under the scheme, or was last entitled to accept any award made by the Tribunal (whichever of such dates be the later) in bar of any right of recovery under such proceedings."

The Decision of the High Court

As has been noted above, there were three issues before the High Court. The first issue was as to whether the claimant, having accepted the award made to him by the Tribunal and having received the relevant payments, could then proceed to bring an appeal against the award under section 5(15) of the Act.

The second issue was as to whether the claimant's appeal was brought out of time given the provisions of section 5(9)(a) and whether the time limit for such an appeal could be extended by the Court.

The third issue was as to whether the Tribunal had locus standi to appear and be heard on the appeal.

The learned trial judge in essence held in favour of the claimant on the first two issues, and also held that the Tribunal had not the required locus standi.

As far as the first two issues are concerned the trial judge's decision depended on his approach to the interpretation of sub sections 5(9) and 5(15) of the 1997 Act. He stated (at page 15 of his judgment) that in construing the relevant sections of the Act of 1997 he would "use the literal and purposive approach", and would be guided by the judgment of Denham J. in this Court in the case of M.O'C v The Minister for Health and Children (Supreme Court unreported 31^st July 2001). O'Neill J. then went on to consider in some detail the purpose of the Act in the light of the long title and in the light of the history of the original non-statutory scheme. He noted that the 1997 Act was intended to benefit not alone those whose claims were heard by the Tribunal set up under the Act but also those whose claims had been heard by the former non-statutory Tribunal. He went on to state (at page 16):-

"I think it is safe to assume in approaching the construction of the Act that it was intended by the Oireachtas that persons who had contracted Hepatitis C in the circumstances provided for by the Act would enjoy the same benefits in terms of access to compensation as provided for either under the non-statutory scheme or as provided for under the Act of 1997 regardless of whether their claims fell to be dealt with by the non-statutory Tribunal or as in the case of the Appellant in this case by the Tribunal after its establishment on the 1^st November 1997.

In short, in approaching the construction of the Act of 1997, in my view only that construction which achieves parity or equality of treatment as between those persons whose claims were dealt with by the non-statutory Tribunal and those persons whose claims were dealt with by the Tribunal can be considered as consistent with the intention of the Oireachtas."

The learned trial judge then went on to analyse both section 6 and section 5 of the Act from the starting point that the Oireachtas must have intended equality or parity between the two types of claimant – those who might appeal against an award made by the statutory Tribunal and whose appeals would be governed by section 5 of the 1997 Act and those who might appeal in connection with an award made by the previous non-statutory Tribunal, whose appeals would be governed by section 6 of the Act.

The time limit for appeals under section 6(3)(e) of the 1997 Act was governed by Order 105A of the Rules of the Superior Courts and this time limit was amenable to the normal extension of time available under Order 122. Counsel for the Minister had argued in the High Court that in cases coming under section 5 of the Act upon notice of an award being given by the Tribunal claimants had three options and were obliged to exercise one of these in writing within one month namely:

1. to accept the award

2. to reject the award or

3. to appeal the award,

all three options being mutually exclusive of each other. Failure to exercise any of these three options would be deemed by the Act to be rejection pursuant to section 5(10). O'Neill J. felt that there was no proper explanation to justify the difference in treatment between the two groups in regard to time limit. At page 20 he went on to say:

"It is impossible to fathom what reason could justify such an interpretation particularly having regard to the fact that the purpose of the Act is to provide for the awarding of the compensation to persons who had been the victims of a public health disaster and many of whom at the time of the hearing of their claims before the Tribunal were in exceedingly poor health and in the immediate aftermath of the determination of their claims by the Tribunal might have great difficulty because of their state of health in focussing on and deciding whether or not they wished at the point to appeal or not to appeal."

He also felt there was a distinction between an appeal against an award under section 5(9) and an appeal against "any decision" of the Tribunal under section 5(15). In his view no time limit was prescribed for an appeal against a "decision" under section 5(15). He commented (at page 21):

"I am unable to fathom any reason why this distinction as to time limit between an appeal against an 'award' and a 'decision' should be made nor indeed was any advanced by either the respondent or the Tribunal."

Based largely on this reasoning, O'Neill J. concluded (at page 22):-

"I have come to the conclusion that it cannot have been intended to simply isolate, for no apparent reason, one type of appeal, namely an appeal against an award of the Tribunal, and to impose the draconian measure of a statutory time limit of one month on that appeal alone. It seems to me that the policy of the Act correctly construed was to preserve all of these appeals including an appeal against an 'award' from statutory time limits and to regulate them in regard to time in the ordinary way under the Rules of the Superior Courts in the form of Order 105A."

He then went on to reject the submission that acceptance and appeal were mutually exclusive options. At page 29 he stated:-

"I have come to the conclusion, in the absence of an express exclusion on appeal where an acceptance has taken place, and it being the case that acceptance and appeal are not necessarily mutually exclusive, that a claimant can accept and also appeal and be in compliance with section 5(9) and (10) and thereby be entitled under section 5(12) to be paid the award within 28 days of acceptance of the award."

This was in harmony with parity or equality of treatment between those whose claims were heard by the non-statutory Tribunal and those whose claims are heard by the Tribunal.

With regard to the locus standi issue, the trial judge held that the fact that Order 105A Rule 3(4) required that the Tribunal be served with a copy of an appeal did not in his view of itself make the Tribunal a party to the appeal or give it a locus standi in any appeal. Any information that was available to the Tribunal could be exhibited in the affidavit of the claimant grounding the appeal. The involvement of the Tribunal as a party was not required. The Tribunal had no interest in the outcome of the appeal and it was undesirable that it should "adopt the role of a contentious party" in an appeal.

Submissions of Counsel

Senior Counsel for the Appellant Minister, Mr McDonald, accepted on behalf of the State that under the 1997 Act the claimant was a person entitled to compensation from the State by reason of his having contracted Hepatitis C. Sufferers from Hepatitis C who were entitled to compensation were not compelled to submit their claims to the Tribunal under the 1997 Act; it was also open to them to proceed by way of Court action. These two alternatives both remained open to a claimant until the Tribunal, having heard his or her case, made an award. At that point the claimant either remained within the four walls of the Tribunal system under the Act or decided to pursue his or her claim through the Courts. The operation of this process was set out in clear terms in section 5 of the 1997 Act. Mr. McDonald submitted that the words of section 5 should be given their normal and natural meaning. Under the normal canons of construction where the words of the Statute were clear it was not permitted to speculate as to what the legislator might have intended. Here Mr McDonald relied on the judgment of this Court in Howard v Commissioner of Public Works [1994] 1 IR 101, in particular the judgments of Blayney J. (at page 151 and 153) and of Denham J. (at page 162-163).

Mr McDonald referred to the judgment of the learned trial judge and said that the judge had considered that the Oireachtas could not have intended that the one month time limit should apply solely to claimants whose claims were dealt with by the Tribunal under the 1997 Act. Mr McDonald submitted that in reaching this conclusion O'Neill J. failed to have regard to the clear language used in sections 5 and 6 of the 1997 Act. A reading of sections 5 and 6 show that the Oireachtas intended to treat non-statutory Tribunal claimants in a different way from other claimants (at least insofar as the time for appeal was concerned). There were good reasons why the Oireachtas should treat the two types of claimant in a different way. A claimant before the 1997 Act Tribunal would have considerable advantages over a claimant whose claim had been disposed of sometime previously by the non-statutory Tribunal. A claimant before the statutory Tribunal would have the benefit of a notification by the Tribunal providing him with details of his award and informing him of his right to appeal and in particular, informing him of a decision which he must now make as between acceptance, rejection and appeal. Such a claimant would undoubtedly still be in contact with the solicitor and counsel who represented him or her before the Tribunal and could take immediate advice. The claimant was still involved in the statutory process and everything would still be fresh in his or her mind and a one month time limit therefore would not impose any hardship.

In contrast the claimants who had had their claims dealt with some time before by the non-statutory Tribunal would in many cases have lost contact with their legal advisors by the time the 1997 Act was enacted and a right of appeal became available. They were no longer involved in any process; they might even have moved away from where they lived; they might be difficult to contact and might therefore be unaware of the rights afforded to them under the 1997 Act. In these circumstances, Mr McDonald argued, it made eminent sense that the Oireachtas should treat these claimants differently and this was clearly set out in section 6 of the Act. Counsel submitted that the learned trial judge had fallen into error in putting the entire emphasis of his consideration of the Act on the need for equality and parity between the two types of claimants.

Mr McDonald went on to submit that the trial judge's approach had been based on what he presumed or decided was the intention of the Oireachtas. He submitted that a Court should be very slow to presume that it has a better knowledge of the intention of the Oireachtas than can be gleaned from the language used in the Act. This was especially so where the creation of limitation periods and other statutory time limits was concerned as that was a matter primarily for the Oireachtas.

As far as Order 105A Rule 2(1) was concerned, Mr McDonald submitted that the learned trial judge erred in his interpretation of this Rule. Rule 2(1) did not purport to impose a time limit in place of that imposed by section 5(9) (a). All the Rule did was to provide for the manner of appeal which was to be by way of notice of motion which must be issued within the statutory time of one month or within such greater period as might be prescribed by the Minister.

With regard to the second question set by the High Court, counsel for the Minister submitted that it was clear from the actual wording of section 5(9)(a) –

"The claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15)" –

made it clear that the claimant had three options open to him. While the use of the word "either" was not particularly elegant the use of the word "or" nevertheless suggested that an appeal was to be regarded as an alternative to either acceptance or rejection. It was difficult to see how on the basis of the language used in section 5(9)(a) it could plausibly be said that an appeal was something which could be done in addition to either accepting or rejecting the award. In addition the fact that if a claimant appeals he or she must under section 5(18) agree to discontinue any existing litigation and abandon any other claims suggested very strongly that the appeal could not be seen as an additional step to rejection of the award. Rejection ordinarily meant that the claimant would now pursue litigation through the Courts.

Senior Counsel for the Tribunal, Mr O'Donnell, dealt firstly with the issue of the locus standi of the Tribunal. He submitted that the question of the Tribunal's locus standi was resolved by a consideration of the terms of the relevant Rules of the Superior Courts. Order 105A Rule 3(4) of the Rules of the Superior Courts required that the Tribunal be served in every case with a copy of the appeal. The service of the notice of motion and affidavit grounding the appeal served to make the Tribunal a party to the appeal. Order 125 of the Rules of the Superior Courts defined a "party" as including:-

"Every person served with notice of or attending any proceedings, although not named on the record."

In this case the Tribunal was not alone served with the same pleadings as the Minister for Health and Children but was also named on the record of the proceedings and in its title. Counsel submitted the Tribunal clearly had locus standi. Mr O'Donnell went on to say that the Tribunal wished to clarify that it did not intend to take advantage of its locus standi to contest any appeal on the merits. However in circumstances where matters of general importance regarding the function and administration of the Statutory Compensation Scheme had arisen the Tribunal considered it appropriate to make submissions in this regard to the High Court and also to this Court. The statutory scheme established by the 1997 Act created an independent Tribunal responsible for the administration of the compensation scheme which had a locus standi in appeals against awards given its unique position within the scheme. The Minister played no part in the compensation process or indeed in any of the proceedings before the Tribunal. Therefore the Minister was not aware of the procedures and correspondence regarding an award and was not in a position fully to inform the High Court of those procedures in the event of an appeal.

Mr O'Donnell referred in particular to the fact that the post-award procedure and correspondence was peculiarly within the knowledge of the Tribunal. There was no obligation on a claimant to bring this procedure and correspondence to the attention of the Court under the 1997 Act or under the rules. In a previous case M.D. v Minister for Health and Children (unreported High Court 15^th February 2002) the claimant did not disclose the fact that he had accepted the award to the Court in the appeal and the Minister was not aware that the award had been accepted. In that case the Tribunal had not been represented and had thus been unable to make the position clear to the Court.

Counsel for the Tribunal went on to refer to page 33 of the judgment of O'Neill J. where the learned trial judge stated:-

"From time immemorial it has been the case that procedural issues are litigated between the parties to the suit without any involvement in that litigation from the Tribunal whose procedures are in issue. That non- involvement derives inter alia from the essential feature of courts in quasi-judicial Tribunals as being independent and non partisan."

Mr O'Donnell submitted that the alleged principle identified by O'Neill J. was erroneous. There were numerous examples of Tribunals and persons exercising quasi-judicial functions who were respondents or co-respondents in appeals against their decisions and who were entitled to participate in such appeals. He gave a number of examples of such situations.

Counsel for the Tribunal, whilst adopting the arguments put forward by Mr McDonald, also dealt briefly with the other issues in the case. He submitted that the core issue was the interpretation of section 5(9) (a). This was a clear and simple provision and in interpreting it the simple answer was the correct answer. The judgment of the learned High Court judge was very ingenious but was wrong in its interpretation. While he agreed that the use of the word "either" when three options were offered was inelegant he believed that it was a question of communication to persons to whom the Act applied and that the meaning of the three options was perfectly clear. The words had to be taken in the context of the Act as a whole. He also relied on the judgments of this Court in Howard v Commissioners for Public Works. He referred to the 1997 Act as a "negotiated" Act which was grafted onto the previous non-statutory scheme. He pointed out that the alternatives of acceptance and rejection were already present in the text of the non-statutory scheme and that the further option of appeal was simply added on.

Mr O'Donnell submitted that the basic flaw in the judgment of the learned High Court judge was that he gave no interpretation of section 5(9) (a) and (b). In the context of his judgment either these subsections meant nothing or they meant the opposite of what they actually said. He agreed with Mr McDonald that there was good reason to distinguish between the claimants covered by section 6 and those covered by section 5.

As far as the purpose of the Statute was concerned, Mr O'Donnell agreed that the primary purpose was to provide proper compensation for claimants but another essential purpose of the Act was to deal with the volume of claims and to quiet these claims outside the Court system.

Senior Counsel for the respondent/claimant. Mr. Nesbitt, submitted that while the other parties relied on section 5(9) of the 1997 Act they failed to take into account the other sections of the Act and did not consider the purpose of the Act. The purpose of the Act was the delivery of fair and just compensation to claimants. claimants were given right of access to the High Court by way of appeal. The word "award" was defined in section 1 of the Act as being an award of compensation. There was no definition of the word "decision" in the Act. There were a number of forms of decision contained in the Act. For example under section 4(8) the Tribunal would have to make a decision as to whether the claimant was eligible for compensation under the scheme. In the case of the present claimant a decision had to be taken with regard to the issue of co-infection with both Hepatitis C and HIV. The claimant in the instant case wished to appeal certain aspects of the award but not necessarily the amount of the award.

A central point of Mr Nesbitt's submissions was that the making of an award was not a decision but what he described as "a bundle of decisions". On that account he submitted that a claimant who was not wholly satisfied with all aspects of the award was not barred from appealing by the fact that he had accepted "the award". An award and a decision were not equivalent.

Counsel for the claimant submitted that the learned High Court judge was correct in his purposive approach to the interpretation of the Act. The main purpose of the Act was to award fair compensation but a secondary purpose of the Act was to bring in an appeal procedure which had been missing from the non-statutory scheme. It was therefore not in accordance with the purpose of the Act that claimants should be deprived of the right to appeal. Mr Nesbitt relied on the judgment of Denham J. in this Court in the case of M. O'C v The Minister for Health (Supreme Court unreported 31^st July 2001). In that case a purposive approach had been taken to the interpretation of the 1997 Act and it had been found to concur with the literal interpretation. In the instant case the learned trial judge had considered the purpose of the Act and concluded that this could not include unfairness or inequality in the treatment of persons claiming under the former non-statutory scheme and persons claiming under the statutory scheme. He had correctly based his interpretation on this approach.

The jurisdiction of the High Court to entertain the appeal was contained in section 5(15) of the Act. This subsection stated simply that an appeal would lie to the High Court in respect of any decision made by the Tribunal. The section contained no time limit and therefore the jurisdiction of the High Court to hear appeals remained unfettered by any statutory time bar. The time limits in regard to appeals were set out in the Rules of the Superior Courts under Order 105(A). These time limits, however, were susceptible of extension by the Court under Order 122. In the case of the present claimant the learned High Court judge had correctly exercised his discretion in extending the time limit for his appeal.

In regard to the issue of a locus standi of the Tribunal, Mr Nesbitt submitted that the Tribunal had no interest in the proceedings that had to be protected. It had no role to play and was not involved in any judiciable issue. The Tribunal was simply the body that heard applications. Once an award was made the arrangements for its payments were dealt with separately under the Act and could not be construed as affording the Tribunal the right to claim an interest in the conduct of any appeal. The Tribunal might be interested in the result but had no interest in the process of the appeal. The scheme of the Act was that the Minister was the appropriate respondent in any appeal and it was the Minister who was given rights to cross-appeal under the Act.

The Law and Conclusions

At the centre of this case is the interpretation of section 5, and in particular section 5(9) (a) of the 1997 Act. On this depends the answer to the first two questions of law specified by the High Court. It is therefore essential to refer to the rules of interpretation, or canons of construction, which have been established over time and which have been considered and applied in a number of decisions of this Court and the High Court.

The learned High Court judge made it clear in his judgment that he relied on the judgment of this Court (Denham J.) in M.O'C v The Minister for Health (unreported Supreme Court 31^st July 2001). Counsel for the Minister in his submissions relied on the judgments of Blayney J. and Denham J. in Howard v Commissioners of Public Works [1994] 1 IR 101.

The decision in Howard v Commissioners for Public Works turned on the interpretation of a number of sections of the Local Government (Planning and Development) Act 1963. Blayney J. in his judgment (at page 151 to 153) spoke of the general principles to be applied to the interpretation of Statutes as follows:-

"As there is no presumption either way in regard to whether the State is or is not bound by the Act of 1963, the interpretation of the Act has to be approached in the light of the general principles to be applied in the interpretation of statutes.

'The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver. 'The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view.' [per Lord Blackburn in Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App. Cas. 394].'

Craies on Statute Law (1971) (7^th ed.) at page 65.

This rule is expressed in very similar terms in Maxwell on The Interpretation of Statutes (12^th ed., 1976) at p.28:-

'The rule of construction is 'to intend the Legislature to have meant what they have actually expressed.' [per Parke J. in R v. Banbury (Inhabitants) (1834) 1 Ad. & El. 136 at p.142] The object of all interpretation is to discover the intention of Parliament, 'but the intention of Parliament must be deduced from the languages used,' [per Lord Parker C.J. in Capper v. Baldwin [1965] 2 Q.B. 53, at p.61] for 'it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.' [per Lord Morris of Borth-y-Gest in Davies Jenkins & Co. Ltd. V. Davies [1967] 2 WLR 1139 at p.1156].'"

At page 152 Blayney J. continued:

"The rule in regard to construction by implication is stated as follows in Craies at p.109:-

'If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to a construction by implication, and to draw inferences or supply obvious omissions. But the general rule is 'not to import into statutes words which are not to be found there,' [per Patteson J. in King v. Burrell (1840) 12 Ad. And El. 460, 468] and there are particular purposes for which express language is absolutely indispensable. 'Words plainly should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context.' [per Evershed M.R. in Tinkham v. Perry ['1951] 1 T.L.R. 91, 92'

It is clear from this that the first condition that has to be satisfied before recourse can be had to construction by implication is that the meaning of the statute should not be plain. It seems to me that that condition is not satisfied here. The meaning is perfectly plain."

Again at page 153 the learned judge continued:-

"In asking the Court to construe s.84 as relieving them from having to apply for planning permission, the Commissioners are asking the Court to speculate as to the intention of the legislature in enacting s.84, something which no court may do. To cite again Craies on Statute Law at p.66:-

'A general proposition that it is the duty of the Court to find out the intention of Parliament . . . cannot by any means be supported' said Lord Simonds in 1957. Some fifty years before in Salomon v. Salomon & Co. Ltd. [[1897] AC 22, 38] Lord Watson had said: "Intention of the legislature" is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.' After expounding the enactment, it only remains to enforce it, notwithstanding that it may be a very generally received opinion that it 'does not produce the effect which the legislature intended,' or 'might with advantage be modified'. The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.'"

Denham J. in her judgment in the same case (at p.162-163) also dealt with the principles of interpretation:

"Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words. There is well established case law on this aspect of statutory construction.

Thus in In re MacManaway [1951] AC 161 at p. 169, Lord Radcliffe, in dealing with a reference for advice as to a question as to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act, 1801, said:—

'The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute.'

In Davies Jenkins and Co. Ltd. v. Davies [1968] AC 1097 at p. 1120 Lord Morris of Borth-y-Gest stated:—

'I understand that it is accepted that when Parliament enacted s. 18 of the Finance Act, 1954, it must have proceeded on the basis that it was not necessary for the purposes of s. 20 of the Finance Act, 1953, that the recipient company should be trading at the time of the receipt of a subvention payment. This, in my view, neither relieves the courts from giving free and untrammelled consideration to the interpretation of s. 20 nor does it furnish material for their guidance in so giving it. It is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.'

In R. v. Wimbledon Justices, ex parte Derwent [1953] 1 Q.B. 380, Lord Goddard C.J. stated at p. 384:—

'We are not concerned with that because, although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if a statute has created a specific offence, it is not for this court to find other offences which do not appear in the statute.'"

Denham J. continued on p.163 as follows:

"Halsbury's Laws of England (4th ed.) (Vol. 44) states at paras. 863 and 864 respectively:—

'Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.

Speculation as to Parliament's intention is not permissible. If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the legislature must have intended.'

The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the legislation nor legislate to fill gaps left by the legislature. If there is a plain intention expressed by the words of a statute then the court should not speculate but rather construe the Act as enacted."

In M O'C v. Minister for Health (Supreme Court unreported 31^st July, 2001) the issue was as to whether there was jurisdiction to order interest pursuant to s.22 of the Courts Act, 1981 under the Hepatitis C Compensation Tribunal Act, 1997. Again the matter turned on the interpretation of the relevant statutory provisions. Denham J. in her judgment (with which the other members of the Court agreed) said at p.6 of her judgment:

"It is well established that effect should be given to clear and unambiguous words. The words of the statute declare best the purpose of the Act."

Denham J. went on to analyse in detail the actual wording of s.5 (1) of the 1997 Act, and concluded (at p.7):

"The wording of the sub-section sets out in some detail the power of the tribunal to make awards on the same basis as an award of the High Court. '… any relevant statutes …' are to be applied to the calculation of these awards. Clearly s.22 of the Courts Act, 1981 is a relevant statutory provision in this sense. On a literal interpretation s.5(1) of the Hepatitis C Compensation Tribunal Act, 1997 vests in the Hepatitis C Tribunal the jurisdiction under s.22 of the Courts Act, 1981. Consequently, it is not necessary to take any further approach."

The learned judge then went on to consider the purposive approach to the interpretation of the section, as follows:

"However, I am satisfied that a purposive approach would yield a similar result. In the Law Reform Commission report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC61-2000) at p.10, paragraph 2.03, as to the relationship between the literal and purposive approaches to interpretation, it was stated:

'It is important to state, at the outset, that the literal rule is, and must remain, the general governing principle in this area: anything else would lead to chaos. Moreover, in most cases a literal construction will lead to the same result as a purposive construction. However, the central question in this chapter is whether Court, in the minority of cases in which the literal meaning of a provision is not consistent with the purpose of the relevant Act, should look beyond the literal meaning, in order to give expression to the intended effect of the statute.'

Having considered the matter, including analysing case law in Ireland and abroad, the Commission recommended at p.21 paragraph 2.42:

'… a provision which retains the literal rule is the primary rule of statutory interpretation. The other significant feature of our proposed formulation is that it specifies exceptions to this primary approach, not only in cases of ambiguity and absurdity, but also - and here is the slight change from the common law as expressed in some judgments – where a literal interpretation would defeat the intention of the Oireachtas. The draft provision which we propose also indicates that such an exception should only apply where, in respect of the issue before the court, the intention of the Oireachtas is plain.'"

Having also analysed the section in accordance with the purposive approach, Denham J. reached the same conclusion as had been reached through the literal approach.

It is of interest to note that in Bula v Crowley (unreported High Court 1^st February, 2002) Barr J., in dealing with the construction of the Statute of Limitations 1957, had this to say:

"I have no difficulty in accepting that, subject to long established tenets of construction, words in a statute should be construed in accordance with their plain, ordinary meaning. The Court has no function in remedying error in circumstances where legislation, though clear in its terms, is found to be defective."

It may, I think, be safe to sum up the judicial dicta in this way. In the interpretation of statutes the starting point should be the literal approach - the plain ordinary meaning of the words used. The purposive approach may also be of considerable assistance, frequently, but not invariably, where the literal approach leads to ambiguity, lack of clarity, self-contradiction, or even absurdity. In the interpretation of a section it is also necessary to consider the Act as a whole. As was stated by Keane J. (as he then was) in Mulcahy v. Minister for the Marine (High Court 4^th November, 1994):

"While the Court is not, in the absence of a constitutional challenge, entitled to do violence to the plain language of an enactment in order to avoid an unjust or anomalous consequence, that does not preclude the Court from departing from the literal construction of an enactment and adopting in its place a teleological or purposive approach, if that would more faithfully reflect the true legislative intention gathered from the Act as a whole."

I now turn to an examination of the terms of s.5 (9) (a) of the 1997 Act in the context of the Act as a whole.

As is set out in the long title, the central purpose of the Act is to award compensation to certain persons who have contracted Hepatitis C. The background to its enactment, as described in the earlier part of this judgment, establishes that the Act also had the purpose of remedying the perceived defects of the previous non-statutory scheme, in particular its lack of power to award aggravated and exemplary damages, the taking into account of other benefits received by claimants, and the absence of a right to appeal. While I am conscious of the danger of attributing particular intentions to the Oireachtas, it seems to me reasonable to assume that a further aim of the Act was to provide a scheme which could deal with the large number of claims for compensation in a consistent, orderly and reasonably expeditious manner.

Under the general scheme of the Act a claimant may apply to the Tribunal for an award of compensation without having to waive or abandon his or her right to seek damages through an ordinary Court action (section 4(3)). The detailed procedure for the making of a claim before the Tribunal is set out in section 4. Section 5 deals with the making of awards and subsequent procedures. Section 5(1), which was considered and analysed by this Court in M.O'C v Minister for Health, provides in general principle that awards are to be made on the same basis as an award of damages in the High Court. Further subsections deal with ancillary matters such as special damages and costs.

Section 5(9) then refers to what is to follow when the Tribunal has made an award to a claimant and the claimant has been notified of the award. Sub-section 5(9) (a) provides:-

"Subject to subsection (13) where the Tribunal makes an award to a claimant, the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15)."

Under subsection (9)(b) if a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the period of a month the claimant is to be deemed to have rejected the award. While I accept that the word "either" should properly be used only where there are two alternatives, it seems to me that section 5(9) (a) in the normal and ordinary meaning of the words used provides for three options each of which is open to the claimant, and each of which has a particular result within the scheme of the Act. The claimant must decide which of the three options he wishes to exercise within a period of one month from the date on which he has been notified of the award. A longer period for decision may be prescribed by the Minister. (Under section 1 "prescribed" is defined as meaning prescribed by regulations made by the Minister.)

Firstly, the claimant may choose to accept the award. If this is the course chosen, then section 5(10) applies; the claimant must in writing waive any right of action through the Courts and discontinue any other proceedings arising out of the circumstances of his claim. Prima facie, it would seem to me that this combination of acceptance and waiver indicates finality as regards the claimant's claim. When the claimant has executed this waiver and thus chosen to stay within the scheme of the Tribunal, he is to be paid his award within twenty eight days of the notification to him of the award (Section 5(12)).

If the claimant rejects the award, or under section 5(9)(b) is deemed to have rejected the award because he has neither accepted nor rejected it, it seems clear that he then moves out of the Tribunal scheme entirely and presumably will go on to rely on his right of action in the Courts. This position is underlined by section 5(14) which provides that the Minister will not in that case rely on the period of time when, to put it simply, the claimant was participating in the Tribunal scheme for the purposes of a defence under the Statute of Limitations.

Thirdly the claimant is given the option of appealing the award "under subsection (15)". In my view it is crucial that the option of appealing is preceded by the word "or" in the subsection. The provenance of the phrase "or to appeal the award" becomes clear if one considers the wording of the original non-statutory scheme. At paragraph 5(i) of that scheme it was provided:-

"If a claimant receives an award from the Tribunal, the claimant will have a period of one month from the date of receiving notice of the making of the award during which the claimant can decide either to accept or reject the award".

It seems likely that the parliamentary draftsman simply added the words "or to appeal…" after the phrase "either to accept or reject". I am confirmed by this view by the fact that the remainder of the wording of paragraph 5(i) is closely reflected in the wording of subsections 5(9)(b) and 5(10) (a) and (b) of the 1997 Act.

Section 5(9)(a) speaks of the claimant appealing the award "under section 15." Thus the claimant who chooses to appeal remains within the scheme of the Tribunal and within the four walls of the Act. Under section 5(9)(b) a claimant who appeals the award under subsection (15) within the period referred to in paragraph (a) is, understandably, also deemed to have rejected the award. The claimant can thus either reject (or be deemed to reject) the award simpliciter and drop out of the Tribunal scheme or he can appeal the award, which implies a rejection of the award, and remain within the scheme.

The bringing of an appeal against an award under section 5(15), as far as Court procedure is concerned, is governed by Order 105A of the Rules of the Superior Courts. Rule 1 provides that such appeals are to be brought by way of Notice of Motion, thus reflecting an intention to move by way of a relatively expeditious procedure. Rule 2(1) provides that where a claimant brings an appeal against an award "such notice of motion shall be issued within one month from the date of receiving notice of the making of the award or within such greater period as may be prescribed by the Minister." This Rule reflects exactly the statutory time limit as set out in section 5(9)(a). The "greater period" is to be prescribed by the Minister rather than by the Court precisely because it is a statutory extension of the time limit rather than an ordinary extension of time by the Court under the Rules.

In the instant case, as I have set out in the earlier part of this judgment, the situation as regards time was complicated by the additional period of time which elapsed before the coming into effect of Rule 105A. The principle, however, remains the same; the Minister prescribed "a greater period" of time within which the claimant could exercise one of the three options, but the decision had to be made by 23^rd November 1998, one month after the date on which Order 105A came into force.

The learned trial judge rejected this literal interpretation of section 5(9) for reasons based on what he described as a purposive interpretation of the Act. He appears to have begun his analysis of the Act with an assumption that the Oireachtas must have intended to treat claimants who had received awards under the non-statutory scheme in as exactly the same way as claimants receiving awards from the Tribunal. This, he felt, was a fair and equitable approach in accordance with the purpose of the Act. From this assumption of equal treatment of both classes of claimants he deduced a somewhat complex interpretation of sections 5 and 6 of the 1997 Act. In my view the learned trial judge fell into error in adopting this approach. It is clear from the dicta in Howard v Commissioners of Public Works and from the authoritative texts quoted therein (see supra) that in the construction of Statutes the starting point is the normal and ordinary meaning of the words used – the text of the Statute as enacted by the Oireachtas. In the Act of 1997 the Oireachtas has itself made a clear distinction between the provisions applying to persons who received awards under the non-statutory scheme (who are dealt with under section 6) and those who receive awards from the Tribunal (who are dealt with under section 5). As part of this distinction a different time limit for appeal is provided for those who received awards under the non-statutory scheme. There are other important differences in the treatment of the two types of claimant. As was submitted by counsel for the Minister and counsel for the Tribunal there are perfectly understandable reasons which may have motivated the Oireachtas in differentiating between the two classes of claimant. The crucial factor for the Court, however, in interpreting the Statute is that the differentiation of the two classes of claimant was the policy actually adopted by the Oireachtas in the Act. It is a clear policy; it is not ambiguous; it is not self-contradictory; it certainly cannot be described as absurd. It is not for this Court to assume that a different and more equal approach is more suited to what the Court considers to be the purpose of the Act and to adjust the construction of the actual words of the sections accordingly. This is to carry the purposive approach too far. It must be remembered that in M.O'C v the Minister for Health (supra) Denham J. first approached the construction of section 5(1) of the 1997 Act through literal, indeed actual word by word, interpretation and only later demonstrated that the purposive approach led to the same conclusion.

Thus, as far as the second question specified by the High Court is concerned, it is my view that a claimant who wishes to appeal an award by the Hepatitis C Compensation Tribunal is barred from doing so after the time specified in section 5(9)(a) of the 1997 Act has passed. The answer to the first question is yes.

Strictly speaking, the second question arises only if the first question is answered in the negative. However, in the interests of clarity, I consider it useful to indicate that I would also answer this question in the affirmative. As I have already explained above, my view is that a claimant who has been notified of an award has, under section 5(9)(a), three options – to accept or to reject or to appeal. Since the conjunction used in each case is "or" the options appear to be mutually exclusive. Indeed, far from a claimant being able to accept an award and at the same time appeal it, under section 5(9)(b) a claimant who appeals the award under sub-section (15) is deemed to have rejected the award.

I am strengthened in this view by the provisions of section 5(1) – the general principle that an award is to be made on the same basis as an award of damages in the High Court. A Plaintiff in a personal injuries action in the High Court who has been awarded damages by the Court may be dissatisfied with the amount of the award. If so, he has a right of appeal. What he cannot do is accept the award in full, have it paid over to him, and in addition appeal against it. It is, of course, true that in such a situation in the High Court the frequent practice is that some fraction of the award of damages may be paid out and the remainder of the order stayed pending the hearing of the appeal. No such provision is made in the 1997 Act. It is not, however, for this Court to endeavour through creative interpretation to fill this possible gap in the legislation.

I do not accept the submission of counsel for the claimant that an award is a "bundle of decisions" some or one of which may be appealed. It seems to me that in the context of section 5(9)(a) an award of compensation is the actual amount which is to be paid to the claimant. Clearly not all decisions made by the Tribunal are awards but an award is a decision for the purposes of section 5(15) and it is a single decision.

I remain convinced that once the claimant has accepted the award he cannot in addition appeal against it. I would answer yes to the second question.

I now turn to the third question – the locus standi of the Tribunal. Put briefly, I would accept that the Tribunal has locus standi for the reasons contained in the submissions both written and oral of counsel for the Tribunal. Order 105A Rule 3(4) of the Rules of the Superior Courts requires that the Tribunal be served with a copy of the appeal and bearing in mind the definition of a "party" in Order 125, the service of the proceedings on the Tribunal makes the Tribunal a party to the appeal. I would also accept that, while the Tribunal does not, and should not, have an interest in contesting the appeal on its merits, it does have an interest in ensuring that the procedure under the 1997 Act is correctly applied and implemented and in giving the fullest possible information in each case to the Court. In this aspect of full information the Tribunal's role is somewhat analogous to that of an amicus curiae. As was pointed out by Mr O'Donnell, there are a number of examples in the legislation where Tribunals and persons exercising quasi-judicial functions who are parties in appeals against their decisions and are entitled to participate in such appeals. It seems to me that question three should also be answered in the affirmative.

In summary, therefore, I would allow the appeal and would answer the three specific questions set by the High Court as follows:

1 Yes.

2 Yes.

3 Yes.

THE SUPREME COURT

Record No. 322/2002

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF THE HEPATITIS

COMPENSATION TRIBUNAL ACT, 1997

AND IN THE MATTER OF SECTION 6(3)(E)

AND IN THE MATTER OF SECTION 5(15) OF

THE HEPATITIS COMPENSATION ACT, 1997

BETWEEN/

D.B.

Claimant/Respondent

AND MINISTER FOR HEALTH AND CHILDREN

AND THE HEPATITIS C COMPENSATION TRIBUNAL

Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 26th day of March 2003

In the notices of appeal to this court the party "D.B." is described variously as "respondent/claimant" and "respondent" and the Minister for Health and Children and the tribunal described as "appellant/respondent" or "appellant". These descriptions though not in any way inaccurate could cause confusion. I will, therefore, refer to the said D.B. as "D.B." throughout this judgment, I will refer to the Minister for Health and Children as "the Minister" and I will refer to the tribunal as "the tribunal".

On the 15^th of December, 1995 there was established a non-statutory scheme for the purpose of compensating certain persons who had contracted Hepatitis C from the use of human immuno globulin-anti-D, whole blood or other blood products.

At a stage when the said non-statutory scheme was in force and there was not yet a statutory scheme, D.B. made an application to the non-statutory tribunal claiming that he was entitled to compensation. After D.B. had lodged his application but before the hearing, the Hepatitis C Compensation Tribunal Act, 1997 became law and under it the non-statutory tribunal was replaced by a statutory tribunal with considerably wider powers as set out in the Act. The new statutory tribunal could not come into being under the Act until a statutory instrument was made. By S.I. No. 443 of 1997 the 1^st of November, 1997 was appointed as the day upon which the Tribunal was to be established. As of that date i.e. 1^st of November, 1997 D.B.'s claim had not been heard. As a consequence it fell to be heard by the statutory tribunal pursuant to section 6(2) of the 1997 Act.

An award was made by the statutory tribunal in favour of D.B. on the 4^th of November, 1997. On the 6^th of November, 1997 pursuant to the provisions of section 5(9)(a) of the 1997 Act, notice of the making of the award was sent by the tribunal to D.B.. On the 24^th of November, 1997 D.B. accepted in writing the award made pursuant to section 5(9)(a) of the Act and in accordance with section 5(10), D.B. agreed in writing and undertook to waive any right of action which he might otherwise have had against any party arising out of the circumstances of his claim and to discontinue any proceedings instituted arising out of the circumstances of his claim.

A right of appeal to the High Court from an award of the statutory tribunal is conferred in certain circumstances by section 5(9) of the 1997 Act. In purported pursuance of his rights under that subsection, D.B. lodged an appeal on the 22^nd of April, 1999. The appeal was commenced by originating notice of motion in the High Court. A date was fixed for the hearing of the motion but approximately one week before that date, counsel for the Tribunal sought permission to appear at the hearing so as to argue that there was no jurisdiction to entertain the appeal. The learned High Court judge reserved his judgment on this locus standi issue but in the meantime permitted counsel for the Tribunal to make submissions to him at the hearing on a de bene esse basis.

When the appeal came on for hearing a preliminary objection was raised by the Minister. It was argued on his behalf -

That the court had no jurisdiction to hear the appeal on the grounds that D.B. had on the 24^th of November, 1997 signed an acceptance of the award made to him by the Tribunal thereby precluding an appeal having regard to the wording of section 5(9) of the 1997 Act to which I will return.

That even if the court had jurisdiction to hear the appeal, the appeal was out of time having regard to the provisions of the same subsection, there being a statutory time limit not capable of extension.

These submissions were supported by counsel for the Tribunal.

O'Neill J., after hearing arguments, reserved his judgment on these preliminary objections and adjourned the hearing of the substantive appeal pending the determination of those issues. Although the learned High Court judge did not think so (and I will return to his reasoning in due course) I am quite satisfied that each of the alternative objections depend as to their validity almost exclusively on the wording of section 5(9) of the 1997 Act. The subsection reads as follows:-

"(a) Subject to subsection (13), where the Tribunal makes an award to a claimant, the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15).

(b) If a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the period referred to in paragraph (a), the claimant shall be deemed to have rejected the award."

Subsection (13) deals with minors and is not relevant but it is important to cite subsection (15) which reads as follows:

"An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross appeal any such appeal."

It is important to note that an appeal against an award under section 5(9) is to be regarded as an appeal under subsection (15) and, therefore, an appeal against a decision. At the hearing before the learned High Court judge and at the hearing of this appeal significance was attached by counsel for D.B. to an alleged distinction between "an award" and "a decision". In due course I will treat of this matter in more detail but at this stage it suffices to state that, in my view, every award under the Act is clearly "a decision" but not every "decision" is an award. An obvious example of a decision which is not an award is where the Tribunal considers that the applicant does not fall within the Act. But there is a particular reason why counsel for D.B. wants to emphasize this alleged distinction. He sees in it a possible way around the difficulty of time limits. I believe that his argument in this regard is ill-founded and I will be explaining why but in the meantime, I would prefer to return to the text of section 5(9) and to a consideration of how it should properly be interpreted.

There is no doubt that the subsection provides that the claimant shall have a period of one month or such greater period as may be prescribed i.e. by ministerial statutory instrument within which to "decide in writing either to accept or reject the award or to appeal the award under subsection (15)." It is not in contest in this case that the award was accepted. But counsel for D.B. argues that the acceptance of the award does not preclude an appeal. In other words, he rejects the argument that there were three alternative steps i.e. accept the award, reject the award or appeal the award. Mr. Nesbitt S.C., counsel for D.B., says that D.B. was perfectly entitled to accept the award and also appeal.

I cannot find any ambiguity in the subsection. As a matter of plain English there are three alternatives, not two. The "or" between "accept" and "reject" and the "or" between the word "award" and "to appeal" both derive from the same introductory words "may decide in writing either to". The grammar is not perfect as Mr. Nesbitt points out. The word "either" is normally only appropriate to one choice. But an argument based on good grammar is only relevant if it can point to an alternative interpretation. In this case I cannot see that there is any alternative interpretation. Indeed, a grammarian might just accept the use of the word "either" on the basis that accepting an award and rejecting an award are similar categories of steps whereas an appeal is rather different. But although that point can be made, I am inclined to agree with Mr. Nesbitt that the grammar is wrong. There is, however, a simple explanation for this. Paragraph 5(i) of the non-statutory scheme (the paragraph being headed "Preservation of Right of Action") reads as follows:-

"The making of a claim to the Tribunal under the scheme will not involve a waiver of any right of action. If a claimant receives an award from the Tribunal, the claimant will have a period of one month from the date of receiving notice of the making of the award during which the claimant can decide either to accept or reject the award. If a claimant neither accepts nor rejects the award within that period, the claimant will be deemed to have rejected the award. Only if the claimant accepts the award will the claimant be required to agree to waive any right of action which the claimant may otherwise have had against any party arising out of the circumstances of the claimant's claim and to discontinue any other proceedings instituted by the claimant. The execution of such a written agreement will be a condition precedent to the claimant of any award under the scheme."

There was no right of appeal under the non-statutory scheme. The applicant had to decide either to accept or to reject and if he did nothing within a particular period he was deemed to have rejected the award. In that situation the word "either" was obviously appropriate. Almost certainly the draftsman of the statutory scheme overlooked the inappropriateness of the word "either" when he was inserting the further option of appeal. It was simply tagged on to existing wording. In Crilly v. T and J Farrington Limited [2001] 3 IR 251 at 283 Denham J. said the following:

"In this case the Act is clear, there is no ambiguity and the section in issue has been construed in accordance with the traditional canons of construction. The People (Director of Public Prosecutions) v. McDonagh [1996] 1 IR 565 decided that even if an Act is not ambiguous, the legislative history, that is the legislative antecedents, may be considered by a court. I agreed then and I agree now with Costello P.'s judgment that such an approach should not be excluded. A court has a discretion to consider such legislative history."

In my opinion when a legislative scheme replaces a non-legislative scheme and where there are obvious similarities of wording between the two schemes the non-statutory scheme is for all practical purposes a legislative antecedent and part of the legislative history. It can, therefore, be considered in aid of interpretation. But I am quite satisfied that even if the court had never been told about what was in the non-statutory scheme and knew nothing about it, section 5(9)(a) is not open to any other interpretation even if there is imperfection in the grammar.

In interpreting paragraph (a) it is important to bear in mind the terms of paragraph (b). That paragraph unambiguously provides that if a claimant neither accepts nor rejects an award or appeals the award within the period set out in the previous paragraph the claimant shall be deemed to have rejected the award. Nothing could be plainer. It would be wholly illegitimate to interpret the provision as though it meant something quite different from what it says. Such an approach would directly contravene the principles laid down by this court in Howard v. Commissioners of Public Works [1994] 1 IR 101. At p. 152 of the report Blayney J. cites with approval the following passage from Craies on Statute Law (1971) (7^th Ed.) at p. 109:-

"If the meaning of a statute is not plain, it is permissible in certain cases to have recourse to construction by implication, and to draw inferences or supply obvious omissions. But the general rule is 'not to import into statutes words which are not to be found there'… and there are particular purposes for which express language is absolutely indispensable. 'Words plainly should not be added by implication into the language of a statute unless it is necessary to do so to give the paragraph sense and meaning in its context".

If on a reading of paragraph (a) there could be the slightest doubt (which I do not believe there is) on the question of whether an applicant was entitled both to accept an award and to appeal it, that doubt becomes totally removed upon a reading of paragraph (b). That paragraph makes it clear that not merely has a decision to appeal to be made within the time limit but that the appeal itself is to be brought within the time limit but, of course, the question of an appeal or a time limit therefor does not arise at all if the award is accepted.

I am, therefore, of the view that the time limit issue does not arise at all because there was simply no right of appeal from and after the acceptance of the award. If there is no right of appeal then the time within which an appeal must be brought is irrelevant. But in deference to the arguments of counsel and since it was indicated that it would be helpful if the court dealt with all the questions I will now treat of the time limit aspect on the artificial but false assumption that there was a right of appeal.

It was accepted by all sides at the appeal that on the basis of previous decisions of this court an express statutory time limit could not be extended even by invoking a rule of court permitting an extension of time limits. Under paragraph (a) a claimant is to have a period of one month "or such greater period as may be prescribed" from the date of receiving notice of the making of the award during which the claimant may decide in writing etc. The word "prescribed" is given the usual meaning of prescription by regulations made by the Minister. It does not, therefore, include a rule of court. A regulation extending the time was made by the Minister by the Hepatitis C Compensation Tribunal Act, 1997, Regulations, 1998 (S.I. No. 195 of 1998). The relevant regulation is Regulation 2 which reads as follows:-

"It is hereby prescribed that a claimant shall, as well as the period referred to in section 5(9)(a) of the Hepatitis C Compensation Tribunal Act, 1997, have a period of not later than one month from the date of commencement of Rules of Court in relation to such appeals, during which the claimant may decide in writing either to accept or reject the award of the Tribunal or appeal the award under subsection (15) of that section."

Such Rules of Court were made by the Superior Courts Rules Committee and approved by the Minster for Justice, Equality and Law Reform on the 14^th of October, 1998 and it was provided that the new rule should come into operation on the 23^rd of October, 1998. If, therefore, there had been a right of appeal the time was extended by the statutory instrument to the 23^rd of November, 1998. As has already been mentioned, however, D.B. lodged his appeal on the 22^nd of April, 1999. He was, accordingly, out of time even making allowance for the extended time prescribed by the statutory instrument.

Counsel for D.B is fully aware of this time limit and the fact that the appeal was brought outside it but he tries to get around the difficulty by an ingenious argument which I must now address. He has referred the court to section 5(15) of the 1997Act cited earlier in this judgment. He points out that the right of appeal conferred by that subsection is a right to appeal "in respect of any decision" and he further points out that the subsection by its terms does not contain any time limit. He then draws the conclusion from that that the only time limit which would be operative would be a time limit contained in the Rules of the Superior Courts and that under those rules he could apply for and obtain an extension. Now, in relation to an award the rules of court follow the statute and they provide that where an appeal against an award is brought by a claimant, such notice of motion shall be issued within one month from the date of receiving notice of the making of the award "or within such greater period as may be prescribed by the Minister". The rules then go on to make a significant distinction. They provide in Order 105A (2) that where an appeal against a "decision" of the Tribunal is brought (other than an award) such notice of motion shall be issued within one month from the date of the decision. It is perfectly clear from that that the rules-making committee realised that there was a statutory time limit in respect of appeals against awards but there was no statutory time limit in respect of appeals against other forms of decision. It is perfectly obvious that in this case the statutory time limit applied because the appeal is against an award. But Mr. Nesbitt tries to get around the difficulty by saying that the assessment of general damages and the assessment of loss of earnings for the future etc. were all "decisions" made by the tribunal at the hearing and that he was entitled to appeal those discrete decisions provided he could obtain an extension of time under the rules and he was in fact given such an extension in the High Court.

I cannot accept this argument. The position would seem to be no different from the hearing of an ordinary personal injury action in which various rulings and assessments are made by the trial judge but at the end of the day there is only one appealable decision. In this case the only appealable decision was an "award" and that is subject to the statutory time limit. As I have already pointed out, even on the extended statutory time limit D.B. was out of time with his appeal.

Finally, I turn to the question of the locus standi of the tribunal. As a general rule a tribunal is not made a party to a statutory appeal from its decisions though it would always be a party in a judicial review. Nor am I aware of any precedent for a tribunal on its own motion coming in on an appeal as an intervenient or being given a right of audience. But there is a simple explanation for this. The two parties before the appeal body whether it be a court or a special appeal tribunal will have also have been parties before the tribunal at first instance. Any point that arises therefore about the jurisdiction or behaviour of the tribunal can be adequately litigated by the actual parties. In this case, however, there is an anomalous procedure whereby the State is not represented at the tribunal hearings and, therefore, there is in effect only one party before the tribunal. When it comes to an appeal the matter becomes inter partes. In the interest of fair procedures and having regard to the fact that under the Act the tribunal must be served with notice of the making of the appeal, the tribunal ought to have a prima facie right to come before the High Court and seek to be heard on some point particularly relevant to it. It would be a matter for the High Court to consider whether it is relevant and appropriate that the tribunal be heard. In this case having regard to the alternatives set out in the Act and the result and confusion that would arise as far as the tribunal is concerned if they were not alternatives, the tribunal had a legitimate interest in seeking to make representations before the High Court and I consider that in the exercise of his discretion the learned High Court judge ought to have held that the tribunal had locus standi in all the circumstances.

The learned High Court judge, in an elaborate judgment, came to very different conclusions on each of the issues than I have done. The principal reason for this is that, with all respect, he never actually attempted to interpret section 5(9). Instead, he seems to have considered first section 6 which contains special provisions to deal with those who had already accepted awards from the non-statutory tribunal. The learned judge concluded that if he accepted the State's arguments there would be some kind of extraordinary discrimination as between those who had originally received awards from the non-statutory tribunal and persons who were before the statutory tribunal in that, as he saw it, the former would have major advantages which could not have been intended by the Oireachtas. First of all, I respectfully disagree with that opinion but even if it were correct it could not justify ignoring the clear wording of section 5(9) in order to achieve a "purposive" interpretation. Such an approach would fly in the face of Howard v. the Commissioners of Public Works cited above. The purposive interpretation may certainly be appropriate if on the ordinary canons of construction there is an ambiguity. For the reasons which I have explained, in my opinion there was no ambiguity here. The learned High Court judge never said there was an ambiguity. He seems to have looked at the entire Act and adopted a subjective view of what the Oireachtas must have intended in the interests of fairness and equality. I cannot agree that that was a legitimate approach.

In advocating a purposive approach counsel for D.B. placed reliance on MO'C v. Minister for Health (unreported judgment of the Supreme Court delivered by Denham J. on 31^st July, 2001). For the reasons indicated by Denham J. in her own judgment in this appeal, I am satisfied that there is no inconsistency between the views which I have expressed and the judgment in the MO'C case.

Before the non-statutory scheme came in, an unfortunate victim of Hepatitis C such as D.B. could not have recovered compensation except by an action for negligence in the courts and in such an action negligence would have had to be proved. That right has never been removed from these victims. But the Minister for Health decided by way of an additional remedy to introduce an executive scheme under which claimants could obtain compensation without the necessary proofs and they could then decide whether they wanted to take the award or not. If they decided to take the award they had to waive their right of action in the courts. If they did not like the amount of the award they could reject it and go to the courts in the ordinary way. Any such scheme whether it contained time limits or not was of advantage to the victims over and above their existing common law rights. However, in the course of time there were criticisms of the scheme such as for instance that there was no power to award aggravated damages and that there was no right of appeal. It was as a consequence of these criticisms that the Oireachtas decided to bring in a statutory scheme. There was nothing oppressive in that statutory scheme containing strict time limits. Any such scheme was a substantial added benefit to the victims over and above their ordinary common law rights no matter how strict the time limits were. There is, therefore, nothing unreasonable or improbable in there being strict time limits. On the contrary, they would be perceived as a necessary element in such a scheme where the victims were still to have the alternative route of going to the courts if they were unhappy with an award.

There was another problem facing the Oireachtas. Much of the criticism would have come from persons who had already gone to the non-statutory tribunal and, therefore, to accommodate them special provisions had to be made in the Act. These were contained in section 6. I respectfully disagree with the learned High Court judge that it would be in some way irrational if there was not complete equality of result as between persons who had received awards from the non-statutory scheme and persons who received awards from the statutory scheme. In fact there are some special provisions in relation to instalments etc. which are in the statutory scheme which never applied and do not apply and could not apply to persons who have already received awards from the non-statutory tribunal. Much play has been made of the fact that under the new Order 105A of the Rules of the Superior Courts any appeal brought by a person pursuant to section 6(3)(e) of the 1997 Act shall be brought by originating notice of motion within six months from the date of the commencement of the Rules or within such further period as might be permitted by the court under Order 122. But it was entirely reasonable that persons who had received awards from the non-statutory scheme should be given an extended time for appealing because they had to learn first of the very existence of the new Act and of any rights they might have. All of that could take a considerable length of time and there was nothing discriminatory in giving them this longer period. Furthermore, this period was not given by the Act itself. The Act simply gives them a right of appeal; it is the rules-making committee which quite rightly prescribed the lengthy period.

Each category of persons, that is to say, those who have been awarded compensation by the non-statutory tribunal and those who have been awarded compensation by the statutory tribunal have a bundle of rights under the Act suitable to their own positions. In the case of those who have received awards from the non-statutory tribunal they are already "tribunalised" and they are simply given additional rights within the tribunal system. Persons who are given awards, however, by the statutory tribunal can decide whether they want to leave the tribunal system or remain tribunalised. Rejecting the award has the effect that they are no longer tribunalised. Accepting the award or appealing permanently tribunalises the claimants. Under section 5(10) a claimant who accepts an award must agree in writing to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the claimant arising out of the circumstances of the claimant's claim before the Tribunal. Subsection (18) is an equivalent subsection in relation to the bringing of appeals. It provides that where a claimant makes an appeal under subsection (15) the claimant must agree in writing to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the claimant arising out of the circumstances of the claimant's claim before the Tribunal. Indeed, the existence of this subsection reinforces still more the interpretation of subsection (9) which I have regarded as clear and unambiguous.

By the order of O'Neill J. made the 11^th of September, 2002 following on a judgment which had been delivered on the 31^st of July, 2002 the learned judge granted leave to appeal to the Supreme Court on the following specified questions of law:-

Is the claimant who wishes to appeal an award by the Hepatitis Compensation Tribunal (the Tribunal) barred from doing so after the time specified in section 5(9)(a) of the 1997 Act has passed?

If not is a claimant who has accepted an award of the Tribunal barred from also appealing the award?

Does the Tribunal have a locus standi to appear in an application to this honourable court or in an appeal?

This leave was granted pursuant to section 5(19) of the 1997 Act. That subsection provides that a decision of the High Court on an appeal under the section shall be final, save that, by leave of the court, an appeal from the decision shall lie to the Supreme Court on a specified question of law. It has been submitted on behalf of D.B. that he was entitled in his notice of appeal, not only to appeal on those three issues but also to add any other matter of appeal following the well-known principle that where there is a statutory provision to the effect that leave to appeal can only be granted if the judge certifies that his decision involved a point of law of exceptional public importance and that it is in the interest of the public to bring the appeal, any other ground can be added if in fact such certificate and leave is given. This subsection is quite differently worded. It does not provide for that type of certificate with which practitioners are well familiar and which is contained in the Courts Acts in relation to appeals from the Court of Criminal Appeal and in the planning and refugee legislation. It seems to me that subsection 18 by its unambiguous terms allows him appeal only on "a specified question of law". Reference in the order to a certificate is in fact inappropriate as no question of a certificate arises.

It is clearly appropriate to answer the second question in the learned High Court judge's order before answering the first question. Indeed, that is the order in which he himself dealt with the issues in his judgment. As is clear from my judgment I take the view that D.B. was precluded from appealing once he accepted the award and that, therefore, the question of extension of time does not arise. I also take the view that even if I were wrong about that and that there was a right of appeal it could not be brought because there was a statutory time limit and the claimant brought his appeal outside of that time limit. Finally, I would be of the view for the reasons which I have given that the Tribunal did have locus standi. I would, therefore, allow the appeal on all three grounds.