AN CHÚIRT UACHTARACH
THE SUPREME COURT
[Appeal No. S:AP:IE:2017:000103]
O'Donnell J.
MacMenamin J.
O'Malley J.
Finlay Geoghegan J.
Irvine J.
M.O'S.
Applicant/Appellant
-and-
The Residential Institutions Redress Board, the
Superior Court Rules Committee and
the Minister for Justice and Equality
Respondents
Judgment of O'Donnell J. delivered the 6th of December 2018
Introduction
1 I gratefully adopt both the account of the facts and the outline of the applicable law contained in the judgment delivered by Finlay Geoghegan J. Although I differ from her as to the outcome of this case, and will set out briefly my reasons for doing so, I recognise the careful reasoning in her judgment, and sympathise with the concerns which have led her and a majority of the court to the conclusion that the appeal should be allowed. I also acknowledge that the applicant here, as a former resident of an identified institution, was a person within the contemplation of the Residential Institutions Redress Act 2002 ("the 2002 Act") when the Residential Institutions Redress Board ("the Board") was established in 2002, and the generous impulse which led to its establishment. If this case was merely a question of the resolution of the applicant's own claim, I would be reluctant to disagree with the course proposed. However, this case involves a question of interpretation of provisions of general application, having implications well beyond the facts of this case, and I cannot, with respect, agree with the decision of the majority of the court. I will set out briefly my reasons for so doing.
2 Time, it is said, flies when one is enjoying oneself, but it passes even more speedily when a lapse of time is sought to be explained in legal proceedings. Months and years of the passage of time can be dismissed in a single sentence. However, as has been pointed out, it is important to measure the length of time involved in a given case in terms of the ordinary progress of people's lives. The outcome of this case will be that, perhaps in 2019, the Board may be asked to address the question of an award to the applicant in respect of events which occurred more than 50 years before, under a scheme established 16 years ago, where claims were intended to be made by 2005, where the original decision by the respondent refusing an extension of time to bring a claim was made a decade ago, and where the scheme itself was closed more than seven years ago, even to applicants with strong cases and good excuse for their delay.
3 Here, a compensation scheme was established in 2002, but only after very considerable controversy and publicity, which itself eventually led to an official apology by the Taoiseach and the establishment of a comprehensive and unique form of public inquiry into treatment of persons in residential institutions. While it was initially considered that the inquiry would precede any compensation provision, it became clear that it would be necessary to establish the Residential Institutions Redress Board in order that the inquiry could proceed. All of this was attended with considerable publicity, given the developing public awareness, and indeed horror, of not only abuse of children in institutional care, but also abuse, often sexual in nature, perpetrated in institutions run by religious orders. It is, I think, fair to say that no-one living in Ireland, or interested in Irish affairs, could have been unaware of the general topic, although, of course, not necessarily the precise detail of the legal arrangements.
4 The scheme of the 2002 Act was to ensure that compensation would be payable on the establishment of minimal proofs, not including fault, and that such applications could be made in confidence. It was in these circumstances that a time limit was provided. Section 8 of the 2002 Act provided that any application should be made within three years of the establishment date, which time period could be extended in exceptional circumstances. The term "exceptional circumstances" was not defined. The primary cut-off date for any application was therefore September 2005, and accordingly, the 2002 Act contemplated that it would only be in exceptional circumstances that an application would be admitted after that point. Of course, since the decision was that of a body governed by public law, any adverse decision could be challenged, on limited grounds, by judicial review under the then applicable provisions of O. 84 of the Rules of the Superior Courts 1986, r. 21 (1) of which provided that an application for relief should be brought promptly, but in any event within three months of the grounds arising, and, in a case of certiorari, six months. This period could be extended "for good reason".
5 As set out in the judgment of Finlay Geoghegan J., the terms of O. 84, r. 21 were replaced in 2011 by an amended rule requiring the commencement of proceedings within a uniform period of three months from the date of the decision or the event giving rise to the claim, and further providing that that time period could be extended for "good and sufficient reason", but adding the requirements of O. 84, r. 21(3)(b) that the circumstances resulting in the failure to make an application for leave to apply for judicial review within the time limit were outside the control of the applicant, or could not reasonably have been anticipated by him or her.
6 Viewing the 2002 Act at the time of its enactment against the background of the existing law and rules, it might reasonably have been expected, therefore, that the class of claims to come before the Board would have been finalised by 2005, subject only to exceptional cases thereafter, which might be relatively few in number. However, in 2011 the Oireachtas took the further step of removing any possibility of extension of time by introducing an absolute cut-off point of 17 September 2011.
7 The net effect of today's decision is, however, that the Board must now consider an application to extend time on the basis that the applicant can establish exceptional grounds for doing so, and, almost 17 years after the commencement of the Act, must consider the applicant's claim for an award. Such an outcome, which appears inconsistent with the general scope of the legislation, and the importance the law of judicial review places on prompt challenge, deserves careful scrutiny.
8 I agree with Finlay Geoghegan J. that the High Court (McDermott J.) was wrong to consider that the decision in A. v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 meant that, as a matter of principle, a change in relevant case law could never provide a good and sufficient reason to extend the time pursuant to O. 84, r. 21 (3). While some of the observations in A. are perhaps relevant, I agree that there is no a priori rule that a change in the law cannot be a factor in an application pursuant to O. 84, r. 21(3). As Finlay Geoghegan J. points out, if the relevant decision had been delivered one day after the three month period lapsed, no-one would think that that fact could not be taken into account in an application to extend the time. If so, the question is rather what weight should be given to the new judicial decision in an application to extend time. The issue which must be considered in this application is, in truth, nearly the obverse of the question posed by the High Court: is a new judicial decision sufficient, on its own, to justify an extension of time?
Change in the law
9 What is in issue here is a change in the common law, that is, in what is loosely described as judge-made law. Normally, the law, and our sense of justice, is hostile to retrospective changes, that is, changes that affect conduct prior to the relevant enactment. Usually, a statutory change is prospective only in its effect, and where it is not, and where, for example, it is intended to extend the benefit of a new statutory change to past cases, this is often provided for explicitly. Greater difficulty arises with regard to changes in the common law because of the theory, somewhat ironic in the context of the present case, that the common law is discovered, and not made, by judicial decision. It follows in theory that the law was always thus, and accordingly a person affected by it is entitled to assert the benefit of the new interpretation even in respect of past events. The new "law" will apply to events which predate the decision. Everyone who became ill as a result of a snail in a ginger beer bottle (or, since the effect of the decision was to establish a general principle, any foreign element or defect in a consumer product) before 1932, was entitled to the benefit of the decision in Donoghue v. Stevenson [1932] AC 562, once it was delivered (and adopted in the common law world ), subject only to any relevant limitation provision. Everyone in Ireland who, prior to 1972, had been injured as a result of the negligence or other tortious conduct of the State was able to sue, or maintain proceedings, once the decision in Byrne v. Ireland [1972] I.R. 241 was delivered, subject once again to the possibility of a limitation defence. That much is made clear in the extract from the judgment of Murray C.J. in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88 quoted at para. 66 of the judgment of Finlay Geoghegan J.: judicial decisions which set a precedent in law do have retrospective effect. However, that principle was subject to a significant qualification contained in the same passage of Murray C.J.'s judgment, at p. 177:-
"Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations . It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position" (emphasis added).
10 A judicial decision changes the law retrospectively subject however to any limitation defence. Here, the question is a further refinement of the issue: where a judicial decision sets a new precedent, but proceedings are barred by a primary time limit (whether in a statute of limitations or other statute), which is, however, subject to a discretionary extension, should the court extend time for the bringing of proceedings to allow the person to benefit from the new precedent, and, if so, on what basis and subject to what considerations?
11 In the present case, the issue is not purely one of common law, but rather the interpretation of a statute. It is not necessary, therefore, to enter deep jurisprudential water as to the nature of law or judge-made law in the field of common law. Rather, I am satisfied to approach this case from the standpoint that the interpretation of s. 8 of the 2002 Act which was binding on the Board (and everyone else) is and was different after the Court of Appeal decision in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016) to that which had applied (and been binding) prior to that decision. Further, I accept that, in certain cases at least, the new interpretation of the law would lead to a different result. To that extent at least, while the statutory words stayed the same, the law as it applied to individuals certainly changed.
12 A dramatic shift in jurisprudence, the establishment of a new principle, or the reversal of prior precedent will understandably attract attention in the legal profession generally, but it must be recognised that it is the exception rather than the norm, even in appellate courts. Most developments in the law made by judicial decision are fine-grained and incremental - or, in the famous phrase, molecular rather than molar movements - and in general more a matter of degree than drama. To some extent, almost any decision of an appellate court which produces a considered judgment, which cannot be said to be merely the application of existing law, sheds some light and can viewed as a development in the law, and any such development is not always linear. To take this issue alone, the decisions in J.O'B. v. Residential Institutions Redress Board [2009] IEHC 284, (Unreported, High Court, O'Keeffe J., 24 June 2009) and M.G. v. Residential Institutions Redress Board [2011] IEHC 332, (Unreported, High Court, Kearns P., 9 August 2011) could be seen as imposing an initial interpretation of s. 8(2) which was in retrospect overly strict. The decision in the High Court in A .O'G. v. Residential Institutions Redress Board [2012] IEHC 492, (Unreported, High Court, Hogan J., 6 November 2012), while loyally applying the previous decision, nevertheless raised a considerable doubt as to the correctness of the strict principle applied in those cases. That view was confirmed on appeal in the Supreme Court in O'G. v. Residential Institutions Redress Board [2015] IESC 41, (Unreported, Supreme Court, 15 May 2015) and, finally, applied in fact to overturn a refusal in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016). It follows as a matter of common sense that it would be foolish to think that the process necessarily ends there. It is, in theory at least, entirely possible that if another case were to emerge, further decisions may take a slightly different view of the scope of exceptional circumstances. To that extent, the law is always in motion, tacking and gybing, sometimes imperceptibly, but sometimes making more dramatic manoeuvres, and on occasions perhaps a complete about-turn.
13 The position of the applicant when the application to extend time was first refused in 2008, and the further application to review that refusal was refused in 2012, was clear: a decision was made by the Board which was final unless challenged by way of judicial review and set aside. That course was considered by the applicant, who decided against it. The decision not to seek judicial review was made, it appears, (although the evidence is far from comprehensive) on the basis of advice given as to the prospects of success and the possibility that if unsuccessful, the applicant might be the subject of an award of costs. While a lawyer might consider it unlikely, in the overall context of this case, that if the applicant failed, he would be the subject of a costs order and that such an order would be enforced against him, I do not at all underestimate the fact that a citizen, perhaps facing court proceedings for the first time, might be unwilling to run a risk in that regard. The fact is, however, that at that point, the applicant made a considered choice not to challenge the Board's decision, and therefore to accept that it was final and beyond challenge. There is no suggestion that his decision was in any way contingent, or that he was advised to rely on the possibility of a future application to extend time, or sought to do so. Once the time to challenge the decision had elapsed (at the latest three months after the delivery of the second refusal in November 2012), both the applicant and the Board were entitled to consider, and no doubt did consider, that the claim was now at an end.
14 The position is now, however, that in the light of the decision of the Court of Appeal in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016), the calculation made by the applicant has changed, and he now considers that the odds have turned in his favour. As Finlay Geoghegan J. puts it, accurately I think, "the prospects of success obviously appeared much stronger", and accordingly the applicant decided to commence proceedings. It might be said that the calculation involved was always changing to some extent in the light of the development of the decisions. However, the fact that the outcome of the calculation had changed again after the Court of Appeal decision in McE . does not mean that it was not, in essence, just that: a calculation. There was still a risk of failure and still a risk of costs. While the question of the test of exceptionality may have shifted in his favour, the provisions of O. 84 now stood in his way. Accordingly, any proceedings would involve not simply a reliance on the decision in McE. , but rather, and more substantially, persuading the Superior Courts to hold that O. 84, r. 21(3)(b) was invalid. The fact that the High Court decided against the applicant, and that this court is divided, shows that success was by no means a foregone conclusion. Therefore, the applicant still faced a risk of failure in the proceedings (and some risk of costs), though what had changed was that it was now a risk that he was prepared to run. Is that enough to constitute a good reason to extend the time for challenge by way of judicial review by four years? Even if so, in a clear case of the substantive law being reversed, is it enough where the decision sought to be challenged is itself a decision not to reconsider an earlier decision not to extend time to lodge a claim? I regret that I find it difficult to consider that this factor, on its own, is sufficient to constitute a good reason to extend the time for challenging a decision (itself a decision not to reverse a refusal issued four years earlier) made more than four years prior to the application for judicial review, in circumstances where the primary time limit for challenging such a decision was three months. The fact that this case involves an application for an extension of time pursuant to the Rules of the Superior Courts 1986 to challenge what was itself a refusal to extend time under statute means that it is easy to blur the respective provisions. However, the precise question in this case relates to the provisions of O. 84, r. 21, and is therefore applicable to all judicial reviews and not merely decisions to refuse an extension of time under the 2002 Act. Inevitably, this decision itself sets a precedent that extends well beyond the area of claims under the 2002 Act.
15 If the applicant is correct that a change in the legal landscape (and thus the calculation of possible success) is itself sufficient to constitute good reason for extending time for judicial review, one consequence which must necessarily follow is that although O. 84 - reflecting important policy considerations - provides that administrative decisions binding on persons must be challenged promptly and within a period measured in months, the extension sought could be (and was in this case) a significant multiple of that basic time period, running to a number of years. If the applicant is correct in this case, the principle established would in theory allow an extension of time every time the applicable law could be said to have changed, even though, as discussed above, the law is always to some extent changing. Common sense, if nothing else, suggests that there must be some period after which it is not possible to rely on a change of law, and, furthermore, that some changes cannot be regarded as sufficient. However, in this regard, I am unable to discern in the applicant's arguments any way in which the principle for which he contends might be limited. Would, for example, a decision that O. 84, r. 21(3)(b) is ultra vires and therefore void, or indeed the decision of the court that the rule should be interpreted broadly, have the effect of reviving any and all possible judicial reviews since 2011 to which that provision, or the interpretation of it, might be thought to have presented a barrier? It is useful to look at this question in reverse. If, for example, the tribunal had decided to award compensation on a very generous basis upheld by the High Court, say in relation to punitive damages or nervous shock, which years later the Court of Appeal or this Court had overruled, would it be possible for the State and paying parties to extend time to quash any such award? If a change in judicial decision is a sufficient ground for extending time, then time can and must be extended up to a reasonable period after the ‘new' decision. However, that could be a very long time indeed after the decision was made, and the three month period elapsed.
16 It might be said that this is a single case where an indulgence may be permitted, especially when the compensation scheme was intended to benefit persons such as the applicant. But there are other potentially serious anomalies if the applicant can succeed on this basis. Anyone who challenged a refusal of an extension of time prior to McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016) might have received an adverse decision on the basis of law now held to be incorrect by the currently binding decision of the Court of Appeal. Could any such applicants now seek to extend time to appeal those adverse decisions? If they cannot, then there is an unsatisfactory anomaly, in that the person who went to court promptly and suffered the risk (or, indeed, the reality) of an adverse court order, and the possibility of an adverse award of costs, would be worse off than the person who decided against going to court at all. However, if it is possible for such persons to extend time to appeal now, then the precedent established by this case extends much further than the present application. The evidence in this case discloses that, in the context of the Board alone, there were a dozen judicial reviews of similar refusals commenced by clients of the solicitors acting for this applicant. Other claims may have been commenced by other solicitors for their clients.
17 A change in the law may be a factor, but it is rare that the fact that the law can be said to have changed in some regard can be dispositive. Other issues and factors must be considered. The closer to the time of the original time limit the application is brought, the easier it will be to accede to it, since it will not significantly affect the underlying policy that if decisions made in exercise of a public law power are to be challenged, they should be challenged promptly. The longer the time lapse, the more difficult it should be to extend time. This should not be viewed solely in absolute terms: the period involved here is more than four years, but must be judged relative to the time period set by the law for the bringing of the claim or challenge, as the case may be. Where a change in the law is relied on, it may be important whether that change is clear, relates to the substantive law, and is, for example, a simple reversal of a prior authority that would accordingly determine a case, or whether the change is procedural, more incremental, and less clear-cut. Where the proceedings are inter partes , the effect on the other party must also be considered and will often be a weighty consideration. The fact that a party has acted on faith of a decision, determination, or judgment, and that it has not been challenged within the time or any reasonable period thereafter, will normally be a heavy factor weighing against extending time. This will be particularly so where it can be said that a person has changed their position on the basis of the existing decision or determination. It may be important whether the decision is a once-off decision, or whether it will have continuing impact and effect on the parties. It is one thing not to disturb affairs which have been decided, even if done on a basis now considered erroneous, but it is another to allow an erroneous decision to continue to have effect, for example, in relation to further periodic payments.
18 Here, the factors do not lead to an easy or clear-cut resolution. The fact that the proceedings relate to a scheme designed to provide compensation for persons such as the applicant who were resident in institutions on the basis of minimal proofs and without establishing fault is a strong feature in favour of extending time. It also follows that there are no adversarial proceedings, and no question, therefore, of another individual being prejudiced either in the way in which they might meet the claim or more generally.
19 Against these factors, there are also a number of weighty considerations. The time which it would be necessary to extend is a very significant multiple (more than sixteen times) the time limit established by O.84, r. 21. The decision in 2012 which it is sought to quash was itself a decision not to set aside an earlier refusal four years earlier (but still three years outside the primary time limit) in 2008. By inviting the Board to review its own decision, the applicant had already achieved a significant extension of time by default. Therefore, the length of time involved in both absolute and relative terms was substantial Second, the issue here is procedural rather than substantive, and does not go to the entitlement to receive the award or its quantum. The issue was instead a question of the test applicable to an extension of time to bring the claim. In effect, therefore, to succeed, the applicant requires the extension of the three year time limit to lodge a claim under the 2002 Act by seven years, and a further extension of the three month time limit to bring judicial review proceedings to more than four years, and a further extension to bring that period up to date. When the time taken for processing the application and appeal is taken into account, it is now 13 years since the primary time limit under the 2002 Act expired. The change in the law relied on was incremental rather than a dramatic single reversal of a binding precedent. Doubts were expressed in the High Court, given further substance in the Supreme Court, and ultimately led to the decision of the Court of Appeal which triggered the application. Neither the pre-existing High Court jurisprudence, nor any development of it, formed an absolute bar to proceedings. As was pointed out in the replying affidavit in this case, the applicant's own solicitors launched twelve judicial review proceedings in circumstances very similar to those of the applicant in the period between January 2012 and July 2014. The change was not decisive even in respect of the issue which we are presently concerned with, that is, the validity of the decision of the Board not to extend time for the applicant's claim. At best, it can be said that the outcome of the Court of Appeal decision shifted the balance of the calculation somewhat in favour of the applicant, but did not make it inevitable that the particular judicial review would be successful. It is right to acknowledge here, however, that the respondents accept that if time is extended in this case, the decision to refuse to extend time for the compensation claim would fall. There would, however, remain a question as to whether exceptional circumstances had been established which were sufficient to extend the time for bringing of claim, albeit now pursuant to a less demanding test.
20 It is true that there is no other party, in the sense of a party to private law inter partes proceedings, who would be affected by a decision in favour of the applicant, but that does not mean there are not significant adverse consequences to a such a decision, which would not be limited simply to the cost of any award, and the additional costs of these proceedings. The establishment of the Board in 2002 involved creating quite an elaborate structure for the processing and assessment of claims in confidence, and, where appropriate, their appeal and reconsideration. Significant expertise was built up. Accordingly, as stated in the affidavit of the registrar of the Board, Patricia Kavanagh, by the time of this application in the High Court, it was effectively the only outstanding claim. The Board was at that point winding down and operating on a skeleton staff, having processed 16,649 claims, with one outstanding. It was anticipated that that claim would itself be determined before the end of May 2016, and that legal costs have been finalised in all but eight of the applications, which again were anticipated to be fully resolved by May 2016. Accordingly, the existence of these proceedings, and the processing of the applicant's claim, will greatly extend the life of both the Board and the process of its winding down, with additional costs in terms of salaries, rent and more.
21 As discussed above, if time is extended for the applicant to bring judicial review, the refusal to reconsider is quashed, and a decision is made in turn extending the time to bring an application under the scheme, then significant anomalies would ensue. Given the significant passage of time since the establishment of the Board and the scheme, it is inevitable that there are proceedings which were either determined in the High Court, or compromised, on the basis of the decisions in J.O'B. v. Residential Institutions Redress Board [2009] IEHC 284, (Unreported, High Court, O'Keeffe J., 24 June 2009) and M.G. v. Residential Institutions Redress Board [2011] IEHC 332, (Unreported, High Court, Kearns P., 9 August 2011). Unless the applicants in those cases which were determined in the High Court are to be permitted to extend time (by up to a decade) to appeal, and some mechanism is devised which would allow any applicants who withdrew or compromised their proceedings to reinstate them, then the extension of time in this case would give rise to the anomalous result that those who had asserted their rights and gone to court would suffer, and those who had decided against that course would benefit. By definition, all such applicants were, like this applicant, persons who could claim to satisfy substantive test for the receipt of compensation under the scheme. On the other hand, if the impact of today's decision is that all such claims can now be revived, then the impact and cost of the decision is much greater than simply permitting this applicant to proceed. The passage of the Residential Institutions Redress (Amendment) Act 2011 ("the 2011 Act") creates the potential for a different anomaly. It simply removes the possibility of extending time to make a claim, no matter how extraordinary and exceptional the circumstances, and no matter how compelling the evidence. Thus, a person who may have been a resident in the same institution at the same time as the applicant, and be capable of demonstrating that he or she suffered the same or perhaps even more serious abuse, and can show truly exceptional grounds for his or her failure to have made a claim before now, will not be able to advance that claim, while at the same time the applicant's claim is entertained.
22 The 2011 Act is relevant in another respect. It amounts to a legislative judgement that no matter how exceptional the circumstances and however deserving of sympathy the case may be, no further claims may be advanced, and no further extensions of time should be granted. It is, in effect, a statutory longstop to the redress scheme, and a judgement that, after the passage of nine years since the initiation of the scheme, no further claims should be initiated. Of course, it can be said that the refusal of extension of time which is sought to be challenged here predated the statutory cut-off, and the 2011 Act would not be a bar to a judicial review commenced in a timely fashion in respect of a refusal which predated the 2011 Act. However, the policy embodied in the statute is relevant to the question of whether there can be said to be "good and sufficient reason" for the extension of time to bring such a judicial review, particularly when that involves an extension of time of the length, in both relative and actual terms, involved here.
23 In my view, it is not enough to say that the 2002 Act was intended to benefit persons such as the applicant. That is a partial and insufficient description of the 2002 Act. It was to benefit persons who could establish certain relatively minimal matters in a claim brought within the time period specified therein. The 2002 Act clearly contemplates, and to that extent intends, that persons may satisfy the factual criteria of residence in a scheduled institution, and yet fail to qualify on time grounds, if they fail to make a timely application and are unable to establish exceptional circumstances for extension of time. The argument, therefore, that the applicant is a person within the contemplation of the 2002 Act cannot in itself answer the question posed for the court. In truth, the applicant's case rests on a type of sympathetic incrementalism: the applicant has a claim on the facts and is only one more claimant following many. However, it is possible to make this argument every time a line is required to be drawn. There will always be a last claimant fortunate to be admitted, and one claimant unlucky to be excluded, with little difference between the two cases. In every examination, there always a last lucky pass and a first unfortunate fail. But a line has to be drawn at some point. The Oireachtas did so decisively in 2011, and we have to ensure that any line drawn by the courts can be justified by reference to principle.
24 Finally, and perhaps most importantly, whatever may be said about the failure to make a claim under the redress scheme by 2005, the applicant here made a fully considered, advertent decision not to commence judicial review proceedings. He did so in circumstances where he must have been aware that his decision meant that the decision of the Board had full effect, and any possibility of compensation was at an end. A decision not to commence proceedings and allow a time limit to expire is an important one which should take effect unless there are compelling factors that make it right that the individual should be relieved of the consequences of a fully informed, advertent decision. Taking all of these factors into account, I cannot conclude that the decision of the Court of Appeal in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016) is enough in itself to constitute a good and sufficient reason to extend time to seek judicial review of the refusal by the respondent to reconsider its decision refusing, in turn, to extend the time for the bringing of an application before the Board.
25 In coming to my conclusion in this regard, I have tried to exclude from my assessment any consideration as to the substance of the decision of the Court of Appeal in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016), since that matter has not apparently been the subject of any appeal to this court. While I fully accept that the approach of the High Court in the decisions of J.O'B. v. Residential Institutions Redress Board [2009] IEHC 284, (Unreported, High Court, O'Keeffe J., 24 June 2009) and M.G. v. Residential Institutions Redress Board [2011] IEHC 332, (Unreported, High Court, Kearns P., 9 August 2011) may have been unduly strict in their application of the exceptionality test, I would express no view on the correctness of the approach in McE ., which was not the subject of appeal to this court. It is perhaps unlikely that the provisions of the 2002 Act will trouble these courts in the future, but the question of the application of principles of interpretation to remedial statutes is of more general application and may arise for consideration in a future case. In that context, the decision in McE . may require to be considered without any implicit imprimatur or criticism derived from the decision in this case. For the present, I would observe merely that the decision is perhaps a further illustration of the fact that the law is always in flux, and the apparent establishment of high principle in one case is often only a staging post to a refinement of that principle in the next.
O. 84, r. 21(3)(b)
26 Taking the view that the change in the law effected by the Court of Appeal decision in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016) does not itself constitute a good and sufficient reason for extending the time for making an application for judicial review in these proceedings, it is not necessary to proceed further and consider whether the restriction under O. 84, r. 21(3)(b) applies in this case. However, since the majority of the court takes a different view, it is necessary to consider this issue.
27 I fully agree with the concerns expressed in the judgment of Finlay Geoghegan J. as to the terms of O. 84, r. 21(3)(b). In retrospect, the terms of the new rule introduced in 2011 are unhappy. On one level, they seem to suggest that, while there can be good and sufficient reason to extend time, nevertheless time cannot be extended because the case does not come within O. 84 r. 21(3)(b) (i) or (ii), a puzzling and peculiar outcome which would certainly give rise to concerns as to whether the sub-rule might create an unjustified restriction on an applicant's right of access to a court. If there is a good and sufficient reason for extending time, then time ought to be extended. On this view, subparagraph (b) is dangerous and restrictive if it constrains or prevents the extension of time where there is good and sufficient reason to do so, or redundant if it does not do so. It is, I think, apparent that some of the difficulty here arises because the recast O. 84 introduced in 2011 is by way of the crafting on of a further subsection to the provisions of O. 84, r. 21(3), and the two provisions do not necessarily sit easily together.
28 It was submitted on behalf of the applicant that the new O.84, r. 21(3)(b) was ultra vires the powers of the Superior Court Rules Committee because (a) it was not a matter of practice and procedure but rather an amendment of substantive law, and (b) because it was an unconstitutional restriction upon the right of access to court. I have no doubt that, at least in general, the provisions of O. 84, r. 21(3) are within the general powers of the Superior Court Rules Committee to regulate matters of practice and procedure. In simple terms, the time limit for commencement of judicial review proceedings has been contained in the rules since 1986, when the new judicial review procedure was established. Indeed, a time limit for seeking the prerogative writ of certiorari can be found in O. 84, r. 13 of the Rules of the Supreme Court (Ireland) 1905. If this is so, and it is permissible to include a time limit in rules regulating the procedure for seeking relief, it follows that it must be permissible to provide for an extension of time, and at least in principle to set out the circumstances in which such an extension of time may be permitted. It may not be particularly wise or successful to seek to provide for all the circumstances in which it may be necessary to extend time, but the subject matter of the exercise appears to me to be within the rule-making power.
29 Whether or not the new sub-rule introduced by O. 84, r. 21(3)(b) in 2011 is, however, an unjustified constraint upon an applicant's right of access to a court rests on an argument that the restriction is, in circumstances which the particular plaintiff can invoke, unfair and unjust. The first step in such an analysis is, in my view, to demonstrate that the applicant is caught by the provisions of O. 84, r. 21(3)(b), albeit that he could satisfy O. 84, r. 21(3)(a), and that such a restriction was unfair. That conclusion may indeed be easy to reach in a case which genuinely falls between the two subparagraphs, but I am not convinced that this must be treated as such a case.
30 I readily accept that the provision could have been more happily drafted, and, furthermore, that there is a dislocation between subparagraph (a) of r. 21(3), which speaks of a reason for extending time, and subparagraph (b) thereof, which looks to a failure to make an application within time. It is conceivable that these two matters will not be aligned, and that there will be a reason for extending time which is not related to the circumstance which resulted in the failure to make the application within time. However, I do not think the rule should be interpreted to create such a distinction, or to widen the scope of that distinction, if it exists. In most cases, the two matters should be aligned. In this case, if I agreed that the emergence of the decision of the Court of Appeal in McE. v. Residential Institutions Redress Board [2016] IECA 17, (Unreported, Court of Appeal, 3 February 2016) itself constituted a "good and sufficient reason" for extending time within O. 84, r. 21(3)(a), I would be inclined to view the circumstances that resulted in the applicant's failure to make the application for leave within the time limit as the absence of any such decision, which is, moreover, something outside the control or reasonable anticipation of the applicant. In this context, ‘anticipation' does not mean, in my view, merely that the applicant could have foreseen the circumstances resulting in the failure to make the application in time, but rather (in the classic, though now less popular, sense of being aware of something and acting accordingly noted in Fowler's Dictionary of Modern English Usage (4th edn., Oxford, 2015) at p. 53), that the applicant could have both foreseen and taken steps to avoid those circumstances. The timing of the decision in McE . was not within the anticipation of the applicant in this sense, since there is nothing that he could have done to have either procured such a decision or avoided the consequence of the absence of such a decision within three months of the adverse decision of the Board. Nor was the decision or its timing within his control. Accordingly, on this approach, the applicant could satisfy both alternatives set out in the new sub-rule (3)(b). Taking this approach, I do not read O.84, r. 21(3)(b) in the applicant' case, and indeed more generally, as a significant constraint or limitation on O.84, r. 21(3)(a), and viewed in this way, I do not think it can be said to unreasonably or unduly restrict the right of access to court. On this approach, it only excludes those with a good and sufficient reason for an extension who could control the circumstances in which they did not apply within time, or who could have foreseen such circumstances and taken steps to avoid them. In this particular case, the end result is no different whichever route is taken (i.e. interpretation of the sub-rule as suggested by me, or a finding that the subrule is ultra vires ), as time will be extended for the bringing of the application for judicial review. However, insomuch as it is likely that there may be further challenges to different provisions of the Rules of the Superior Courts 1986, I think it is important to emphasise that, in my view at least, it would be within the power of the Superior Court Rules Committee to enumerate the grounds for an extension of time, and to decide, for example, to provide that certain matters, such as a mistake by a lawyer, might not provide such a ground. Any such restriction would, however, be subject to an overall consideration as to whether they effected an unjust constraint upon the right of access to a court. Of course, it may be wiser not to seek to prescribe in advance all possible contingencies, and to leave the matter to be determined by developing case law. In principle, I do not consider that it exceeds the power of the Rules Committee or is per se an unconstitutional restriction on access to court to set out general grounds for an extension of a time limit itself fixed by the rules. The validity of any such rule would fall to be determined by the nature rather than the fact of the limitation.
