Extending time to Appeal against a decision of a professional regulator

Four Courts at Night

13 February 2024

The Supreme Court in Ireland recently ruled that the High Court has the jurisdiction to extend time to appeal a decision of a professional regulator to the High Court, even in the absence of an express provision allowing for same. The case involved a solicitor who appealed a decision of the Solicitors Disciplinary Tribunal, but the appeal was deemed to be one day late. The Supreme Court majority held that the High Court could extend the time for the appeal, as the Oireachtas had granted a right of appeal and any attempt to restrict that right of appeal should be strictly construed, particularly in light of the constitutional right to litigate. This ruling may have implications for appeals of decisions made by other professional regulatory bodies to the High Court.

The Supreme Court in Ireland, in Kirwan .v. O’Leary and Ors ([2023] IESC 27). recently considered whether the High Court has jurisdiction to extend time to appeal a decision of the Solicitors Disciplinary Tribunal (“Tribunal”) determining that there was no prima facie or statable case of misconduct against a solicitor under section 7(12B) of the Solicitors (Amendment) Act 1960, in the absence of an express provision allowing for an extension of time. In summary, the Supreme Court concluded that the High Court did enjoy the power to extend time to appeal against a decision of the Tribunal notwithstanding the absence of express statutory provisions permitting an extension of time. The decision of the Supreme Court will be of interest to all professional regulators in interpreting appeal provisions governing appeals of their decisions to the High Court.

Background

Mr Kirwan (“the appellant”) made two complaints to the Tribunal in September 2019 against a number of solicitors arising from a property transaction in Wexford town. The Tribunal considered the complaints and, on 8 October 2020, determined that the complaints did not disclose a prima facie case of misconduct which would warrant the holding of an inquiry in the matter.

Section 7(12B) of the Solicitors (Amendment) Act 1960 (“the 1960 Act”) states that an appeal against a decision of the Tribunal to the High Court “shall be made” “within 21 days” of receipt of notification in writing of the finding.

The appellant received notification of the decision of the Tribunal on 9 October 2020 and, therefore, the last day for an appeal to be made was 29 October 2020, the relevant provision requires that the appeal shall be “made” “within 21 days”. . The appellant appealed the Tribunal’s decision, and the appeal was deemed to have been made on 30 October 2020, one day late. Therefore, one of the questions for the Supreme Court to consider was whether the High Court, on receipt of an appeal under section 7(12B) of the 1960 Act outside the statutory time limit, had any jurisdiction to extend the time to appeal.

Judgment of the Court

The Supreme Court, by a majority of 3-2, determined that the High Court did have jurisdiction to extend time to appeal. Murray J, giving the majority judgment concluded that, in the absence of express wording, prohibiting an extension of time to appeal, such as the appeal “shall” be made “not later than 21 days” or a similar express provision to that effect. The High Court did enjoy a power to extend the time for the making of the appeal. The Court stated that the appellant had been provided by the Oireachtas with a right to appeal against a decision of the Tribunal and the provision of a right of appeal engages the constitutional right to litigate. The Court held that, in giving a party the right to appeal, a provision to restrict such a right to appeal must be strictly construed in light of the constitutional right to litigate.

Dissenting Judgment

Mr Justice Woulfe delivered the dissenting judgment where he stated that the High Court did not enjoy the power to extend the time for filing an appeal under Section 7(12B) of the 1960 Act. Woulfe J stated that the statutory provisions were clear in requiring an appeal to be brought within a strict time limit (“shall be made” “within 21 days”). Woulfe J also noted the absence of express language permitting an extension of time.

Conclusion and Comment

The Court ultimately concluded that the High Court did enjoy a power to extend time to appeal a decision of the Tribunal under section 7(12B) of the 1960 Act. This decision potentially opens the door to a similar interpretation being adopted in relation to other statutory appeals to the High Court against decisions of professional regulatory bodies, where these appeals are made outside of the statutory appeal period. It is not entirely clear how this decision will apply in the context of appeals under other statutory regulatory regimes as these will have to be considered and determined by reference to the relevant statutory text. However, the Court has certainly shifted the balance in favour of the courts having jurisdiction to extend time to appeal in the absence of very clear language preventing such extension of time. As a result, it can no longer be assumed that the High Court has no jurisdiction to extend time to appeal, certainly unless there is express statutory language preventing an extension of time to appeal.

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