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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> (B.) D. v. Minister for Health and Children [2002] IEHC 143 (31 July 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/143.html Cite as: [2002] IEHC 143 |
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No. 1999/196CT
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
BETWEEN
APPELLANT
RESPONDENT
JUDGMENT of O'Neill J. delivered the 31st day of July 2002.
The Appellant in this case brought a claim to the Hepatitis C Tribunal and this claim was heard on the 4th of November, 1997. On the 1st of November 1997 the Statutory Tribunal was established under the provisions of SI No. 443 of 1997. Thus, pursuant to the provisions of Section 6 of the Hepatitis C Compensation Tribunal Act 1997, not withstanding the fact that the application was initially made to the non-statutory Tribunal the Appellant's claim was heard and determined as if it was a claim made under the Hepatitis C Compensation Tribunal Act 1997 (hereinafter referred to as the Act). Having heard the Appellant's claim the Statutory Tribunal (hereinafter referred to as the Tribunal) made an award of compensation to the Appellant.
The Appellant now appeals to this Court by way of an originating Notice of Motion dated the 22nd day of April, 1999 and specifically in that Notice of Motion claims an order appealing the award of general damages, an order appealing so much of the determination of the Tribunal as related to the allowance for future loss of earnings and also claims such further order including an order for costs as seems fit. The Appellant's originating Notice of Motion recites the appeal as being under the provisions of Section 6 (3) (E) and also Section 5 (15) of the Act.
Upon this appeal coming on for hearing before me a preliminary application was made by the Respondent to have the Court determine;
1. That the Court had no jurisdiction to hear this appeal on the grounds that the Appellant had on the 24th day of 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.
On an application to me approximately one week before the date of hearing set for the appeal Counsel for the Tribunal sought permission to be heard on the hearing of the above issues and I acceded to that application. In the course of the hearing of these preliminary issues, objection was taken by Counsel for the Appellant to the Tribunal being heard, on the basis, it was contended, that the Tribunal lacked Locus Standi. Having heard argument from Counsel for -the Respondent on this matter and from Counsel for the Tribunal I reserved my judgment on the Locus Standi issue but permitted Counsel for the Tribunal to proceed de bene esse.
Thus the issues which fell to be determined by me on this preliminary application were the two above mentioned and also the issue as to whether or not the Tribunal had a Locus Standi to appear and be heard on this appeal.
With the agreement of all parties I adjourned the hearing of the substantive appeal pending determination of these issues.
BACKGROUND
On the 15th of 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. The Applicant made application to the non-statutory Tribunal for compensation.
The non-statutory Tribunal had no power to award, aggravated or exemplary damages In calculating its awards, the non-statutory Tribunal took into account any statutory or non-statutory benefits to which a Claimant had or would become entitled to, or had received or would receive as a result of the condition which gave rise to the claim, and 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 Act. This became law on the 21st of May 1997. The Tribunal however did not become established until as provided for in Section 2 of the Act, the Minister by Statutory Instrument namely SI No. 443 of 1997 appointed the 1st of November, 1997 as the day upon which the Tribunal was to be established for the purposes of the Act.
The 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 of Hepatitis C caused by blood products administered within this State.
On the 4th of November, 1997 this Appellant's application came on for hearing before the Tribunal and award was made in his favour. On the 6th of November 1997 pursuant to the provisions of Section 5 (9) (A) of the Act, notice of the making of the award was sent by the Tribunal to the Appellant. On 24th of November, 1997 the Appellant accepted in writing the award made, in apparent compliance with Section 5 (9) (A) of the Act and also in compliance with Section 5 (10) of the Act 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. On the same day namely the 4th of November, 1997 the Appellant having accepted the award applied pursuant to Section 11 of the 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, in lieu of the Tribunal assessing and awarding aggravated or exemplary damages. On the 4th of December, 1997 the Tribunal confirmed receipt of the notification of acceptance of the award together with the application for payment from the Reparation Fund. On the same day the Tribunal applied to the accounts branch of the Respondent for two separate payments, one being the award and the second being the payment from the Reparation Fund. For this purpose the Tribunal enclosed a copy of the form of acceptance by the Appellant and the original certificate of the Tribunal Chairman certifying the award and the amount thereof. On the 16th of December, 1997 the Tribunal wrote to the Solicitors for the Appellant enclosing two cheques, one in respect of the amount of the award and the second one in respect of the 20% from the Reparation Fund.
On the 9th of June, 1998 SI No. 195/98 came into effect which prescribed an additional time limit in respect of Section 5 (9) (a) of the Act. On the 23rd of October 1998 SI No. 392/98, which sets out the procedure for appeals from the Tribunal to this Court came into effect.
On the 22nd of April, 1999 the Appellant commenced this appeal by way of his originating Notice of Motion of that date. That date was also the date of the expiry of the six month period provided for in SI No. 392 of 1998 for appeals from the non-statutory Tribunal. On the 30th of April, 1999 the Tribunal wrote to the solicitor for the Appellant in the following terms.
"I hereby acknowledge receipt of a Notice of Motion dated 22nd inst. with supporting affidavit of Mr. Raymond Bradley. "
As this claim was heard and determined by the Statutory Tribunal established pursuant to the Hepatitis C Compensation Tribunal Act 1997 it would not appear to be open to the Claimant to appeal the award pursuant to Section 6 (3) (E) of the said Act. Similarly an appeal to the High Court pursuant to Section S (15) of the said Act would appear to be out of time as the Claimant accepted the award from the Tribunal within the time limit as set out in Section S (9) (A) of the said Act."
This letter was not replied to by the Solicitors for the Appellant.
THE RELEVANT STATUTORY PROVISIONS
The Act of 1997 Section 2
"The Minister may by order appoint a day to be the establishment day for the purposes of this Act. "
Section 5 (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 or rejects the award or appeals the amount 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 might 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.
10 (B) an award of the Tribunal shall not be paid to a Claimant unless she or he complies with this subsection. "
Section 5 (15)
"An appeal shall lie to the High Court by a Claimant in respect of any decision made to the Tribunal and the Minister may cross-appeal any such appeal. "
Section 5 (16)
"An appeal shall lie to the High Court by the Minister or relevant agency in respect of an award of aggravated or exemplary damages. "
Section 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 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) apply to the Tribunal for the adjustment or 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 being in force at the time of the making of the award, or
(e) appeal an award. "
STATUTORY INSTRUMENTS
SI No. 443/97 Hepatitis C Compensation Tribunal Act 1997 (Establishment Day) Order 1997
"2. The 1st day of November, 1997 is hereby appointed to be the establishment day for the purposes of the Hepatitis C Tribunal Act 1997 (No. 34 of 1997). "
SI No. 195/98 Hepatitis C Compensation Tribunal Act 1997 (Section 5) (9) (A) Regulations 1998
"2. It is hereby prescribed that a Claimant shall as well as the period referred to in Section S (9) (A) of the Hepatitis C Compensation Tribunal Act 1997 have a period of not later than one month from the date of the commencement of Rules of Court in relation to such appeals, during which the Claimant may decide in writing either to reject or accept the award of the Tribunal or appeal the award under subsection (15) of that Section. "
SI No. 392/98 Rules of the Superior Courts (No. 7) (Appeals from the Hepatitis C Compensation Tribunal) 1998.
Order 105A
Appeals from the Hepatitis C Compensation Tribunal
"1. An appeal to the High Court under Section 5 (15) or under Section 5 (16) of the Hepatitis C Compensation Tribunal Act 1997 ("the Act') shall be brought by way of originating Notice of Motion.
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 a 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 a Cross Appeal shall be taken by way of Notice of Motion. An appeal by any party shall put the matter appealed against fully an 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 this Act by the Minister or 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.
3. (1) Any Notice of Motion appealing any award or a decision or cross appealing an appeal brought by a Claimant shall be served by prepaid ordinary post.
3. (2) where an appeal is brought by a Claimant or by a person who is appealing an award under Section 6 (3) (E) it shall be served upon the Minister and also upon any relevant agency, where appropriate. The Minister and such a relevant agency (if any) shall be the Respondent(s) in the appeal.
3. (3) where an appeal is brought by the Minister or by the relevant agency it shall be served upon the Claimant and upon the Minister if he is not bring the appeal upon the relevant agency if it is not bringing the appeal, as appropriate.
3. (4) In every appeal the person bringing the appeal shall serve a copy of the appeal on the Tribunal.
SUBMISSIONS ON THE JURISDICTION AND TIME ISSUES
Mr. Hanna S.C. for the Respondent and Mr. O'Donnell S.C. for the Tribunal made similar submissions on these issues and they may be fairly summarised together as follows:-
1. For the purposes of compliance with Section 5 (9) (A) of the Act a Claimant has one month to decide in writing to do one of the three things namely,
(I) accept, or
(II) reject, or
(III) appeal.
Failure to adopt any of these three options has the effect of being deemed a rejection. So far as appealing is concerned, for the purposes of Section 5 (15) that decision must be made in writing within one month or "Such greater time as may be described. "
2. When the one month period expired so far as this Appellant was concerned on the 3rd of December, 1997 he had not appealed or decided in writing to appeal but had in writing accepted the award.
3. Therefore in the absence of any other provision under the Act, that would have ended the matter there. The Respondent intervened and prescribed a greater time as he was permitted to do under Section 5 (9) (A), in SI No. 195/98, in which he permitted an additional one month from the date of commencement of the Rules of the Court governing appeals. SI No. 392 of 1998 made on 14th of October, 1998 and which became Order 105 A of the Rules of the Superior Court were these rules. These Rules came into force on the 23rd of October, 1998. Thus time was extended for the purposes of a decision under Section 5 (9) (A) until the 22nd of November, 1998. Whilst these rules appeared to have afforded an opportunity JFor a change of mind in relation to the option chosen under Section 5 (9) (A) no such change of mind occurred in this case, in that the decision to accept was not altered and that remained at all times the only decision made for the purposes of Section 5 (9) (A) of the Act.
4. Accordingly when the Notice of Motion issued five months later on the 22nd of April, 1999 there was no jurisdiction in this Court to entertain an appeal, there having been no decision to appeal in writing within the statutory time limit as extended by SI No. 195 of 1998 and on the other hand there had been a decision made to accept the award in writing on the 24th of November, 1997 which in all respects appeared to be a valid compliance with Section 5 (9) (A) and which by defmition excluded an appeal.
5. It was submitted that the Appellant may in error have thought his case fell to be dealt with under Section 6 (3) (E) i.e. an appeal from the non-statutory Tribunal. Be that as it may it is absolutely clear that when the Appellant's case was heard on the 4th of November, 1997 it was heard by the Tribunal established under the Act on the 1 st of November 1997 and therefore an appeal under Section 6 (3) (E) could not arise, as the non-statutory Tribunal had been dissolved on the 1 st of November 1997 pursuant to Section 6 (1) of the Act.
6. It was submitted by Mr. O'Donnell in particular that the approach taken by the Tribunal in its letter of the 30th of April, 1999 was correct.
SUBMISSIONS OF THE APPELLANT
1. The Appellant is not happy with the decision of the Tribunal on the amount of compensation or its decision as to the effect of his co-infection with HIV on the quantification of his claim to damages both general and special.
2. Order 105 A Rule 2.2 requires that the originating Notice of Motion issue with one month of the date of the decision appealed; that failure to adhere to this time limit attracts no penalty, the time limit being one fixed by the Rules of Court and therefore non compliance with the time limit does not render the proceedings void unless the Court so directs under Order 124. If the time limit requires extension the Court has jurisdiction to extend the time under Order 122 Rule 7.
3. Section 5 of the Act makes a distinction between an award and a decision.
Two rights of appeal are provided for in the Section. Subsection 5 (9) allows for an appeal of "the award". Subsection 5 (15) allows an appeal in respect of "any decision " of the Tribunal. The appeal to the High Court by a Claimant in respect of any decision made by the Tribunal is a stand alone right. The fact that an appeal against an award may or may not be advanced under Section 5 (15) does not detract from the fact that the Section clearly provides for an appeal to this Court in respect of any decision made by the Tribunal.
4. The Act defines the term "award" as an award of compensation. The word "decision" is not defined but it is clear that it was intended to enjoy a meaning different to "award". The Oxford dictionary defines "decision " as "the act or process of deciding ", "conclusion: or resolution reached" and "the settlement of a question ". A variety of issues must be decided before there is a bundle of essential decisions which ultimately lead up to an award.
5. An Applicant who is aggrieved by certain decisions made but content that he has been found deserving of an award does not have to appeal the whole award. It is submitted that he may accept the award and appeal some of the decisions that go to make up the award through exercising his right to appeal, to recover what he considers his just entitlement, without hazarding the acceptable decisions contained in the award.
6. The time limit in Section 5[9][a] is a time for making decisions namely the decision to accept the award or to reject the award. The Appellant submits that the accepting of an award and the appealing of a decision that forms part of the award are not mutually exclusive. Section 5 does not expressly or by necessary implication have that effect. Acceptance means that the Applicant becomes "Tribunalised" which is the object of the legislation, and not deprived of an appeal.
7. The Appellant further submits that subsection 5 (15) expressly permits an appeal against any decision of the Tribunal. For such an appeal the Act provided no time limit within which to make a decision in writing as to whether or not to make such an appeal.
8. The Act itself while giving an appeal provided no methodology or no way of advancing the appeal. The machinery for the bringing of an appeal only became available when SI No. 392/98 (Order 105 A of the Rules of the Superior Courts) came into force on the 23rd of October, 1998.
9. Order 105 A underscores a real distinction between the appeal of an award and an appeal of a decision. Rule 2 (1) deals with an appeal against an award whereas Rule 2 (2) deals with an appeal against a decision (other than an award). Rule 2 (3) explicitly recognises that appeals put all matters in issue.
"An appeal by any party should put the matter appealed against fully in issue an Notice of Cross Appeal shall not be required on that issue by any other party ".
10. Rule 2 (1) directed that the Notice of Motion shall issue within one month from the date of the receiving of notice of the making of the award or within such a greater period as may be prescribed made by the Minister. In this regard the Rules Making Committee appear to misunderstand their powers in relation to setting times. While they were entitled to set times for the lodging of Court documentation (all of which time limits are subject to extension by the Court) they are not entitled to empower or direct the Minister, to set times for the making of an appeal either against an award or a decision.
Section 5 [9] (a) Act of 1997 did allow the Minister prescribe a greater time than one month during which the Claimant must make decisions identified in Section 5 (9)[a].
In SI No. 195/98 the Respondent purported to exercise the powers conferred on him by Section 5 (9) (A) and Section 7 of the Act of 1997. He prescribed that a Claimant shall as well as the period referred to in Section 5 (9) (A) of the 1997 Act have a period, not later than one month from the commencement of the Rules of Court in which to make the decisions detailed in Section 5 (9) [a]. It is unclear whether or not this statutory instrument was intended to prescribe the right of appeal of a decision under Section 5 (15). It was not within his power to so do and therefore cannot have this effect. It is clear that the use by the Minister of a statutory instrument to deprive any Claimants of a right of appeal against an award and or a decision is bad in law. Quite apart from the infirmity of the attempt to prescribe (time) rights of appeal in statutory instruments, even if the statutory instrument is effective it dial not seek to deprive a Claimant of a right of appeal from a decision. Section 5 (15) provider an appeal in respect of any decision made by the Tribunal and this is a stand alone right. The Act provides for no time limit in respect of an appeal under Section 5 (15). Section 5 (9) (A) also provides for no time limit in which to appeal. It simply prescribes the time in which the decision to accept or reject the award must be made.
SUBMISSIONS ON THE LOCUS STANDI ISSUE
Submissions of the Tribunal
For the Tribunal Mr. O'Donnell submitted as follows:
1. The Tribunal was pursuant to Order 105A Rule 3 (4) served with the copy of the appeal and hence entitled to decide in its own discretion, a discretion which would always be exercised prudently, to appear and be heard,
2. The Tribunal is the only party who has actual knowledge of the facts relevant to this case and specifically the matters in issue in this preliminary application,
3. The proceedings before the Tribunal do not involve the Respondent and are conducted on a bilateral basis between the Claimant and the Tribunal. Hence everything that goes on in the Tribunal is peculiarly within the knowledge of the Tribunal. When an appeal is taken a triangular type procedure then ensues involving the Minister as the Respondent prescribed in Order 105A,
4. The Tribunal is responsible for the administration of the Hepatitis C Compensation Scheme, under the Act and has an interest in the proper carrying out of the administrative procedures necessitated by the Act and which are the responsibility of the Tribunal and are directly an issue in this appeal and specifically in this preliminary application, in that the question of whether or not a Claimant can accept the award of the Tribunal and also appeal directly affects the administration by the Tribunal of the scheme as provided for in the Act,
5. The contents of the letter of the 30th of April, 1999 written by the Tribunal to the Solicitor for the Appellant was correct in all respects,
For the Appellant it was submitted by Mr. Nesbit as follows:-
1 The Tribunal had no interest in the outcome of the appeal, as distinct from being perhaps interested in the outcome.
2 Order 105(A) Rule 3 (4) merely provided for the Tribunal to get a copy of the appeal and did not make them a Respondent to the appeal.
DECISION
In my view in construeing the relevant sections of the Act of 1997 it is appropriate in the light of the difficulties of interpretation of Section 5 as a whole, dealt with hereunder, to use the literal and the purposive approach. I derive guidence in that regard from the
judgement of Denham J. in the case of MOC -v- The Minister for Health and Children Supreme Court unreported judgment delivered the 31st day of July 2001).
The purpose of the Act of 1997 as is revealed from the headnote is:
"AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF A TRIBUNAL TO BE KNOWN AS THE HEPATITIS C COMPENSATION TRIBUNAL TO AWARD C0MPENSATION TO CERTAIN PERSONS WHO HAVE CONTRACTED HEPATITIS C WITHIN THE STATE FROM ANTI-D IMMUNOGLOBULIN, OTHER BLOOD PRODUCTS OR BLOOD TRANSFUSIONAND TO PROVIDE FOR CONNECTED MATTERS. "
It is common case that the Act was enacted to replace the non-statutory scheme Tribunal which was established on the 15th of December 1995. The purpose of that scheme had been to award compensation to persons who had contracted Hepatitis C in circumstances similar to that provided for in the Act of 1997. All the parties are agreed that the Act was intended to effect three improvements or reforms for the benefit of those persons who had contracted Hepatitis C namely, the non-deductability from awards of statutory and non-statutory benefits, the award of exemplary or aggravated damages, and the provision of an appeal to the High Court. It is clear that the Act was not just intended to benefit those whose claims were to be heard by the Tribunal after its establishment on the 1 st of November 1997 but also those whose claims were heard and determined by the non-statutory Tribunal. Section 6 of the Act is there to ensure that those whose claims were dealt with by the non-statutory Tribunal would enjoy the same benefits as if their claim had been heard by the Tribunal.
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 1st of 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.
A useful exercise at this point is to analyse the effect of the benefits which accrue under Section 6 of the Act and SI No. 195 of 1998 and SI No. 392 of 1998 to those persons whose claims were heard by the non-statutory Tribunal and to compare the situation of those persons with those whose claims fell to be determined by the Tribunal after the 1st of November 1997, in the light of the submissions made by the Respondent and by the Tribunal.
Section 6 (3) of the Act of 1997 deals with the position of those whose claims were heard by the non-statutory Tribunal.
Subsections 6 (3) (a) enabled a person whose claim had been determined by the non-statutory Tribunal to reapply to the Tribunal, to hear evidence not made available to the non statutory scheme Tribunal, an important benefit for those whose claims came early to the non-statutory Tribunal, in the light of significant changes in medical knowledge gained from the experience of dealing with Hepatitis C over the intervening years.
Subsection 6 (3) (b) enabled the recovery of statutory and non-statutory benefits which had been deducted from their awards.
Subsection 6 (3) (c) enabled a person whose claim was heard by the non-statutory Tribunal to either make a claim for aggravated or exemplary damages or to opt for a payment of the additional 20% from the reparation fund pursuant to Section 11 (6) of the Act.
Subsection 6 (3) (d) allowed a person to reapply for the difference between the £7,500 solatium and the £20,000 solatium which became available under Section 2 (1) (a) of the Civil Liability (Amendment) Act 1996.
The last word in this subsection is the word "or" leading into subsection 6 (3) (e). This reads "appeal an award". The inclusion of the word "or" in the position which it is, would seem to imply that availing of Section 6 (3) (e) was in the alternative to subsections 6 (3) (a), (b), (c), and (d). That could hardly have been the intention of the Oireachtas . It clearly was not intended that if one availed of either the right to reapply to the Tribunal or to apply for the non-deduction of statutory and non-statutory benefits or to apply for an award of aggravated or exemplary damages or to apply for a 20% from the reparation fund, or to apply for an adjustment of the solatium pursuant to Section 2 (1) (a) of the Civil Liability (Amendment) Act 1996, that in those circumstances the claimant forfeited the right to appeal the award originally made by the non-statutory Tribunal. Such a construction would deny parity or equality of treatment to those whose claims were heard by the non-statutory Tribunal.
In my view the correct construction of Section 6 (3) is that a person whose claim had been heard and determined by the non-statutory Tribunal could exercise all of the options contained in subsections (a) to (e) inclusive. If the options in subsections 6 (3) (a) to (d) were availed of and if awards were made on foot of such applications, it would of course follow that any appeal against such awards would fall to be determined on the basis that such awards were awards of a Tribunal and would be dealt with under subsections 5 (9) and (15) of the Act.
Another important feature of the new scheme available to persons whose claims were heard by the non-statutory Tribunal following on from the Act of 1997 is the time limit for the bringing of an appeal pursuant to subsection 6 (3) (e), contained in SI No. 392 of 1998 i.e. Order 105 A., Rule 2 (5). As is clear from Section 6 of the Act there is no time limit provided for in the Act itself. A time limit is imposed in the above rule, as quoted earlier.
Thus, in the first instance a period of 6 months is allowed from the coming into effect of the rules. No doubt the reasoning behind this six month period was, as submitted by Mr. O'Donnell to ensure that those whose claims had gone through the non-statutory Tribunal, up to two and a half years before the coming into effect of these rules would have adequate time to be alerted to the existence under the Act of a right of appeal, which had not been there when their claims had been determined by the non-statutory Tribunal.
However, in addition, the time period provided for is amenable to the normal extension available under Order 122 of the Rules of the Superior Court.
On the other hand those persons whose claims have been heard by the Tribunal since its establishrnent on the 1 st of November 1997, have on the submissions of the Respondent and the Tribunal, been subjected to a somewhat different regime. In the first instance, they submitted, that upon notice of an award being given by the Tribunal these persons had three options, and they were obliged to exercise one of these in writing within one month namely:
1. to accept the award,
2. to reject the award,
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 as rejection pursuant to Section 5 (10).
The time limit of one month they submitted was a statutory time limit and it governed the operation of an appeal against an award under Section 5 (15), and being a statutory time limit was not capable of any extension beyond such extension as might be prescribed by the Respondent under statutory instrument as in fact was done in SI No. 195 of 1998, and other than that no further extension of time could be allowed by the Courts.
No doubt the difference in treatment as between the two groups so far as the accepting of an award and also appealing is concerned could be explained by reason of the fact that at the time that the non-statutory Tribunal determined the awards of those whose claims it heard, an appeal was not available and the only choice available under the non-statutory scheme was either to accept or to reject. Necessarily if those persons whose claims were heard by the non-statutory Tribunal were to be given the benefit of an appeal the fact that they had already accepted and collected their awards could not in reality be undone and therefore the choice between accepting and appealing is not one which as a matter of practical reality, could have been retrospectively imposed. Therefore the apparent anomaly of having accepted the award by the non-statutory Tribunal and enjoying an appeal was an unavoidable acceptance of the history of how this public health disaster had been dealt with heretofore.
However no such ready explanation is available to justify the difference in treatment between the two groups in regard to the time limit said to apply to appeals from the Tribunal and those from the non-statutory Tribunal. No doubt the period of six months is readily explainable as heretofore, but no reason has been advanced as to why an appeal from the non-statutory Tribunal should enjoy under Order 105 A the prospect of time being extended whereas it was contended by the Respondent and the Tribunal that a statutory non extendable time limit of one month applies to an appeal under Section 5 (9) (a).
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 compensations to persons who have 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 focusing on and deciding whether or not they wished at that point to appeal or not to appeal.
Apart from appealing against an award as mentioned in Section 5 (9) (a), three other types of appeals are dealt with in the Act. Section 5 (15) provides for an appeal against "any decision" of the Tribunal. Clearly a distinction arises as between an appeal against an "award" of the Tribunal and an appeal against a "decision" of the Tribunal. Manifestly a "decision " of the Tribunal contemplated here would be a refusal of the Tribunal to make an award perhaps on the basis that erthe Applicant failed to show that she or he was suffering from Hepatitis C or perhaps failed to show that her or his Hepatitis C was caused by the matters in respect to which compensation can be awarded by the Tribunal. No doubt other decisions of the Tribunal could be contemplated which would not be an "award" and therefore come under the heading of "decision". Subsection 5 [9] [a] in saying "or to appeal the award under subsection [15]" does in my view expressly provide that an appeal against an "award" is an appeal under subsection 5[15]. The Act does not prescribe a time limit for appeals under subsection 5[15].
By way of digression at this point I should say that I reject the appellant's submission to the effect that the appeal in this case was against a "decision" of the Tribunal rather than an " award" of the Tribunal. In my view, it is quite clear that it is the award of the Tribunal that the appellant finds unacceptable and wishes to disturb. Where the Tribunal makes an award, any appeal necessarily involves, if successful disturbing the award as a whole even though the extent of the appeal may be limited to a part of the damages awarded, e.g. the general damages. In this case the appeal is described in the Notice of Motion as being an appeal against the "award" of the Tribunal, and it would appeal that the appeal is extensive.
The importance of the distinction between an "award" and a "decision" insofar as a time limit is concerned is that whereas an appeal against an "award" appears to be affected by Section 5 (9) (a), an appeal against a "decision" of the Tribunal is not at all effected by Section 5 (9) (a) and would fall to be considered simply under the provisions of Section 5 (15) of the Act. There is no time limit in Section 5 (15). Thus the Act provides no time limit for an appeal against a "decision ".
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.
Neither is there any statutory time limit placed on a cross-appeal by the Minister under Section 5 (15). Thus the Minister could exercise his right of cross-appeal against an award without any statutory time limit, where if, the Minister and the Tribunal are correct in their submission, the original right of appeal of the Appellant against the award is subject to a one month statutory time limit incapable of extension. No reason for this apparent anomaly is discernible to me.
Section 5 (16) gives the Respondent or a relevant agency an appeal in respect of an award of aggravated or exemplary damages. The Act provides no time limit in respect of such an appeal. Again no reason is apparent for the absence of a statutory time limit for this appeal.
As already mentioned the Act provides no time limit in respect of an appeal against an award of the non-statutory Tribunal under the provisions of Section 6 (3) (e).
However, so far as all of these appeals are concerned time limits are provided in Order 105 A of the Rules of the Superior Court.
Rule 2 (2) prescribes a period of one month from the date of a decision for the bringing of an appeal against a "decision ".
Rule 2 (3) prescribes a period of one month from the date of service of a notice of motion by the claimant, for the bringing of a cross appeal by the Minister.
Rule 2 (4) provides for a period of one month from the making of an award of aggravated or exemplary damages for the bringing of an appeal by the Minister or relevant agency under Section 5 (16).
Rule 2 (5) deals with appeals from the non-statutory Tribunal and provides initially for a period of six months from the date of commencement of Order 105 A and then allows for such further period as may be permitted by the Court under Order 122 of the Rules of the Superior Court.
Manifestly as these time limits originate in an Order, in the Rules of the Superior Court they are not time bars to a cause of action, but are amenable to an extension under Order 122.
However, all this begs the question, whether the time limit in Section 5 (9) (a) is to be construed as applying to an appeal from the Tribunal against an "award" or whether it was intended that this appeal in common with the other appeals above mentioned arising under the Act were left free of a time limit in the Act itself and were regulated as to time under Order 105 A.
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 to time in the ordinary way under the Rules of the Superior Court in the form of Order 105 A.
A number of factors tend to reinforce me in that conclusion. Firstly there is the wording of Section 5 (9) (a) itself. The phraseology used in this subsection is significantly different to the kind of phraseology used in other statutory provisions creating time bars. For example the various time limitations contained in the Statute of Limitations 1957 and in particular Section 11 thereof are phrased with unmistakable clarity using the following or similar formulations,
"11.-[1]The following actions shall not be brought after the expiration of... "
In subsection 5 (9) (a) instead of a clear prohibition on any action after a certain time there is in the context of a time period the provision that the claimant "may " decide in writing to do certain things, including appeal.. I find the use of the word "may" in this context wholly inconsistent with an intention on the part of the Oireachtas to create a time bar of one month preventing forever thereafter a recourse to this Court in the form of an appeal under the Act. If it was intended by the Oireachtas to have created a one month statutory time limit on the bringing of appeals to this Court in my view the Oireachtas would have done so in clear terms which, like the limitation periods in the Statute of Limitations 1957 and simiilar enactments would leave no room for doubt as to the existence of such a time limit. That was not done in this subsection.
The designation in subsection 5[9[a] of an appeal against an "award" as an appeal under subsection 5[15], lends further force to the view that it was not intended by the Oireachteas to create in subsection 5 [9] [a] a one month statury time limit, as does the absence of any statutory time limits for the other appeals above mentioned.
The absence of any machinery, in the form of Rules of Court for the processing of these appeals at the time of the enactment or coming into effect of the Act and indeed for some time thereafter suggests to me, also that it was unlikely that the Oireachtas intended that there would be a one month statutory time limit arising out of subsection 5 (9) (a).
Finally the inclusion of paragraph 2 (1) in Order 105A would seem to me to have been entirely unnecessary were it the case that this time limit already existed in the Act. Indeed if the act had unmistakeably created a one month statutory time limit, the repetition of the same time limit in Rules of Court would inevitably create confusion as to the true origon and effect of the time limit.
Rule 2 (1) provides for a one month time limit for appeals against an award and deals with these appeals, as to time limit, in a like manner as the other appeals which are dealt with in Rules 2 (2), Rule 2 (3), Rule 2 (4). Rule 2 (5) which deals with appeals from the non-statutory Tribunal is different to the extent that there is express mention of extension of time under Order 122. That distinction does not appear to me to be of any real importance. All of the foregoing leads me to conclude with a sense of comfort that it was not the intention of the Oireachtas, as was submitted by Mr. Hanna and Mr. O Donnell to create a one month statutory time limit on appeals to this Court in Section 5 (9) (a).
The next issue is the Court must decide is whether the claimant can accept the award of the Tribunal and also appeal.
In approaching this issue the background history cannot be forgotten. The genesis of the Act of 1997 was the non-statutory scheme from which the Act developed containing the improvements or reforms already mentioned. In that scheme the fundamental choice that had to be made by a claimant, once a determination was made by the Tribunal was between acceptance of the award or its rejection. That element of choice is carried forward and embodied in Section 5 (9) and there is added to it also the additional choice of appeal. Can it be said, as has been submitted by Mr. Hanna and Mr. O'Donnell that this subsection compels a choice as between the three options namely, accept, reject or appeal and that the choice must be of one and that each is exclusive of the other or on the other hand is it the case as is submitted by Mr. Nesbitt that the first choice is between accept and reject i.e. between accepting the jurisdiction and award of the Tribunal with the necessary consequence of waiving any right of action against any other parry, i.e. being "tribunalised' or rejecting the award of the Tribunal and in effect reverting to the position the claimant was in prior to making any claim to the Tribunal, and that the choice of appeal is subsequent to and secondary to that choice and not excluded by an acceptance of the award.?
It has been submitted by Mr. Nesbitt that Section 5 (9) (a) does not expressly exclude an appeal where there is an acceptance of the award. In my view he is correct in that submission. The subsection does not say in express terms that if one accepts an award that a claimant thereby forgoes or forfeits any right of appeal.
The question then that arises is, does the subsection on a proper construction of it, by necessary or obvious implication exclude an appeal where there has been an acceptance of an award.?
The word "tribunalised" has be used loosely to describe the process by which a claimant becomes involved with or attached to the scheme of the Act. An analysis of the various parts of the Act reveals how this process works. In the first place under Section 4 (2) if a person has already received an award from a Court or a settlement in respect of an action arising out of the same circumstances giving rise to the claim to the Tribunal they are thereby automatically ineligible to make a claim to the Tribunal.
Section 4 (3) provides that the making of a claim to the Tribunal does not involve the waiver of any right of action by the claimant. Section 5 (10) requires that a claimant who accepts the award of the Tribunal must agree in writing to waive any right of action which the claimant has against any other party and discontinue any other proceedings, arising out of the circumstances giving rise to the claim to the Tribunal. Section 5 (18) provides that where a claimant makes an appeal under subsection 5 (15) a claimant must likewise agree in writing to waive any right of action against any other parry arising out of the circumstances giving rise to the claim and discontinue any such proceedings.
It would seem to me that an essential feature of being "tribunalised" is a legal requirement to waive any right of action and discontinue any proceedings arising out of the same circumstances giving rise to the claim made to the Tribunal or the appeal to this Court. The unusual feature of Section 5 (18) is that where a claimant appeals the award of the Tribunal to this Court they are required to waive these rights on the making of the appeal, namely in advance of the determination of the appeal or before they see the result. This is in contrast to the position of a claimant making a claim to the Tribunal where it has been specifically provided in Section 4 (3) that the making of the claim does not involve any such waiver and that waiver only arises after the event when the claimant knows the result of the claim, as is provided for in Section 5 (10).
As between the various options that are offered in Section 5 (9) (a) namely; acceptance, rejection, or appeal only one i.e. rejection does not involve the waiving of other rights, the essential ingredient of adhesion to the scheme of the Act. This of course is as it should be. In the event of opting for appeal, then because a claiment is staying with the scheme of the Act, the waiver of other rights is imposed as a condition of proceeding onwards in the scheme.
Does this mean then that the concept of rejection used in subsection 5[9[b] necessarily involves a rejection of the entire scheme as distinct from simply the award.? I have come to the conclusion that the concept of rejection as used in Section 5 (9) (a) involves merely the rejection of the award, and not the rejection of the entire scheme of compensation offered in the act, or in other words a rejection does not stop a claiment continuing to be "tribunalised ".
I tend to be confirmed in this view by the effect of Section 5 (9) (b) which was accepted by Mr. O'Donnell and Mr. Hanna in their submissions as being a default provision which took effect in the event of their being a failure to exercise any of the three options mentioned namely acceptance, rejection or appeal and in that circumstances this subsection deemed that default to be a rejection. If that Subsection had the effect, that where the claiment did nothing, that the rejection, which automatically takes effect under the subsection, meant, that her or his involvement in the scheme of the act is brought to an end, then an obvious difficulty would immediately emerge, from the conclusion that I have already reached that subsection 5 (9) (a) does not impose a statutory time limit on the making of an appeal. If that conclusion is correct then it means that the rejection contemplated in section 5 (9) (b) could not have the effect of ending the involvement of the claiment in the scheme i.e. a rejection of the entire scheme as distinct from a mere rejection of the award, because if it did so, it would operate as an effective statutory time bar on an appeal. If one were to take the view that rejection meant the rejection of the entire scheme of the act and not merely the award, then it would seem inevitably to follow that either an express rejection or a default would mean exclusion thereafter from the scheme of the Act, including the avenue of appeal where that step had not been taken within the one month period. Thus, in my view, rejection and appeal are not mutually exclusive options. If rejection was construed as meaning a total rejection of the scheme, in order to guard against the risk of being out of time with an appeal, and thus being excluded from the scheme of the Act, it would be necessary for a claiment contemplating an appeal to accept the award and also appeal.. In the abscence of an express exclusion of appeal where the award is accepted, clearly that course would have to be open to a claiment if it were the case rejection meant rejection of the entire scheme.
As I have said I do not think that rejection means that. The obvious difficulty just discussed, persuades me that rejection is to be construed as meaning rejection of the award only. Both a literal and a purposive approach to the construction of subsections 5[9] [a] and 5 [9] [b] lead to the same conclusion. Subsection 5 [9] [a] speaks only of the acceptance or rejection of the "award" and not the entire scheme of the Act.
I would therefore reject the submission that the three choices set out subsection 5[9] [a] are all mutually exclusive of each other.
That brings me finally to the question of whether acceptance and appeal are mutually exclusive options. As noted earlier, subsection 5[9] [a] does not expressly so provide. Mr Nesbitt submitted that the grammatical construction of the subsection leads to a conclusion that the options of acceptance and rejection are coupled together by the word "either" which precedes them and are thus seperated from the the third option namely appeal. He submitted that, not only does the subsection not expressly make these two options exclusive of each other, but the form of lanquage used and the grammatical arrangement of it, in subsection 5[9][a] is consistent with a separate treatment of the options of acceptance and rejection as distinct from the option of appeal.
Clearly accepting and rejecting are necessarily mutually exclusive by definition. Accepting and appealing are not necessarily mutually exclusive.
In analysing the lanquage used in this subsection to ascertain its true meaning. I am inclined to the conclusion that what the subsections 5[9][a] and [b]demand is that a claiment makes a choice in writing from the three options provided or fall into rejection by default. The subsection permits a claiment to reject and appeal or to appeal simpliciter, even if the appeal is out of time, provided that this court grants an extension. If a claiment does nothing within the time limit of one month, and falls into default resulting in being deemed to have rejected, that still permits of an appeal if the claiment is successful in persuading this Court to extend time for an appeal. Does the subsection permit acceptance and appeal?
In their submissions Mr Hanna and Mr O Donnell drew attention to the fact that there was no "Claw back" provision in relation to appeals under Section 5[15] and hence they argued that it could not have been intended that an award could be accepted and appealed. However there is no claw back provision for the appeals under Section 6[3][e] from the Non Statutory Tribunal, where in every case the award would have been accepted.
I have come to the conclusion, in the abscence 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 claiment 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.
In the light of the history of the non statutory scheme where the choice was between acceptance and rejection and where that choice is also carried forward into the scheme of the Act, in my opinion it was incumbent on the Oireachteas, if it intended to make acceptance
and appeal exclusive of one another, to do so in express terms. Otherwise there would have been inevitably the risk that in the initial period at least after the establishment of the Tribunal confusion would reign, as in fact has happened, and deserving claiments would, as in this case, if the submissions of the Mr Hanna and Mr O Donnell are correct find themselves unwittingly deprived of a meritorious appeal, as a result of the simple mishap of selecting the wrong option in the month after the making of the award, which in this case coincided with the first month of the life of the Tribunal.
In the light of the history of the Act, as an evolution from the non-statutory scheme, and bearing in mind that no machinery for appeal was provided for in excess of a year after the establishment of the Act, it would seem to me that it was unlikely that the Oireachteas intended that claiments who were unhappy with the amount of their award would have been kept out of any compensation for an indefinete period, until Rules of Court were introduced providing machinery for appeal. The only way that this could have been avoided was for the claiment to accept and appeal. In this regard it would have to be borne in mind that all claiments are seriously ill and some gravely ill, and many were unable to continue working so that for many claiments the recovery of compensation was an urgent necessity. The scheme under the Act, as indeed under the non-statutory scheme before it, was there to provide compensation to sufferers from Hepatitis C. I think it safe to assume that the Oireachteas did not intend that the Act or in particular Section 5 [9] [a] would operate in such a way as to prevent access to any compensation for lengthy periods, where the claiment chose to exercise the new right of appeal under subsection 5[15]. This claimant's application to the Tribunal was heard on the 4th of November 1997. His appeal first came before this court in March 2002. This is not an unusual period of time for these appeals to be heard. The large number of appeals from the non- statutory tribunal has meant that appeals from the Tribunal tended to be delayed. In addition, the delay is contributed to by the changing medical situation of many of the Appellants. It must have been foreseen that significant delay between the hearing of an application in the Tribunal and the hearing of an appeal would occur and I am quite satisfied that the Oireachteas did not intend the Act to operate in such a way as to deprive a claiment of any compensation during that period. Therefore, in the abscence of express exclusion of appeal where an acceptance has occurred, I am of opinion, that it is safe to conclude that the Oireachteas intended that claiments could, if they wished to have immediate access to compensation, and also appeal, exercise both the option of acceptance and appeal.
This may appear anomalous. Undoubtedly this was the situation which pertained in relation to appeals from the non-statutory Tribunal but as pointed out earlier this was unavoidable because of historical reasons. However the fact that someone may accept and appeal is nonetheless in harmony with partity or equality of treatment between those whose claims were heard by the Non Statutory Tribunal and those whose claims are heard by the Tribunal. I remain convinved that it was the intention of the Oireachteas in enacting the Act, to rigourously observe that principle in the provisions of the Act This would tend to persuade me that the apparent anomaly of acceptance and appeal, such as it is, and recovering under the Act is not something which should be afforded decisive influence. In this regard it should not be forgotten that the Act and the Non Statutory Scheme that preceded it were there to provide compenstion for victoms of a major public health disaster. In that context, what might appear anomolous in the ordinary course of the administration of the civil law, may not be so under the scheme provided for in this Act.
DECISION ON THE LOCUS STANDI ISSUE
The fact that Order 105(a) Rule 3(4) requires that the Tribunal be served with a copy of an appeal does not in my view of itself make the Tribunal a party to appeal or give it a locus standi in any appeal. Order 105(a) designates who are to be the Respondents to any appeal namely the Minister and where appropriate any relevant agency. The requirement for service on the Tribunal of what is described as "a copy" of the appeal may have a variety of purposes, but I am satisfied that one of them is not that in every case the Tribunal would have a locus standi which it in its discretion would decide whether or not to avail of or not.
The fact that the proceedings before the Tribunal were conducted on a bilateral basis between the claimant and the Tribunal thus giving rise to peculiar knowledge of the facts on the part of the Tribunal does not also in my view necessitate the participation of the Tribunal in an appeal. Order 105 Rule 3 sets out the material which must be exhibited in the Affidavit grounding the appeal including the transcript of the proceedings before the Tribunal and its determination. In addition oral evidence can be heard on an appeal. That being so the presentation of the full facts of what transpired before the Tribunal, to this Court on appeal does not require an involvement in the appeal of the Tribunal as a party.
In the light of the foregoing the evolving of the procedure on appeal from a bilateral proceeding into what was by Mr. O'Donnell as a triangular procedure does not create any need to involve the Tribunal as a party in an appeal.
It is undoubtedly the case that the Tribunal has a role to play in the administrative procedures that necessarily follow the making of an award by the Tribunal to a claimant. However no dispute arises in this appeal or indeed on this preliminary application as to the carrying, out as a matter of fact, of any of these procedures or indeed as to the correctness or otherwise of the procedures which have been carried out in this case. The issues which arise on this preliminary application have nothing to do with these administrative procedures. The issues which arise on this preliminary application are whether or not a claimant who accepts an award may also appeal and whether or not a statutory time limit of one month applies to the making of such appeal. The administrative procedures involved do not and could not bear on either of these two issues of law. If as appears to be the case the Tribunal had a view that a claiment could not accept and appeal and if that situation arose before the Tribunal had discharged it's administrative functions in relation to the paying of the award, then in that circumstance it might consider refusing to make the payment. This would no doubt lead to Judicial Review proceedings in which the Tribunal would be a respondent. A wholly different situation arises in the present case where the Tribunal has carried out all of its administrative functions in relation to the payment of the award and where the issue is whether the claiment can in that circumstance appeal having already accepted and been paid and if so whether there is a statutory time limit which bars any such appeal. At this stage these issues do not directly concern the Tribunal in the sense that the outcome of the appeal cannot affect it's role in this claiments case, it having already fully discharged their administrative functions persuant to the Act.
It seems to me that the appropriate test to be applied to determine whether or not the Tribunal has a locus standi to appear in any appeal is whether it has an interest in the outcome of the appeal or an application preliminary thereto. It is undoubtedly the case, that as was submitted by Mr. Nesbitt that the Tribunal are interested in the outcome of this application but in my view they have no interest in its outcome. They will not be affected in a material way by the outcome of it. The only parties that will be affected in that way are either the claimant or the Minister. In essence the Tribunal is in no different a position to say any Court or tribunal from which an appeal can be taken where as part of that appeal there is a dispute as to procedural matters arising under the rules of that Court relating to appeals from it. One would not seriously suggest that a County Registrar, or a District Court Clerk or the secretary of a tribunal , e.g. The Employment Appeal Tribunal, would have a locus standi to appear on an appeal from the District or the Circuit Court or the E.A.T, because an issue arose on an appeal from either of these Courts or that tribunal, relating to the procedures for the taking of appeals from these to a higher Court. 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 and qausi- judicial Tribunals as being independent and non-partisan. There is an overwhelming public interest in the preservation of the independence and non-partisanship of public Tribunals such as the Tribunal in this case. That essential feature, or at the very least the public perception of it would be seriously diminished if the Tribunal were on appeal to this Court to adopt the role of a contentious party to an appeal, as in this case where the Tribunal assert a Locus Standi to contend that the appellant cannot appeal from its award or is out of time to so do. In my view that is impermissible.
Only in the rarest of circumstances, where the Tribunal could demonstrate that it had a interest in the outcome of the appeal or a preliminary application, could it be said that the Tribunal had demonstrated a locus standi. For the reasons already given I am satisfied that does not arise at all, in this case and therefore I have come to the conclusion that the Tribunal does not have a locus standi to appear on this application or in this appeal.
SUMMARY OF THE CONCLUSIONS REACHED IN THIS JUDGMENT
[1] That Section 5(9)(a) of the Act of 1997 does not give rise to a statutory time limit of one month on the making of an appeal to this Court.
[2] That the acceptance of an award of the Tribunal pursuant to Section 5(9) of the Act does not exclude an appeal to this Court under Section 5(15) of the Act.
[3] That the Tribunal does not have a locus standi to appear on this application or in this appeal.
[4] That this Court has jurisdiction under Order 122[7] of the Rules of the Superior Courts to extend time for the bringing of this appeal.
[5] That time for the bringing of this appeal expired under Order 105A Rule 2[1] of the Rules of the Superior Courts on the 22nd day of November 1998.
[6] That this Court will exercise its discretion in favour of extending the time for the bringing of this appeal to the 23rd day of April 1999.
