New Guidance on Appeal Time Limits: “Issued to the Parties” Means Deemed Delivery, Not Posting, for RTB Appeals

Introduction

In Friedman v Residential Tenancies Board & Ors [2025] IEHC 477, the High Court (Barr J) resolved a long‑standing interpretive controversy surrounding section 123 of the Residential Tenancies Act 2004 (as amended) (the “2004 Act”). The core dispute concerned when the 21‑day period to appeal a Residential Tenancies Board (RTB) tribunal determination “on a point of law” to the High Court begins. Is it the date the order is posted, or the date it would be delivered in the ordinary course of post?

The RTB sought to strike out the appeal as out of time, relying on a line of High Court authority that the clock starts on the date of posting. The appellant, Ms. Lucy Friedman, argued that the appeal was in time because the “relevant period” under s.123(8) begins when the determination order is “issued to the parties,” which, when read with s.25 of the Interpretation Act 2005, should be taken as the date of deemed delivery in the ordinary course of post (unless the contrary is proved). The Attorney General, joined because of a constitutional argument raised in the alternative, supported this interpretive approach.

Beyond the immediate outcome, the judgment lays down an important interpretive rule with wider implications: where an enactment provides that time runs from a document being “issued to” a person and that issuance occurs by post, s.25 of the Interpretation Act 2005 supplies the rule that service is effected when the letter would be delivered in the ordinary course of post (unless the contrary is proved). The judgment is additionally grounded in the Supreme Court’s recognition (in Kirwan v O’Leary) that a statutory appeal engages a constitutional right to litigate, requiring strict construction of any provision that restricts that right.

Summary of the Judgment

• The Court held that under s.123(8) of the 2004 Act, read with s.25 of the Interpretation Act 2005, a determination order is “issued to the parties” on the date it would be delivered in the ordinary course of post, not the date of posting.
• The Court departed from prior High Court decisions (including Halbherr, Enners, Abeyneh, and O’Driscoll) which treated the posting date as the date of issue. It did so based on (a) the text and scope of s.25 of the 2005 Act, (b) the constitutional right to litigate and the principle of strict construction per Kirwan v O’Leary [2023] IESC 27, and (c) the recognized exceptions to High Court comity allowing departure from recent authority.
• On the facts, the RTB posted the order on 30 July 2024; delivery occurred on 31 July 2024. The appellant filed her appeal on 20 August 2024. The 21‑day period commenced on 31 July 2024; thus the appeal was in time.
• Because the appeal was in time, the Court did not need to reach the issues of whether time could be extended or whether s.123 is unconstitutional if it does not allow extension.
• The application to strike out the appeal as out of time was refused; the Court invited submissions on final orders and costs.

Factual Background and Procedural Timeline

• RTB tribunal hearings: 4 March 2024 and 13 May 2024.
• Tribunal’s preliminary report: found it lacked jurisdiction because the wrong landlords were named; forwarded to the RTB.
• RTB posted determination order: 30 July 2024.
• Appellant received the order: 31 July 2024 (proved by RTB records).
• Statutory appeal period: 21 days “beginning on the date that the determination order concerned is issued to the parties” (s.123(8)).
• Appellant filed appeal: 20 August 2024.
• RTB’s position: time started on posting (30 July), so the appeal was out of time (due by 19 August).
• Appellant and Attorney General’s position: time starts on deemed delivery, so the appeal was in time.

Issues Before the Court

1. Does the 21‑day appeal period under s.123 of the 2004 Act start on the date of posting, or on the date of deemed delivery in the ordinary course of post?
2. If the first issue were resolved against the appellant: (a) can the High Court extend the time; (b) if not, can the appellant challenge the constitutionality of s.123 in this appeal; and (c) if so, is s.123 unconstitutional?

Only issue (1) required determination; the others fell away once the appeal was found to be in time.

Detailed Analysis

Key Statutory Provisions

• Residential Tenancies Act 2004, s.123(3), (8): a party may appeal to the High Court “within the relevant period,” defined as “the period of 21 days beginning on the date that the determination order concerned is issued to the parties.”
• Interpretation Act 2005, s.25: where an enactment authorises or requires a document to be served by post using “serve,” “give,” “deliver,” “send,” “or any other word or expression,” service may be effected by properly addressing and posting, and in that case “service of the document is deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

Precedents Cited and Their Influence

The prior High Court “date of posting” line

• Halbherr v RTB [2018] IEHC 595 (Meenan J): held that “issued” is not “served,” hence s.25 does not apply; time runs from posting.
• Almazani v RTB (McDonald J, 25 June 2018, unreported): indicated that, absent authority, he would have applied s.25 and used date of deemed delivery, but felt constrained by comity (Worldport) to follow Halbherr and treat posting as the operative date.
• Abeyneh v RTB [2023] IEHC 81 (Bolger J): followed Halbherr on “issue” and also held that the High Court lacks jurisdiction to extend time for s.123 appeals.
• Enners v RTB [2023] IEHC 216 (Heslin J): emphasised a literal approach distinguishing “issued to” from “received by”; time runs from issue/posting.
• O’Driscoll & Anor v RTB [2025] IEHC 283 (Roberts J): reaffirmed posting-date approach, and, citing Kirwan v O’Leary only on the separate question of extensions, held there is no jurisdiction to extend time.

Judicial comity and when a High Court can depart

• In re Worldport Communications Inc [2005] IEHC 189 (Clarke J): a High Court judge should normally follow another’s decision unless strong reasons justify departure, such as oversight of relevant authority, clear error, or significant subsequent jurisprudential development.
• Kadri v Governor of Mountjoy Prison [2012] IESC 27: the Supreme Court endorsed Worldport’s comity principles.
• A & Others v Minister for Justice & Equality [2020] IESC 70; A, SS & I v Minister for Justice & Equality [2021] 3 IR 140: further reiteration of the comity approach and the limited circumstances in which departure is appropriate.

The constitutional lens: Kirwan v O’Leary [2023] IESC 27

• The Supreme Court confirmed that conferring a statutory appeal engages the constitutional right to litigate. Consequently, provisions restricting that right are to be strictly construed.
• The Court emphasised that where the statute does not clearly and unambiguously preclude a less-restrictive meaning, courts should adopt the interpretation that better vindicates the constitutional interest in access to court.
• While a footnote in Kirwan cited s.123 of the 2004 Act as an example of an absolute time limit (in the context of extension), Kirwan did not decide the “date of issue” question now before the High Court in Friedman; nor did it foreclose the application of s.25 to fix the start date.

Legal Reasoning in Friedman

1. Text and scope of s.25 Interpretation Act 2005. The Court held that s.25 applies not only to the enumerated terms “serve,” “give,” “deliver,” and “send,” but also to the catch‑all “any other word or expression.” “Issued” as used in s.123 falls within this residual category. Where a statute authorises transmission by post and is silent on when service is effected, s.25 supplies a deemed timing rule: the point in time when the letter would be delivered in the ordinary course of post, unless the contrary is proved.
2. Harmonising s.123 RTA 2004 with s.25 Interpretation Act. The phrase “issued to the parties” is functionally about communication to them. When effected by post, the statutory default in s.25 governs the moment at which that communication is legally treated as having occurred. Therefore, the “relevant period” under s.123(8) begins on deemed delivery, not on posting.
3. Constitutional right to litigate and strict construction. Drawing on Kirwan, the Court found that the statutory right of appeal to the High Court engages the right to litigate. Any interpretive choice affecting access to that right must be strictly construed in favour of access, absent clear language to the contrary. Applying s.25 is the less restrictive, rights‑vindicating reading and aligns with the statutory text.
4. Departure from prior High Court authority justified. The earlier cases did not squarely apply s.25 to the phrase “issued to the parties” through the lens of strict construction post‑Kirwan. Almazani expressly flagged that, but felt constrained by comity. Here, two further features justified departure: (a) Kirwan represents a material jurisprudential development; and (b) in this statutory scheme, the High Court is the final appellate forum on a point of law under s.123, which weakens the practical imperative for strict horizontal adherence.
5. Practical considerations. The Court addressed RTB’s concerns about certainty and cost. It noted that recorded express post already yielded verifiable delivery dates in this case, and modern postal options (e.g., digital stamps with delivery confirmations) can produce reliable proof of delivery without the expense of personal service. The s.25 presumption (“unless the contrary is proved”) also guards against injustice caused by misdelivery or atypical delays.

Application to the Facts

The RTB posted its determination order on 30 July 2024. It was shown (via RTB records) to have been delivered on 31 July 2024. Under s.123(8) and s.25, the relevant period began on 31 July 2024; the last day to file was 20 August 2024. The appellant filed on 20 August 2024. The appeal was therefore in time. The strike‑out application failed.

Impact and Practical Consequences

For RTB proceedings and tenancy law

• Appeals on a point of law under s.123 now run from deemed delivery in the ordinary course of post, not from the date of posting.
• Practitioners should now advise clients to calculate the 21‑day period from the recorded or presumed delivery date. Where delivery is contested, s.25’s “unless the contrary is proved” permits evidence to rebut the presumption.
• RTB processes may shift to ensure robust confirmation of delivery (e.g., recorded express or digital stamp confirmation) to avoid disputes and to know when an order becomes binding (s.123(2)).
• The risk of unfair time‑bar due to postal error or delay is substantially reduced by aligning the clock with deemed delivery.

Beyond the RTB: statutory schemes that use “issued to,” “sent,” or similar

The Court’s reasoning hinges on the general rule in s.25 of the 2005 Act and on the principle of strict construction where a right to litigate is engaged. This methodology will likely influence how courts read similar trigger phrases in other appeal or review provisions where documents are transmitted by post. Where a statute is silent on timing but uses terms that fall within s.25’s ambit—including “any other word or expression”—the default rule of deemed delivery will be a powerful interpretive touchstone.

Judicial comity recalibrated

Friedman demonstrates an appropriate use of the Worldport exceptions: a court of coordinate jurisdiction may depart from recent authority when (i) a material jurisprudential development has occurred (here, Kirwan), and (ii) prior cases did not fully account for the relevant legal framework (s.25 read through a strict‑construction lens). This may embolden thoughtful re‑analysis of entrenched but contestable lines of authority in other areas where constitutional rights and interpretive defaults intersect.

Unresolved but important adjacent questions

• Extension of time under s.123: The High Court did not reach whether it can extend time; existing High Court authority says no. Kirwan’s analysis suggests that whether extensions are permitted depends on the text and context of each statute; Kirwan also footnoted s.123 as an example of an absolute limit. The issue remains for a case in which it is squarely necessary to decide it.
• Electronic or alternative modes of delivery: Friedman addresses postal service and the Interpretation Act’s default for post. Where electronic service is used, different statutory or evidential rules may apply; agencies should ensure their governing legislation and practice directions are coherent on when time starts.

Complex Concepts Simplified

“Issued to the parties” vs “served,” “sent,” and “received”

Although “issued” is not identical to “served,” s.25 of the Interpretation Act 2005 expressly applies to service “by using the word ‘serve’, ‘give’, ‘deliver’, ‘send’ or any other word or expression.” The Court held that “issued” falls within this catch‑all—so when a statute speaks of a document being “issued to” someone by post, s.25 supplies the timing rule: legally, it is treated as served at the point of deemed delivery in the ordinary course of post (unless proven otherwise).

“Ordinary course of post” and the presumption

This phrase means the timeframe in which a properly addressed, prepaid letter would typically be delivered by the postal service used, absent abnormal delay. The law presumes delivery occurred then, but that presumption can be rebutted by evidence (e.g., tracking records, misdelivery proof, sworn testimony).

Right to litigate and strict construction

When legislation grants a right to go to court—even a limited statutory appeal—it engages the constitutional right to litigate. Any statutory terms that regulate or restrict that right should, where reasonably open, be read in the way that least impairs access. This is the “strict construction” principle emphasized in Kirwan v O’Leary.

Judicial comity (Worldport)

High Court judges generally follow each other’s decisions to promote certainty. They may depart only for good reason: overlooked authority, clear error, or significant change in the law. Friedman fits within these exceptions due to Kirwan’s constitutional analysis and a fresh focus on s.25’s breadth.

Practical Guidance

How to compute the 21-day period after Friedman

1. Identify the mode of transmission. If by post, s.25 applies.
2. Ascertain the date of delivery or deemed delivery:
   • Use tracking/recorded post data if available.
   • If unavailable, rely on the ordinary delivery timeframe for the service used; this is a rebuttable presumption.
3. Count 21 days starting the day deemed delivery occurred (day 1 is the delivery date).
4. File the originating motion in the High Court within that window.
5. If delivery is disputed, gather evidence early (postal confirmations, affidavits) to prove the actual delivery date or to rebut the presumption.

For agencies (including the RTB)

• Adopt postal methods that provide reliable delivery confirmation (recorded express post, digital stamps with delivery notifications).
• Maintain and exhibit delivery records to demonstrate when the 21‑day period commenced and when orders became binding.
• Update internal guidance and external communications to reflect that time runs from deemed delivery, not posting.

Concluding Observations

Friedman v RTB & Ors reshapes a settled but contested practice in Irish tenancy appeals. It establishes that, under s.123 of the Residential Tenancies Act 2004 read with s.25 of the Interpretation Act 2005, a determination order is “issued to the parties” when it would be delivered in the ordinary course of post (unless the contrary is proved). This moves the time trigger from posting to delivery, aligning legal form with practical fairness and the constitutional imperative of strict construction where a right to litigate is engaged.

The judgment carefully navigates the High Court’s comity constraints by relying on a material jurisprudential development—Kirwan v O’Leary—and by returning to the full breadth of s.25’s wording. It also addresses operational certainty, noting that modern postal systems can supply the necessary proof of delivery without undue cost.

While questions about extending time under s.123 remain for another day, Friedman provides immediate clarity for litigants and the RTB: the 21‑day clock starts when the order would be delivered in the ordinary course of post. Expect this approach to inform the interpretation of similar statutory trigger phrases across administrative law where postal service is used. As a result, access to statutory appeals is better safeguarded against the vagaries of the post, consistent with constitutional values and sound statutory interpretation.

Key Takeaways

• New rule: For RTB appeals, “issued to the parties” (s.123 RTA 2004) means deemed delivery in the ordinary course of post (s.25 Interpretation Act 2005), not the date of posting.
• Constitutional underpinning: statutory appeals engage the right to litigate; restrictions are strictly construed (Kirwan v O’Leary).
• Comity respected but not rigid: the High Court may depart from its own prior decisions where material developments or overlooked principles justify it.
• Practical certainty remains achievable through recorded or digitally confirmed postal methods.
• Adjacent issues, such as whether s.123 permits extension of time, await a case that squarely raises them.