“From Absolute Time-Bar to Discretionary Extension” – Barniville P. Affirms the High Court’s Power to Extend the 21-Day Limit in Appeals from Solicitors Disciplinary Tribunal Decisions

1. Introduction

The High Court judgment of Barniville P. in Kirwan v. O'Leary & Ors ([2025] IEHC 337) constitutes the first application of the Supreme Court’s seminal ruling in Kirwan v. O'Leary & Ors [2023] IESC 27 (“the Time-Bar Appeal”). The case revolves around Brendan Kirwan’s attempts to appeal two “no-prima-facie-case” findings of the Solicitors Disciplinary Tribunal (SDT) concerning allegations of professional misconduct by a number of solicitors.

At its core, the judgment clarifies when and how the High Court may exercise discretion – under Order 122 rule 7 of the Rules of the Superior Courts (RSC) – to enlarge the strict 21-day period set by s.7(12B) of the Solicitors (Amendment) Act 1960 (“the 1960 Act”). Applying the three-part test endorsed by the Supreme Court, the President concluded that the “balance of justice” favoured granting an extension and thus resurrected Mr Kirwan’s appeals for substantive hearing.

2. Summary of the Judgment

Only the application to extend time was decided. Having analysed the surrounding circumstances – especially the COVID-19 filing restrictions – Barniville P. held that:

Mr Kirwan formed a bona fide intention to appeal within the statutory 21 days.
His late filing was explicable by “a factor akin to mistake” arising from pandemic filing protocols (HC90 / O.117A RSC).
He advanced arguable grounds of appeal sufficient at this preliminary stage.
There was no countervailing prejudice and three respondent solicitors neither consented nor objected.

Accordingly, the Court extended the time for appeal to 21 December 2020 (the date on which the motions were actually issued) and fixed directions for a full merits hearing before a different judge.

3. Analysis

3.1 Precedents Cited and Their Influence

Kirwan v. O'Leary & Ors [2023] IESC 27 – The Supreme Court (3:2) held that although Mr Kirwan’s motions were outside 21 days, s.7(12B) does not remove the High Court’s inherent power (via Order 122 r.7) to extend time. It identified the “balance of justice” approach and the guiding three-question framework.
Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC 3 – Reaffirmed the modern formulation of the extension-of-time discretion and highlighted the need to consider prejudice and overall justice.
Éire Continental Trading Co. v. Clonmel Foods [1955] IR 170 & Goode Concrete v. CRH [2013] IESC 39 – Original source of the three criteria: bona fide intention, excusable delay, and arguable grounds of appeal.
Practice Direction HC90 & Order 117A RSC – Pandemic emergency filing rules allowing “non-personal delivery” by registered post, central to explaining the delay.
Murphy v. Law Society of Ireland [2023] IESC 28 – Elaborated the same discretion in the specific context of professional disciplinary appeals.

3.2 Legal Reasoning

Barniville P. meticulously followed the Supreme Court roadmap:

Source of Jurisdiction: Order 122 rule 7 RSC confers a power to enlarge “any time appointed by these Rules or by any judgment, order or direction”. The 1960 Act is silent on extensions; therefore, no statutory ouster exists.
Guiding Test: The three questions from Éire Continental were applied as “guide, not fetter,” always subject to the overarching balance-of-justice inquiry.
Application of Test:
- Bona fide intention proven by same-day e-mail and registered post filings (29 Oct 2020).
- Excusable delay – One-day slippage due to pandemic filing restrictions qualified as “mistake-like”.
- Arguable grounds – Although threshold low, allegations concerning conflict of interest, forged documents, and misrepresentation suffice to be arguable.
Absence of Prejudice: No respondent demonstrated prejudice; three appeared but took a neutral stance.
Public Policy: The Legislature intended complainants to enjoy an appellate safeguard; denying extension over a marginal, explained delay would undermine that safeguard more than it would serve promptness.

3.3 Impact and Future Significance

The judgment – coupled with the Supreme Court ruling – sets a clear procedural precedent in solicitor discipline:

Confirms definitively that the 21-day limit in s.7(12B) is not a hard stop; the High Court retains discretion.
Aligns disciplinary appeals with mainstream civil procedural principles on extensions of time.
Judicial emphasis on “balance of justice” over rigid literalism is likely to influence other statutory appeal regimes with short limitation windows.
The judgment signals that minor, well-explained pandemic-related delays will seldom defeat access to the courts.
For solicitors, it underscores that “no prima facie case” rulings are no longer immune from late challenges once the three-part test is satisfied.

4. Complex Concepts Simplified

Prima Facie Case: Latin for “on its face”. In SDT context it means the complainant’s materials, if taken as true, could amount to misconduct. It is not a finding of guilt.
Extension of Time: A court’s power to allow a procedural step (here, an appeal) even though the statutory or rule-based deadline has passed.
Balance of Justice: A holistic weighing of fairness, including the reasons for delay, prejudice to the parties, public interest, and the merits threshold.
Order 122 rule 7 RSC: The procedural rule permitting the High Court/Supreme Court to enlarge time in any matter governed by the Rules of the Superior Courts.
Practice Direction HC90 / Order 117A RSC: Temporary COVID-19 measures that allowed documents to be filed by registered post rather than in person.

5. Conclusion

Kirwan v. O'Leary & Ors ([2025] IEHC 337) operationalises the Supreme Court’s confirmation that strict statutory timelines in solicitor discipline appeals are amenable to discretionary enlargement. By granting Mr Kirwan’s extension, Barniville P. has:

Embedded the “balance of justice” rubric into SDT appeal practice;
Provided a concrete template for applying the three guiding questions post-Seniors Money;
Shielded litigants from procedural forfeiture where delays are minimal, explained, and non-prejudicial;
Opened the door to fuller scrutiny of “no-case” SDT determinations, thereby reinforcing public confidence in solicitor regulation.

The broader take-away is that Irish courts will resist adopting an absolutist approach to statutory time-limits where such rigidity would unfairly stifle a party’s constitutionally protected right to litigate. Practitioners must, however, remember that the discretion is exceptional, fact-specific, and will turn on a persuasive explanation of delay and demonstrable arguability of the underlying appeal.