Factual and Procedural Background
This is an appeal under s.123 of the Residential Tenancies Act 2004 (as amended) ("the 2004 Act").
Following a tenancy tribunal hearing on 4 March 2024 and 13 May 2024, the tenancy tribunal issued a report on a preliminary issue concluding that it lacked jurisdiction because the Appellant had named the wrong persons as her landlords. That report and a subsequent determination order were issued to the parties.
The Respondent dispatched the determination order by post on 30 July 2024; the Appellant received it on 31 July 2024 (as shown in the delivery evidence exhibited to the Respondent's affidavit). Under s.123 of the 2004 Act a party has 21 days "within which she could appeal the determination order on a point of law to the High Court."
The Respondent contended that the 21‑day period commenced on the date the determination order was posted (30 July 2024) and thus expired on 19 August 2024. The Appellant filed an originating notice of motion in the Central Office of the High Court on 20 August 2024. The Respondent brought an application to strike out the appeal as out of time.
The Appellant advanced three alternative positions: (a) the appeal was filed in time; (b) in any event the court can extend time under s.123; and (c) if the court cannot extend time, s.123 is unconstitutional as an impermissible interference with the constitutional right to litigate. The Attorney General was added as a Notice Party because the Appellant challenged the constitutional validity of s.123.
Legal Issues Presented
- Whether the 21‑day appeal period under s.123(8) of the 2004 Act commenced on the date the determination order was posted (date of sending) or on the date it was received (date of delivery) by the Appellant.
- If the period is held to have commenced on the earlier date, whether the High Court can extend the time for bringing such an appeal.
- Whether the Appellant may challenge the constitutional validity of s.123 by way of an appeal on a point of law from a determination of the Respondent.
- If such a constitutional challenge is permissible, whether s.123, so construed, is contrary to Bunreacht na hÉireann.
Arguments of the Parties
Respondent's Arguments
- The Respondent (through Attorney Harmon) relied on s.123(3) and the definition of "relevant period" in s.123(8) of the 2004 Act which provides for a 21‑day period "beginning on the date that the determination order concerned is issued to the parties".
- The Respondent pointed to a line of High Court decisions (Halbherr v RTB [2018] IEHC 595; Almazani v RTB (McDonald J, 25 June 2018); Enners v RTB [2023] IEHC 216; Abeyneh v RTB [2023] IEHC 81; O'Driscoll & Anor v RTB [2025] IEHC 283) that had held that a determination "issued" when it was sent by post, so the appeal period began on the date of posting. The Respondent asked the Court, following the Worldport principle of judicial comity, to follow that line of authority.
- The Respondent submitted that the High Court did not have jurisdiction to extend the statutory appeal period.
- The Respondent, through an affidavit from Attorney Steen (a director), also advanced practical concerns: a long‑standing practice of recorded express post provided certainty as to the date an order was sent; changing the meaning would create uncertainty, cost implications (potentially requiring personal service), and the risk of a recipient frustrating delivery.
Appellant's Arguments
- The Appellant asserted that the appeal was brought within time because the 21‑day period should be calculated from the date the determination was deemed to have been received in the ordinary course of post (31 July 2024), not from the date of posting (30 July 2024).
- She relied on s.25 of the Interpretation Act 2005 ("the 2005 Act"), which provides that where an enactment authorises or requires a document to be served by post (or uses other words including "any other word or expression"), service is deemed, unless the contrary is proved, to have been effected at the time the letter would be delivered in the ordinary course of post. The Appellant contended that "issued to the parties" in s.123 falls within that provision.
- In the alternative, the Appellant submitted that the Court could grant an extension of time in appropriate circumstances.
- As a further alternative, if no extension power exists, the Appellant argued that s.123 so construed would be an unconstitutional interference with the constitutional right to litigate.
Attorney General (Notice Party) — Submissions
- The Attorney General was ad idem with the Appellant on the interpretation point: the earlier High Court authorities had not addressed the operation of s.25 of the 2005 Act and were therefore incorrect in treating "issued to the parties" as synonymous with "sent".
- The Attorney General relied on the Supreme Court decision in Kirwan v O'Leary [2023] IESC 27 to submit that pursuing a statutory appeal on a point of law engages an appellant's constitutional right to litigate and that provisions curtailing that right should be strictly construed; accordingly, the least restrictive interpretation should be adopted, i.e. one consistent with s.25 of the 2005 Act.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court in this case |
| Halbherr v RTB [2018] IEHC 595 |
Held that a determination is "issued" on the date it was posted; s.123(8) begins to run from date of posting; earlier judge held no power to extend the statutory appeal period. |
The Respondent relied on this decision as the leading authority. The Court examined Halbherr in detail and ultimately departed from this line of authority because s.25 of the 2005 Act and subsequent Supreme Court authority (Kirwan) justified a different construction. |
| Almazani v RTB (McDonald J, 25 June 2018) (unreported) |
McDonald J indicated that, absent earlier authority, s.25 would lead to a deeming of service on ordinary delivery; but he followed Halbherr because of judicial comity. |
Cited as part of the line of High Court decisions that treated "issued" as the date of posting; the Court noted McDonald J's view that s.25 would arguably apply but that McDonald J was bound by earlier authority. |
| Enners v RTB [2023] IEHC 216 |
Applied a literal construction: the 21‑day time limit commences when the decision is "issued to" the person; plain meaning did not use "received by". The decision held that the 21‑day period is strict and there is no jurisdiction to extend it. |
Recognised as part of the existing line of authority that the Court considered; the present Court reviewed the decision but departed from that approach because it concluded s.25 applies and Kirwan requires strict construction in favour of litigants' rights. |
| Abeyneh v RTB [2023] IEHC 81 |
Followed the line that the date of issue is the date posted and held the High Court lacked jurisdiction to extend the appeal period. |
Cited as continuing authority for the proposition that "issued" = date posted. The Court departed from this line for reasons explained in the judgment. |
| O'Driscoll & Anor v RTB [2025] IEHC 283 |
Held that a determination order is issued on the date it is posted; addressed whether High Court had jurisdiction to extend time and relied on Kirwan in that context to hold it did not. |
Cited as the most recent decision applying the posting interpretation. The present Court considered it but distinguished its treatment of Kirwan (the earlier decision dealt only with extension jurisdiction) and departed on the interpretation point. |
| Hughes v Worldport Communications Inc (In Re Worldport) [2005] IEHC 189 |
Sets out the principle of judicial comity: a judge of first instance should ordinarily follow an earlier decision of the same court unless there are substantial reasons to depart (e.g., material change in law). |
The Respondent invoked Worldport to argue for adherence to earlier High Court cases. The Court accepted the principle but held that material changes (notably s.25 of the 2005 Act and the Supreme Court's decision in Kirwan) justified departing from the Halbherr line. |
| Kirwan v O'Leary [2023] IESC 27 |
Held that pursuing a statutory appeal on a point of law engages the constitutional right to litigate; provisions restricting that right must be strictly construed; whether a court may extend time depends on statutory language and context. |
The Court relied on Kirwan to adopt a strict‑construction approach to s.123; that approach favoured interpreting "issued to the parties" in a way that least restricts the right to litigate (i.e. to read s.123 with s.25 of the 2005 Act). |
| Kadri v Governor of Mountjoy Prison [2012] IESC 27 |
Endorsed the Worldport principles on judicial comity and the approach a judge should take when faced with earlier High Court decisions. |
Used to summarise the background principle of comity and to explain the need for strong reasons before departing from earlier High Court decisions; the Court then identified such reasons here. |
| A & Others v Minister for Justice & Equality [2020] IESC 70 |
Reiterated principles concerning judicial comity and the circumstances in which a court might depart from earlier decisions. |
Identified as a later case affirming the Worldport approach; the Court acknowledged these authorities when explaining why it considered departing from prior High Court decisions required justification. |
| A, SS & I v Minister for Justice & Equality [2021] 3 IR 140 |
Further reiteration of the approach to judicial comity when a judge of the High Court is considering an earlier High Court decision. |
Cited as part of the lineage of authority explaining the principle of comity; the present Court applied the exception analysis to justify departure. |
| Huddersfield Police Authority v Watson [1947] KB 842; Re Howard's Will Trusts, Leven & Bradley [1961] Ch. 507 |
Authorities cited in Worldport on when a court may depart from earlier decisions of the same court. |
Referred to via Worldport as foundational authorities describing circumstances permitting departure from prior decisions; used in the analysis of whether to follow Halbherr. |
| Brady v D.P.P. [2010] IEHC 231; B.N.J.L. v Minister for Justice, Equality & Law Reform [2012] IEHC 74 |
Instances in the High Court applying the Worldport approach to issues of precedent and comity. |
Cited as examples of the jurisprudence endorsing the comity principle; the Court reviewed these in framing its approach to prior decisions. |
| White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545 |
Demonstrated that a statutory appeal to the High Court, though statutory in origin, may engage constitutional rights (such as the right to litigate). |
Cited (via Kirwan) to support the proposition that statutory appellate rights can engage constitutional litigation rights and hence merit strict construction where restrictions are alleged. |
| Law Society v Tobin |
Authority relied upon in Kirwan for the proposition that an enabling phrase such as "may appeal…within a period of 21 days" does not, without more, necessarily preclude an extension of time. |
Referred to in the Court's discussion of Kirwan: used to explain why statutory language does not automatically exclude the possibility of extension and why strict construction may be required when a right to litigate is engaged. |
| Irish Trust Bank v Central Bank of Ireland [1976-7] I.L.R.M. 50 |
Earlier authority cited in the jurisprudence governing how judges should treat prior decisions of the same court. |
Appears in the Court's review of the comity doctrine (as cited in Kadri and Worldport); used to explain the established approach to precedent within the High Court. |
Court's Reasoning and Analysis
The Court began by addressing the well‑established principle of judicial comity (Worldport and subsequent authorities) that ordinarily a judge of first instance should follow the decision of another judge of the same court unless there are substantial reasons to depart. The Court accepted that the Halbherr line of authority had applied that principle and consistently interpreted "issued to the parties" in s.123 as meaning the date on which a determination order was posted by the Respondent.
However, the Court identified multiple grounds for departing from that line of authority:
-
Statutory context and interaction with the Interpretation Act 2005: s.25 of the 2005 Act provides a deeming rule for postal service — where an enactment authorises or requires a document to be served by post using words such as "serve", "give", "deliver", "send" or "any other word or expression", service is deemed (unless the contrary is proved) to have been effected at the time when the letter would be delivered in the ordinary course of post. The Court found that the word "issued" in s.123 falls within "any other word or expression" in s.25 and that s.25 therefore governs the ascertainment of the commencement of the appeal period.
-
Constitutional right to litigate and strict construction: the Court relied on the Supreme Court's decision in Kirwan v O'Leary which held that a statutory right of appeal on a point of law engages a litigant's constitutional right to litigate and that legislative provisions which restrict that right must be strictly construed. Applying that requirement, the Court concluded that the construction of "issued to the parties" that is least restrictive of the right to litigate — namely a construction that gives effect to s.25 and treats the relevant period as commencing on the date the letter is deemed delivered in the ordinary course of post — should be adopted.
-
Material change in the law since some of the earlier High Court authorities: the combined effect of the enactment of s.25 in 2005 and the Supreme Court's decision in Kirwan (2023) represented a material change in the legal context such that departure from the Halbherr line was justified under the Worldport exceptions.
Applying that interpretation to the facts, the Court accepted the delivery evidence exhibited to the affidavit of Attorney Creighton (Acting Head of Disputes at the Respondent) that established delivery to the Appellant on 31 July 2024. Reading s.123 together with s.25, the 21‑day period therefore commenced on 31 July 2024. The Appellant's originating notice of motion bearing the Central Office stamp of 20 August 2024 was within the 21‑day period and accordingly the appeal was not out of time.
The Court addressed the practical concerns pressed by the Respondent (via Attorney Steen) about certainty and cost. The Court accepted the desirability of certainty as to when an appeal period commences but rejected the submission that only the date of posting could provide such certainty. The Court noted that recorded express post and modern tracking (digital stamps, electronic notifications) provide verifiable delivery information and that s.25's deeming provision ("unless the contrary is proved") supplies an additional safeguard to address misdelivery or other postal failures.
Because the first issue (the correct starting point of the 21‑day period) was resolved in the Appellant's favour, the Court did not need to decide the remaining issues (whether the Court could extend time and whether s.123 was unconstitutional), and those matters were not determined in this judgment.
Holding and Implications
Holding: The Respondent's application to strike out the Appellant's appeal as being out of time is REFUSED.
This holding rests on the Court's conclusion that the phrase "issued to the parties" in s.123 of the 2004 Act must be read in light of s.25 of the Interpretation Act 2005. Accordingly, a determination order under s.123 is deemed to be "issued to the parties" on the date when, in the ordinary course of post, it would have been delivered to them (unless the contrary is proved). On the evidence, the determination order in this case was delivered on 31 July 2024; the Appellant's appeal was filed within the 21‑day period measured from that date.
Practical and doctrinal implications evident from the judgment:
- The Court departed from an established line of High Court authority (which had held that "issued" equated to date of posting) because s.25 of the Interpretation Act and the Supreme Court decision in Kirwan required a different, less restrictive construction.
- Where an appeal to the High Court on a point of law is engaged, the constitutional right to litigate attracts the principle of strict construction; statutory time limits that operate to restrict that right should be interpreted so as to be least burdensome consistent with clear legislative language.
- The direct effect for the parties is that the Appellant's appeal remains extant and is not struck out for want of timeliness; the Court did not finally adjudicate the extension and constitutionality questions because they were unnecessary to resolve once the appeal was held to be within time.
- The Court indicated that modern methods of posting (recorded delivery, digital stamps and tracking notifications) and the deeming rule of s.25 provide mechanisms to preserve certainty without imposing the heavy cost of personal service in every case.
Procedural next steps ordered by the Court: the parties were given until 3 October 2025 to deliver brief written submissions on the terms of the final order, costs and any other matters arising; the matter was listed for mention at 10:30 on 10 October 2025 for the purpose of making final orders.