Supreme Court dismisses appeal as no right of appeal exists under Section 28 of the Equal Status Act 2000.

THE SUPREME COURT

[2015] IESC 13

(Appeal No: 184/2012)

Murray J.

Hardiman J.

O’Donnell J.

McKechnie J.

Clarke J.

IN THE MATTER OF SECTION 28 OF THE EQUAL STATUS ACT 2000-2008

Between/

MARY STOKES (ON BEHALF OF JOHN STOKES A MINOR)

Appellant

and

CHRISTIAN BROTHERS HIGH SCHOOL CLONMEL

Respondents

and

THE EQUALITY AUTHORITY

AMICUS CURIAE

JUDGMENT of Mr. Justice Hardiman delivered the 24th day of February, 2015.

1. This case relates to the admission policy of the respondent School, the Christian Brothers High School, Clonmel (“the School”). It

has already been litigated, at length, in three separate oral hearings, before three different tribunals on foot of a complaint by Mrs.

Stokes made in July 2010.

2. After various preliminary procedures there was an oral hearing before the Director of the Equality Tribunal in November 2010. The

Director upheld the complaint on the basis of the “parental rule”, a rule which gave a certain priority to applicants who were the

children of past pupils.

3. From this decision the School appealed to the Circuit Court, under a right of appeal conferred by s.28(1) of an Act of 2000. This

appeal was successful and the decision of the Director was set aside. This was the second full oral hearing.

4. From this decision, thirdly, Mrs. Stokes appealed to the High Court “on a point of law” on behalf of her son. The Equality Authority

applied for and was granted leave to appear at the appeal as Amicus Curiae. The decision of the High Court (McCarthy J.) was

delivered on the 3rd February, 2012. The appeal was dismissed.

5. Now, Mrs. Stokes purports to appeal to this Court, a third appeal and a fourth hearing of this complaint.

6. In summary, therefore, Mrs. Stokes made a complaint on behalf of her son in relation to the School’s admission policy. The

complainant was successful before the Director of the Equality Agency. The School appealed to the Circuit Court. On appeal the

School was successful and Mrs. Stokes appealed to the High Court. However, the School was again successful and the appeal was

dismissed.

7. All of these hearings were full oral hearings at which both parties were present or represented. The Equality Authority, whose

Director made the first-instance decision was represented as Amicus Curiae at the third hearing in the High Court.

The present issue.

8. Mrs. Stokes, on behalf of her son, now purports to appeal to this Court. The School says no such appeal lies.

Mrs. Stokes relies, firstly, on the terms of Article 34.4.3 of the Constitution:

“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have

appellate jurisdiction from all decisions of the High Court…”.

Legal provisions affecting the Appeal.

9. Section 28 of the Equal Status Act 2000 undoubtedly provides to either side a right of appeal from the Director to the Circuit

Court. It provides:

“28(1) Not later than forty two days from the date of a decision of the Director under s.25, the complainant or the

respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the

grounds of appeal.

(2) In the determination of the appeal, the Circuit Court may provide for any redress for which provision could have been

made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

(3) No further appeal lies, other than an appeal to the High Court on a point of law”.

(Emphasis added)

10. In this case, the School was successful in the Circuit Court in setting aside the Order of the Director. An appeal from this decision

lies to the High Court “on a point of law”. But “No further appeal lies” by virtue of the provisions of subsection (3).

11. There is no doubt in my mind but that the purported appeal to this Court would be a “further” appeal. It would be “further” to the

School’s appeal from the Director to the Circuit Court and to Mrs. Stokes appeal from the Circuit Court to the High Court “on a point

of law”. Any appeal after that, in the same matter, is necessarily a “further” appeal. It is a “further” appeal, most fundamentally,

because there have already been two previous appeals. But the statute says that “no further appeal lies”.

12. I accept, for the reasons given by Mr. Justice Clarke in his judgment in this case that a statutory restriction of the right of appeal

to this Court must be expressed in clear language. I would specifically follow a dictum to that effect of Keane C.J. in A.B. v. Minister

for Justice Equality and Law Reform [2002] 1 I.R. 296. At p.303 the learned Chief Justice said:

“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so

construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of

the Courts to remedy such a casus omissus, if that is what it is. That would be a weighty consideration in every case: in

this case, there is the additional factor that the right of appeal to this Court provided for in Article 34.4.3 may only be

removed or abridged by a statutory provision which is clear and unambiguous…”.

(Emphasis added)

13. I cannot see that there is anything which is unclear, or which is ambiguous, in the following very simple form of words:

“No further appeal lies”

When this phrase is considered in its context, which context is the two previous subsections of s.28, (providing for a right of appeal

to the Circuit Court from a decision of the Director, and for the powers of the Circuit Court on the hearing of such an appeal), the

meaning is very clear: no appeal further to the appeal already provided to the Circuit Court shall lie. To this there is but one

exception, expressed in the phrase:

“other than an appeal to the High Court on a point of law”.

14. This appeal has already been availed of by Mrs. Stokes, and she was unsuccessful in it. There is, in my view, “no further appeal”.

The single appeal provided by way of exception to the general rule has been exhausted, so that the general rule now stands without

exception:

“No further appeal lies”.

Neutrality.

15. It will be observed that the terms of s.28 are absolutely neutral as between the parties. If the position of the parties here were

reversed, if the School had won before the Director and Mrs. Stokes had successfully appealed, and the School had further appealed

to the High Court “on a point of law”, without success, then the School would be as effectually precluded from any “further appeal”

as I believe Mrs. Stokes to be in the actual circumstances of the case.

16. It is easy to see why this is so. In the interest of the parties and the community as a whole there must be some limit to litigation.

Interest rei publicae ut sit finis litium. There has been in this case a full oral hearing of both sides before the Director, before the

Circuit Court and now before the High Court but the appellant maintains that there is a further appeal, available as of right, and not

subject to a requirement to meet any threshold, such as the necessity to prove that the case involves a novel point of law, or a

point of law of exceptional public importance.

Appeals from the Circuit Court generally.

17. The present case is one arising under the specific statutory provisions of the Equality Acts. But even outside this context, in the

case of the great majority of Civil appeals from the Circuit Court to the High Court about matters other than the Equality legislation,

there is no further appeal to the Supreme Court.

18. The general right of appeal from the Circuit Court to the High Court in a Civil case is regulated by Part III of the Courts of Justice

Act, 1936, whose title is “The Circuit Court”. Section 38(1) of the Act 1936 provides that:

“An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by

this part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in

relation to appeals is made by this part of this Act) of the Circuit Court in a Civil action or matter.”

19. It may be useful to set out s.38, redacting the material in that Section which is irrelevant to the present case. Thus redacted,

the Section reads as follows:

“An appeal shall lie from every judgment or order… of the Circuit Court in a Civil Action or matter”.

20. Section 39 of the same Act provides that:

“The decision of the High Court or of the High Court on circuit on an appeal under this Part of this Act shall be final and

conclusive and not appealable”.

This form of words manifestly excludes any appeal to this Court.

21. Just as manifestly, if “no further appeal lies” the decision on the last permitted appeal is equally “final and conclusive and not

appealable”.

22. Nevertheless, despite the general provision in the 1936 Act, I would not have considered that a right of appeal to this Court was

excluded were it not for the specific words of the Act of 2000. It might possibly be, that for unspecified reasons which seemed

sufficient to the legislature, that that body had decided to lay down a different regime for appeals under the Equality legislation.

Furthermore, since this appeal provided by statute lies, if at all, under the provisions of a special Act, and not the general provisions

in relation to Civil matters of the Act of 1936, the view might be taken that the general right of appeal from the High Court provided

by Article 34 exists in the present case.

23. But the legislature did see fit to provide, immediately after providing for an appeal from the Director to the Circuit Court, that “no

further appeal shall lie…”. Accordingly, unless that phrase, or the sentence of which it forms part, can be regarded as unclear or as

ambiguous, it follows that the right of appeal has been excluded.

“Clear” and “Unambiguous”.

24. Words used in a legal context are to be interpreted, unless the contrary intention appears (usually by a statutory definition), in

their ordinary and natural meaning. This is sometimes called the “literal rule”.

25. There have been considerable changes in the mode of statutory interpretation in the last twenty years both as a result of judicial

decision such as that of Keane J. (as he then was) in Mulcahy v. Minister for Marine (High Court, unreported 4 November 1994) and

as a result of statutory innovation, notably the Interpretation Act 2005. This measure was inspired to a large degree on the Law

Reform Commission’s excellent paper Statutory Drafting and Interpretation: Plain Language and the Law. In this document, the

Commission argue for the retention of the “literal rule” as the primary rule of statutory interpretation. This involves construing words

in their ordinary and natural meaning. It does however suggest a more purposive form of interpretation where a statutory provision is

ambiguous. See s.5(1) of the Act of 2005.

26. This Section provides as follows:

Part 2

Miscellaneous rules

5. – (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other

sanction)-

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of-

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as

the case may be, where that intention can be ascertained from the Act as a whole.

27. Section 5 cannot avail the appellant here unless it be first established that statutory provision, here s.28 of the Act of 2000, is

obscure or ambiguous. No reliance has been placed on the terms of s.5(1)(b).

It will be seen that there is some overlap in wording and connotation between two of the phrases with which we have been

concerned in this judgment. The first of these, which occurs in the judgment of Keane C.J. in A.B. v. Minister for Justice [2002] 1 I.R.

296, quoted at para. 12 above: is “clear and unambiguous”. The second phrase, used in s.5(1)(a) of the Interpretation Act, 2005 is:

“obscure or ambiguous”.

In the leading dictionary of the English language as it is spoken in Great Britain and Ireland, the Oxford English Dictionary, the word

obscure in its adjectival meaning is most relevantly described as:

“Not manifest to the mind or understanding; imperfectly known or understood; not clear or plain, hidden, doubtful, vague,

uncertain.”

The most relevant meaning appears to me to be those which I have underlined above. It is also defined as:

“Not perspicuous; not clearly expressed; hard to understand.”

The relevant meaning of the word clear according to the same source is:

“Distinct, intelligible, unambiguous; manifest, evident.”

28. The term “unambiguous” is intended to connote the reverse of “ambiguous”. This term is derived in part fro the Latin root “ambi- ”

or “ambo-” which, according to the same source, has the sense of “both, on both sides, both ways”.

29. The term “ambiguous” itself is defined in the same source as:

“Indistinct, obscure, not clearly defined”-

Or (most relevantly in this context) as:

“admitting more than one interpretation or explanation; having a doubtful meaning; equivocal”.

The word is also given the meaning of “using words with a doubtful or double meaning”.

30. Murdock’s Dictionary of Irish Law says (not without some ambiguity), under the heading “Ambiguous”: “doubtful meaning”.

However Jowitt’s Dictionary of English Law defines the term as “double meaning, doubtfulness, obscurity”.

31. The prefix “un-”, prefixed to an adjective, such as “ambiguous” is, according to the OED, used to express negation, in usages

such as “uneducated, unfair, unhappiness” and others. It frequently expresses a reversal of the sense of the word to which it is

prefixed, as in unselfish, or unsociable.

32. The term “unambiguous” is, unsurprisingly, defined as meaning:

“Not ambiguous, clear or definite in meaning”.

33. I regard the phrase “no further appeal shall lie” as perfectly clear and definite in meaning, and entirely lacking in ambiguity. I find

it difficult to see how a contrary case could be made.

34. According to the Oxford Dictionary, the word “further” means:

“Beyond the point reached, to a greater extent, more; in addition, additionally…”.

35. If the statutory phrase in s.28(3) were limited to the words:

“No further appeal lies”

the meaning would be obvious. No additional appeal, beyond the right of appeal already provided in the previous subsections (i.e. that

from the Director to the Circuit Court) is open to a party dissatisfied with the latter Court’s decision.

This is precisely the position that obtains in relation to appeals from the District Court (where the great bulk of all cases are heard) to

the Circuit Court, but no further, except by Case Stated.

36. If, therefore, ambiguity is to be found in s.28(3) it can only be found in the balance of the words:

“ other than an appeal to the High Court on a point of law”.

The effect of this phrase equally obvious. It is to create a single exception to the statutory position that “no further appeal lies”. A

dissatisfied litigant aggrieved at the decision of the Circuit Court, has one further recourse, and one only:

“an appeal to the High Court on a point of law”.

This provision, indeed, substantially replicates, in relation to rights of appeal, the position of appeals from the District Court to the

Circuit Court. The decision of the latter court is final apart from the possibility of a Case Stated on a point of law.

37. In the present case, Mrs. Stokes had, and has already availed of, the “appeal to the High Court on a point of law”, and has lost

it. If the School had taken the appeal and lost it, no further appeal would have been available to it. Similarly, no further appeal is

available to her, the complainant.

38. Nevertheless, one of my colleagues considers that the language of s.28(3) is not “sufficient to exclude an appeal to this Court”.

This is on the basis that:

“it might be argued that the phrase ‘no further appeal’ is simply designed to limit the scope of appeal to the High Court

rather than to preclude what would otherwise be a constitutionally conferred right of appeal to this Court”.

39. It is certainly true that the appeal to the High Court conferred on a person dissatisfied with the result in the Circuit Court is

limited to an appeal on “a point of law”. It is that appeal, which is (a) to the High Court and (b) on a point of law, which is the sole

exception to the main provision of s.28(3). The words “no further appeal lies…” do not in anyway relate to the scope of an appeal to

the Supreme Court: they operate wholly to exclude such appeal. In this instance, I am convinced, the legislature means what it says.

If it were simply desired to limit the appeal to the High Court to an appeal on a point of law, it would be quite unnecessary to provide

that “no further appeal lies”.

Policy considerations.

40. As I have tried to indicate above, there is a sound policy basis for the limitation of litigants, as was done in this case, to a full

hearing, a full appeal by rehearing on the merits, and a further appeal “on a point of law”. However, the legislature has not been

consistent in this matter, or at least not expressly so. In the Residential Tenancies Act 2004, it is provided at s.123(3) that:

“Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the

Tribunal (as embodied in a Determination Order) on a point of law.

By the following subsection, s.123(4):

“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and

conclusive”.

41. This Act, indeed, is one of those cited by Mr. Justice Clarke in the course of his judgment, though the emphasis there is on the

phrase “shall be final and conclusive” which is not, manifestly, the same form of words used in this Act which is “no further appeal

lies…”. But the result is the same. If the result were not the same, it would be difficult to see the basis on which the legislature

permitted a further appeal to the Supreme Court to an unsuccessful party in a claim brought under the Equality Acts, but denied it to

a person dissatisfied with a decision of the High Court about a residential tenancy.

Similarly, s.26 of the Data Protection Acts, 1988 and 2003 deals with appeals. There is an appeal from the decision of the Data

Protection Commissioner to the Circuit Court which is provided in quite express terms. Indeed, the definition of the Act provides that

“the Court” means the Circuit Court. Section 26(3)(b) of the Consolidated Act provides:

“An appeal may be brought to the High Court [from the Circuit Court] on a point of law against such a decision: and

references in this Act to the determination of an appeal shall be construed as including references to the determination of

any such appeal to the High Court and of any appeal from the decision of that Court.”

This is rather obliquely worded, referring on the face of it to how another particular form of words (“the determination of an appeal”)

is to be construed. But it is consistent only with the existence of an appeal from the High Court which, at the time the Data

Protection Acts were passed, could only be to this Court. There is nothing even remotely resembling this form of words in the Equality

Act.

Accordingly, it is impossible to discern any coherent legislative policy in relation to the appeal processes from disputes which are

adjudicated in the first instance by some form of non-judicial tribunal or office holder. There is no appeal at all to this Court from the

High Court in a case which starts in the Residential Tenancies tribunal; but there is such an appeal in proceedings which start before

the Data Protection Commissioner. Outside the context of tribunals or non-judicial decision makers, there is no appeal fro the High

Court to this Court in the case of Circuit Court civil proceedings generally. There is, accordingly, no consistent policy on the question

of such appeals. Perhaps there may be a good reason for the variations.

42. If s.28(3) of the Equal Status Act, 2000 simply provided:

“No further appeal lies.”,

its meaning would be plain and unambiguous. There would be no appeal beyond the level of the Circuit Court. As is the form of words

which the Oireachtas enacted is:

“No further appeal lies, other than an appeal to the High Court on a point of law.”

If it had read:

“Other than an appeal to the High Court on a point of law, no further appeal lies.”

the meaning might have been more obvious, but it is sufficiently clear as it is. In any event, and regardless of the order in which the

phrases occur, the grammatical form of the single sentence which constitutes subsection (3) is a general provision “no further appeal

lies” and a single exception. It appears to me that where one exception only is provided by a section which also lays down the

general rule, that exception is exhaustive of the exceptions to the general rule on the basis “expressio unius, exclusio alterius”.

In Dodd, Statutory Interpretation in Ireland, (Tottel Publishing, 2008) page 145, the learned author cites with approval Mr. Bennion’s

book on the same subject as follows:

“The maxim expressio unius, exclusio alterius translates as “to express one thing is to exclude another”. Expressio unius,

exclusio alterius is itself an aspect of the principle expressum facit cessare taciturn, which translates as “something

expressed nullifies what is unexpressed”. Where the legislature in the text deems it appropriate to expressly cater for

particular matters, and could have included other matters, but did not, then the inference arises that such omissions are

deliberate and that such matters are intended to be excluded from the provision. The maxim is at the strongest where the

legislature enumerates certain matters connected by a common theme, class or category, as opposed to covering them

by general words, but omits certain things from the list. The maxim operates by indicating the legislature’s intention by

implication or inference."

43. It must also be borne in mind that the expense of four separate and individual hearings, before the Director, the Circuit Court, the

High Court and the Supreme Court, is likely to be much greater than any individual person could easily bear, unless aided or totally

subvented by a State Authority. A litigant, especially one acting on what he or she conceives to be a point of principle, may be

prepared to bear this expense, or to seek aid from a State Authority, but I cannot see that the community and the taxpayers should

be burdened, and the law rendered uncertain, by a fourth hearing where there have already been three in relation to a relatively

simple matter. In any event, I believe that the right of appeal to this Court, after the three previous hearings, has been barred by

clear and unambiguous words. There are drawbacks to the provision of multiple appeals which entirely transcend the expense

involved. If two full oral hearings together with two appeals on a point of law are provided, the scope for confusion and contradiction

is multiplied. If this Court differs from the High Court on a point of law, and still more if either of these Courts detects a frailty or

inadequacy in the evidence before the Director or the Circuit Court, there is some risk of a lengthy and expensive four stage legal

procedure which achieves nothing at all.

No doubt the observations of Mr. Justice Clarke on the evidence required on the hearing of a complaint under this legislation will be of

use to those who, in the future, may urge a complaint under it, or to those who defend such a complaint. I wish to add, however,

that in my view the construction of the Statute in question here, in its application to private schools, whether fee-paying or not, will

have to be considered in terms not merely of the statutory words but of the applicable constitutional provisions. Article 42 of the

Constitution is concerned with Education. Amongst other things the Article acknowledges the Family as “the primary and natural

educator of the child”, and refers to “the inalienable right and duty of the parents to provide, according to their means, for the

religious and moral, intellectual, physical and social education of their children”. Article 42.2 provides that parents are free to provide

this education “in their homes or in private schools or in schools recognised or established by the State”. Article 42.3.1 says that the

State “shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by

the State or to any particular type of school designated by the State”. Article 42.4 provides that the State “shall endeavour to

supplement and give reasonable aid to private and corporate educational initiative”.

In mentioning these provisions I do not mean to imply that other provisions of the Constitution may not equally be relevant, such as

the right to freedom of association (Article 40.6) and to religious freedom (Article 44).

44. In my view, it is important for the Court to recollect the dominant position in this argument of the actual words used by the

legislature. In A.B. v. Minister for Justice [2002] I.R. 296, it was indisputable that a person wishing to appeal the decision of the High

Court in relation to certain refugee issues had to seek the leave of the High Court to do so. Equally clearly, this application for leave

was required to be made within a period of fourteen days. The question was whether an appeal against the refusal of the High Court

to extend this period itself required the leave of the High Court. The Supreme Court, in a judgment delivered by Chief Justice Keane

held that on the ordinary construction of the words of the Statute no such leave was required. He stated (p.302) that it is difficult to

discern any rational basis for such a legislative course by the Oireachtas but continued, at p.303, in the first part of a passage

already cited:

“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so

construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of

the Courts to remedy such a casus omissus, if that is what it is”.

45. I believe these words must be in the forefront of our deliberation on this point. It is certainly the case that the Statute Book

provides examples of very different forms of words used to exclude the right of appeal to this Court. The forms of words employed

differ as between themselves and all differ from the words used in this case. But the fact that different forms of words have been

used in other contexts is not, in my view, significant if the words used in this particular instance are “clear and unambiguous”.

Similarly, the Statute Book provides numerous examples of types of litigation in which an appeal to this Court is excluded (for example,

the Residential Tenancies Act, referred to above) or preserved (as in the case of s.5(2)(a) of the Illegal Immigrants Trafficking Act,

2000, referred to in the preceding paragraph).

It is, frankly, unclear (at least to me) why an untrammelled right of appeal was excluded in one case and preserved in the other, or

preserved in one case and excluded in the other. But that, at least in the absence of a constitutional challenge, is entirely a matter

for the legislature. It is not for a court to challenge that body’s policy choices, any more than it is for the legislature to challenge the

decision of the Courts in a matter constituting an administration of justice, and of which the Courts are properly seised.

46. I would strike out this purported appeal being of the opinion that it does not lie for the reasons given above.