A Typology of Administrative Appeals
It is good to be back blogging, at least fleetingly, after a long absence. I hope to start posting more regularly over the next few weeks.
Work on the next edition of Hogan and Morgan’s Administrative Law in Ireland continues apace. Irish readers and those from other jurisdictions might find something of interest in this section on administrative appeals. Comments are very welcome, of course.
In a very useful concurring judgment, Clarke J. recently attempted to categorise the different types of appeal that may be provided for by statute. The question that recurs in this difficult area is that of the standard of review, or intensity of the judicial scrutiny of the original decision: how badly must the administrative body err, and how closely must the appellate court examine the record? The High Court finds itself pulled in multiple directions in this area. The sheer variety of statutory schemes and decisions rendered under them, counsels a variable, shifting standard of review, but the desire for legal certainty pulls in favour of a simple, uniform test. Given the complexity of the subject matter, a uniform test is likely to prove elusive. But Clarke J.’s analytically rigorous attempt to set out a typology of appeal-types is a useful framework for discussion.
In Clarke J.’s view there are four different types of appeal – though it should be borne in mind that the Oireachtas will not necessarily legislate by reference to these different types, such that there may be variations within these categories. Moreover, one must be cautious in this area about speaking in generalities, because “the nature and scope of each appeal is governed by the particular terms used by the relevant legislature when requiring that the appeal remedy be provided”.
De Novo Appeal
Clarke J.’s first type is the “de novo appeal”. This is said to have two characteristics: “the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant” and “the appeal body is required to come to its own conclusions on the evidence and materials properly available to it”. Several of the statutes providing for appeals to the District Court against local authority licensing decisions would seem to be de novo in nature. Both the language of the relevant statutes and an elementary appreciation of the background context support this interpretation – it will often be necessary for local authority officials to take swift, on-the-spot decisions where the health or safety of members of the public may be imperilled by failure to respect the conditions of a licence. The underlying principle here, which will often if not always be the case with a de novo appeal, is that an official may act in haste but repent at leisure (or, at the very least, before a competent court that has been fully apprised of all relevant considerations). In addition, in Glancré Teo v Cafferkey, Finnegan P. held that not to hold a full appeal as to what constitutes exempted development for the purposes of s.5 of the Local Government (Planning and Development) Act 1963 “would create an inherent contradiction within the planning code”, because the “issue as to whether development is or is not exempted is one which the legislature clearly regarded as one within the competence of the courts”.
Appeal on the Record
Clarke J.’s second type is the “appeal on the record”. Here, “the appellate body must come to its own conclusions as to the proper result of the issues before it without regard to the decision made by the first instance body”, but basing its ultimate decision largely on the record developed by the first instance body. An example is provided by s.60(8) of the Civil Registration Act 2004, which allows for an appeal to the High Court after an elaborate process of internal appeals and reconsiderations. It might also be suggested that, inasmuch as the Appeal Commissioners, sitting on appeal from the Revenue Commissioners, must form their own opinion on the evidence available, they are engaged in an appeal on the record. Where there are restrictions on the extent to which the appellate body can admit fresh evidence or conduct a re-trial of issues decided by the first instance body, or the evident intent of the Oireachtas is that introduction of new material on appeal will be limited, the appeal is likely to be considered to be on the record. An appeal on the record also seems to be what the the Electronic Communications Appeal Panel had in mind in Hutchinson 3G Ireland Ltd v Commission for Communications Regulation:
“It seems therefore that what is envisaged by the Regulations (as interpreted in the light of Article 4.1 [of the Framework Directive]) is an examination of the decision of the Regulator as opposed to a reassessment de novo by the Panel of whether the Appellant is a ‘significant market power in the wholesale voice call termination market on individual mobile networks.’ This will mean that Panel can focus on evidence and materials upon which the Regulator based its decision and look at the inferences and conclusions it drew from those materials. Whilst the panel has appropriate expertise, and has expertise available to it, it is not the type of expertise which the Regulator itself has, for example, in collating data and information on the market and carrying out an investigation and analysis of that market. Rather it is the type of expertise which allows the Panel to understand the specialist or technical matters which the Regulator has regard to in carrying out its functions and making its decision. To this extent, a degree of deference can be shown but not the same degree which the court in Orange or Gleeson would have shown.”
The Panel was of the view, therefore, that the standard as envisaged by the Regulations is broader than the more deferential standard associated (as we shall see) with appeals against error:
“The Regulations envisage that the Panel can annul, or annul in part, the decision of the Regulator if, on an examination of the Regulator’s decision and the decision-making process, there are errors of fact or law (which includes erroneous inferences of fact, or errors as to jurisdiction and procedure) such as would vitiate the decision. In practical terms, therefore, the error (or errors) would need to be of significance before the Panel could annul the decision, in whole or in part. It should not be a trivial error. It should be one which, when objectively assessed, had a bearing on the decision reached by the Regulator. However, the error(s) need not go to the root of the decision either. Rather, the error(s) should be material in the sense that they are objectively relevant to, and have a bearing on, the conclusion the Regulator came to. In coming to this conclusion, the Panel will take into account the view of the Regulator given its expertise on certain technical matters, but ultimately can substitute its own opinion if it takes a different view in respect of these matters.”
Appeal against Error
Clarke J.’s third type is the “appeal against error”, where “the appellate body does have regard to the determination of the first instance body and must, in order for the appeal to be allowed, be satisfied that the first instance body was in some way in error”. Whereas with de novo appeals and appeals on the record, the appellate body must come to an independent conclusion on the merits of the decision taken, where the appeal is against error, the appellate body will have to determine “whether the first instance body came to a correct or sustainable decision on the basis of [the] record”. Curial deference will, generally, be due to the first instance body, especially as to its findings of fact and, often, as to conclusions on matters falling within its sphere of expertise. There has been a great deal of discussion of the principle of curial deference in the Irish cases.
The locus classicus is typically taken to be Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare. In this case, a social welfare appeals officer was found to have correctly directed himself in law and his application of the legal principles to the facts could not be disturbed. Hamilton C.J. added that the courts:
“… should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that [where] tribunals which have been given statutory tasks to perform and [who] exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them, it should not be necessary for the courts to review their decisions by way of appeal or judicial review”.
Further guidance to the same effect was provided in M&J Gleeson v Competition Authority and Orange Communications Ltd v Director of Telecommunications Regulation. Taking into account the seminal decisions in M&J Gleeson and Orange, it is now well-settled that an appeal from a regulatory body will generally not be de novo. Charleton J. put the point typically trenchantly in Manorcastle Ltd v Aviation Commissioner:
“This court has no expertise in finance or accountancy, nor does it have expertise in policy. This court has never had the opportunity to see or hear from the human persons who control the applicant. This court has never had the opportunity to assess whether they are serious-minded people or not, it simply assumes that they are. The respondent, by way of contrast, has such expertise and has had such opportunities. I should say that this is not simply a question of curial deference, with which I have potential problems. Rather, the legislature has quite deliberately established a body with expertise in accountancy matters, which the courts never adjudicate upon unless they are raised in plenary proceedings and a conflict of evidence arises, which also has the capacity to hold face to face interviews in making its assessment.”
The ‘standard of review’ in such cases was definitively stated by Keane C.J. in Orange Communications Ltd v Director of Telecommunications Regulation. The applicant must show:
“[A]s a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In arriving at a conclusion on that issue, the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first defendant.”
One might venture to suggest that on most occasions in which the Oireachtas provides for an “appeal” from a specialised first instance body to a generalist appellate decision maker the natural inference is that an “appeal on the record” is intended, with the appellate function leavened by a healthy dose of curial deference.
Appeal on a Point of Law
Clarke J.’s fourth type is the “appeal on a point of law”. A good example of an appeal on a point of law is provided by Pt 40 of the Taxes Consolidation Act 1997, which allows such an appeal from the Appeal Commissioners or the Circuit Court to the High Court. The effect of the precursor to these provisions was extensively discussed in Mara v Hummingbird Ltd. The Appeal Commissioners had found as a fact that Hummingbird’s purchase and sale of development property was for investment purposes, and, accordingly, could not be regarded as a sale “in the course of trade”.
In the Supreme Court, Kenny J. drew a distinction analogous to that discussed earlier under the rubric of “mixed questions of fact and law” between findings of primary fact, and the inferences to be drawn from those facts. Findings of primary fact—in this case, for example, Hummingbird’s intentions when purchasing the premises—should not be disturbed “unless there was no evidence whatever to support them”. In the case of inferences or conclusions based on these primary facts, a different approach was called for. If these conclusions were based on the interpretation of documents, the court should reverse them, for it was in as good a position as the Appeal Commissioners to determine the meaning of these documents. The court should only reverse other conclusions based on primary facts if these conclusions are ones which could not reasonably have been drawn, or which are based on a mistaken view of the law. Kenny J. urged a cautious approach, noting that the Appeal Commissioners will often have evidence:
“[S]ome of which supports the conclusion that the transaction under investigation was an adventure in the nature of trade and he will have some which points to the opposite conclusion. These are essentially matters of degree and his conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying the case) unless they are such that a reasonable commissioner could not draw them or they are based on a mistaken view of the law.”
The effect of this test is to allow effective control over unreasonable decisions, or decisions based on “no evidence” or a mistaken view of the law, while at the same time allowing the administrative authority a tolerable margin of error. It is important to note, however, that where the decision under appeal was based on “an identifiable error of law or an unsustainable finding of fact”, it should be corrected by the appellate body. As has been well said, “[t]he question of construction is exclusively a matter for the judge”.
 Fitzgibbon v Law Society of Ireland  IESC 48; Unreported, Supreme Court, 29 July 2014. Francophile readers might also enjoy Daly, “Les appels administratifs au Canada” (2015) 93 Can. B.R. 71.
 Vodafone Ireland Ltd v Commission for Communications Regulation  IEHC 382; Unreported, High Court, Cooke J., 14 August 2013.
 Veterinary Practice Act 2005 s.113(3) (registered person may appeal to the District Court against a decision to grant or renew subject to conditions or to refuse to grant or renew a certificate of suitability); Taxi Regulation Act 2013 s.13(3) (appeal to the District Court against the refusal to grant, the revocation or the suspension of a taxi licence); Animal Health and Welfare Act 2013, s.69(1) (appeal to the District Court against the refusal to grant or the revocation of a licence to run an animal mart).
  IEHC 34;  3 I.R. 401. See similarly, Esat Digifone v South Dublin County Council  IEHC 173;  3 I.R. 585.
  3 I.R. 401 at 405.
 See e.g. Chesnokov v An t-Árd Cláraitheoir  IEHC 497; Unreported, High Court, Hedigan J., 24 July 2015. See also Kean v Solicitors Disciplinary Tribunal  IEHC 432; Unreported, High Court, Kearns P, 23 September 2014.
 See The Revenue Commissioners v O’Flynn Construction Company Ltd  IESC 47;  3 I.R. 533 at 607-608, per McKechnie J., dissenting.
 Which has subsequently been disbanded. See European Communities (Electronic Communications Networks & Services) (Framework) (Amendment) Regulations 2007 (S.I. No. 271 of 2007), which transfers the Panel’s jurisdiction to the High Court.
 Article 4.1 of the Directive provides: “Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of the case are duly taken into account and that there is an effective appeal mechanism. Pending the outcome of any such appeal, the decision of the national regulatory authority shall stand, unless the appeal body decides otherwise.”
This sensible provision may, indeed, be required by art.6 of the European Convention on Human Rights. A body that formulates and then implements policy will not be an independent and impartial tribunal for the purposes of art.6. See R. (Alconbury) v Environment Secretary  UKHL 23;  2 A.C. 295 at 318.
 ECAP Decision No.01/05, Appeal No.2004/01, 10 February 2005
 ECAP Decision No.01/05, Appeal No.2004/01, 10 February 2005 at paras 10.1 and 10.2. At this point, a comparison may be useful. The test thus adumbrated in Hutchinson 3G is, to all intents and purposes, not materially different from that employed by the General Court in merger cases coming on appeal from the Commission. As that court said in Petrolessence SA (T-342/00)  E.C.R. II-1161:
“… [R]eview by the Community Courts of complex economic assessments made by the Commission … must be limited to ensuring compliance with the rules of procedure and the statement of reasons, as well as the substantive accuracy of the facts, the absence of manifest errors of assessment and of any misuse of power. In particular, it is not for the Court of First Instance to substitute its own economic assessment for that of the Commission” (T-342/00)  E.C.R. II-1161 at para.101.
See e.g. Airtours (T-342/99)  E.C.R. II-2585. Note also the comments of Cooke J. in Rye Investments Ltd v Competition Authority  IEHC 140 at paras 5.17–51.8: “Although the scope of an appeal under s. 24 [of the Competition Act 2002] is wider than that of the review procedure of the European Courts under Article 230 EC (those courts cannot substitute their views on the merits,) the court considers that a standard of review for the purposes of s. 24 of the Act based upon the formulation expressed by Keane C.J. in the Orange case and adopted by Finnegan P. in Ulster Investment Funds Ltd. is consistent with the standard of review applied to analogous decisions of the European Commission by the European Court of Justice and the European Court of First Instance. The concept referred to in the common law jurisdictions as ‘curial deference’ is reflected in the jurisprudence of the Community Courts in the recognition of a ‘margin of appreciation’ or ‘margin of discretion’ accorded to the European Commission in its appraisal of the complex economic situations that arise in the application of both competition rules and the provisions of the Merger Regulation.”
  1 I.R. 34.
  1 I.R. 34 at 36–37 (emphasis added).
  1 I.L.R.M. 401.
  IESC 79;  4 I.R. 159.
 See in particular Orange  IESC 79;  4 I.R. 159 at 184–185, per Keane C.J.
  IEHC 386;  3 I.R. 495 at 514.
  4 I.R. 136 at 185. See also Manorcastle Ltd v Commission for Aviation Regulation  IEHC 386;  3 I.R. 495 at 517, per Charleton J.: “[t]he test of serious and significant error, as identified by the Supreme Court in [Orange], requires an assessment of whether the decision in question was unreasonable, in other words, whether there is a mistake of fact which goes to the foundation or root of the decision”. Compare M&J Gleeson v Competition Authority  1 I.L.R.M. 401 at 410–411 and the more stringent formulation in Carrickdale Hotels Limited v Comptroller of Patents  IEHC 86;  2 I.L.R.M. 401 at 411 per Laffoy J. The formulation of the standard of review by Keane C.J. is notably different from that favoured by the Canadian Supreme Court in Southam  1 S.C.R. 748 at para.56: “An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.” (Emphasis added.) Comparing the two tests textually, the Irish standard seems friendlier to the public body. The Orange test was effectively adopted by the legislature in the Anglo Irish Bank Corporation Act 2009 s.31(6): “In deciding, for the purposes of an appeal … whether the Assessor’s determination should be confirmed, annulled or varied, the test to be applied by the [Irish Financial Services Appeals] Tribunal is whether the appellant has established, as a matter of probability, taking into account the degree of expertise and specialist knowledge possessed by the Assessor and taking the process as a whole, that the determination was vitiated by a serious and significant error or a series of such errors.”
  I.L.R.M. 421. Kenny J., delivering the Supreme Court judgment, referred with approval to the speech of Lord Radcliffe in Edwards v Bairstow  A.C. 14. See also, Rahill v Brady  I.R. 69; Ó Cualacháin v McMullan Bros Ltd  2 I.R. 217 at 222–223 per Blayney J. The test enunciated in Hummingbird has been followed in a series of subsequent decisions. See, e.g. O’hArgain v Beechpark Estates Ltd  I.L.R.M. 57; Re McElligot  I.L.R.M. 210; MacCárthaigh v D  I.R. 73; Brosnan v Mutual Enterprises Ltd  1 I.L.R.M. 312; Patrick JT O’Connell (Inspector of Taxes) v Tara Mines Ltd  IESC 67;  3 I.R. 438; MacCárthaigh (Inspector of Taxes) v Cablelink Ltd  IESC 67;  4 I.R. 510; Lynch (Inspector of Taxes) v Neville Bros Ltd  IEHC 375; Unreported, High Court, Carroll J., 7 December 2004; Ryanair Ltd v The Revenue Commissioners  IESC 19; Unreported, Supreme Court, 27 March 2017. For an application of these principles in the non-revenue context, see Brewster v Burke and the Minister for Labour (1985) 4 J.I.S.L.L. 98; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare  1 I.R. 34; Doran v Minister for Finance  IEHC 57;  2 I.R. 452; Sheedy v Information Commissioner  IESC 35;  2 I.R. 272; Gannon v Information Commissioner  IEHC 17;  1 I.R. 270; Russell v Temple Mount Comprehensive School  IEHC 533; Unreported, High Court, Michael Hanna J., 4 December 2009; Irish Life & Permanent plc v Financial Services Ombudsman  IEHC 367; Unreported, High Court, Hogan J., 3 August 2012.
 See para.10–xxx.
  I.L.R.M. 421 at 426. See also, Canty v Residential Tenancies Board  IEHC 243 (similar principle).
 Murray v Pensions Ombudsman  IEHC 27;  2 I.L.R.M. 196 at 207 per Kelly J. See also The Revenue Commissioners v O’Flynn Construction Company Ltd  IESC 47;  3 I.R. 533 at 562. However, the court will generally be more reluctant to interfere where the decision-maker applies the correct legal principles to the facts of a given case: see e.g. the comments of McMahon J. in Square Capital Ltd v Financial Services Ombudsman  IEHC 407.
This content has been updated on July 12, 2017 at 14:45.