About this case:

• Citation:
  [2024] IEHC 350
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Niamh Hyland

Delivering judgment for the High Court, Ms Justice Niamh Hyland commented that in light of the “quandary” presented to an appellant of a decision of the Information Commissioner, where Order 130 of the Rules of the Superior Courts specifies the appeals procedure and “prima facie…appears to be the appropriate basis to seek to challenge a decision of the Information Commissioner” but is now out of date, “an obvious solution to this situation would be an amendment of Order 130 by the Superior Courts Rules Committee so that it reflects the terms of the 2014 Act”.

Background

The notice party, Mr Paul Farrell, sought certain Dublin County Registrar Civil Motion lists from the Courts Service under the Freedom of Information Act 2014. His request was refused and Mr Farrell sought of a review of that decision from the Information Commissioner.

On 1 November 2023, the Commissioner decided to release the records to Mr Farrell. The Courts Service appealed that decision to the High Court as provided for under s.24 of the 2014 Act, by originating notice of motion under Order 84C of the Rules of the Superior Courts (RSC).

By letter dated 17 January 2024, the Commissioner indicated that he intended to concede the appeal and have the matter remitted for further consideration and for a new decision to be issued.

The matter came before Ms Justice Hyland in the non-jury for mention list, and the Commissioner indicated that an agreed order could be made setting aside his decision and the matter remitted for a fresh decision.

Mr Farrell indicated that he did not consent to this, and the court adjourned the matter twice to allow submissions on inter alia whether the Courts Service and the Commissioner could agree to resolve a statutory appeal despite the notice party’s objection, and whether the appeal ought to have been brought under Order 130 or Order 84C RSC.

The High Court

Mr Farrell having indicated at hearing that he was not in a position to take over carriage of the proceedings and to resist the application to set aside the Commissioner’s decision, Ms Justice Hyland found that his objection fell away.

Nonetheless, the court noted Mr Farrell’s objection to the procedural approach of the Courts Service when issuing the proceedings, asserting that they should have been issued under Order 130 instead of Order 84C RSC.

Ms Justice Hyland considered that there is “undoubtedly an issue about what is the appropriate way to proceed when seeking to bring a statutory appeal to the High Court against a decision of the Information Commissioner”, finding: “Prima facie, Order 130 of the Rules of the Superior Courts appears to be the appropriate basis to seek to challenge a decision of the Information Commissioner.”

Focusing on the wording of Order 130 RSC, the judge observed that a difficulty arose in that the Freedom of Information Act 1997 and the Freedom of Information (Amendment) Act 2003 with which Order 130 was concerned had been appealed in their entirety by the 2013 Act.

The court continued: “Any appeal to the High Court against a decision of the Information Commissioner is now brought pursuant to s.24 of the 2014 Act. Yet, as may be seen from the full text of Order 130 set out above, Order 130 is replete with references to the 1997 Act as amended by the 2003 Act. None of the parties were aware of any amendment to the statutory instruments that introduced Order 130 RSC to reflect the 2014 Act, being SI 325 of 1998 and SI 471 of 2004.”

“As a result, there is no coherent way to read Order 130 given the repeal of the 1997 and 2003 Acts,” Ms Justice Hyland found. “As a result it is unclear to a party seeking to appeal a decision of Information Commissioner what procedural route they should follow, given the terms of the 2014 Act… Thus, any appellant seeking to appeal a decision of the Freedom of Information Commissioner under s.24 is in a quandary: a provision of the Rules of the Superior Courts specifies how such appeals are to be brought, but that provision is now out of date.”

The court remarked: “In those circumstances, it is unsurprising that some parties have resorted to Order 84C, which governs statutory appeals not otherwise regulated by specific provisions. Yet this must also give rise to concern, given that proceedings should only be brought under Order 84C where provision for the procedure applicable to the relevant statutory appeal is not made either by the enactment concerned or by another Order of the Rules of the Superior Courts (see Order 84C, rule 1(2)).”

Proposing that “an obvious solution to this situation would be an amendment of Order 130 by the Superior Courts Rules Committee so that it reflects the terms of the 2014 Act”, the court highlighted that Mr Farrell had not brought a motion seeking relief in respect of those points and that it would be inappropriate to adjudicate on ancillary arguments raised by Mr Farrell in those circumstances.

Conclusion

Accordingly, the High Court granted an order setting aside the Commissioner’s decision.

The Courts Service of Ireland v The Information Commissioner [2024] IEHC 350