Catherine Dunne BL

On 10 November 2022, Mr Justice Murray in the Supreme Court delivered judgment in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General [2022] IESC 43, overturning an earlier decision of the Court of Appeal and reinstating the decision of Mr Justice Simons in the High Court. The decision addresses the task of statutory interpretation against the backdrop of the Supreme Court decisions in Dunnes Stores v Revenue Commissioners [2019] IESC 50 and Bookfinders Ltd v The Revenue Commissioners [2020] IESC 60.

The decision

This case concerned the correct interpretation of Section 50B of the Planning and Development Act 2000, which provides for a protective costs order in certain environmental and planning claims. The Supreme Court held that s.50B applies to any challenge to a decision made pursuant to a statutory provision which gives effect to the Directives listed in the provision, and that there is no basis under s.50B or the Aarhus Convention for the splitting of costs where some grounds and issues raised in the proceedings engage those Directives, and others do not. The court held that certain provisions of the Aarhus Convention require contracting states to take the necessary legislative measures to ensure that environmental law proceedings are “not prohibitively expensive”. Mr. Justice Murray stated that the respondents had not advanced “any persuasive alternative analysis of the text” of s.50B that could displace its “literal construction”.

Recent Jurisprudence

This decision was delivered against the backdrop of a number of recent Supreme Court decisions issued in the sphere of taxation, each of which gave consideration to the task of statutory interpretation.

Murray J considered Dunnes Stores, where Mr Justice McKechnie concluded that a “provision should be construed in context having regard to the purpose and scheme of the Act as a whole, and in a manner which gives effect to what is intended”. The court held that even where a literal approach is available, if that approach is absurd or fails to give effect to the purpose of the Act, the Court will decline to apply it.

The court subsequently considered the literal interpretation in the significant Bookfinders. The appellant, a franchise of the fast-food chain ‘Subway’, sought to import an interpretation of the statute’s words which were then pieced together in a manner which read the term ‘food and drink’ to mean only items of food and drink purchased together, and not food or drink purchased separately, which would have allowed it to avail of the zero-rate of VAT. In rejecting the appeal, O’Donnell J (as he then was) addressed the meaning of the literal approach and criticised the appellant’s attempts to divorce the meaning of words from the overall surroundings of the statute itself:

Murray J gave detailed consideration to the meaning of interpretive elements such as “words used in context” and “ascertaining the purpose of an Act”. The Court acknowledged the above-mentioned jurisprudence in noting that the meaning of ‘context’ has broadened in recent times:

The Supreme Court confirmed in Bookfinders that the provisions of the Interpretation Act 2005 do not apply to taxing statutes, and Murray J noted in Heather Hill that absent these provisions:

Consideration was also given to the decision in The People (DPP) v AC [2021] IESC 74 in which O’Donnell CJ gave an alternative description of the literal approach:

Permissible admission of context vs. impermissible imposition on legislation

In Heather Hill, Murray J provided a four-point critical analysis of “the line between the permissible admission of context and identification of ‘purpose’ and the impermissible imposition on legislation of an outcome that appears reasonable or sensible to an individual judge or which aligns with his or her instinct as to what the legislators would have said had they considered the problem at hand, becomes blurred”:

• The court notes that ‘legislative intent’ is a misnomer where it is used to describe the objective of the interpretive exercise, as the court “cannot peer into the minds of parliamentarians” to ascertain what their subjective intention may have been.
• It states that interpretation is identifying the legal effect attributed to legislation by a series of rules and presumptions that have been developed by common law and statute for that purpose:

• It is confirmed that the words of the statute are given primacy:

• The court notes that the Oireachtas usually enacts a composite statute, and not a collection of disassociated provisions. It does so in a pre-existing context and for a purpose. For this reason, Murray J that the best guide to this purpose is the language of the statute revised as a whole; however, that often must be informed by reliable and identifiable background information of the kind identified by McKechnie J in The People (DPP) v Brown [2018] IESC 67. However, Murray J observes that the ‘context’ that is deployed to that end and ‘purpose’ so identified must be:

Conclusion

The court’s initial concern appeared to be that context may be used to wrench the meaning of a statute from the plain meaning of the words used. It notes in the first instance that the most preferable context is “the immediate context of the sentence within which the words are used.” However, it later states that the overriding concern is that the context must be clear, specific and, where wielded to displace the ostensibly clear language of a provision, it must be “decisively probative of an alternative construction that is itself capable of being accommodated within the statutory language.”

Murray J concluded that the words of the statute are the “first port of call”:

The takeaway for tax practitioners from this judgement is that care should be taken in regard to the context of a statute, because the words themselves have primacy. However, context should not be separated entirely from the words as the two are not “hermetically sealed”. This is significant in the sphere of taxation where the approach to separate the two still lingers.

• Catherine Dunne BL is a member of the Tax Bar Association, which is holding its annual conference on 29 September 2023. This article first appeared on the Law Library website.