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2026 IEHC 320

THE HIGH COURT JUDICIAL REVIEW RECORD NO 2025/1039 JR [2026] IEHC 320 Between DOLORES CAHILL and MELISSA KELLY Applicants And OFFICE OF PROTECTED DISCLOSURES COMMISSIONER, HEALTH PRODUCTS REGULATORY AUTHORTY and THE GOVERNMENT OF IRELAND Respondents And ATTORNEY GENERAL, FINANCIAL AND PENSIONS SERVICES OMBUDSMAN and REVENUE COMMISSIONERS Notice Parties Judgment of Mr Justice Cian Ferriter dated 21 May 2026 Introduction

  1. This is my decision on the applicant's application for an extension of time for leave to seek judicial review against a decision of the first respondent ("OPDC") of 31 March 2025 and a decision of the second respondent ("HPRA") of 2 April 2025 in circumstances where the applicants' judicial review proceedings were filed on 7 July 2025, a number of days after expiry of the three-month time limit within which judicial review proceedings must be filed, as specified in O. 84, r. 21 of the Rules of the Superior Courts ("RSC") ("O. 84, r. 21" or “the rule”). Background
  2. The material background to the matter is as follows.
  3. On 25 February 2025, the first applicant sent a report of alleged wrongdoing to the OPDC pursuant to the Protected Disclosures Act 2014, as amended (“the Protected Disclosures Act”). The first applicant is a scientist who, until 2021, had been a professor in the School of Medicine, UCD. Her protected disclosures report ("the report") made a series of allegations of wrongdoing in terms which were at times difficult to follow; in particular I found it difficult to identify the precise wrongdoing in a work-related context which the first applicant was seeking to complain of. However, in broad terms the allegations appear to centre on alleged wrongdoing in relation to the Covid-19 vaccine programme administered in this State and general allegations of financial impropriety in relation both to that programme but also in relation to the first applicant’s UCD pension entitlements.
  4. The allegations of wrongdoing were grouped by the first applicant in her report under two headings, being "health" (including allegations of endangerment of health and safety and breach of the ‘do no harm’ precautionary medical principle, arising out of the administration of Covid vaccines in Ireland) and "financial", which included allegations of maladministration of public funds and, it appears, an allegation that the first applicant has been wrongly penalised by UCD in relation to her pension entitlements. The report also made complaints in relation to the alleged failings of the Financial Services and Pensions Ombudsman ("FSPO") (who has been added by the applicants as a notice party to these proceedings) in relation to the FSPO’s handling of a complaint made by the first applicant to the in relation to her UCD pension.
  5. The first applicant's report was received by the OPDC on 26 February
  6. Ordinarily, the OPDC seeks to revert on wrongdoing reports within seven days. In this case, on 11 March 2025, the OPDC wrote to the first applicant stating that, due to the complexity of her report, it was necessary to extend the deadline in her case to 28 March
  7. The evidence before me shows that the OPDC reviewed the report and made a determination to transmit it to the CEO of the second respondent ("HPRA") on 25 March
  8. On 31 March 2025, the OPDC transmitted the report to the CEO of HPRA. 2
  9. On the same date, 31 March 2025, in a letter to the applicant which was unfortunately not dated, the OPDC wrote to the first applicant summarising her report of wrongdoing as relating to public health on the basis that public health was endangered by the Covid-19 vaccine programme and that there were related breaches of EU law. The letter confirmed the OPDC's decision to transmit the report to the CEO of HPRA on the basis that HPRA’s remit extended, inter alia, to all matters related to the protection and enhancement of public health, including the regulation of human medicinal products and the implementation of acts adopted by an institution of the European Union. The first applicant averred in an affidavit of 31 October 2025 that this letter from the OPDC was franked on 2 April 2025 and delivered to her by registered post on 3 April
  11. Following transmission of the report to it by OPDC, HPRA wrote to the first applicant by letter of 2 April 2025 referencing the applicant's report received from the OPDC. The letter stated that HPRA had determined that the report was not a protected disclosure within the meaning of the Protected Disclosures Act on the basis that HPRA were not the regulators of the Irish academia and university sector, that the financial issues and employment matters described in the report were not within the remit of the HPRA and that the allegations of wrongdoing relating to health did not fall within the regulatory remit of the HPRA "as HPRA is not responsible for the implementation and management of vaccination campaigns in the State, and was not responsible for the authorisation of Covid-19 vaccines (authorised by the EU Commission)". The letter concluded by stating that HPRA had notified OPDC of this outcome and deemed the report closed. These judicial review proceedings
  12. On 7 July 2025, the applicants filed a statement of grounds and verifying affidavit (with exhibits) in the High Court Central Office. By virtue of the terms of O. 84, r. 21(1A) RSC (inserted by SI 163/2024, effective from 26 April 2024) an application for leave to apply for judicial review for the purposes of O. 84, r. 21 is regarded as made when the statement of grounds and affidavit are "filed in the Central Office, or, in the case of urgency, the court". This altered the previous position whereby time only stopped running for judicial review leave application purposes when the application was made in court. 3
  13. It will be noted that the second applicant, who avers that she has worked with the first applicant on various anti-corruption campaigns including whistleblowing matters, was not a party to the first applicant's protected disclosures report (which was made by the first applicant alone) and nor was she a party to or an addressee of the impugned decisions of the OPDC of 31 March 2025 and HPRA of 2 April
  15. In the notice of motion issued in support of their statement of grounds, the applicants in summary seek orders of certiorari by way of judicial review quashing the decision of the OPDC of 31 March 2025 on the basis, inter alia, that it ignored the "University issues, the employment issues, the financial sector issues and the penalisation reports" and wrongly only sent the report to HPRA. They seek orders of certiorari quashing the determination of HPRA of 2 April 2025 on the basis that HPRA wrongly refused to accept jurisdiction in respect of the health aspects of the protected disclosure report. The applicants also seek a declaration that the State has failed to comply with its obligation to transpose EU Council Directive 2019/1937 on Protected Disclosures ("The Protected Disclosures Directive" or “Directive”) adequately or, in the alternative, that the OPDC has not acted in accordance with the Protected Disclosures Act 2014, as amended. They also seek a declaration that “the lack of an appeal mechanism” is incompatible with the Directive and the right to fair procedures/an effective remedy pointing to the obligation imposed on them to go to the High Court to challenge the decisions in question. They seek an order of mandamus compelling the OPDC to forward the financial aspects of the protected disclosures report to the relevant bodies for determination, and various other orders including "an order of mandamus to audit whether certain named respondents are fit for purpose". Clearly mindful of the time limit issue, the notice of motion also sought "If necessary, an extension of time within which to make the application arising from these matters for judicial review".
  16. It will be noted that the "Government of Ireland" was named as a third respondent to the proceedings and that the Attorney General, FSPO and Revenue Commissioners were added by the applicants as "notice parties" to the proceedings. Procedural history and extension of time application
  17. The proceedings first came before the High Court on 28 July
  18. On that date, the High Court (Gearty J) directed that the application for leave to apply for judicial review ("the 4 leave application") be brought on notice, and directed the filing of an affidavit dealing with the question of the dates of receipt of the impugned decisions. The extension of time application and the leave application were directed to be heard together.
  19. On 31 October 2025, the applicants issued a motion on notice seeking leave to apply for judicial review, an extension of time "if necessary" and "reasonable accommodation for errors and omissions in procedure and paperwork including as lay litigants".
  20. The first applicant swore a short affidavit in support of the extension of time application, which included proof of the delivery dates by registered post in relation to the decisions of the OPDC and HPRA. This affidavit did not address the reasons why the first applicant’s application for judicial review was out of time.
  21. The extension of time application was also grounded on an affidavit from the second applicant, sworn on 31 October
  22. In this affidavit, which covered a significant range of matters not relevant to the extension of time application, the second applicant made reference (at para. 45) to a previous judicial review she had brought. She made reference to whistleblowing reports she had made to other authorities. She made reference to attending various trials in a "supportive/observer capacity" in her capacity as “Secretary for Justice to the Irish Republican Brotherhood” (a position she says that she has since resigned). The second applicant also made reference to "some cases relating to the environment/planning, public participation and public procurement issues" which she is currently involved in.
  23. The second applicant averred that herself and the first applicant “have worked together for many years. She is also a member of the IRB and the Irish Environmental Defenders and we have together made whistleblower complaints to the EUOLAF and the American authorities regarding irregularities in the finance system”.
  24. She makes complaint in her affidavit about the absence of an appeal or review mechanism for complaints made to the OPDC and says that the only oversight mechanism was to file a judicial review and she expresses the view that the right to judicial review should be automatic and that no leave application should be necessary. 5
  25. The second applicant then avers as follows, by way of explanation of the application for leave to apply for judicial review being filed out of time: “
  26. Unfortunately as I live in Galway and we were told that judicial reviews have to be filed on Monday, (there were a number of bank holiday Mondays and Easter in the allotted time period), we made a number of attempts to file, which were unsuccessful, for various reasons as there seems to be no Practice Directions on how to file a judicial review on the Court’s website, eventually I emailed the Courts Service and asked for directions on how to file, which they provided. It is my submission that this is not an accessible means of appeal from a non-judicial body, such as the Protected Disclosure Commission and means that this process does not have any effective accessible oversight mechanism.
  27. Obviously we repeat our request for reasonable accommodation as lay litigants, in the event that we are deemed to be ‘out of time’, bearing in mind that it is a matter of a couple of days at most, (considering that we will be making the excluded days argument). We say and believe we have demonstrated good and sufficient reason, and our lack of experience of this process and lack of online directions could not be said to be our fault.”
  28. The second applicant also stated (at para. 54 of her affidavit) that there was no prejudice to the respondents on account of the slight delay: "and surely they would be as eager as us to have this matter ventilated to ensure that important EU Directives are properly transposed and implemented, and that whistleblowers are protected adequately. All respondents and notice parties are State entities, and there is no innocent third party involved who could suffer a prejudice, as may be the case with a planning judicial review, where a developer may be held up in the interim. We are asking for no remedy but that the protected disclosure mechanism be effective and fit for purpose, which could not be something any party could reasonably oppose. It is quite clear that the balance of justice and equity would favour overlooking such a minuscule time delay, if indeed such a delay can be said to have occurred." 6
  29. Affidavits in reply to the applicants’ application for an extension of time (and for leave to apply for judicial review) were filed on behalf of the OPDC, HPRA and the State respondents (being the third respondent and the first notice party). The FSPO and Revenue Commissioners did not participate in the application.
  30. Helpful written submissions were filed by the applicants and the three respondents on both the extension of time application and the application for leave, if extension of time was granted.
  31. The respondents, in their submissions on the leave application and application for extension of time, all submitted that the second applicant had no proper standing in these judicial review proceedings as she had no sufficient interest within the proper meaning of that concept in a judicial review context to challenge decisions made in respect of the first applicant alone. The extension of time application The hearing
  32. It was agreed by all parties at the outset, when raised by me, that it would be appropriate to deal with the extension of time application first. Accordingly, this decision only addresses the question of extension of time.
  33. While it is difficult to see that the second applicant could have proper standing to be a party to this judicial review, I proceeded on the basis that I would hear from both applicants and have regard to the evidence of both applicants when considering the extension of time application. I took this view notwithstanding the considerable force in the contention that the second applicant simply has no standing to seek to challenge decisions which were addressed to the first applicant alone, which concerned the first applicant’s protected disclosure report and which did not on the face of it reveal any interest relevant to the second applicant.
  34. Before addressing the submissions made by the parties, it is useful to briefly summarise the applicable legal provisions and principles. 7 The legal principles applicable to judicial review extension of time applications
  35. Order 84, rule 21

(1)provides that “An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose” (“the three month time limit”). When does the time run from? 27. Order 84, rule 21
(2)provides that “where the relief sought [in judicial review proceedings] is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds of the application first arose should be taken to be the date of that judgment, order, conviction or proceeding".
  1. On the face of it, it would seem to follow that the three-month time limit in this case runs from 31 March 2025 in the case of the OPDC decision and from 2 April 2025 in the case of the HPRA decision.
  2. However, the question of the appropriate date from which time runs is arguably different in cases which raise questions of EU law. In Arthropharm (Europe) Ltd v HPRA [2022] IECA 109 ("Arthropharm"), Murray J without definitively deciding the point proceeded in light of the CJEU decisions in Case C-456/08 Commission v Ireland ECLI:EU:C:2010:46 and, in particular, Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority ECLI:EU:C:2010:45 (“Uniplex”) on the basis that, where the proceedings involve a question of application of EU law, the three month time limit should run from when the applicant knew or ought to have known of the impugned decision (as specified by the CJEU in Uniplex para 48).
  3. Without being taken to definitively decide if it is correct to do so, given that the decisions in issue in the proceedings before me were made under legislation implementing EU law (in this case an EU Directive), I will operate on the basis that the approach taken by the CJEU in Uniplex applies namely, that the three month time limit in Order 84 rule 21 runs from when the applicant knew or ought to have known of the relevant decisions. I note that Murray J in his judgment in Arthropharm took a similar approach (at paras. 64 to 68). 8
  4. Accordingly, given that the first applicant says that she received the two decisions in issue on 3 April 2025, I will proceed on the basis that the three-month period specified in O. 84, r. 21
(1)started on 3 April 2025 and, therefore, expired on 2 July
  2. As the applicants did not file their application for judicial review until 7 July 2025, they were some five days outside the time limit. The terms of Order 84 rule 21 as interpreted in the case law
  3. The key provision in relation to the question of extension of time is set out in O. 84, r. 21
(3)which provides that, notwithstanding the three-month time period stipulated by rule 21
(1): "The court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the court shall only extend such period if it is satisfied that: (
  1. a)there is good and sufficient reason for doing so, and (
  2. b)the circumstances that resulted in the failure to make the application for leave within [the three-month period] either (
  3. i)were outside the control of, or (
  4. ii)could not reasonably have been anticipated by the applicant for such extension." 34. As is clear from the terms of the rule, an applicant for extension of time must satisfy both limbs of the test, i.e. demonstrate both that there is a good and sufficient reason for extending time and that the circumstances resulting in the failure to make the application in time were either outside the control of, or could not reasonably have been anticipated by, the applicant. 35. An authoritative summary of the applicable principles in relation to the application of O. 84, r. 21
(3)is set out at para. 87 of the judgment of Murray J in Arthropharm. As Murray J made clear in Arthropharm, at para. 87(iii), "Before it can extend time, the court must be satisfied that the reasons so given explain and objectively justified the delay in bringing the 9 application and are sufficient to justify the court in exercising its discretion in favour of the applicant".
  1. At para. 87(ii), Murray J makes clear that the obligation is on the party seeking the extension of time "to identify on oath the reasons the application" was not brought during the three-month period and during the time between the expiry of the three months and the date on which the application is brought.
  2. In conducting an assessment of an extension of time application, the court "must take account of all relevant circumstances, including the decision that is sought to be challenged, the nature of the claim that it is invalid and any relevant facts and circumstances pertaining to the parties". In applying the factors so found, the court is engaged in a balancing exercise (para. 87(iv)).
  3. The blameworthiness of the applicant is relevant, albeit only as one factor to be weighed in the balance. As Murray J made clear, at para. 87(v), factors of which account may be taken include “the nature of the order or actions the subject of the application, the conduct of the applicant, the conduct of the respondent, the effect of the decision sought to be challenged, any steps taken by the party subsequent to that decision, and the public policy that proceedings relating to the domain of public law take place promptly except where good reasons is furnished”. As Murray J notes at para. 87(viii), the court may not extend time where a delay arises in circumstances which were within the control of the applicant.
  4. The question of balancing the rights of the applicant and respondent or notice party is also relevant and the court is, in particular, required to take account of the effect of an extension of time on any third party affected by the decision i.e. the question of prejudice in the event of an extension of time being granted is relevant (at para. 87(vi)).
  5. Finlay Geoghegan J. stated in MOS v The Residential Institutions Redress Board [2019] 1 ILRM 149 ("MOS") that it is "probable that in most instances where the court has been satisfied of good and sufficient reason to extend time it will also be in a position to make a positive finding under subrule
(3)(
  1. b)in relation to the circumstances which resulted in the failure to apply within the three-month period" (MOS, at para. 100). As Murray J notes in Arthropharm (at para. 87(viii)), that said, the rule clearly posits an enquiry as to whether the 10 applicant had within their control the effluxion of time; the court must be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant. 41. The court is also free to take account the interests underlying the proposed proceedings such that the approach to extension of time applications might be stricter in commercial cases than in other types of challenge (para. 87(ix)). 42. Finally I should note the view of Murray J (Arthropharm, para 155(viii)) that “save in those cases where it appears a claim is so weak as to be unarguable or is admitted to be so strong as to be incontrovertible it is not appropriate in an application for an extension of time pursuant to order 84 rule 21 to embark upon an analysis of the merits of the case”. I approach the extension of time application in this case on the basis that the applicants do have an arguable case for the purposes of the application, but beyond that, I do not engage in an analysis of the merits of that case. The applicants’ case for an extension of time 43. The applicants rely on a combination of circumstances to contend that an extension of time should be granted to them here including on the fact that they are lay litigants; that they were only a couple of days outside the three-month period; that there would be no prejudice to the respondents or any other party if an extension of time is granted; that the nature of the rights they assert, and the decisions they challenge, are in the important public interest context of whistleblowing allegations and how such allegations are handled; and that, in the absence of an appeal under the Protected Disclosures Act against a decision of the OPDC which they are unhappy with, they have no option but to proceed by way of judicial review. 44. The applicants relied heavily in their oral submissions on the fact that they are litigants in person. It should be said that there is no principle that permits the relaxation of a time limit such as the one at issue in these proceedings simply because the applicants are litigants in person. As pointed out by Clarke J (as he then was) in his judgment in the Supreme Court in Dowling v Minister for Finance [2012] IESC 32 (at para 4.7) "…while acknowledging that the lay applicants are not legally represented and that the courts generally will, in those circumstances, endeavour to ensure that unrepresented parties are not unfairly prejudiced, it 11 nonetheless remains the case that parties cannot expect to benefit by being unrepresented to the extent of being permitted to conduct their proceedings in a way that would not be allowed to a represented party". However, while accepting the force of that statement as a general proposition, it does seem to me that the fact that an applicant for an extension of time is unrepresented is a factor which can weigh in an applicant's favour in seeking to establish a good and sufficient reason under the rule, depending on the overall context. 45. I weigh in the balance in support of the applicants’ application for an extension of time the following matters: (
  2. i)that the step of taking judicial review is forced on a complainant to the OPDC in respect of a protected disclosure matter which is not favourably accepted by the OPDC; there is no right of appeal or other review; (
  3. ii)the purpose of the protected disclosures regime, which is to ensure that wrongdoing uncovered by a party in a work-related context can be brought to a body with appropriate regulatory power in relation to such wrongdoing, in circumstances where an employer might not be receptive to taking necessary action; (iii) that the interests engaged go to questions of freedom of expression and the need to highlight workplace wrongdoing that might otherwise go unchecked; (
  4. iv)that there is no prejudice to any of the other parties in the event an extension of time is allowed (other than to the underlying policy imperative that public law decisions are challenged expeditiously); and (
  5. v)that the applicants are unrepresented litigants (albeit they are clearly well-educated and experienced in taking litigation). 46. In my view, the factors relied upon by the applicants as set out above are ones which can weigh significantly in favour of allowing the applicants reasonable leniency in assessing the circumstances of non-compliance with the three-month time limit. However, those factors must be weighed against the important policy objective of ensuring that the time limits for challenging public law decisions are complied with and, in particular, on the facts 12 of this case, the fact that there really is no good or convincing explanation provided by the applicants on affidavit at all as to why they did not file the judicial review papers within three months. 47. It is clear from the terms of the second applicant's averments, and was confirmed in written submissions filed by her on behalf of the two applicants in relation to the extension of time application, that the applicants decided very shortly after receipt of the impugned decisions to challenge the decisions by way of judicial review. Tellingly, there is no averment from the applicants that they did not understand that a three-month time limit applied; it is clear that they were well aware of the time limit. 48. The averments made by the second applicant as to why the judicial review papers were not filed within three months are vague and generalised to the point of being unhelpful. The second applicant avers that "we were told that judicial reviews have to be filed on a Monday"; it is not specified where, when and by whom they were so told. There is a complaint that there were a number of bank holiday Mondays and Easter in the allotted time period. That is true: there were bank holiday Mondays on Easter Monday, the May bank holiday weekend and the June bank holiday weekend. That still left some nine Mondays in the three-month period, even on the applicants' own case as to their misapprehension in relation to the days on which an application could be filed. There is a reference to a "number of attempts to file, which were unsuccessful for various reasons" without specifying the dates of those attempts or why they were said to be unsuccessful. There was a complaint as to an absence of Practice Directions on how to file a judicial review on the Courts website; as set out in the replying material of the respondents, a simple Google search as to how to file a judicial review brings one to the Courts Service website where relevant information is set out. 49. However, more to the point, the second applicant avers that "Eventually I emailed the Courts Service and asked for directions on how to file which they provided". It is telling that the evidence before me shows that an email was sent by the second applicant to the Dublin Civil Law Courts’ email address on 7 July 2025 (i.e. after the expiry of the threemonth time limit) at 11:24am with the query: "Can you tell me what the stamp duty is on an application for leave to take a JR and what documents need to be filed". 13 50. Impressively, the High Court Central Office (from a different email address to that to which the query was sent) responded by email within six minutes stating "You will need a statement of grounds with €190 stamp duty, an affidavit of each applicant with €20 and an ex parte docket with €60". The efficiency of the Central Office response, the accuracy of the contents of the reply and the simplicity of the steps involved substantially undermine the second applicant's averments as to the alleged difficulties of the process. 51. No reason is advanced as to why this simple and effective query was not sent many weeks, if not months, previously. 52. There is simply no explanation provided as to why, in circumstances where the applicants formed the view very shortly after receipt of the impugned decisions that they would be challenging them by way of judicial review in the High Court, the appropriate steps were not identified (if they did not in fact know what was involved, which itself seems implausible given, in particular, the second applicant's previous involvement in judicial review proceedings of her own) and why they did not get the relevant material together within the three month period. 53. Three months was, on any reasonable view, a sufficiently lengthy period of time for the applicants as experienced litigants and well-educated people to prepare and file their judicial review papers, particularly in circumstances where they formed the view very shortly after receipt of the decisions on 3 April 2025 that they were going to bring a judicial review challenge against those decisions and where the decisions they sought to challenge and were very short and easy to comprehend. 54. The applicants sought to contend in oral submissions before me at the hearing that they attended at the Central Office on "Tuesday, 2 July" 2025 (that Tuesday was in fact 1 July) and were given erroneous directions with the result that they did not file their affidavits until the following Monday, 7 July 2025. This was not averred to on affidavit and I do not believe it appropriate to rely on this assertion in the circumstances. However, I do note that the verifying affidavits grounding the statement of grounds were sworn on 7 July 2025. This is the same date that the second applicant emailed the Courts system and received the very prompt response from the Central Office informing her of the steps involved in filing judicial review papers. It appears that the second applicant had little 14 difficulty in getting the grounding affidavits sworn that very day. Simply no good and sufficient reason has been put forward as to why the appropriate steps were not taken many weeks previously. 55. The first applicant complains that she has very limited financial means. However, that is not advanced as a reason on oath as to why the application was not brought within the threemonth time limit and, in any event, did not appear to prevent her from organising and filing papers when she did. 56. The applicants’ argument that bank holidays and weekends should be excluded from the calculation of the three-month period is unsustainable as a matter of law as the Rules of Court only allow exclusion of days from a reckonable time period where the time limited is less than six days from the relevant date or event (O. 122, r. 2 RSC). 57. The applicants argued that the respondents could not be prejudiced by an extension of time. I accept that this is a factor in their favour while noting that the respondents are perfectly entitled as public authorities to rely on time limits (see Clarke J in Shell E & P Ireland Ltd v McGrath [2013] 1 IR 247 at 264). It is also relevant that in Dekra Éireann Teo v Minister for the Environment and Local Government [2003] 2 IR 270 (in relation to an extension of time under the then terms of O. 84, r. 21 which simply required that "good reason" be provided for the delay), Fennelly J stated (at p. 304) that an applicant "cannot without more, invoke the absence of any prejudice to the opposing party as the sole basis for the suggested good reason". 58. The applicants vigorously submitted that the protected disclosures system was not fit for purpose in circumstances where it forced a party unhappy with the outcome of a protected disclosures report complaint to expend time and costs on a judicial review in the absence of any appeal mechanism. I have had regard to that circumstance in the balancing exercise. However, it does not seem to me that this factor, taken in combination with the other matters advance by the applicants, in fact provide a good and sufficient reason in circumstances where it was manifestly within the applicants' control, as experienced litigants, and well-educated people, to ensure that they had their judicial review papers filed within three months of the impugned decisions, particularly in circumstances where a view 15 was formed at the very outset on receipt of the decisions that it would be necessary to challenge them by way of High Court judicial review application. 59. The applicants submitted that, as the OPDC delayed in dealing with the protected disclosures report and required more time to deal with it (as reflected in the terms of the OPDC's letter of 11 March 2025), it could not be right that the OPDC could now turn around and rely on a time point at the other end of the process. However, the legally effective and operative decision of the OPDC is that of 31 March 2025 as received by the first applicant on 3 April 2025. There is nothing to suggest that the fact that the OPDC took a little more time than it hoped to in processing the first applicant’s protected disclosures report (which was ultimately the subject of a decision by the OPDC in under five weeks from receipt of
  6. it)contributed to the applicants’ delay in filing their judicial review papers and I do not therefore believe that this is relevant to the question of good and sufficient reason being made out by the applicants for an extension of time. 60. The applicants complain loudly that there would be a gross injustice in being shut out having been only a few days late with their application. However, it is not the case that the system operates harshly as they contend; the reasonably generous period of three months for filing judicial review papers can be extended if there is good and sufficient reason to do so (and the other criteria in the rule are also met). The reality is that no good reason for failing to meet the three month deadline has been advanced. The alleged shortcomings and difficulties involved in the process of filing such papers are entirely belied by the terms of the second applicant's email of 7 July 2025 and the response within six minutes to that enquiry outlining the straightforward steps involved in filing judicial review leave papers. In truth, the applicants are entirely the authors of the own misfortune. There was simply no good reason why they did not file their judicial review papers within the three-month period when there was ample time to do so. Extension of time principles applicable to case re failure to transpose Directive 61. The applicants made a separate argument that the imposition of a three-month time limit is inappropriate where they seek to make the case that there has been a failure to transpose an EU Directive into Irish law. 16 62. As I noted earlier, one of the reliefs sought by the applicants in the motion issued by them setting out the relief they seek in these judicial review proceedings is “A declaration that either the State has failed to comply with its obligations to transpose [the Directive] adequately or [the OPDC] has not acted in accordance with the Protected Disclosures Act 2014 as amended in 2022”. They also seek a declaration that “the lack of an appeal mechanism is incompatible with the right to fair procedures/effective remedy and the council directive (the necessity to go to the High Court to avail of even a preliminary hearing).” 63. However, when one goes through the statement of grounds, which runs to over 30 pages, apart from “the lack of an accessible appeal mechanism” (para 65 statement of grounds) no specific grounds for the contention that there has been a failure to transpose the Directive are set out. The applicants’ grounds, rather, are primarily directed towards the contention that the OPDC and HPRA failed to properly apply the terms of the Directive or the Protected Disclosures Act in arriving at their decisions. 64. In the written submissions filed by the applicants in respect of the extension of time and leave application, the applicants' appear at various points to conflate the contention that there was a failure of transposition of the Directive with the contention that the Directive was not complied with. Those submissions refer, at various points, to a "lack of transposition/failure to comply with the Directive” and that "the process created by the State to transpose/implement the Directive is not effective and it does not properly investigate protected disclosures or effectively protect whistleblowers" referencing what the applicants characterise as a threat from the OPDC to penalise the applicants in costs for exercising the only appeal mechanism available to them (see applicants’ submissions para. 21 and para. 49). The applicants appear to erroneously proceed on the basis that the asserted failure to properly apply the terms of the Directive or Act must involve a failure of transposition of the Directive without specifying what aspects of the Directive they say the State has failed to transpose. 65. On the basis of their statement of grounds and written and oral submissions, the applicants’ failure of transposition case really seems to boil down to a contention that there is no provision in the Protected Disclosures Act for appealing a negative or erroneous decision of the OPDC notwithstanding that the Directive states (in article 22
(1)) that a whistleblower 17 is entitled to an effective remedy and I will proceed on the basis that such a claim is validly contained in their pleading.
  1. The applicants contend that as a matter of EU law there can be no time limit imposed on Irish court proceedings which seek to challenge a failure of transposition of an EU directive. They rely in this regard on the decision of the Court of Justice in Case C-208/90 Emmott v. Minister for Social Welfare [1991] ECR I – 4269 (“Emmott”). Emmott was a case which arose out of a failure by the State to extend benefits to the claimant arising from the terms of the Equality Directive notwithstanding that the ECJ had previously held (in the case of Case 286/85 Cotter and McDermott [1987] ECR 1453) that the State had failed to transpose the Equality Directive and that persons in Ms Emmott’s position where entitled to the protections of that Directive based on the principles of direct effect.
  2. The CJEU in Emmott held (at paras 21 to 23): “
  3. So long as a directive has not been properly transposed into national law, individuals are unable to ascertain the full extent of their rights. That state of uncertainty for individuals subsists even after the Court has delivered a judgment finding that the Member State in question has not fulfilled its obligations under the directive and even if the Court has held that a particular provision or provisions of the directive are sufficiently precise and unconditional to be relied upon before a national court. 22 Only the proper transposition of the directive will bring that state of uncertainty to an end and it is only upon that transposition that the legal certainty which must exist if individuals are to be required to assert their rights is created. 23 It follows that, until such time as a directive has been properly transposed, a defaulting Member State may not rely on an individual's delay in initiating proceedings against it in order to protect rights conferred upon him by the provisions of the directive and that a period laid down by national law within which proceedings must be initiated cannot begin to run before that time.” 18
  4. However, as Hogan J explained in TD (a minor) v Minister for Justice [2011] IEHC 37 (“TD”), Emmott was a “singular case”, was shortly thereafter distinguished in another Equality Directive case by the Court of Justice (Case C-338/91 Steenhorst-Neerings [1993] ECR I – 5475) and the principle stated in Emmott (as set out above) “has never been applied by the Court of Justice in any subsequent case" (at para 13).
  5. Hogan J stated as follows: “
  6. In fact, the true basis for Emmott appears to have been that of quasi-estoppel in that the Court would not permit a defaulting Member State to rely on the applicant’s delay where the Minister had declined to make a decision pending the outcome of Cotter and McDermott and, furthermore, where he had assured her that the matter would then later be re-examined on its merits. At all events, Steenhorst-Neerings has subsequently been endorsed in a consistent line of subsequent case-law, perhaps even to the point whereby Emmott has been all but overruled. Thus, for example, in Case C445/06 Danske Slagterier [2009] ECR I – 2119 the Court upheld the application of a national three year limitation period so as to bar a Francovich-style damages action in the German courts by a Danish association of slaughter-house companies which claimed that its members had suffered financial loss as a result of the failure by the Federal Republic of Germany properly to transpose a directive dealing with veterinary standards which had resulted in a six year import ban on certain pork products.
  7. It is true that Emmott has not, of course, actually been formally overruled but this can either be put down to the fact that no case with similar facts has subsequently come before the Court of Justice or (as seems more likely) the failure to do so simply reflects the fact that the Court of Justice does not apply the doctrine of precedent in quite the same way as a common law court might. Either way, Emmott cannot now be safely regarded as an authority for the wide propositions apparently contained in that judgment and contended for here. Put another way, Emmott cannot now be invoked to say that time can never run as against a litigant where the State has failed properly to transpose a directive into domestic law.”
  8. In the circumstances, I do not believe that Emmott assists the applicants. It arose in a very different and specific context, where the ECJ had already determined that the State was in 19 breach of its obligations to transpose the Equality Directive and where the State inappropriately sought to raise time limit arguments to stymie proceedings which were attempting to compel the State to give effect to rights which the ECJ had already determined that a person in Ms Emmott’s position was entitled to. Emmott has not been followed since or applied in any other context.
  9. In my view, it is quite clear that there is nothing wrong in principle with a member state, in furtherance of its national procedural autonomy, imposing time limits for the issuance of proceedings seeking to invoke rights deriving from EU law, as the Supreme Court decision in TD makes clear; the relevant legal question rather is whether any such time limit respects the EU principles of equivalence and effectiveness (see judgment of Fennelly J [2014] 4 IR 277 at 342/343).
  10. Apart altogether from the fact that the applicants have not pointed to any entitlement in the express terms of the Directive to an appeal against an OPDC decision, and assuming that they can raise some arguable ground that there has been a failure of transposition in this regard, the applicants have not mounted any argument that the application of the 3 month time limit in O. 84 r.21 to a judicial review proceeding in which transposition arguments are sought to be made involves any breach of the EU principles of equivalence and/or effectiveness.
  11. It follows in my view that the three month time limit in the rule must also apply to the applicants’ failure to transpose case.
  12. For the reasons I have discussed earlier, the applicants have not made out any good and sufficient reason for an extension of time for this part of their case any more than they have for the rest of their case.
  13. I am compelled to the conclusion in the circumstances that the applicants are not entitled to an extension of time as sought. 20 Conclusion
  14. In conclusion, for the reasons set out above, I refuse the applicants their application for an extension of time pursuant to O. 84, r. 21 within which to pursue their application for leave to apply for judicial review.
  15. The failure of the applicants to make out good and sufficient reason within the meaning of O. 84, r. 21
(3)means that these judicial review proceedings cannot proceed further and are at an effective end. 21

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AI explanation based on the official legal text. Indicative, not a substitute for legal advice.