High Court Ruling On Effect Of Repealed Legislation

If rights and obligations are acquired and incurred under legislation, and the legislation is subsequently repealed, can legal proceedings concerning those rights and obligations be brought after the repeal?

This question was answered with a clear "yes" by Mr. Justice Hedigan in the High Court on 8 March, 2013. In his judgment, Hedigan, J. was emphatically of the view that this was the plain effect of the provisions of sections 27(1) and 27(2) of the Interpretation Act 2005.

Clarification and confirmation of this point is of importance to our legal system. It is also important for anyone who might wonder (where the legislature has not been specific about this)

what effect a repeal of legislation has on anything that was duly done, or anything that happened, while the legislation was in force; and / or what effect a repeal of legislation has on bringing, or continuing, civil or criminal proceedings in relation to these things after the legislation has been repealed. Hedigan, J.'s ruling arose in proceedings called The Commission for Communications Regulation v An Post, in which Mason Hayes & Curran is acting for the Commission ("ComReg"), in its capacity as the State's postal sector regulator.

Background

The proceedings were brought by ComReg in 2012 under Regulation 18 of the European Communities (Postal Services) Regulations 2002, after their revocation.

Prior to this, in 2004, ComReg had issued a quality-of-service direction (the "Direction") to An Post under the Regulations, requiring An Post to deliver domestic post on the day after its posting, in 94% of cases. In the event of non-compliance, the Regulations provided for complementary enforcement mechanisms, including the issuing of notifications of non-compliance, setting deadlines for remedying non-compliance, and applications to the High Court to direct compliance and impose financial penalties in light of non-compliance.

In 2009, under the Regulations, ComReg issued a statutory notification to An Post, in which ComReg informed An Post of its finding that An Post had not complied with the Direction, and in which it gave An Post until 31 December, 2010 to remedy its non-compliance.

However, at the end of 2010, An Post's next-day delivery performance still fell below the required 94%. When this performance figure became available in May, 2011, ComReg informed An Post by letter that it had not complied with the Direction, and that it had not remedied its non-compliance by the deadline of 31 December, 2010. In...