High Court: Statutory appeal which failed to identify a point of law is dismissed

High Court: Statutory appeal which failed to identify a point of law is dismissed

The High Court has dismissed an appeal arising from a decision of the Data Protection Commissioner which attempted to run points which were not previously raised, and which failed to identify the point or points of law forming the basis of the appeal.

Delivering judgment for the High Court, Mr Justice Mark Heslin noted that whilst flexibility is fairly afforded to unrepresented parties, the rules could not be bent to relieve the appellant of his obligation to establish the point of law at issue, and the respondent should not be forced to “divine the point of law” by trawling through a series of affidavits.


The appellant worked as an attendant in the National Gallery of Ireland from 1991. His employment was terminated in 2011 arising from allegations that he sent emails to a third party containing information of a security sensitive nature.

The appellant made a complaint to the respondent, making claims including that the National Gallery had installed covert CCTV to monitor employees, had failed to provide him with his personal information in response to an access request, and had monitored the content of his work email.

The respondent formed the view that his complaint was “frivolous or vexatious” as defined under the Data Protection Acts 1988-2003.

The appellant contested this decision by statutory appeal pursuant to s.26 of the Data Protection Acts, and the respondent’s decision was upheld in the Circuit Court, the High Court and a further appeal was made to the Court of Appeal.

Prior to the determination of the matter by the Court of Appeal, the decision in Nowak v. Data Protection Commissioner [2016] IESC 18 was delivered by the Supreme Court, which decided that a statutory appeal does lie against an opinion formed by the Commissioner that a complaint ought not to be investigated on the basis of a decision that the complaint was “frivolous or vexatious”.

In the wake of that judgment, the respondent conceded the appeal to the Court of Appeal, and by agreement of the parties, a re-constituted complaint was submitted to the respondent, dated 27 October 2016. That decision was appealed before His Honour Judge John O’Connor in the Circuit Court, and then came before the High Court once again.

The High Court

Mr Justice Heslin considered the appellant’s complaint of October 2016, finding that the decision of the respondent, running to 44 pages, comprised “a careful setting out of the analysis conducted with respect to each complaint, the decisions arrived at and the reasons for same”. The judge also noted that a draft of the respondent’s decision was sent to the parties over three months earlier to allow for representations in relation to it, and the decision was subsequently appealed to the Circuit Court.

Observing that the appeal was not a full rehearing, the High Court found that the Circuit Court had applied the test from Orange Ltd v. Director of Telecoms (No. 2) [2000] 4 IR 159, being the appropriate test as was confirmed in Nowak. Nowak also noted that under s.26 of the Data Protection Acts, the Circuit Court was not required to provide a full appeal on the merits but should set aside a decision which was wrong in law or vitiated by a serious error.

Finding that a “materially different test” applies in relation to a point of law appeal to the High Court, Mr Justice Heslin quoted from the Court of Appeal’s decision in Nowak v. Data Protection Commissioner [2022] IECA 95, which cited the appropriate test as arising from Fitzgibbon v. The Law Society of Ireland [2015] 1 IR 516, with reference also to Attorney General v. Davis [2018] 2 IR 357 and Deely v. Information Commissioner [2001] 3 IR 439.

The court remarked that the appellant could not present issues on appeal which were not canvassed before the respondent, observing that the High Court only enjoys jurisdiction in relation to the points identified in the appellant’s originating motion, and that “regardless of how sincerely the Appellant might wish for this Court to engage in a complete re-hearing of the three complaints which were not upheld in the decision by the Commissioner, this is entirely impermissible”.

Finding that the appellant’s originating motion simply asserted that the Circuit Court erred in upholding the respondent’s decision, Mr Justice Heslin noted that a point of law had not actually been identified, and he invited the appellant to clarify his position. The appellant advanced a number of points which were not made out in his motion, including that the Circuit Court “gave too much deference to the decision maker”.

The Court suggested that the appellant appeared to contend that the respondent’s decision was “wrong on its merits, and that the Circuit Court was wrong so not to find”, in which case the appeal could be dismissed in limine in line with Board of Management v. Donnelly [2021] 32 ELR 78; [2020] IEHC 550.

Finding that the principles in Donnelly also apply to unrepresented litigants such as the appellant, Mr Justice Heslin commented that it was not fair to expect a respondent “to try and divine the point of law in issue” by trawling through affidavits, and that the rules should not bend to accommodate unrepresented litigants where the interests the respondent would be “materially and adversely” affected, such as in the present case if the appellant was relieved of the requirement to identify the point of law in issue.

Nonetheless, the judge considered the appeal further, finding that the appellant was mistaken as to the applicability and interpretation of various pieces of legislation and legal principles, and as to the jurisdiction of the respondent.


Dismissing the appeal, Mr Justice Heslin repeated that the curt has no jurisdiction to consider a point not identified in the appellant’s originating motion, and in any event, he was satisfied that the points the appellant sought to raise on appeal comprised attempts to re-run, on the merits, the process which took place before the Commissioner; and to invite the court to reach a different decision, based on bare assertions unsupported by evidence, with respect to issues that were not previously raised.

Fox v. The Data Protection Commissioner [2023] IEHC 529

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