Rowan v Kerry Co Co: Supreme Court has some discretion to refuse leave to appeal even where there is an important issue of law

In Rowan v Kerry County Council the Supreme Court clarified that:

The effect of the 33rd Amendment is to grant the Supreme Court jurisdiction in appeals meeting the constitutional threshold, but there remains a residual question of whether it is appropriate to exercise that jurisdiction in any case. The amendment limits those cases which may be appealed to this Court: it does not compel the Court to exercise the jurisdiction in every case which satisfies the test appeal.



In 2012 the High Court rejected Rowan’s application for judicial review of a planning decision and made an order for costs against him. Rowan did not apply to the High Court for a certificate to appeal that decision to the Supreme Court, as would have been required by s 50 of the Planning and Development Act 2000.

In Grace & Sweetman v An Bord Pleanála the Supreme Court determined that the 33rd Amendment to the Constitution removed the Óireachtas’s power to restrict appeals from the High Court to the Supreme Court.

In 2017 Rowan applied to the Supreme Court for leave to appeal the 2012 High Court decision, arguing that the 33rd Amendment had retrospective effect. The Court refused to extend time for leave to appeal but determined that Rowan had raised an issue of public importance: the extent to which the 33rd Amendment can act retrospectively.

Dunne J (here) wrote the judgment for the unanimous five judge panel. She held that in the absence of a certificate for leave to appeal from the High Court the proceedings were at an end and could not be “resurrected by the happenstance of a constitutional amendment”.

In a concurring judgment (here), O’Donnell J addressed another issue which arose, which the Court had not clarified before: whether the Court has discretion to refuse leave to appeal where an appellant has otherwise met the constitutional threshold. Finding that the Court does have some discretion, he presented an example:

A mundane example may arise where in a particular case it is apparent that there may be an important issue of law, but it is neither clearly presented nor precisely identified so as to permit to the Court to have a clear hearing and determination of the issue. In such a case, it may be that the Court would decline to grant leave.

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