Leopardstown Club v Templeville Developments: Court of Appeal exceeded its jurisdiction in overturning High Court’s finding of fact

Here, the Supreme Court overturned the decision of the Court of Appeal in this case and affirmed the judgment of the High Court (Charleton J). Answering the questions certified, the Court held:

(i) First, in essence, did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady? I would answer this in the affirmative, for the reasons given.

(ii) Second, the issue of misrepresentation and the application of the correct law. The Court was not asked to overrule Gahan v Boland. Once there was evidence to support the learned High Court judge’s finding, as to the credibility of Mr Smyth, this was a finding of primary fact which should not be set aside by an appellate court as it was supported by credible evidence. Further aspects of the law on misrepresentation did not arise.

 

Background

In 1998 Leopardstown granted Templeville a 35 year lease over land at Leopardstown race course. Templeville constructed a sports club including indoor and outdoor tennis courts. However, the relationship between the parties has been fractious and has resulted in many legal disputes. In 2011 there were nine separate disputes between the parties. The parties entered into a complex mediation process which led to a Mediated Settlement Agreement to resolve all of the outstanding disputes. The Agreement was made a rule of court.

That did not resolve the disputes, though. In 2012 Leopardstown issued High Court proceedings seeking a declaration that the Agreement was still in force and seeking money owed, damages and other reliefs. Templeville counterclaimed that Leopardstown induced it into the Agreement by misrepresentation regarding two ESB cables which run under the property.

In the High Court (here), Charleton J granted Leopardstown the orders sought, stating:

70. It is impossible not to be satisfied that Templeville had knowledge of the transverse ESB cable. I am satisfied that Philip Smyth [Templeville director], in claiming no knowledge of the cable is giving evidence that, in these circumstances, a court could not accept.

Templeville appealed that decision.

 

Hay v O’Grady [1992] 1 IR 210

 

The rule from Hay v O’Grady was stated by by McCarthy J at 217:

1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

2. If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority. …

 

Court of Appeal

 

Allowing Templeville’s appeal, the Court of Appeal issued two judgments. Hogan J (here) stated:

123. Third, the findings made by the High Court to the effect that Templeville had such knowledge cannot be sustained. Specifically, the trial judge did not apply the correct legal test in assessing this question, since he should have considered whether Leopardstown had established on the balance of probabilities that Templeville had actual and complete knowledge of the existence of the traversing cable in the manner required by the Supreme Court in Gahan. It was not enough, for example, to point to the existence of ESB manholes on the tennis court site in order to fix Templeville with knowledge, as this would go constructive rather than actual knowledge only.

Finlay Geoghegan J (here) wrote a concurring judgment finding that the evidence before the trial judge did not establish that Templeville had complete knowledge of the existence of the two cables at the time it entered the Agreement. She stated at [31]:

The onus on this issue of actual and complete knowledge is on Leopardstown and it does not appear that it can be considered as discharged by such credibility findings of the trial judge.

 

Leopardstown sought leave to appeal to the Supreme Court. The Court granted leave on two issues of general public importance:

(a) The principle and application of the rule in Hay v O’Grady [1992] I.R. 210 and the jurisprudence derived therefrom. The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts and a matter of general public importance. In essence did the Court of Appeal exceed its jurisdiction by misapplying Hay v O’Grady?

(b) The test and criteria to establish misrepresentation are matters of law which were addressed by this Court in Gahan v Boland [1985] ILRM 218. The Court was not asked to overrule Gahan v Boland. An issue was raised as to the nature of what should be proved in order to show misrepresentation, and, in particular, whether it must be shown that the representee was actually induced to enter into the transaction by reason of misrepresentation. Can constructive knowledge be a defence? (It was noted that since s. 86 of the Land and Conveyancing Law Reform Act, 2009, there are new rules regarding constructive knowledge. The Act of 2009 is not in issue on this appeal).

 

Supreme Court

Chief Justice Denham wrote the judgment for the five judge panel.  MacMenamin J wrote a concurring judgment. Allowing Leopardstown’s appeal, Denham CJ held that Gahan v Boland did not create an onus on Leopardstown to establish that Mr Smyth had conscious knowledge of the two cables on the day he entered the Agreement [97]. There was ample evidence to support the trial judge’s finding that Mr Smyth had knowledge of the cables, and that was sufficient to defeat Templeville’s claim of misrepresentation [98]. And Hay v O’Grady establishes that an appeal court should not set aside a trial judge’s finding of fact which is supported by credible evidence.

The Court overturned the decision of the Court of Appeal and affirmed the High Court orders.

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New Appeal: Re s 22 of the Courts Act 1981; Re Order 22 r 6 Rules of the Superior Courts

In this determination (Reaney v Interlink), the Supreme Court granted Interlink leave to appeal the Court of Appeal’s decision to exercise its discretionary jurisdiction under s 22 of the Courts Act 1981 and award Reaney interest on damages for breach of contract from the date of breach rather than from the date of judgment.

 

Law

S 22 of the Courts Act 1981 (here) grants a court the discretionary power to order the payment of interest on an award of damages for the period from when the cause of action arose to the date of judgment.

Order 22, rule 6 of the Rules of the Superior Courts (here) provides for the awarding of costs in cases where a defendant has paid a sum into the court which is equal to or in excess of the award that the court makes to a successful plaintiff.

 

Background

Interlink operates a network of courier franchises throughout Ireland. From 1995 to 2010, Reaney operated an Interlink franchise in Cork. In 20o8 a dispute arose between the parties; Reaney issued High Court proceedings seeking damages for breach of contract. In late 2009 Interlink issued a notice of termination of contract to Reaney pursuant to s 13 of the franchise agreement. The franchise terminated in July 2010. Reaney issued separate High Court proceedings for money due under s 13 of the franchise agreement. In December 2010 the High Court consolidated both sets of proceedings.

In January 2011 Interlink lodged €253,000 with the High Court to satisfy all of Reaney’s claims but denied liability. In October 2011 Interlink lodged another €109,000 with the High Court to satisfy all of Reaney’s claims, while denying liability.

In November 2012 the High Court (here) awarded Reaney €356,000 in damages against Interlink (which had lodged €363,000 in total with the court) but refused to award interest from the dates at which the actions arose as the franchise agreement did not make provision for such interest. And the High Court refused to exercise its discretionary jurisdiction under s 22 of the 1981 Act to award interest from the earlier dates.

As Interlink’s lodgment was greater that the award, under Order 22, that decision could mean that: Interlink would be liable for its own and Reaney’s costs up to the date it lodged the second payment with the court; and Reaney would be liable for his own and Interlink’s costs after the date Interlink lodged the second payment with the court. (Someone may correct me on this: Order 22 is complex).

Interlink appealed to the Court of Appeal. Reaney cross appealed, arguing that the High Court should have exercised its jurisdiction to award interest from the dates the actions arose.

In July 2016, the Court of Appeal (Finlay Geoghan J writing) dismissed Interlink’s appeal and upheld Reaney’s cross appeal. On the application of interest, Reaney’s award increased to €423,500. Under Order 22, this judgment, if allowed to stand, means that Interlink could be liable for all of the legal costs of both parties (I think).

Interlink applied to the Supreme Court for leave to appeal the CoA decision. The Court determined that the case raised a number of issues of general importance and granted leave to appeal on the following issues:

(i) The clear functioning of the Order 22 lodgment procedure is a matter of general public importance.

(ii) It is appropriate for the Court to consider the issue of the interest to be paid on lodgments pursuant to s. 22 of the Courts Act, 1981, and to clarify the law.

(iii) Does a court have a discretion pursuant to s. 22 of the Courts Act, 1981, in relation to proceedings arising out of an agreement even if the agreement does not contain any proviso in respect of the payment of interest?

(iv) Does a court have a discretion to refuse to exercise its discretion to award interest under s. 22 of the Courts Act, 1981.

(v) What are the principles according to which a court should exercise its discretion under s. 22 of the Courts Act 1981?

(vi) In construing Order 22 rule 6, was the Court of Appeal correct in law in finding that, for the purposes of Order 22, rule 6, the “amount awarded” by the Court is to be regarded as including any Courts Act interest awarded?

(vii) Was it correct in law to hold (as in the High Court) that even though the amount ultimately awarded to the plaintiffs was less than the total amount lodged by the defendant pursuant to Order 22, that the lodgments were nihil ad rem and of no relevance to the issue of costs because (the High Court held) the form of notices of lodgement did not comply with Order 22(5) because they did not allocate the accounts lodged to the different claims being made by the plaintiffs? (High Court judgment 30th November, 2012).

New Appeal: Must the DPP clarify inconsistencies in a witness’s statement before deciding to prosecute?

In this determination, DPP v DH, the Supreme Court granted the DPP leave for a leapfrog appeal from the Central Criminal Court on three questions:

 

(i) Does either the prosecution or the defence have a right of appeal against an order of a trial judge staying a trial pending the taking of further steps by the prosecution?

(ii) In considering whether to stay a criminal trial after its commencement, is a trial judge bound to apply the same test as that appropriate to judicial review proceedings aimed at quashing a decision to prosecute?

(iii) Does the Director of Public Prosecutions have a duty to clarify serious inconsistencies in a witness’s statements before deciding to prosecute, where such inconsistencies may go to the reliability of that witness’s evidence, or is it sufficient that disclosure of such inconsistencies is made to the defence?

 

Background

This case concerns allegations of numerous counts of rape and indecent assault of a young girl dating back to 1987 – 1989.

At trial, DH sought to have the prosecution stayed on grounds of culpable prosecutorial delay. In a voir dire trial, the trial judge did not accept DH’s arguments on delay. However, it emerged that the girl’s social worker (Ms C) had noted in 1995 that the girl was not certain that intercourse had taken place; although at the time of trial the complainant was certain that it had.

The trial judge ordered a stay on the prosecution of the rape charges, stating:

This is a piece of evidence that might indicate that [the complainant’s] evidence to the Court, while truthful and honest might not be reliable and the duty was on the prosecution to explore that evidence, bearing in mind that the risk of an unfair trial that everyone accepts can follow from long delay.

The DPP sought leave for a leapfrog appeal against that order directly to the Supreme Court. The constitutional threshold for a leapfrog appeal are (1), an appeal must be in the interests of justice and (2), there must be exceptional circumstances.

The DPP did not argue that she could not fulfill the terms of the stay. She argued that she met the constitutional threshold as she had no right of appeal to the Court of Appeal where the Central Criminal Court order is not an acquittal, conviction or sentence (1), and it would lead to an inequality between her and the accused if the Supreme Court did not grant leave (2).

The Court determined that the DPP met the constitutional threshold and granted leave.

On appeal “the Director intends to argue that the trial judge applied an incorrect test in exercising her jurisdiction to impose a stay; that she failed to have regard to the limited grounds upon which a decision to prosecute can be reviewed by the courts; that she erred in considering that there was a real risk of an unfair trial having regard to the fact that the documents in question had been disclosed; that she focussed disproportionately on the hearsay accounts of words used by the complainant in the earlier investigations; and that she erred in concluding that the alleged inconsistencies justified the staying of a prosecution”.

Sunday Newspapers v Gilchrist & Rogers: Inherent jurisdiction for in camera hearing: interests are particularly important and necessity is truly compelling

Here, the Supreme Court held that:

Where the Oireachtas has not seen fit to legislate for the possibility of a hearing in camera, then the court should only exercise an inherent jurisdiction to depart from a full hearing in public where it is shown that the interests involved are particularly important, and the necessity is truly compelling.

 

Background

Rogers and Gilchrist issued High Court defamation proceedings against Sunday Newspapers. The articles complained of named one of the plaintiffs as a garda handler for the witness protection scheme and the other as a doctor who assessed witnesses for the scheme and alleged that they had an affair.

The Commissioner applied to be joined as notice party and sought that proceedings be conducted in camera. The Commissioner submitted that evidence may relate to “issues of public, national importance, and the protection of life and the interests of State security and public safety”, CoA [3]. The High Court joined the Commissioner and granted her orders restricting the reporting of evidence from the trial. The Commissioner and Sunday Newspapers both appealed that decision to the Court of Appeal.

Article 34.1 0f the Constitution states:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

In In Re R Ltd [1989] IR 126 the Supreme Court interpreted Article 34.1 very narrowly. In the majority judgment, Walsh J held that “law” in Article 34.1 means legislation enacted since 1937.

In Irish Times & Ors v Ireland & Ors [1998] 1 IR 359, the Supreme Court recognised that the courts have jurisdiction in some exceptional circumstances to direct that criminal trials be conducted otherwise than in public, even in the absence of legislative provision.

Allowing the Commissioner’s appeal, the Court of Appeal (here) applied a balancing test between the rights protected by Article 34.1 and other rights protected by the Constitution, such as the right to life, State security and public safety.

The Supreme Court granted Sunday Newspapers leave to appeal that decision.

 

Supreme Court

O’Donnell J wrote the judgment for the Court. Dismissing Sunday Newspapers’ appeal, O’Donnell J found that “Irish Times v Ireland establishes that the courts retain power, not dependent on legislation, to limit the extent to which a case is heard in public” [25], and set out the criteria for exercising that jurisdiction:

(i) The Article 34.1 requirement of administration of justice in public is a fundamental constitutional value of great importance.

(ii) Article 34.1 itself recognises however that there may be exceptions to that fundamental rule;

(iii) Any such exception to the general rule must be strictly construed, both as to the subject matter, and the manner in which the procedures depart from the standard of a full hearing in public;

(iv) Any such exception may be provided for by statute but also under the common law power of the court to regulate its own proceedings;

(v) Where an exception from the principle of hearing in public is sought to be justified by reference only to the common law power and in the absence of legislation, then the interests involved must be very clear, and the circumstances pressing. Here that demanding test is capable of being met by the combination of the threat to the programme and the risk to lives of people in it or administering it. This is not a matter of speculation, but seems an unavoidable consequence of the existence of a witness protection programme.

(vi) While if it can be shown the justice cannot be done unless a hearing is conducted other than in public, that will plainly justify the exception from the rule established by Article 34.1, but that is not the only criterion. Where constitutional interests and values of considerable weight may be damaged or destroyed by a hearing in public, it may be appropriate for the legislature to provide for the possibility of the hearing other than in public, (as it has done) and for the court to exercise that power in a particular case if satisfied that it is a case which presents those features which justify a hearing other than in public.

(vii) The requirement of strict construction of any exception to the principle of trial in public means that a court must be satisfied that each departure from that general rule is no more than is required to protect the countervailing interest. It also means that court must be resolutely sceptical of any claim to depart from any aspect of a full hearing in public. Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome. In particular this will mean that even after concluding that case warrants a departure from that constitutional standard, the court must consider if any lesser steps are possible such as providing for witnesses not to be identified by name, or otherwise identified or for the provision of a redacted transcript for any portion of the hearing conducted in camera.

Applying those principles to this case, O’Donnell J stated that “the public interest in the functioning of the Witness Protection Programme and the consequent protection of the lives of participants in it and officers and staff mean that the court’s power to control its own powers must extend to departing from a hearing in public in this case at least to some extent” [45].

 

Court’s conclusion

46 This appeal raised a single issue of principle. On that issue I would dismiss the newspaper’s appeal and would uphold the order of the Court of Appeal, but on substantially different and narrower grounds. However it remains open to the parties to address the trial court on these matters in the light of the development of the case and is a matter which in any event the trial judge should keep under review. I would therefore affirm the order of the Court of Appeal that the trial in this case may be heard otherwise than in public, with liberty to the parties and any other media organisation to apply to the trial judge to limit or vary that order either in general, or in relation to specific issues or aspects of the case. Finally I should say that the Court directed that this appeal be heard in public and this judgment has not been subject to redaction in any way.

MJE v Horvath: State not allowed raise argument on appeal not raised at trial

Here, the Supreme Court (Denham CJ writing) dismissed the State’s appeal against the High Court’s refusal to order Horvaht’s surrender to Hungary under a European Arrest Warrant. The Court held that the High Court’s interpretation of s 45 of the European Arrest Warrant Act (pre-amendment) was correct. And that the State could not argue for a post-amendment interpretation as it had not raised that argument at trial.

 

Background

In May 2011 the High Court endorsed a European Arrest Warrant from Hungary seeking the surrender of Ferenc Horvath. That was the third warrant issued for Horvath and contained additional information:

– the named person was convicted at first instance and that a sentence of 3 years and 6 months was imposed on him;

– the named person is now sought for the purposes of prosecution and not to serve the above sentence imposed on him at first instance;

– the named person is now sought for the purposes of an appeal hearing and this appeal is a full hearing of the case.

 

Section 45 of the European Arrest Warrant Act 2003

S 45 originally prohibited the surrender of a person convicted in their absence unless a retrial was available. In 2012 s 45 was amended to permit the surrender of such persons where an appeal (on merits, including fresh evidence) is available.

S 45 must be interpreted in light of Article 5(1) of the Framework Decision on the European Arrest Warrant 2002/584/JHA. Article 5(1) limits surrender to cases where the surrendered person “will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment”.

 

High Court

The trial judge (Edwards J) refused to order Horvath’s surrender. Edwards held that the amendment to s 45 only applied to cases commenced after the amendment was introduced. And as no guarantee of retrial was provided surrender was prohibited. But, on application from the State, he granted leave to appeal on a point of law of exceptional public importance:

Whether the High Court was correct in law in its decision that the surrender of the respondent to Hungary for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act of 2003, as amended.

 

Supreme Court

Dismissing the appeal, Denham CJ stated:

50. As the High Court decided the case by reference to the un-amended s. 45, and counsel for the Minister now argue that the amended version of s. 45 applies, a situation has arisen where the Minister wishes to argue a ground which was not argued in the High Court. It is not in accordance with the jurisprudence of this Court to consider an appeal on issues not argued in the High Court, and further which were not part of the certificate providing for appeal to this Court, and nor were identified in the grounds of appeal.

51. On the issue of the application of s. 45 of the European Arrest Warrant Act, 2003, as amended, (prior to 2012) I would affirm the decision of the High Court that the surrender of the respondent was prohibited in the absence of an undertaking as required by section 45.

New Appeal: Must a document required to justify detention be headed as a “Warrant of Detention” in order to be valid ?

Here, P (I) v Governor of Cloverhill Prison, the Supreme Court granted P leave to appeal his order of detention pending deportation. The Court certifying five questions:

(i) Must the document required to justify the detention of an individual be headed as a “Warrant of Detention” in order to be valid ?

(ii) What is the nature of the power to amend a document providing for the detention of an individual relied on in answer to an enquiry under Article 40.4.2° of the Constitution and can a new warrant be provided in place of the original document relied on to justify the detention?

(iii) Can such new document be backdated to the date of the original detention of the individual or should it be regarded as being in addition to the original documentation provided by way of certificate rather than a substitution thereof?

(iv) What effect, if any, does backdating have on the validity of the documentation relied on and the steps taken to detain the applicant?

(v) Finally, what is the jurisdiction of any Court to grant a stay or an injunction to restrain the deportation of an individual pending appeal when the underlying deportation order has never been challenged?

Background

The Governor of Cloverhill Prison was holding P pending deportation on a valid, unchallenged, order for deportation. P issued Article 40.4.2° (habeas corpus) proceedings in the High Court. He alleged that the order for his detention was invalid, as it was headed “Notification of arrest and detention” instead of “Warrant of arrest and detention”. The High Court (Humphreys J) held that the warrant was defective but that the court had an inherent jurisdiction to permit the amendment of the document. The Governor amended the document heading to “Warrant of arrest and detention”, and Humphreys J held that P’s detention was legal.

The Court of Appeal dismissed P’s appeal and upheld the Governor’s cross appeal. It held that the original document was sufficient to justify P’s detention. It also upheld the High Court’s finding on its inherent jurisdiction to amend.

The Supreme Court determined that P had raised issues of general public importance which met the constitutional threshold for a further appeal to the Supreme Court.

 

New Appeal: Does the Circuit Court have jurisdiction in possession proceedings for un-rateable properties?

In this determination (Permanent TSB v Langan), the Supreme Court granted Permanent leave to appeal the Court of Appeal’s decision (here) that the Circuit Court did not have jurisdiction to hear Permanent’s repossession proceedings for properties mortgaged by Langan, as s 22 of the Courts (Supplemental Provisions) Act 1961 (here) limits Circuit Court jurisdiction to properties below a defined rateable charge (currently €235.95), and the properties in question are un-rateable.

 

Background

The Circuit Court’s jurisdiction to deal with matters relating to land is restricted to properties with a rateable value below €235. Subject to the Valuation Act 2001, private dwellings are no longer rateable.

In May 2015, the High Court delivered judgment in Bank of Ireland v Finnegan (here). Murphy J held that the Circuit Court does not have jurisdiction to determine cases relating to un-rateable properties. However, in November 2015, Noonan J, in the High Court, held that the Circuit Court does have jurisdiction in such cases, Bank of Ireland v Hanley (here).

Langan fell into arrears in his mortgage to Permanent over six properties. Permanent issued Circuit Court proceedings seeking possession of the six properties. The civil bills stated that the annual rateable value for each of the properties is below €235,95. In February 2015, the Circuit Court granted orders for possession for all six properties. Lanigan appealed to the High Court, where he argued that the Circuit Court did not have jurisdiction in his case.

As there were conflicting High Court authorities, Baker J stated a case to the Court of Appeal asking whether the Circuit Court has jurisdiction to hear possession cases for un-rateable properties. The CoA held that it does not. Permanent sought leave appeal to that decision to the Supreme Court. The Court determined that Permanent had raised an issue of general public importance and granted leave.

 

The Jurisdiction of the Supreme Court of Ireland

imageFrom looking at the blog’s twitter following, its statistics and other indicators, it seems that an increasing number of readers are from outside of Ireland or do not have a legal background. For the benefit of those readers, I want to outline the constitutional role of the Supreme Court of Ireland.

The Constitution of Ireland (1937) established the Superior Courts: the High Court, which is a court of first instance (trial court), and the Supreme Court as the court of final appeal. Prior to the 33rd Amendment to the Constitution in 2013, which established the Court of Appeal, the Supreme Court held jurisdiction to hear all appeals from the High Court (subject to limitation as prescribed by law). That jurisdiction was not discretionary: the Supreme Court had to take all appeals regardless of merit–except in circumstances such as where an appellant could not make an arguable case, where an appeal was determined to be an abuse of process or where an appeal was restricted by statute. That led to a larger than manageable caseload and an average four year wait in getting an appeal to hearing.

Subsequent to the 33rd Amendment, the Court of Appeal now has jurisdiction to hear all appeals from the High Court (subject to limitation as prescribed by law). Appeals to the Supreme Court are now subject to a grant of leave (permission) by the Supreme Court. The Supreme Court is still working through some of its backlog of appeals, but the establishment of the Court of Appeal will eventually have the effect that the Supreme Court will hear fewer cases, of greater legal significance, while the Constitution still retains the right to one appeal from the High Court, to the Court of Appeal.

An appeal from the Court of Appeal to the Supreme Court must involve a matter of general public importance or it must be necessary in the interest of justice that an appeal is allowed. The Constitution still permits an appeal from the High Court directly to the Supreme Court for the same reasons and where there are exceptional circumstances warranting the leap-frogging of the Court of Appeal. The evolving jurisprudence on the jurisdiction of the Supreme Court suggests that the Supreme Court does not have discretion to refuse an appeal where an appellant has established that a case meets the constitutional threshold for an appeal.

Significantly, subsequent to the 33rd Amendment, the Constitution no longer permits the Óireachtas (Ireland’s legislature) to exclude the right of appeal to the Supreme Court. See Kelly v UCD (here). Therefore, where the Óireachtas has restricted the right of appeal from the High Court to the Court of Appeal an appeal to the Supreme Court may be permissible, if “the decision involves a matter of general public importance” or where an appeal is in “the interests of justice”. Article 34.5.4°. See Grace & Sweetman v An Bord Pleanala, blog post & determination, where the Supreme Court determined that a restriction on the right to appeal from the High Court to the Court of Appeal may provide the exceptional circumstances which would warrant an appeal direct from the High Court to the Supreme Court.

The Supreme Court assesses applications for leave to appeal upon written submissions. Generally, there is no oral hearing at application stage. The Supreme Court publishes a written determination following each application outlining its reasons for allowing leave, or not. Those determinations can be accessed on the Courts Services’ website (under Determinations, here) and usually provide links to copies of each parties’ submissions. This is a welcome development, as it is now possible to find out in advance what issues are subject to appeal in any given case.

In addition to jurisdiction to “determine all matters and questions whether of law or fact, civil or criminal”, the Constitution provides the Superior Courts with jurisdiction to hear any action challenging the validity of any law. Furthermore, the Constitution prohibits the Óireachtas from enacting any law which would limit the power of the Superior Courts to decide the validity of any law.

The Supreme Court’s decisions in all cases are final and conclusive and are binding on all lower courts.

 

Article 34 of the Constitution (as amended):

34. 1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

34. 2 The Courts shall comprise:

i Courts of First Instance;
ii a Court of Appeal; and
iii a Court of Final Appeal.

34. 3. 1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.

2° Save as otherwise provided by this Article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any Court established under this or any other Article of this Constitution other than the High Court, the Court of Appeal or the Supreme Court.

3° No Court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

4° The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.

34. 4. 1° The Court of Appeal shall—

i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

2° No law shall be enacted excepting from the appellate jurisdiction of the Court of Appeal cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

3° The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.

34. 5. 1° The Court of Final Appeal shall be called the Supreme Court.

2° The president of the Supreme Court shall be called the Chief Justice.

3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.

4° Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme
Court being so satisfied is the presence of either or both of the following factors:

i the decision involves a matter of general public importance;
ii the interests of justice.

5° No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.

6° The decision of the Supreme Court shall in all cases be final and conclusive.

ACC Bank v Lynn: Court allows new argument on appeal re High Court’s jurisdiction

lady-justice

In this case, the Court exercised its discretion to allow a new argument on appeal, that the High Court granted an order without jurisdiction, as not to do so would have caused an injustice.

 

Background

In 2003, ACC obtained a Circuit Court judgment against Gerard Lynn for €23,000. It registered that judgment against property which he owned jointly with his wife, Kathleen Lynn, and which included the family home.

In 2004, in a separate case, Irwin v Deasy [No 1], Finlay Geoghegan J held that the High Court had jurisdiction to make an order for sale of a jointly owned property where judgment was against one owner only.

In 2005, McKecknie J followed that precedent and granted ACC an order for the sale of Lynn’s property.

However, in 2006, in Irwin v Deasy [No 2], Laffoy J held that a judgment creditor with judgment against one joint owner, only, did not have sufficient interest in the property for the the High Court to have jurisdiction to order the sale of the property to enforce the judgment (the Supreme Court upheld that decision in 2011).

Later in 2006, Kathleen Lynn lodged an appeal against McKechnie J’s High Court decision seeking to rely on Laffoy J’s decision in Irwin v Deasy.

Issue

Whether Lynn could introduce a new argument on appeal that was not raised in the High Court: to allow the new argument could deny ACC its constitutional right to appeal an adverse decision reached in first instance; whereas not to allow it would cause an injustice, as the High Court did not have jurisdiction to make the impugned order.

Supreme Court

Charleton J (here) reviewed the case law. In Movie News Ltd v Galway County Council (Supreme Court, unreported, 25th July 1977) Henchy J held that, to vindicate each party’s constitutional right to an appeal, new arguments should not be allowed on appeal except in the most exceptional circumstances. However, O’Donnell J stated in Lough Swilly Shellfish v Bradley (here) that the Constitution does not specifically limit appeals to points argued in the court of first instance: the Constitution provides a right to an appeal which can determine whether the High Court decision is correct. However, the Court’s discretion to allow a new argument must “be exercised in order to pursue the aim of fundamental fairness within the limitations of the constitutional structure” (Charleton J [10]).

As the new argument was not fact dependent, as each side relied on the legal authorities available at the time, as the new argument was raised at the earliest possible opportunity, and, most importantly, for the Court not to allow the new argument would cause an injustice, the Court exercised its discretion and allowed the new point to be raised.

And, as the law was clear, the Court allowed the appeal.

 

Rowan v Kerry Co Co: no right to appeal costs order under Planning and Development Act 2000

The Environment (Miscellaneous Provisions) Act 2011, which was enacted, among other things, to give effect to certain articles of the Aarhus Convention, did not alter, amend or vary s 50A(7) of the Planning and Development Act 2000 so as to allow an appeal of a High Court order for costs to the Supreme Court.

Background

Rowan owns a holiday home accessed by a private lane which runs through farmland near Glenbeigh in County Kerry. The lane serves as access to another holiday home owned by foreign nationals who are not party to this case. Mulvihill (the notice party) owns that farmland, on which he breeds Kerry Bog Ponies and on which he has structures erected for that purpose. In 2007, An Bord Pleanala granted Mulvihill planning permission for a single story family residence on the land, subject to the realignment of the public road–for public safety reasons–to the satisfaction of Kerry County Council. In 2011, The Council confirmed that the realignment was completed to its satisfaction. Rowan challenged that decision in judicial review proceedings before the High Court under s 50 of the Planning and Development Act 2000.

High Court

In the High Court (here), Birmingham J  dismissed Rowan’s application finding that the decision that the Council reached was not unreasonable and was carefully considered. At that stage, the court took further submissions on costs. The Council and Mulvihill sought their costs. Rowan argued that the court should make no order for costs. In a second judgment (here), Birmingham J stated:

4. The starting point for consideration of this issue must be the proceedings actually initiated. The proceedings do not, in themselves, on their face, purport to seek to secure compliance with the terms of the condition of the planning permission. …

7. … They cannot, in my view, be said to be proceedings instituted for the purpose of securing compliance but were issued to advance the applicant’s private agenda to prevent a neighbouring landowner build a house.

Birmingham J made an order for costs against Rowan. Rowan lodged a notice of appeal to the Supreme Court seeking to have the High Court order for costs set aside and seeking an order for costs for the appeal. The Council issued a notice of motion seeking:

(1) An order striking out the notice of appeal served on behalf of the [a]pplicant herein as this Honourable Court has no jurisdiction to hear same, wherein the High Court has not certified that its decision involves a point of law of exceptional public importance as required by s. 50A(7) of the Planning and Development Act 2000 as amended.

Law

Section 50A(7) states:

The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves the point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

 

Supreme Court

As the Supreme Court had previously determined in Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J) that an order for costs under under the 2000 Act forms part of the court’s decision, s 50 prohibits an appeal against an order for costs (see also MJELR v McPhilips on whether costs can ever be a matter of exceptional public importance  here). Rowan acknowledged that it would be difficult to persuade the Court to depart from that decision and sought instead to distinguish this case by arguing that s 50A(7) should be interpreted in light of The Environment (Miscellaneous Provisions) Act 2011, which was enacted, among other things, to give effect to certain articles of the Aarhus Convention.

However, Dunne J (here) held that the 2000 Act “did not alter, amend or vary the application of s. 50A(7)” and dismissed Rowan’s appeal.

McKechnie J, MacMenamin J, Laffoy J and Charleton J all concurred.

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