Superior Appeal Courts

Cases

 

Governey v Financial Services Ombudsman

[2015] IESC 38
udgment of Mr. Justice Clarke delivered the 6th May, 2015.
1. Introduction
1.1 There have been significant changes in the structure of appeals in the superior courts in recent times. Not the least of these has been the introduction of the Court of Appeal. The application to which this judgment relates predates the establishment day on which the new constitutional arrangements providing for the establishment of the Court of Appeal came into force. However this application does raise an aspect of a set of issues concerning appeals which have arisen more frequently in recent times.

1.2 Prior to the establishment of the Court of Appeal, the Constitution guaranteed a right of appeal from all decisions of the High Court to this Court unless excluded by law. In that context, over the past decade or so, a number of laws were passed which had the effect of limiting the right of appeal between the High Court and this Court. While there is no longer a constitutional right of appeal from the High Court to this Court, the same constitutional regime relating to appeals now exists in respect of appeals from the High Court to the Court of Appeal and, by and large, the same limitations which previously existed in relation to appeals to this Court from the High Court now apply in respect of appeals to the Court of Appeal. While the specific issues which arise on this appeal will no longer be relevant to appeals to this Court, those same issues will continue, in the main, to arise in respect of appeals to the Court of Appeal.

1.3 Many of the limitations which were imposed on the right of appeal from the High Court to this Court required a certificate of the High Court in order that an appeal might be brought. Proceedings in the fields of immigration and the environment provided the most common examples. However this case involves a different statutory scheme. In circumstances which it will be necessary to set out in a little more detail, the applicant (“Mr. Governey”) made a complaint to the respondent (“the F.S.O.”) arising out of a financial product which he had purchased. Ultimately the matter came before the High Court on appeal. The High Court rejected Mr. Governey’s appeal and he now wishes to appeal to this Court. Section 57CM of the Central Bank Act 1942 as amended (“the 1942 Act”), as that legislation provided at the time of the making of this application, states that “a party … may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts)”. The reference in the section in question to a determination is to a relevant decision of the High Court and, thus, the phrase “leave of either of those courts” refers to the leave of either the High Court or this Court. Therefore, the statutory scheme which applies in respect of an appeal such as that which Mr. Governey wishes to make is, at least at the level of very broad principle, clear. Such an appeal can only be brought with the leave of either the High Court or this Court. Mr. Governey sought the leave of the High Court but same was refused. Mr. Governey has now applied to this Court for leave.

1.4 Two broad sets of issues, therefore, arise. The first concerns the proper approach of the Court to the question of whether to grant leave. For reasons which I sought to address in Fitzgibbon v. Law Society [2014] IESC 48, one of the difficulties which is increasingly to be found in respect of appeal regimes both to and within the courts is a level of vague generalisation in the legal instruments governing certain appeals which gives little clue as to the type of appeal which may be open. That precise problem does not arise here, as the appeal provided for in the relevant legislation is specified as being an appeal “on a question of law” which is a term which has come to have a reasonably clear meaning. What is, however, not at all clear is the criteria by reference to which leave should be granted. Neither is it clear, given that either the High Court or this Court can give leave, as to what the interaction between an application to one or the other or, indeed, as in this case, both courts should be. It is in that context that the Court will have to address the question of the proper approach.

1.5 In the light of whatever approach is deemed appropriate, it will secondly be necessary to address the issues which Mr. Governey would wish to raise on appeal to determine whether they are sufficient for the grant of leave in the light of whatever criteria might ultimately be determined to be appropriate.

1.6 In order to address the first question it is necessary to set out the relevant statutory scheme and the procedural history of this case.
2. The Statutory Scheme and Procedural History
2.1 Section 57BK of the 1942 Act, as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, (“the 2004 Act”), sets out the functions and powers of the F.S.O. Subsection (1) provides:-

“The principal function of the Financial Services Ombudsman is to deal with complaints made under this Part by mediation and, where necessary, by investigation and adjudication.”

2.2 Section 57CL(1) of the 1942 Act, as also inserted by s. 16 of the 2004 Act, concerns appeals from decisions of the F.S.O. It provides:—

“If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned may appeal to the High Court against the finding”.

2.3 Section 57CM of the 1942 Act, as again also inserted by s. 16 of the 2004 Act, sets out the process by which decisions of the F.S.O. may be appealed to the High Court. It provides:-
“(1) The High Court is to hear and determine an appeal made under section 57CL and may make such orders as it thinks appropriate in light of its determination.
(2) The orders that may be made by the High Court on the hearing of such an appeal include (but are not limited to) the following:

(a) an order affirming the finding of the Financial Services Ombudsman, with or without modification;
(b) an order setting aside that finding or any direction included in it;

(c) an order remitting that finding or any such direction to that Ombudsman for review.

(3) If the High Court makes an order remitting to the Financial Services Ombudsman a finding or direction of that Ombudsman for review, that Ombudsman is required to review the finding or direction in accordance with the directions of the Court.
(4) The determination of the High Court on the hearing of such an appeal is final, except that a party to the appeal may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts).”

2.4 Mr. Governey entered into a single premium life assurance policy that he contends was marketed by the notice party, then known as Anglo Irish Assurance Company Limited (“Anglo”), as an investment opportunity linked to the Kennet Shopping Centre in Newbury, England. In passing it should be noted that, as a result of orders made in November, 2013, the name of the notice party was changed in the title of these proceedings to the form in which it now appears. As the events to which these proceedings relate occurred when the Anglo name was in use I will use that term in this judgment. In any event, the investment was not profitable. Mr. Governey proceeded to make a complaint to the F.S.O., alleging that Anglo had acted unlawfully in failing to comply with its legal obligation of uberrima fides by failing to disclose material facts to Mr. Governey in relation to his investment. In July, 2012, the F.S.O. found that there had not been misrepresentation and that there was no material non-disclosure of risk.
2.5 Mr. Governey appealed the decision of the F.S.O. to the High Court. The High Court (Hedigan J.) dismissed the appeal (see Governey v. Financial Services Ombudsman [2013] IEHC 403), and held that the F.S.O. had relevant evidence before him on which the decision could reasonably be based. Mr. Governey made an application to the High Court under section 57CM(4) for leave to appeal the decision to this Court on a question of law. The application was refused. Mr. Governey now seeks leave of this Court to appeal the decision of the High Court on a question of law, again under section 57CM(4).

2.6 Against that background, it is necessary to turn first to the issue which concerns the basis on which leave should be granted.
3. The Application for leave
3.1 As noted earlier, it is unusual, at the present time, to find a leave for appeal provision in a statute which confers on the appellate court either the sole power or, as in this case, a power coexistent with the first instance court to give leave to appeal. The more normal model is that found in areas such as immigration and environmental law where it is the first instance court which must make the decision as to whether there is to be an appeal usually by certifying that the case complies with the statutory requirement for appeal. In passing, it is worth noting that there may be considerable merit in transferring, at least in many cases, the decision making role in respect of limited appeal entitlements to the appellate court from the first instance court. There can always be an appearance of lack of complete transparency where a judge is asked to certify that there should be an appeal against that judge’s own decision. However, be that as it may, the situation with which this Court is faced is one where there is a coexisting power in both the High Court and this Court to give leave to appeal. It seems to me that two questions, therefore, arise.

3.2 First, what are the criteria for giving leave? Second, is the proper approach of this Court to an application for leave to appeal to be any different to the approach of the High Court in dealing with an application for leave in a similar case and, in particular, is the approach of this Court to vary in any way having regard to whether or not an application was first made to the High Court or, as here, where such an application was made but refused?

3.3 On the first question, the argument put forward on behalf of Mr. Governey was that leave should be granted where the potential appellant establishes a stateable or arguable basis for an appeal. The counter argument, advanced by both the F.S.O. and Anglo, was to the effect that it must be taken to have been implied, by the fact that the Oireachtas chose to require leave before an appeal could be brought to this Court, that some criteria above and beyond stateability or arguability must be established.

3.4 The starting point must be to acknowledge that, at the time when this application was brought, there was a constitutional right, subject to statutory exclusion, to bring an appeal from the High Court to this Court. It has consistently been held (see for example, People (A.G.) v. Conmey [1975] I.R. 341, Holohan v. Donohoe [1986] I.R. 45, Hanafin v. Minster for the Environment [1996] 2 IR 321, A.B. v. Minister for Justice, Equality and Law Reform [2002] I.R. 296 and Clinton v. An Bord Pleanála [2007] I.R. 272) that any such exclusions or restrictions are, because of the then constitutional status of an appeal from the High Court to this Court, to be narrowly construed. While much of the jurisprudence in this area is concerned with cases where there was an assertion that a relevant statute excluded any entitlement to appeal, it seems to me that the same general principle must necessarily apply to the criteria to be applied for granting leave to appeal. In other words, given that the default position is that the Constitution guaranteed a right of appeal to this Court, then any leave provision which narrowed that constitutional right should be strictly construed in a manner designed to confer rather than deny the constitutional entitlement to appeal. Where, for example, as in the immigration field, it is necessary that a point of law of exceptional public importance be raised in order that an appeal can be brought, a court must be satisfied that such a point arises in the case in question. In those circumstances, there is clear statutory wording which is constitutionally permitted and which must be given full effect. The point which I wish to emphasise is not that there is anything inappropriate about legislation restricting or, in appropriate cases, excluding a right of appeal. Rather, the point is that where such restriction or exclusion is sought to be achieved, it should be done by clear wording. Where the restriction involves a leave application, or a certification process which amounts to much the same sort of thing in practice, then the criteria should be clear, and if not, the legislation should be interpreted in a way which confers the wider entitlement to appeal.

3.5 Against that background, it is necessary to note that no criteria of any sort are specified in s. 57 CM(4) of the 1942 Act (as inserted). That section simply speaks of the requirement for leave of either the High Court or this Court without specifying any particular criteria by reference to which that leave is to be granted or refused.

3.6 In the light of the general principles applicable to the construction of legislative provisions which restrict or exclude a right of appeal otherwise constitutionally provided, I am satisfied that a statutory provision which provides for appeal only on leave, but which is silent as to the leave criteria, must be interpreted as meaning that leave should be granted provided that a stateable basis for appeal has been established. No higher criteria should be implied in the absence of express provision. 3.7 In addition, in the context of this case, it must also be noted that the stateable basis for the appeal sought to be brought must, of course, be a stateable basis within the scope of the type of appeal allowed. As this case can only involve an appeal on a point of law, it follows that it is necessary for Mr. Governey to establish that he has a stateable appeal on a point of law. If the scope of appeal permitted under the 1942 Act were wider, then, of course, the type of appeal which might meet a stateabillity test might itself be wider.

3.8 Next, it is necessary to turn to the second question. Given that the section simply refers to the leave “of either” of the High Court or this Court, how should this Court approach a leave application in circumstances where the High Court has been asked, but has refused, to grant leave? There does not seem to be any basis for suggesting that the legislation contemplates any different role for this Court in considering a leave application in circumstances where, on the one hand, no application was made to the High Court as opposed to where, on the other hand, an application was made and refused. Clearly, if an application is made to the High Court and succeeds, then the question of seeking leave from this Court would not arise.

3.9 Where there is a reasoned judgment of the High Court declining leave then it must, of course, be the case that this Court would consider the reasoning of the trial judge in refusing leave as part of its overall consideration of whether a stateable basis for bringing an appeal on a point of law has been made out. However, I cannot see that this legislation creates the type of situation where this Court is required to afford any particular level of formal deference to the view of the trial judge. There is nothing in the legislation which suggests that a leave application to this Court is, in any way, a form of appeal from, or review of a decision of the High Court on a similar leave application. Rather, this Court is given its own independent power to give leave. In those circumstances it seems to me that this Court must reach its own conclusion as to whether there is a stateable basis for suggesting that an appeal on a point of law might succeed. In so doing, this Court should, of course, consider any reasons which persuaded the High Court that leave to bring such an appeal should not be granted. However, in giving all proper consideration to the views of the High Court, this Court should not depart from its own independent task of deciding whether, in the view of this Court, such a stateable basis for appeal has been established.

3.10 In those circumstances, it seems to me that the sole question which this Court should ask itself on a leave application such as this is as to whether Mr. Governey has made out a stateable basis for suggesting that he may have a valid appeal on a point of law against the decision of the High Court in this case. In answering that question, this Court should, of course, consider the reasons given by the trial judge for coming to the conclusion that such a stateable basis did not exist.

3.11 In order to consider the merits of this leave application, it is necessary to say something more about the factual background, although, for reasons which I will now address, I do not propose to go into the merits of this appeal to any great extent.

4. The Background

4.1 I have come to the conclusion, for reasons which will be set out later in this judgment, that leave to appeal should be granted. Given that, in those circumstances, a full appeal on the points of law raised will be argued before this Court, it does not seem to me to be appropriate to go in to the merits of the issues raised save to the extent absolutely necessary to explain why I have come to the view that there is at least an arguable basis for appeal. A different situation might arise in circumstances where the Court was not persuaded to grant leave to appeal and where, therefore, the merits were not going to be addressed again.

4.2 For those reasons I will be very brief about the background facts and the law. In his complaint to the F.S.O., Mr. Governey argued that certain material facts had not been disclosed to him by Anglo. He alleged that this non-disclosure constituted a breach of the duty of uberrima fides (which ordinarily arises in the context of insurance or assurance contracts).

4.3 Mr. Governey contended that the issue which the F.S.O. had to decide was whether certain facts were “material”, so that Anglo’s failure to disclose these facts constituted non-disclosure of material facts so as, in turn, to void the contract entered into between the parties and to thereby entitle him to have his premium returned.

4.4 The particular facts alleged by Mr. Governey before the F.S.O. to be material and undisclosed by Anglo were specified as follows: (a) that Anglo had been advised by Savills that the Parkway Shopping Centre, which was due to be opened in Newbury, represented a risk to the Kennet Shopping Centre; (b) that Anglo had been advised that Newbury was a town in long term decline; (c) that the figure of 19% for the number of tenants in Kennet Shopping Centre with break clauses exercisable within five years was incorrect as the correct figure was in the region of 36%.

4.5 In his application to the High Court, Mr. Governey submitted that the decision of the F.S.O. did not fully consider the particular facts, did not explain the rationale for the decision, and that the F.S.O. made an error of law in failing to give due consideration to the duty of uberrima fides which was said to be applicable to life assurance contracts. In relation to the latter point, Mr. Governey relied on the decision of the House of Lords in Banque Financière de la Cite S.A. (Formerly Banque Keyser Ullmann S.A.) v. Westgate Insurance Co. Ltd. (Formerly Hodge General & Mercantile Co. Ltd.) [1991] 2 A.C. 249 in which it was held, quoting the judgment of Slade L.J. in the Court of Appeal in that same case which is reported as Banque Keyser Ullmann S.A. v. Skandia (U.K.) Insurance Co. Ltd. and Others [1990] 1 Q.B. 665, at p. 772, that the duty of disclosure of an insurer, arising from the obligation of utmost good faith, must at least extend to requiring the insurer:-

“…disclosing all facts known to him which are material either to the nature of the risk sought to be covered or the recoverability of a claim under the policy which a prudent insured would take into account in deciding whether or not to place the risk for which he seeks cover with that insurer”

It was also argued that the F.S.O. had given insufficient reasons.
4.6 In the High Court, as an independent ground for resisting Mr. Governey’s appeal, the F.S.O. argued that he had acted within his jurisdiction; that the findings of the F.S.O. are not required to be thorough or as detailed as that of a judgment of a court; and that Mr. Governey was attempting to add new complaints through his written submission which were not adduced before the F.S.O.

4.7 In relation to the question of uberrima fides, the F.S.O. argued that there is no authority which suggests that uberrima fides extends to a brochure relating to an investment, as the brochure is an advertising mechanism. Further, the F.S.O. argued that the duty does not apply to collateral matters, as here where the property venture was styled as a life assurance policy for tax efficiency purposes. On that basis, the F.S.O. contended that Mr. Governey incorrectly relied on Banque Financière.

4.8 Anglo adopted the position of the F.S.O. in relation to the scope of the appeal, and made submissions in relation to the sufficiency of the disclosure made and the principle of uberrima fides, which Anglo argued did not apply in this context.

4.9 Hedigan J., relying on the decision of Finnegan P. in Ulster Bank Investment Funds Ltd. v. Financial Services Ombudsman and ors [2006] IEHC 323, determined that the Court could only interfere with the decision of the F.S.O. on such an appeal if, taking the adjudicative process as a whole, “the decision reached was vitiated by a serious and significant error or series of such errors”. The burden of proof was held to lie on the appellant in such an application with the onus of proof being the civil standard. The trial judge noted that the test required the Court to adopt “a deferential standard” as regards the expertise and specialist knowledge of the F.S.O.

4.10 Hedigan J. held that it was only open to the court to quash the decision of the F.S.O. if he was persuaded that the F.S.O. could not have reasonably come to his decision based on the facts before him.

4.11 Hedigan J. concluded that there was relevant evidence before the F.S.O. on which he could reasonably have come to his decision and in particular it was reasonably open to the F.S.O. to conclude that no material non-disclosure of risk occurred. Additionally, the written finding of the F.S.O. was held to comply with the requirement to give reasons as it was held to have considered the central complaints made by Mr. Governey and dealt with each of those complaints.

4.12 Mr. Governey, in his written submissions to this Court, argued that the F.S.O. failed to address the relevant issue of law and that the F.S.O. decided the case on the basis that Mr. Governey had been afforded “sufficient notice” of the high-risk nature of the investment. In that context, he argued that the F.S.O. had incorrectly equated or conflated disclosure of the degree of risk with disclosure of facts pertaining to that risk. Mr. Governey also contended that F.S.O. had not given sufficient reasons for his finding that the facts at issue were not viewed as “material”. Finally, Mr. Governey queried the alleged failure of the F.S.O. to address the break clause figures which Mr. Governey had disputed.
5. Discussion
5.1 Before addressing the reasons why I consider that there is a stateable basis for the appeal which Mr. Governey wishes to bring, I think that it is of some importance to make a number of brief observations on the system of complaints to the F.S.O. Very detailed statutory provisions are to be now found in the 1942 Act as a result of the amendments brought about by the 2004 Act. It is unnecessary for the purposes of this judgment to touch on many of those provisions. However, a few points are worth making.

5.2 First, and in my view most importantly, section 57CI specifies the basis on which the F.S.O. can make a finding that a complaint is substantiated. The grounds are set out in s.57CI(2). The first possible basis, as set out in subsection (a), is that the conduct complained of was contrary to law. However, it is clear from many of the remaining subsections of s.57CI that the remit of the F.S.O. goes well beyond determining legal rights and obligations. For example, subsection (c) allows a complaint to be substantiated where the conduct of the relevant financial institution is held to be, for example, unreasonable even though in accordance with law. In addition, generally unreasonable, oppressive or discriminatory conduct can result in an adverse finding under subsection (b), while subsection (g), in very general terms, allows the F.S.O. to find that a complaint is substantiated where the conduct complained of “was otherwise improper”. For completeness, it is true that at least one other subsection, being subsection (e), which, amongst other things, allows an adverse finding in the case of conduct which is based “wholly or partly on a mistake of law”.

5.3 Thus it may be seen that, while the F.S.O. is given a jurisdiction to consider, and if appropriate to find substantiated, complaints which involve issues based purely on questions of legal rights and obligations, the jurisdiction is much broader than the determining of such legal questions. It is absolutely clear that the F.S.O. retains a jurisdiction to find a complaint substantiated even though there has been no breach of the legal entitlements of the complainant.

5.4 It is also clear from the provisions of section 57CI(4) that the range of remedies which can be imposed by the F.S.O. in the event that a complaint is substantiated are wide and go beyond (but do include) the form of redress which might be available in the case of someone whose legal rights have been interfered with.

5.5 In the context of that analysis, two further provisions of the legislation are worth noting. The first is section 57BZ which sets out circumstances in which the F.S.O. is entitled to decline to investigate a complaint. Many of those circumstances are concerned with cases which are either trivial, vexatious or remote. However, subsection (1)(d) permits the F.S.O. to decline to investigate a complaint where there is “an alternative and satisfactory means of redress in relation to the conduct complained of”.

5.6 I draw attention to these provisions for the purposes of observing that the range of issues which the F.S.O. can investigate and the range of remedies available go far beyond the type of case which can be brought to a court as a result of an alleged breach of legal rights or failure to meet legal obligations. But the remit of the F.S.O. does, potentially, include cases which involve (and may only involve) the establishment and determination of such rights and obligations and the payment of compensation for loss in respect thereof. Obviously, some cases might be such as could be considered hybrid with some issues involving legal questions but others involving the general reasonableness of the course of conduct between the relevant financial institution and the complainant. However, there are some cases where the sole, or virtually only, issue raised by the complainant may be one which is based on an assertion of legal rights. Such cases are, of course, within the jurisdiction of the F.S.O., and it is for the F.S.O. itself to decide whether to determine them. However, it is important to record that the F.S.O. does not have an obligation to determine by adjudication a complaint where the substance of the matters complained of is that a relevant financial institution has acted unlawfully in its dealing with the complainant and where, therefore, exactly the same issues of legal rights and obligations could be brought before a court. The legislation, therefore, permits, but does not require, the F.S.O. to deal with such complaints, being cases which are, in reality, matters which might otherwise be pursued by an appropriate form of court proceedings before whatever court might have jurisdiction to deal with the issues concerned.

5.7 I draw attention to that analysis of the legislation for two reasons. First, it seems to me to be at least arguable that the proper scope of a review by the courts (whether the High Court or the Court of Appeal or this Court on appeal) of a decision of the F.S.O. may depend, at least to some extent, on whether the issues raised are ones which fit into the category of complaint which could just as easily have been brought in the form of legal proceedings. It seems to me to be at least arguable that, in such cases, and in relation to questions either of law or of the application of the law to agreed or established facts, there may be less of a case for the courts affording the F.S.O. any particular level of deference.

5.8 There may well be a case for affording deference to the view which the F.S.O. takes as to, for example, the unreasonableness of lawful conduct on the part of a financial institution. But it does not necessarily follow that a court is bound to afford similar deference to the F.S.O. on its view of the law or the application of the law to facts which task is, after all, one of the core functions to be found in the administration of justice.

5.9 The second observation concerns the process which must be adopted by the F.S.O. Issues have arisen from time to time about the extent to which it may be necessary for the F.S.O., in considering a complaint, to hold oral hearings or the like and, to an extent, to conduct its inquiry in a manner which, at least in some respects, may mirror what might happen in a court. It is, in the context of that debate, important to note that the F.S.O. is not obliged to take onto itself the task of resolving disputes which are, fundamentally, legal cases between a complainant and a financial institution. But if the F.S.O. chooses to exercise its entitlement to take on such cases, then that task may well carry with it many obligations as to the manner in which those proceedings (which will, in substance, involve the establishment of legal rights and obligations) are conducted.

5.10 Having made those observations, I now turn to the specific issues of disclosure which are relied on by Mr. Governey for suggesting that he has a stateable basis for appeal to this Court. I might start, again, by making two general observations. The first is to repeat the point made earlier that the precise level of deference to be afforded by the High Court to the F.S.O. is at least arguably different in cases where the F.S.O. is concerned with the establishment of legal rights and obligations. On that basis, it is arguable that the trial judge adopted an overly deferential attitude in relation to the determination of the F.S.O. in this case.

5.11 Second, there were clearly issues both before the F.S.O. and before the High Court as to the precise effect, on the legal rights and obligations which arise in this case, of the form as opposed the substance of the transaction entered into between Mr. Governey and Anglo. As noted earlier, that form, doubtless for tax reasons, was in the shape of a single premium life assurance policy. The difficulties which arise in applying the doctrine of uberrima fides (which requires both parties to insurance or assurance contracts to make full disclosure in the utmost good faith) to a case such as this are fairly obvious. In the ordinary way, such policies are concerned with the financial institution agreeing to pay monies to a customer (the insured or assured) on the occurrence of an adverse event. The risk which is normally spoken of in that context is, obviously, the risk of that event occurring. In life assurance, the risk which needs to be assessed is the risk to the life of the assured, and the disclosure which must be made concerns matters material to the assessment of that risk. In insurance, the disclosure is related to the risk to be covered, such as the driving record of someone seeking motor insurance or the configuration of a house for the purposes of assessing the risk of burglary in the context of a contents insurance policy.

5.12 Just how those concepts fit in with a case where the substance of the arrangement is an investment in the guise of a life assurance policy is certainly debateable. However, for present purposes I am satisfied that it is arguable or stateable that, by choosing to offer an investment product in the form of a life assurance policy, a financial institution takes onto itself a much greater degree of obligation of disclosure than might ordinarily be the case.

5.13 It is certainly clear that Anglo disclosed that the investment was high risk. The case which Mr. Governey wishes to make is that the extent of disclosure required, in the context of an uberrima fides obligation, is either a matter of law or at the very least a mixed question of law and fact. In that context, and put at its simplest, he wishes to argue that the F.S.O. was wrong in holding that a general disclosure of the overall level of risk was sufficient when there was not, it is argued, a disclosure of material facts which would allow that risk to be assessed. In that sense, Mr. Governey wishes to argue that the F.S.O. decision conflates disclosure of the degree of risk with disclosure of the facts on which an independent assessment of that degree of risk could be made. In my view, again, that proposition of law is arguable, as is its application to the facts of this case.

5.14 So far as the decision of the High Court is concerned it is, in substance, sought to argue that the High Court was obliged to examine any determinations of law by the F.S.O. and reverse same if wrong. On that basis it is said that the High Court, by applying a test of rationality to a decision of the F.S.O. without examining the legal issues which Mr. Governey raised, was in error. In substance, it is said that the F.S.O. was wrong in law on the materiality question, that the High Court should not have afforded any deference to the F.S.O. on that legal issue, and that the High Court was, therefore, also wrong. I am satisfied that Mr. Governey has met the threshold of arguability or stateabillity in respect of those issues.

5.15 Likewise, in the context of the legal issues which seem to me to arise, I am satisfied that Mr. Governey has met the threshold of arguability or stateabillity on the subsidiary question which he raises concerning the adequacy of the reasons given by the F.S.O. To an extent, the reasons which must be given by any decision-maker are somewhat dependent on the issues which that decision-maker must determine. At a very general level reasons must be sufficient to enable a party affected to decide whether the decision made was legally correct and to assist such a person in being able to decide whether the decision concerned is capable of being challenged either by judicial review or in any appellate process available. If Mr. Governey is ultimately found to be correct on the submissions which he makes concerning the materiality issue, it is also arguable that the reasons set out by the F.S.O. fail to adequately state why, in the view of the F.S.O., the failure of disclosure alleged in this case did not meet a materiality test.
6. Conclusions
6.1 For those reasons, I am first satisfied that the proper test to be applied in an application such as this is that the Court must simply ask itself whether the proposed appellant seeking leave to appeal to this Court has met a test of arguability or stateabillity.

6.2 For the reasons set out earlier, I am satisfied that Mr. Governey meets that, admittedly low, threshold, and should be given leave to appeal in accordance with his application to this Court.

Riordan v. Hamilton

[2002] IESC 65 (9th October, 2002)
THE SUPREME COURT
Murray, J.
Hardiman, J.
Fennelly, J
213/00

Defendants
Judgment delivered the 9th day of October, 2002 by Murray, J.
1. This matter concerns proceedings issued by the Plaintiff against members and former members of the Supreme Court in which he seeks to impugn certain previous judgments and decisions of this court.
2. An application was successfully made in the High Court by the Chief State Solicitor on behalf of the Defendants, firstly for an order striking out the Plaintiff’s claim on the grounds that it constitutes an abuse of the process of the court, secondly an order striking out the claim on the grounds that it discloses no reasonable cause of action and thirdly for an order restraining the Plaintiff from issuing any further proceedings against the Defendants in the above type proceedings or any person holding the office of a judge of the Supreme Court without leave of the court. Finally, the High Court ordered that the pleadings be struck out as containing unnecessary and scandalous matter. The plaintiff appeals against the Order of the High Court.
3. The Plaintiff has issued these proceedings because he is dissatisfied with the final judgments given by this court in proceedings in which he was a party and to which, it hardly needs to be said, the defendants were not a party. His dissatisfaction with having his claims in previous proceedings rejected by the court is often expressed in the pleadings in language which is intemperate and tendentious. One of the earlier findings of the court of which he complains in his Statement of Claim was that he “appears to take the view that those who act in the manner inconsistent with his interpretation of the Constitution are not only mistaken but corrupt.” (381/97). Unfortunately, this still appears to be the case, one example of which is to be found in paragraph 18 of his Statement of Claim which states “Any judge who grants a divorce is a corrupt judge.”
4. However, the fundamental point here is that he seeks to challenge previous judgments of this court and obtain declarations that they are wrong. Of this the Plaintiff said at the hearing of the appeal “that is the whole basis of my case plus I am claiming damages.” He appears to have considered that by adding a claim for damages he was entitled to reopen those issues in these proceedings. Of course that is patently wrong. The judgments and decisions of which he complains are final and conclusive as regards the issues in those proceedings pursuant to Article 34.4.6 of the Constitution. Those issues cannot now give rise to a claim for damages and in any event a claim for damages as an additional form of relief cannot affect the res judicata nature of those decisions.
5. The learned High Court judge firstly had regard to Order 19, rule 28 which provides as follows: –
“The Court may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.”
6. This is not the first occasion on which this Plaintiff has sought, unsuccessfully, to litigate once again issues which have been the subject of a final order and judgment of this court. On reading of the long Statement of Claim delivered by the Plaintiff, which raises issues already and finally decided in proceedings between the Plaintiff and other parties, it is manifest that the Plaintiff’s action is both frivolous and vexatious and discloses no reasonable cause of action. Nothing which the Plaintiff has said during the course of the hearing of this appeal (which essentially reflected the argumentative nature of the pleadings) disclosed any ground for taking any other view.
7. In my view, the learned High Court judge was perfectly entitled to come to the conclusion which he did, namely that these proceedings constitute an abuse of the process of the court and he was entitled to dismiss them on that basis.
8. Exercising the inherent jurisdiction of the court, the learned High Court judge also struck out the Plaintiff’s claim on the grounds that it disclosed no reasonable cause of action and had no reasonable prospect of success. In respect of that conclusion he stated “The position here is that these matters have already been litigated. There is no new matter and this is an effort to re-litigate the same matters and to effectively ask this court to review the decision of the Supreme Court or to ask another judge to embark on a hearing at a later stage. In my opinion it is neither open nor would it be appropriate to do so in this case.”
9. He had before him the affidavit of Lawrence A. Farrell, Chief State Solicitor, filed on behalf of the Defendants herein, to which there was no replying affidavit and had regard to the Statement of Claim of the Plaintiff. The trial judge was perfectly entitled to make that finding on foot of that affidavit and the Statement of Claim. In those circumstances he was correct in striking out the Plaintiff’s claim on the grounds that it discloses no reasonable cause of action and has no reasonable prospect of success.
10. As regards the order restraining the Plaintiff from issuing certain kinds of proceedings without leave of the court, the learned High Court judge relied on the dictum of Costello J. in McSorley -v- O’Mahony (The High Court, unreported) 6th November, 1996, “It is an abuse of the process of the court to permit the court’s time to be taken up with litigation which can confer no benefit on a Plaintiff. It is also an abuse to permit litigation to proceed which will undoubtedly cause detriment to a Defendant and which can confer no gain on a Plaintiff.” While every citizen has a right of access to the courts, it is in the public interest and in the interest of the proper use of public resources in the administration of justice that in exceptional circumstances this right be regulated by the courts. In my view, in the circumstances of this case, the learned High Court judge exercised his discretion properly in deciding to make such an order and I do not consider that any of the arguments made by the Plaintiff in this appeal disclose a basis for impugning the exercise of that discretion.
11. Finally as regards the order striking out the statement of claim, the learned High Court judge correctly stated that “The purpose of pleadings is to convey what the nature of the action is. Pleadings should not be used for an opportunity of placing unnecessary or scandalous matters on the record of the court or as an opportunity of disseminating such matters when they having nothing to do with any dispute between the parties. Allegations are not scandalous where they would be admissible in evidence to show the truth of any allegation in the pleadings which is material to the relief claimed.” Like the learned High Court judge I do not think it is necessary to spend time reciting the lengthy Statement of Claim but he was correct to regard it as containing “contemptuous language and scandalous allegations” to advance a view which does not accord with ” fairness”, “constitutional right or with any modicum of decency.”
12. For the foregoing reasons, I consider that the Plaintiff’s appeal should be rejected.
13. One other matter, the Defendants are incorrectly described in the title to these proceedings in the plenary summons issued on the 13th day of September, 1999 and should, by order, be amended as in the title of this written judgment. There should also be an order dismissing the Plaintiff’s appeal.

Morrissey & anor v Health Service Executive

 

[2019] IESC 60 (26 July 2019)

Judgment
Title:
Morrissey & anor v Health Service Executive
Neutral Citation:
[2019] IESC 60
Supreme Court Record Number:
120/19 & 121/19 & 122/19
High Court Record Number :
2018 4309 P
Date of Delivery:
07/26/2019
Court:
Supreme Court
Composition of Court:
Clarke C.J., MacMenamin J., O’Malley Iseult J.
Judgment by:
Clarke C.J.
Status:
Approved
Result:
Other

THE SUPREME COURT
[Appeal Nos: 120, 121 and 122/2019]

Clarke C.J.
MacMenamin J.
O’Malley J.
Between/
Ruth Morrissey and Paul Morrissey
Plaintiffs/Respondents
and
Health Service Executive and Quest Diagnostics Ireland Limited and Medlab Pathology Limited

Defendants/Appellants

JUDGMENT of Mr. Justice Clarke, Chief Justice, delivered the 26th July, 2019
1. Introduction
1.1 This judgment is directed to three applications for leave to appeal which were respectively brought by each of the defendants/appellants in these proceedings. When the panel assigned to consider those applications for leave to appeal met, it was decided that an oral hearing might be useful for the purposes of clarifying certain matters. In that context, the panel arranged for a letter to be sent to the parties indicating the questions on which the Court required greater clarification. As is usual in the context of applications for leave to appeal, the three notices of application for leave to appeal, together with the respondents’ replying notices, are published along with this judgment. In addition, for the purposes of greater clarity, the letter sent on behalf of the Court to the parties is also published. It is, therefore, unnecessary to set out in any detail the issues raised in those documents.

1.2 Thereafter, an oral hearing was conducted on Wednesday, 24 July 2019, as a result of which the Court is now in a position to rule on the respective applications for leave to appeal. It is appropriate to briefly set out the general criteria applied by the Court on applications for leave to appeal as appear in many of in the determinations issued by the Court in respect of leave applications.
2. The General Criteria
2.1 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court.

2.2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this judgment.

2.3 As the applications in this case involves seeking leave to bring leapfrog appeals direct to this Court from the High Court, the additional criteria, as identified in Wansboro, come into particular focus. Appeals in similar terms have already been filed by each of the defendants/appellants before the Court of Appeal but it is the stated preferences of those parties that the issues in question proceed in this Court. It is next necessary to identify the position of the parties on the applications for leave to appeal.
3. The Position of the Parties
3.1 As is clear from the application for leave to appeal filed on behalf of the first named defendant/appellant (“the HSE”), the range of issues sought to be relied on by that party are relatively narrow, concentrating, as they do, firstly on questions which may loosely be summarised as the “standard of care” issues, together with questions as to the extent to which the HSE may either potentially be primarily liable or vicariously liable in respect of acts or omissions of the other defendants/appellants.

3.2 The one separate specific issue which arose in the case of the HSE was the contention made on behalf of the plaintiffs/respondents (“the Morrisseys”) which suggested that the HSE should not be allowed raise the standard of care issues because the HSE had not made submissions on those questions in the High Court, despite, it is said, the High Court Judge indicating that this was one of the matters on which he wished to hear the parties. The HSE indicated that a decision had been taken to allow the other defendants/respondents to deal with those issues as they were the parties primarily involved in addressing such matters on the facts.

3.3 However, at the oral hearing, but in the context of a general submission to the effect that leave to appeal should only be granted in respect of the standard of care issues, counsel for the Morrisseys indicated that he was prepared to agree, as a concession, that the HSE might address argument on those issues while maintaining his position that the HSE had no entitlement in that regard. This is one question to which it will be necessary to return.

3.4 Counsel on behalf of the second named defendant/appellant (“Quest”) also made some concessions in relation to the grounds of appeal which were sought to be advanced in its application for leave to appeal. It was agreed that Ground 7 effectively fell within the ambit of Ground 2 and did not need to be independently progressed. It was also said that, in the context of the concerns expressed in the Court’s letter, and in the event that this Court were prepared to grant leapfrog leave, Quest would be willing to abandon its application for leave to appeal in respect of Grounds 9, 10, 11 and 13. In fairness to counsel, it should be emphasised that it was not conceded that those grounds were without merit but rather that their abandonment was a price which Quest was prepared to pay in order to seek to persuade this Court to grant leapfrog leave to appeal.

3.5 Thereafter, with one exception, it was said that the remaining grounds, other than the first three (which might be described as the pure standard of care grounds), were closely connected with that issue. The exception was said to be Ground 12, which concerned causation. It was urged that this ground, although independent of the standard of care issue to a large extent, nonetheless had at least some potential to apply in other cases, even though questions of causation will necessarily be dependent to a significant extent on the facts of the individual case.

3.6 Insofar as a basis was put forward which was said to justify the grant of leapfrog leave, particular reliance was placed on what was said to be the urgency of the case. This is, indeed, a factor identified in Wansboro as potentially justifying a direct appeal to the Supreme Court, even though a similar case might ordinarily more properly give rise to a first appeal to the Court of Appeal. So far as urgency is concerned, it became clear at the oral hearing that satisfactory arrangements have been entered into between the solicitors acting on behalf of the Morrisseys and the Chief State Solicitor, on behalf of the Government, as a result of which the Government has agreed that, irrespective of the ultimate outcome of these proceedings, the full award of damages made by the High Court Judge in this case will be paid to the Morrisseys. It follows that there is no financial urgency. However, counsel for the Morrisseys did, quite properly, draw attention to the fact that Ms. Morrissey is ill and that the bringing of early closure to these proceedings would be of benefit to her.

3.7 In addition, counsel for Quest drew attention to the fact that there are a significant number of other cases in which the general issue of the standard of care to be imposed in cases such as this may well arise. In addition, attention was drawn to the legislation establishing the CervicalCheck Tribunal (“the Tribunal”). That legislation, which became law this week, provides for the establishment for a tribunal which is, most unusually, given the task of assessing legal liability in cases of this type. The Tribunal is, therefore, very different from other tribunals which have been established for the purposes of providing compensation in circumstances which did not require applicants to establish full legal liability (such as the scheme in respect of Hepatitis C and HIV, the Residential Institutions Redress Board and, in the past, the Stardust Victims’ Compensation Tribunal). Thus, the Tribunal will be required to fully apply the law in respect of liability and quantum in its assessment of whether, and if so to what extent, it should make awards of compensation. Therefore, the Tribunal will be in exactly the same position as a court and will have to apply the same legal test. It follows that the Tribunal would be significantly constrained in the extent to which it could advance its work as long as there remains any significant debate about the proper test to be applied in determining legal liability.

3.8 In essence, counsel for Quest suggested that the urgency which thereby arises would justify a leapfrog appeal. Counsel for the Morrisseys, as indicated earlier, accepted that leapfrog leave would be appropriate but only if the appeal was to be confined strictly to the standard of care issues. Thus, in substances, counsel did not oppose leapfrog leave in itself but did oppose leave being granted to Quest to argue the wider (although somewhat reduced) issues identified in the application and as adjusted at the oral hearing.

3.9 The grounds urged on behalf of the third named defendant/appellant (“Medlab”) were somewhat narrower than those sought to be advanced on behalf of Quest because the case against Medlab (or at least that part of it which succeeded) was based on narrower issues concerning principally whether the samples considered by Medlab were adequate.

3.10 Counsel had not had the opportunity to take instruction on whether it would be appropriate to follow counsel for Quest in agreeing to drop certain grounds of appeal if that was, as it were, the price for obtaining leave to bring a leapfrog leave. However, counsel felt that he could go so far as to indicate that he could not object if the Court were to indicate that leave would not be granted in respect of Grounds 3 and 4. In so doing counsel made the same observation as had been made by counsel for Quest to the effect that the grounds were still considered meritorious but that there might be merit in their not being pursued to enable a speedy hearing of a direct appeal to this Court.

3.11 Counsel relied on the same grounds of urgency as had counsel for Quest and also suggested that a similar causation issue to that identified in the arguments put forward on behalf of Quest arose in the case of Medlab, giving rise to Ground 2 proposed in its application for leave to appeal.

3.12 The one additional issue which arises in the context of the application for leave to appeal made on behalf of Medlab relates to Ground 5, under which it is sought to appeal certain issues concerning the calculation of damages.

3.13 The position adopted by counsel on behalf of the Morrisseys in respect of the application for leave of Medlab was broadly the same as that adopted in respect of the application of Quest, being that there was no objection to the grant of leapfrog leave to pursue the standard of care grounds alone, but that there was objection to any wider grounds being permitted.
4. Discussion
4.1 There is no doubt but that, ordinarily, it would not be appropriate to grant leapfrog leave in a case such as this. Some of the issues sought to be raised involve questions of fact or questions where it is said that the trial judge was in error. In those circumstances, as this Court has consistently pointed out, it is normally appropriate first to pursue an appeal to the Court of Appeal and only thereafter decide whether, in the light of the case as it then stands, there remains any issue which is open to a further appeal and which also meets the constitutional threshold for leave to appeal to this Court. That will remain the position in many cases even though it may be likely that a further appeal will arise, for this Court will be likely to have had the benefit of a narrowing and clarification of issues in the Court of Appeal so that this Court will be able to concentrate on the real issues of general importance which arise in the case.

4.2 The true issue is as to whether there is an appropriate basis for departing from that general position in the circumstances of this case. I am satisfied that the urgency of the situation does provide such a basis. While it is true, as counsel for the Morrisseys pointed out, that the High Court has managed cases such as this with commendable efficiency and that hearing dates are being readily made available for those cases which are considered ready for trial, nonetheless there must be a risk that further appeals will be generated in such cases if the same standard of care issues as have arisen in these proceedings also falls for consideration in those other cases.

4.3 Likewise, there can be little doubt but that the Tribunal would be significantly circumscribed in progressing its work if there remains doubt about the standard of care to be applied. As already noted, the Tribunal will be required to approach the question of compensation on exactly the same basis as the High Court would be required to do in deciding whether to award damages. It follows clearly that the standard of care issues, at least, would meet the constitutional threshold for leave to appeal generally and, having regard to the urgency which attends its clarification, would meet the additional criteria necessary to grant leapfrog leave.

4.4 The real issue remaining is as to whether any of the other matters which the HSE, Quest and Medlab seek to raise also justify the grant of leapfrog leave. In my view, the interests of justice do require granting that wider leave. There can be cases where issues which would not in and of themselves meet the constitutional threshold of general public importance can properly be the subject of leave to appeal to this Court, because it would not make sense to exclude those grounds if there is going to be an appeal to this Court in any event.

4.5 The statutory framework is clear. Section 7B(4) of the Courts (Supplemental Provisions) Act 1961, as inserted by s. 9 of the Court of Appeal Act 2014, makes clear that, when leave to appeal to this Court is granted, then any appeal before the Court of Appeal on the same grounds must necessarily be discontinued. However, any grounds not the subject of leave to appeal to this Court can continue to be pursued in the Court of Appeal. It follows that the legislation contemplates the possibility that some grounds of appeal may be pursued before the Court of Appeal, while others might be pursued before this Court. However, in a determination in Defender Ltd. v. HSBC Institutional Trust Services [2019] IESCDET 125, the Court drew attention to the fact that, if such a situation presented itself, the Court would have to take into account as an important factor the potential undesirability of two separate appeals proceedings in different courts arising out of the same decision of the High Court. That is not to say that such a situation might not properly arise in some circumstances, but it clearly is a factor to be taken into account.

4.6 It follows that there are only two possibilities. First, this Court might grant leave on the standard of care grounds alone and leave it to the various appellants/defendants to pursue any other grounds that they might wish before the Court of Appeal. Alternatively, this Court might indicate that it was only prepared to grant leave to appeal directly to this Court on the standard of care grounds if it was clear that all other issues would be abandoned before the Court of Appeal.

4.7 It seems to me that neither of those courses of action would be appropriate. Considering the standard of care grounds in the abstract, while issues concerning some of the findings of the High Court remained alive before the Court of Appeal, would be highly unsatisfactory. I am also satisfied that it would be unfair to the defendants/appellants to require them to abandon all of the other grounds as the price for obtaining leapfrog leave. Most of those grounds are sufficiently closely connected with the standard of care grounds in any event such that this Court is likely to need to at least get into the facts relevant to those grounds to some extent. Insofar as the causation and, in the case of Medlab, quantum grounds are raised, it seems to me that these issues can most conveniently be dealt with in the same appeal. A different situation might well have arisen had both Quest and Medlab not effectively abandoned some of the grounds referred to in their respective applications for leave.

4.8 In those circumstances, I would grant leave to appeal directly to this Court to each of the three defendants/appellants but would exclude those grounds which were, effectively, either formally abandoned or not actively pursued at the oral hearing. However, before concluding this judgment, I would make a number of observations both as to the scope of this appeal and as to the process which I would propose should follow from this grant of leave.
5. Some Observations and Proposed Directions
5.1 First, I would reiterate the point made in the course of the oral hearing to the effect that the appeal will be confined to the issues in respect of which leave to appeal has been granted. Thus, the parties will be required to accept those findings of fact (and inferences from findings of fact) as appear in the judgment of the High Court, save to the extent that there is a specific ground of appeal in respect of which leave to appeal has been granted which challenges the finding concerned. In that context, I would propose that the Court direct that all relevant parties amend their notices of appeal to reflect the concessions made at the oral hearing and the content of this judgment. I would also propose that the Court require that such grounds of appeal as involve matters of fact are reformulated so as to ensure that the grounds do not infringe the jurisprudence of this Court concerning the extent to which questions of fact can be reopened on appeal. I will shortly turn to the directions which will be required to ensure that this appeal is given a timely hearing. However, one of the first matters which will need to be attended to during case management is to ensure that there are notices of appeal which comply fully with the content of this judgment.

5.2 Next, as indicated at the oral hearing, the Court would wish to work towards these appeals being capable of being heard over a period of not more than three days between Monday, 4 November and Wednesday, 6 November 2019. The case management hearing will require to be directed towards ensuring that the appeals can be heard within that timeframe. With that in mind, I would propose that the statutory practice direction be varied by fixing a first case management hearing in advance of the filing by the parties of their written submissions. I would propose that that first case management hearing take place on Tuesday next, 30 July 2019. In the context of the comments made earlier, I would propose that the defendants/appellants be required to file amended notices of appeal in accordance with the terms of this judgment before close of business on Monday next, 29 July 2019, so that the question of the parameters of the appeal will either be clear by that time or can be clarified at that case management hearing.

5.3 I had indicated earlier that I would return to the question of the position of the HSE in relation to arguing grounds relating to the standard of care. I did not understand the concession of counsel for the Morrisseys to extend to a situation where the grounds of appeal in respect of which this Court granted leave went beyond the standard of care grounds. It does not seem to me, therefore, that the Morrisseys are precluded from seeking to argue on this appeal that the HSE is not entitled to rely on the standard of care grounds on the basis that such grounds were not advanced by the HSE before the High Court. I would propose, therefore, that it be left to the Morrisseys and their legal advisors to decide, when putting in their replying submissions, whether they wish to include argument to the effect that the HSE is constrained in that way in relation to the grounds which it can pursue.

5.4 With a view to bringing greater focus to the first case management hearing, I would also propose that the parties should be in a position to address the following matters. First, a time scale within which written submissions should be filed by all parties. Second, a proposed date in September at which a second case management hearing will take place. The issues for that second case management hearing would include ensuring that the submissions filed on all sides operate within the boundaries of the appeal which has been permitted. It would be highly undesirable if issues were to arise at the hearing of the appeal concerning the proper scope of the grounds permitted to be pursued, such that any issues concerning scope of appeal should be determined in advance.

5.5 Finally, I would propose that the first case management hearing give at least some initial consideration to the preparation of the papers which it will be necessary to file for the appeal itself. It is accepted that it may not be possible to finalise the necessary books until written submissions have been filed on all sides and the precise basis of the appeals and the response have been identified in detail. However, if the relatively challenging timeline which must be met in order that the appeals are made ready for hearing in early November is to be achieved, it seems to me that it will be necessary to at least give some preliminary consideration to the scope of the books required for the appeal in advance of the proposed September case management hearing.

5.6 I would suggest that any other case management issues can be left over to the first case management hearing, which it is suggested will take place on Tuesday of next week.

Rowan v Kerry County Council

 

[2018] IESC 2 (30 January 2018)

Cite as: [2018] IESC 2
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Judgment
Title:
Rowan v Kerry County Council
Neutral Citation:
[2018] IESC 2
Supreme Court Record Number:
131/16
High Court Record Number:
2011 895 JR
Date of Delivery:
30/01/2018
Court:
Supreme Court
Composition of Court:
Clarke C.J., O’Donnell Donal J., MacMenamin J., Dunne J., O’Malley Iseult J.
Judgment by:
O’Donnell Donal J.
Status:
Approved
Result:
Other
Judgments by
Link to Judgment
Concurring
O’Donnell Donal J.
Link
MacMenamin J., Dunne J., O’Malley Iseult J.
Dunne J.
Link
Clarke C.J., MacMenamin J., O’Malley Iseult J.

AN CHÚIRT UACHTARACH
THE SUPREME COURT

 

SC Record No. AP:IE:2016:000131
Record No. 2011/895 J.R.

Appeal No. 346/12
Clarke C.J.
O’Donnell J.
MacMenamin J.
Dunne J.
O’Malley J.
BETWEEN/

MICHAEL ROWAN
APPLICANT/APPELLANT

AND

KERRY COUNTY COUNCIL
RESPONDENT

AND

TIMOTHY MULVIHILL
NOTICE PARTY

Judgment of O’Donnell J delivered on the 30th day of January 2018

1 The facts and procedural background to this matter have been set out in the judgment to be delivered by Ms Justice Dunne. I agree with the orders that she proposes. These proceedings have already occupied too much court time. The 33rd Amendment to the Constitution did not have as its object, and should not be interpreted as permitting the revival of controversies that have long since been determined. In particular, I do not believe that it was within the contemplation of the amending provisions of the new Article 34.5.4 creating a leapfrog appeal, that cases which had been determined should be revived but only those cases which prior to the coming into force of Article 34..5.4, had required a certificate of a trial judge that they involved points of law of exceptional public importance, but where such certificate had been refused, or as here, not even sought within a reasonable period of the decision. Nor do I see any particular benefit in attempting to define the precise point at which this case passed beyond the scope of possible appeal under Article 34.5.4.

2 The somewhat unusual procedural history of this application for leave to appeal to the Supreme Court means that the focus at the oral hearing was upon the question of jurisdiction. Previous panels of this Court had considered in principle the questions of the legal significance of the underlying issue which was sought to be appealed, and the question of extension of time. I see the practicality of this approach and the logic in particular of the extension of time for an application in circumstances where an applicant could simply not have sought leapfrog appeal until the provision existed in law. Looked at in this way, the applicant could not be responsible for the lapse of time between the decision in this case and the coming into force of the 33rd Amendment. However, that is to look at a question exclusively from the applicant’s position. There remains the question whether from the respondent’s position it is appropriate to further agitate on appeal a decision of the High Court that was determined almost six years ago. I do not think that the applicant is entitled to rely on the period during which he sought to appeal the decision, without seeking a certification of the High Court judge. This was contrary to the jurisprudence of this Court, and, as was found, indeed to the jurisdiction of the Supreme Court. It was misconceived at a minimum to launch that appeal without making even a precautionary application to the High Court for a certificate, and the applicant should not now benefit from what was at best his own misplaced presumption in that regard. In any event, there is also a question of whether even if a case is capable of meeting the constitutional threshold, the Court should exercise its jurisdiction. 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. 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.

3 I would however be reluctant to offer any bright line rule on a jurisdictional basis, which at its margins, (admittedly at some remove from this case) could give rise to some almost metaphysical issues of analysis. Instead, I would prefer to approach this, and any future case (which in any event must be increasingly rare) on the basis of discretion. In those circumstances I would not be prepared to extend the time to bring this application for leave, and in any event would not consider it appropriate for the Court to exercise its jurisdiction in this case, given the lapse of time and the entitlement of the defendant and relevant notice parties to treat the matter as determined. Accordingly I would refuse this application.

Judgment of Ms. Justice Dunne delivered on the 30th day of January 2018

The applicant in these proceedings (hereinafter referred to as “Mr. Rowan”) seeks leave to appeal against a decision of the High Court made herein on the 5th March, 2012. The respondent will be referred to hereinafter as “Kerry County Council” and the notice party to the proceedings will be referred to as “Mr. Mulvihill”.

Background
The procedural background to this matter is somewhat complicated and it is necessary to set out the history of the proceedings to some extent in order to understand how an application for leave to appeal to this Court is now made. Mr. Rowan brought proceedings against Kerry County Council by way of judicial review in 2011. The judicial review related to a planning permission obtained by Mr. Mulvihill for a single domestic dwelling. The relief sought by Mr. Rowan was as follows:

“An order of certiorari quashing the decision made by the respondent on or about the 7th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been re-aligned to its satisfaction in accordance with Condition 1 of Planning Permission Register Reference 04/654 (Appeal Reference/PL08.218394) [together with ancillary relief].”
Mr. Rowan was unsuccessful in those proceedings (See Rowan v. Kerry County Council (No. 1) [2012] IEHC 65, a judgment delivered by Birmingham J. on the 17th February, 2012). Following the delivery of judgment, an application was made by Kerry County Council and Mr. Mulvihill for costs against Mr. Rowan. Reliance was placed by Mr. Rowan on the provisions of s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and it was argued that the proceedings were brought to secure compliance with a condition attaching to a planning permission and that therefore the provisions of s. 3 of the Act of 2011 applied. In a reserved judgment delivered on the 5th March, 2012, the learned High Court judge rejected the argument that the case was one to which s. 3 of the Act of 2011 applied (see Rowan v. Kerry County Council (No. 2) [2012] IEHC 544).
Mr. Rowan did not request a certificate in accordance with the provisions of s. 50A(7) of the Planning and Development Act 2000 (as amended) in respect of the substantive decision or in respect of the order for costs made against him. Rather he issued a notice of appeal directly to the Supreme Court in relation only to the award of costs against him. Notwithstanding that the Supreme Court decided a similar issue in a case in March 2014 (Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J.)) to the effect that it was necessary to obtain a certificate from the High Court in judicial review proceedings to which s. 50 and s. 50A of the Act of 2000 applied in relation to the question of costs, Mr. Rowan chose to persist with his appeal. The Supreme Court on the 18th December, 2015 ruled that a certificate of leave to appeal under s. 50A(7) of the Act of 2000 was required in relation to an appeal in respect of costs and accordingly it dismissed Mr. Rowan’s appeal in circumstances where no such certificate had been obtained (Rowan v. Kerry County Council (No. 3) [2015] IESC 99).

Thereafter, Mr. Rowan filed a notice of motion in the High Court on the 25th April, 2016 seeking inter alia the re-entry of these proceedings and seeking a certificate that the decision of the High Court involved a point of law of exceptional public importance, namely:

“Does the question as to whether proceedings fall within the scope of ss. 3 and 4 of the Environment (Miscellaneous) Provisions Act 2011 ss. 3 and 4 fall to be determined on an objective basis or on a subjective basis by reference to the motivation of the party bringing the proceedings?”
Birmingham J. refused to grant a certificate (see Rowan v. Kerry County Council (No. 4) [2016] IEHC 463). Thereafter, an application for leave to appeal was made to this Court. Notices were filed by Kerry County Council and by Mr. Mulvihill in response to the application for leave. A determination on the application was made on the 27th February, 2017 (see Rowan v. Kerry County Council [2017] IESCDET 24). By that determination this Court declined to grant leave to appeal the decision of the High Court refusing a certificate but directed that there be an oral hearing confined to hearing the submissions of the parties on the question of the proper parameters of the jurisdiction of the Court in a case such as this where an extension of time was sought to appeal an order made before the Thirty Third Amendment to the Constitution together with the issue of whether an extension of time would be appropriate and whether the basic constitutional threshold of issue of general public importance is met. Accordingly, following a hearing before the Court, a further determination was issued in which the Court determined that:
“Subject to a jurisdiction in that regard existing it would be appropriate to extend time and grant leave.”
The Court directed a further hearing before an extended panel of the constitutional jurisdictional issue addressed in the determination. As was made clear in that determination, the issue left over to be considered concerns the question of the extent, if any, to which the Thirty Third Amendment to the Constitution may be retrospective in the sense that the new constitutional measures thereby introduced can be held to apply to potential appeals in respect of orders of the High Court which were made prior to the Thirty Third Amendment coming into force. Accordingly, the Court determined that there was an issue of significant constitutional principle concerning whether the proper interpretation of the Thirty Third Amendment is such that it can be held to confer a jurisdiction on this Court to grant leave to appeal directly from the High Court in cases where the High Court order sought to be appealed was made prior to the Amendment coming into effect. As was pointed out in the determination, the jurisdictional issue is of particular importance in cases where, at the time of the relevant High Court order, no appeal was permissible without a certificate. As was further pointed out, the key issue is whether an effect of the Thirty Third Amendment has been to permit at least the possibility of an appeal to this Court in circumstances where no appeal of any sort would have been possible without a certificate at the time when the order sought to be appealed against was made.
Discussion
Following the introduction of a new constitutional amendment such as the Thirty Third Amendment to the Constitution, there will be a period of time when the full effect of the Amendment will require to be clarified and thus it will be necessary over time to tease out the implications and scope of the Amendment in full. The decision in Grace and Sweetman v. An Bord Pleanála [2017] IESC 10 has now clarified one such issue that arose as a result of the Thirty Third Amendment, namely the entitlement to bring a leapfrog appeal from a decision of the High Court in a case in which previously in order to appeal to the Supreme Court a certificate of leave to appeal was necessary. In that case, the joint judgment of Clarke J. and O’Malley J. noted at paragraph 3.4:

“However, the wording of Art. 34.5.4 of the Constitution (which provides for a leapfrog appeal to this Court) makes clear that relevant legislation can only ‘regulate’ but importantly cannot ‘exclude’ an appeal to this Court. That provision must be seen in the light of the fact that, in order to obtain leave to appeal to this Court under the new regime, it is necessary that this Court be satisfied that a general issue of public importance arises or that the interests of justice require an appeal to this Court.”
The Court continued at paras. 3.6 and 3.7 as follows:
“In passing it is worth at least noting that the wording of the form of certificate which the High Court was required to consider giving in this case seems to place the bar somewhat higher than that which applies under the Constitution itself. In the case of a certificate under the 2000 Act, the High Court judge is required to be satisfied that a point of law of exceptional public importance arises and that it is desirable in the public interest that an appeal be pursued. In order that the constitutional threshold be met it is necessary that an issue of general public importance arise or that it is in the interest of justice that an appeal be pursued to this Court. It is possible, therefore, to envisage that there might be a case where the High Court quite correctly refused a certificate but this Court, without in any way disagreeing with the High Court, found that the constitutional threshold had been met. The thresholds are not the same and the certificate threshold is undoubtedly somewhat higher.
That being said it remains the case that the new constitutional architecture suggests that the normal and ordinary appellate process following on from a decision of the High Court should be an appeal to the Court of Appeal. However, that route remains subject to a valid restriction imposed by the certification process.”

Accordingly, the judgment in the case of Grace and Anor. has resolved one of the issues that arose as to the extent of the jurisdiction of the Supreme Court following the Thirty Third Amendment to the Constitution. The issue raised in these proceedings is the extent, if any, to which the Thirty Third Amendment could have retrospective effect. In other words, could a party to proceedings in the High Court which were concluded and which could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court.
Mr. Rowan in the course of legal submissions referred to a number of cases which have considered the question of retrospectivity in the context of legislation. One of the cases relied on was the recent decision of this Court in Sweetman v. Shell E&P Ireland Limited [2016] 1 I.R. 742 in which Charleton J. stated as follows at p. 753 and onwards:

“The relevant canons of statutory interpretation operate a clear distinction between legislation which affects existing rights and legislation which merely enables the enforcement of such rights through court action. Bennion on Statutory Interpretation (Butterworths, 1984) (and see also to the same effect the current edition: Jones, Bennion on Statutory Interpretation,(6th ed., 2013, LexisNexis) at p. 738, s.267) at p. 313, s.131 states the general rule in the following form:

‘It is the principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.’
…

Why rules of procedure, (how cases are presented in court), or evidence, (how cases are proven in court), are an exception to this rule as explained in Bennion, Statutory Interpretation (Butterworths, 1984) at p. 314, s.131:

‘Rules of legal procedure are taken to be intended to facilitate the proper settlement of civil or, as the case may be, criminal disputes. Changes in such rules are assumed to be for the better. They are also assumed to be neutral as between the parties, merely holding the ring. Accordingly the presumption against retrospective penalization does not apply to them, since they are supposed not to possess any penal character. Indeed if they have any substantial penal effect they cannot be merely procedural.’
. . .

When the substantive, as opposed to the procedural, law is changed during the currency of litigation, meaning after a case has been commenced and is still ongoing, the entitlements of the parties must be determined according to the law when the case was commenced. The exception is where the legislation shows a clear intention to the contrary. Some authorities support the proposition that the more extensive the variation of existing rights is, the more clearly the intention of the legislature must be made manifest in order to make that change. Alterations to forms of procedure or the admission of evidence, however, do not involve vested rights. Such changes are to enable people to better present their case. It is thus presumed that legislation is passed for the improvement of the law.
. . .

In Halsbury’s Laws of England (4th ed. reissue, vol. 44 (1) Butterworths, 1995), it is stated at para.1287, p. 767, as a general rule that legislation regarding procedures is retrospective:

‘The general presumption against retrospection does not apply to legislation concerned merely with matters of procedure; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. For this purpose ‘procedure’ includes matters relating to remedies, defences, penalties, evidence and restrictions on vexatious litigants. Procedural enactments thus affect proceedings pending at their commencement unless the contrary intention appears, whilst the applicability to pending proceedings of a provision altering the structure of appeals may depend on whether it increases or reduces rights of appeal.'”
The authorities relied on by Mr. Rowan concern cases that were pending at the time of the legislative change. As can be seen from the judgment of Charleton J. referred to above, it is clear that a change in the law during the currency of proceedings is presumed to be prospective, unless the contrary is clear from the legislation itself. If the change is procedural and does not affect vested rights then, as a general rule, the change brought about by new legislation is retrospective. That being so, it is contended by Mr. Rowan that the changes brought about by the Thirty Third Amendment are procedural in nature and do not affect substantive acquired rights of Kerry County Council or Mr. Mulvihill and thus he argues that the Thirty Thirty Third Amendment can be applied retrospectively.
Kerry County Council in the course of its submissions accepts that the appeals procedures provided for in the Thirty Third Amendment to the Constitution would apply in cases which commenced before the Thirty Third Amendment but in respect of which no final decision or order has been made. It is contended that it could not have been the intention of the legislature and the People that a similar position would apply to cases where the litigation had concluded prior to its enactment in all respects, save for an appeal brought to this Court which resulted in a decision that such appeal could not be brought in the absence of a certificate of leave to appeal pursuant to the provisions of s. 50A(7) of the Act of 2000. It is further contended that there were acquired rights on foot of the High Court determination including the right to recover costs on the part of Kerry County Council and Mr. Mulvihill. Whilst there is a presumption against retrospective legislation, nevertheless it was accepted that the Oireachtas can enact retrospective legislation and the view was expressed that there was no logical reason why the position should be any different with amendments to the Constitution. However, the point was emphasised that this litigation commenced and concluded in the High Court prior to the enactment of the Thirty Third Amendment to the Constitution and that the parties to the proceedings had acquired rights including the right to costs and the right to avoid more litigation on the same issue on foot of the concluded litigation and accordingly it was submitted that the current proceedings should be viewed as being outside the ambit of the new constitutional architecture provided for by the Thirty Third Amendment to the Constitution. Kerry County Council contests the argument made by Mr. Rowan to the effect that the Thirty Third Amendment to the Constitution brings about changes which are “essentially procedural in nature”. It is pointed out that the Thirty Third Amendment affects a change in the constitutional architecture of the appellate courts and confers a new appellate jurisdiction on the Supreme Court. Reliance is placed on s. 79 of the Court of Appeal Act 2014 which provides:

“The continuity of the administration and enforcement of justice shall not be interrupted by the coming into operation of any provision of this Act.”
Accordingly, Kerry County Council submits that once a costs order was made the Council acquired a vested right to costs and an entitlement to enforce the order made in its favour and was likewise entitled to rely on the fact that, barring the issue of a certificate for leave to appeal, the litigation was at an end.
Decision
There is a large measure of agreement between the parties as to the principles applicable to the question as to whether legislation can apply retrospectively. Further, neither party disagrees with the proposition that the same approach should apply to a change brought about by a constitutional amendment. Thus, it is agreed that a statute may have retrospective effect either as a consequence of an express provision to that effect or where the change brought about by the legislation is procedural and does not affect or impair vested rights. However, Mr. Rowan and Kerry County Council part company when it comes to a consideration of whether the changes brought about by the Thirty Third Amendment to the Constitution were procedural only, as contended for by Mr. Rowan, or changes affecting substantive rights such as the benefit of a costs order, as contended for by Kerry County Council. It would not appear to be necessary to give a definitive answer to that question for reasons which will become apparent.

The Thirty Third Amendment to the Constitution was ratified by the People and was signed into law on the 1st November, 2013. The Court of Appeal Act 2014 was enacted on the 20th July, 2014 and it provided for an establishment day for the purposes of the Act. By order of the Government, the establishment day was fixed for the 28th October, 2014. Central to the arguments of Mr. Rowan is the contention that these proceedings were pending at the time when the Thirty Third Amendment to the Constitution came into effect by virtue of the appeal he had lodged to this Court in respect of the costs order and which appeal was determined by the judgment of this Court in December of 2015, referred to above. Kerry County Council made the point that the appeal was not a valid appeal in the absence of a certificate granting leave to appeal and thus, that the proceedings had come to an end in March 2012.

It will be recalled that following the decision of the High Court on Mr. Rowan’s unsuccessful application for judicial review, an application was made subsequently by Kerry County Council for an order for costs and consideration was given by the learned High Court judge to that application and a ruling was made on that matter on the 12th March, 2012. It is worth recalling the words of s. 50A(7) of the Act of 2000. It provides as follows:

“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 a 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.”
It follows clearly from the provisions of s. 50A of the Act of 2000 that, at that stage, absent a certificate of leave to appeal from the High Court pursuant to the provisions of s. 50A(7) of the Act of 2000, the proceedings were at an end. The fact that Mr. Rowan purported to bring an appeal to the Supreme Court in relation to the issue of costs notwithstanding the provisions of s. 50A of the Act of 2000 and the decision of the Supreme Court in the case of Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J.) does not alter the fact that the decision of the High Court made on the 12th March, 2012 was a final decision. Section 50A(7) of the Act of 2000 made it plain that in the absence of a certificate the decision of the High Court was final. Thus, despite the procedures embarked upon by Mr. Rowan in purporting to appeal to the Supreme Court, quite simply the position was that no appeal lay in respect of the decision of the High Court in the absence of a certificate of leave to appeal. Therefore, the proceedings were at an end in March 2012 and could not be characterised as pending by virtue of the impermissible procedure embarked upon by Mr. Rowan.
Mr. Rowan sought to rely on the determination of this Court in the case of Grace and Sweetman v. An Bord Pleanála to argue that he could now appeal to this court (provided he met the Constitutional threshold). The subsequent decision of the Court in that case has clarified the law in relation to a “leap frog” appeal to this Court following the Thirty Third Amendment to the Constitution in circumstances in which the party seeking to appeal does not have a certificate of leave to appeal but nonetheless can meet the Constitutional threshold. However, that case concerned a decision of the High Court and a refusal of a certificate made following the enactment of the Thirty Third Amendment to the Constitution and the establishment of the Court of Appeal. Accordingly, the principle established in that case cannot assist Mr. Rowan.

Given that a final order was made in these proceedings in March of 2012, it is simply not possible to rely on the provisions of the Thirty Third Amendment to the Constitution to mount an appeal in relation to proceedings which were concluded by a final order in 2012. The proceedings were over and could not be resurrected by the happenstance of a Constitutional amendment. That being so, this Court simply has no jurisdiction to embark on an appeal at this stage.
Conclusion
The issue herein is whether a party to proceedings in the High Court which were concluded and could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment to the Constitution coming into force could subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court. A final order was made in these proceedings in March 2012 and the subsequent Amendment to the Constitution did not revive those proceedings despite the fact that there was an uncertified appeal in existence at the time when the Thirty Third Amendment came into force. Thus, for the reasons set out above, there is no jurisdiction to embark on a leapfrog appeal in this matter. I would refuse this application for leave to appeal to the Supreme Court.

Krikke & Ors v Barranafaddock Sustainability Electricity Ltd

(Approved) [2020] IESC 33 (18 June 2020)

THE SUPREME COURT

[Appeal No: 10/20]

Clarke C.J.

O’Donnell J.

Charleton J.

O’Malley J.

Baker J.

BETWEEN/

KRIKKE & ORS

PLAINTIFFS/RESPONDENTS

AND

BARRANAFADDOCK SUSTAINABILITY ELECTRICITY LTD

DEFENDANTS/APPELLANTS

Ruling of the Court delivered the 18th day of June, 2020.

1. At the close of the hearing in this case the parties were told that, while judgment was reserved, they would be notified of the outcome in early course.

2. The Court is now in a position to rule that, for the reasons which will be set out in a judgment to be delivered in early course, it has come to the view that the Court of Appeal erred in its assessment of the weight to be attributed to the various factors in the case. To that extent, the Court proposes to allow the appeal in principle.

3. However, the Court does not propose to lift the stay imposed by the Court of Appeal on the High Court order. The principal reasons for this are that the Court of Appeal has been able to hear the substantive appeal in early course and that there has been a significant change in circumstances since the making of the High Court order. As noted in the statement of case circulated to the parties, Simons J. was not aware, when he considered the question of a stay, that An Bórd Pleanála would undertake, in associated judicial review proceedings, not to process the application of the respondent for substitute consent pending the outcome of an appeal to this Court in connected proceedings in which separately An Taisce and a Mr. Sweetman had challenged aspects of the substitute consent process.

4. While it is the Court’s view that Simons J. was correct in the approach which he took having regard to the circumstances as they appeared at the relevant time, the Court feels that, having regard to the significant change in circumstances, the interests of justice would best be served by not interfering with the stay imposed by the Court of Appeal and leaving it to that court to determine the position in the light both of the judgment which it gives on the substantive issue on the appeal before it and, should it arise, the possibility that planning regularisation may be required.

Bank of Scotland Plc v Jerry Beades

Supreme Court Record No. 2012/425

Supreme Court

10 December 2019

unreported
[2019] IESC 88
O’Donnell J.

December 10, 2019

JUDGMENT
1. On the 20th of July, 2012, the High Court granted liberty to the plaintiff (“the Bank”) to enter final judgment against the defendant (“Mr. Beades”) in the sum of €9,684,987.04. Mr. Beades appealed against that judgment to this court. The case was initially transferred to the newly established Court of Appeal pursuant to Article 64 of the Constitution. However, in the light of the workload of the Court of Appeal in its initial years, Article 64 directions were cancelled in a number of cases to permit the appeals to proceed in the Supreme Court. This court duly heard Mr. Beades’s appeal against the judgment of the High Court and, in a decision delivered on the 29th of July, 2019, dismissed the appeal.

2. The application for costs and any ancillary orders was adjourned, and listed for hearing on the 16th of October, 2019. On the day before the hearing, Mr. Beades sought to issue an application for a stay of the judgment. Such an application could not be issued since there was insufficient notice to the other party and no application was made for abridgment of time. Accordingly, the court heard argument on the 16th of October, 2019, on the question of costs and awarded the costs of the appeal to the successful respondent, but put a stay on both the judgment and the order of costs until the 24th of October, 2019, to permit the issuance of a motion seeking a stay on the judgment including the order for costs, and gave directions in relation to the delivery of any affidavits and the exchange of written submissions. The court has been furnished with succinct and helpful submissions.

3. The apparent basis upon which Mr. Beades seeks a stay on the judgment is that on the 27th of September, 2019, he lodged an application with the European Court of Human Rights (“ECtHR”, with some authorities and submissions referring to such as the “ECHR”) at Strasbourg through a lawyer practising there. In his grounding affidavit, he argued that the plaintiff would not be prejudiced by the grant of a stay because the “plaintiff/respondent had a valuation carried out on the property and the value attributed to the property attributed to zero”. He further states that if a stay was not granted it would jeopardise his business and the employees of the company. He acknowledged that the application was not standard, “if not even ground breaking”. In the written submissions delivered, Mr. Beades appears to have adopted verbatim portions of the text of the judgment delivered by this court and argues, however, that the principles in respect of a stay of administrative proceedings enunciated in Okunade v. Minister for Justice [2012] IESC 49, [2012] 3 I.R. 152; and the principles applicable pending a reference to the European Court referred to in Data Protection Commissioner v. Facebook [2018] IEHC 236, (Unreported, High Court, Costello J., 2nd of May 2018) were applicable.

4. It must be said that it is rather difficult to follow the contentions by Mr. Beades in this regard. First, the judgment obtained was a judgment obtained against him personally, and, therefore, does not directly affect any property or company. Moreover, it is apparent that the application for a stay pending a resolution of complaint to the European Court of Human Rights raises formidable problems.

5. In the first place, the decision of the Supreme Court on any appeal is, by virtue of Article 34.5.6°, “in all cases final and conclusive”. Accordingly, the principles applicable to the grant of stay pending the determination of proceedings or pending an appeal, or pending a reference to the Court of Justice of the European Union are not and cannot be applicable. Those principles are predicated on the possibility that proceedings or the appeal, as it may be, may be resolved in favour of the applicant for a stay, and thus a court must consider the balance of convenience in circumstances where the proceedings have not been finally resolved and may yet be resolved in favour of the applicant. Plainly, this is not possible once a final decision has been made by the Supreme Court. There is no further appeal or process which can set aside or overturn the decision which is final and conclusive subject only to the exceptional jurisdiction of the Supreme Court to set aside its own judgment (Re.: Greendale Developments Ltd. [2000] 2 I.R. 514) which, in any case, is not invoked here. See, in this regard, Practice Direction SC17 of the 9th of July, 2018.

6. A related point is that an application to the European Court of Human Rights is not an appeal against the decision of the Supreme Court. It is an application to the court established by the High Contracting Parties as members of the Council of Europe under Article 19 the European Convention of Human Rights (“the Convention”) to determine claims that a Contracting Party is in breach of the Convention. Such a complaint can be made by other states or individuals, but the respondent is always a Contracting Party to the Convention. Even, therefore, if that complaint were resolved in Mr. Beades’s favour, it would not, and could not, result in a reversal of the decision of the Supreme Court. It would, at best, result in relief against the State, but the judgment against Mr. Beades as and between the Bank of Scotland and Mr. Beades would still remain final, binding and conclusive as a matter of Irish law and neither the Supreme Court nor any other body could interfere with that judgment.

7. In the helpful submissions on behalf of the Bank, Mr. Stephen Byrne has drawn the court’s attention to judgments of the High Court of England and Wales which have had to consider a similar issue. In Locabail (U.K.) Ltd. v. Waldorf Investment Corporation (No. 4) [2000] H.R.L.R. 623, Evans-Lombe L.J. stated, at p. 628:-

“I do not accept, that if Mrs Emmanuel succeeds in the ECHR, the result will be to render the judgment of the deputy judge unlawful. The ECHR is not constituted [as] a further court of appeal from the courts of this country … Mrs Emmanuel’s proceedings in the ECHR will be against the United Kingdom for failing to provide a court to decide her case which conformed to her rights as defined by Article 6(1). The ECHR will not determine what equitable rights (if any) [she] has in the two properties in question. Those issues were determined by the deputy judge and his decision has been effectively affirmed by the Court of Appeal so as to make it final. A favourable decision of the ECHR in favour of Mrs Emmanuel will have no effect on that judgment.”

8. Similarly, in Westminster City Council v. Porter [2003] Ch. 436, an application was made akin to the application in this case to stay a monetary judgment entered against the applicant. In refusing the application, Hart J. stated at p. 449:-

“So here, subject to any appeal from it, my judgment today will remain determinative of the obligations of the first defendant to the claimant. The fact that the first defendant may make a successful claim to the Court of Human Rights against the United Kingdom government will have no effect on that judgment. It would only, as it seems to me, be if this court could be presented with a real probability of the enactment of legislation by the United Kingdom parliament which would reverse the effects of my judgment today, that I should begin to consider the question of whether it would be right with that prospect in mind to stay enforcement in the meantime. However, nothing that has been urged on the first defendant’s behalf persuades me that any such prospect exists.”

9. Finally, in Deutsche Bank A.G. v. Sebastian Holdings [2017] EWHC 913, [2017] 6 Costs L.R. 1003, His Honour Judge Waksman, Q.C., sitting as a deputy judge of the High Court of England and Wales concluded, at 1007:-

“It is therefore plain that in the usual course, the fact that there is a pending claim to the ECHR is not a basis for a stay of enforcement of the underlying judgment unless, at the very least, there is a real prospect of a change in legislation as a result of success in the ECHR which would directly affect the judgment in question.”

These principles appear applicable to the present circumstances, save that it is doubtful that any legislation could reverse the outcome of a case finally decided, particularly a decision to which Article 34.5.6° applied.

10. Mr. Beades, for his part, has argued that a stay is appropriate because “the outcome of my application to the ECHR would directly affect the judgment as it would establish that I had an arguable case and it should not have been dealt with summarily”. This, however, is incorrect. The issue for the ECtHR, if the case is deemed admissible, would not involve a consideration of whether Mr. Beades had an arguable defence to the Bank’s claim. It would, instead, involve consideration of whether Irish law was compatible with the Convention. In that regard, while the application appears to complain about the existence of a summary procedure for judgment, it is not entirely clear if it is contended that the existence of such a procedure is itself contrary to the Convention. However, Mr. Beades also referred to Sparks v. Harland [1997] 1 W.L.R. 143, where he argued the court “effectively” stayed or suspended the underlying order so as to await the outcome of an ECtHR claim. The claim there related to a contention that the plaintiff’s claim was statute-barred and reference was made to separate proceedings (which were, in fact, the authority binding on the High Court judge that the claim was statute-barred) where a complaint had been made to the ECtHR and where under the then-applicable procedure the Commission had made a decision that the complaint was admissible and a decision from the ECtHR was imminent. It was argued that if the ECtHR upheld the complaint (and in the event it did not) that a consequence would be retroactive legislation which would, or could, have the effect of benefitting the plaintiff. Sedley J. observed that the Court had power to stay proceedings rather than strike them out, and did so. It does not appear that the case has established any principle. It is, moreover, apparent that this is a rather different scenario to the present: it is perhaps possible that a court may decide not to proceed to judgment where an issue is before the ECtHR where the outcome of that case might affect the domestic case where, for example, it was contended that a particular rule of law had to be interpreted compatibly with the Convention or where it is alleged that legislation is incompatible with the Convention. In such circumstances, depending on the view a court takes, it might adjourn the proceedings and refrain from entering a final judgment. However, that is only of limited assistance here where no Convention (or Constitutional) issue was raised in the proceedings, and a final decision has been made which is now res judicata as between the parties.

11. It is not necessary to hold that there are no circumstances in which a court could grant a stay on its judgment pending a complaint to the ECtHR. The fact is that the Supreme Court has general power to grant a stay and does so, for example, to allow the parties a short time to organise their affairs, but even that jurisdiction involves a consideration of what the parties would or could do during the period of the stay. It is apparent here, however, that the application is based on the misconception that the determination of the European Court of Human Rights would, itself, overturn the decision of this court. If, therefore, there is a jurisdiction to grant a stay in circumstances where an application has been made to the European Court of Human Rights, it must be in circumstances which can truly be said to be exceptional and unusual. It is accordingly necessary to briefly consider the terms of the complaint made to the European Court of Human Rights.

12. It is apparent from a perusal of that complaint that it raises different complaints in respect of two separate proceedings. The present proceedings form only part of the application made to the ECtHR. The essential complaint, as formulated, appears to be one relating to the procedure for the grant of summary judgment if it is determined that there is no arguable defence, and secondly, that Mr. Beades appeared in these proceedings without legal assistance. It is also asserted that he raised a defence that “notwithstanding the written terms of the original loans” the agreement was “subject to the bank’s undertaking to continue funding the development until the apartments would be completed” and that the Supreme Court “failed to give reasons concerning whether the defence was arguable or not. Indeed, it did not specify the basis of such defence as set out in the defendant’s affidavit or in submissions to the court”.

13. While this might be a matter for the ECtHR in due course, the judgment of the 29th of July, 2019, sets out and addressed what Mr. Beades had argued on the appeal. As observed, he studiously refused to acknowledge receipt of the loans, although that appears now to be admitted by him for the purposes of his application to the ECtHR. He also raised what was described as a “vestigial” counterclaim and conducted an extensive, if fruitless, examination of the transcripts of all the applications and hearings before the High Court. Finally, he raised certain procedural points which were determined. It is noteworthy that he did not raise any issue of fact in relation to legal aid or assistance, or raise any contention of law relating to the availability of legal aid or to the law relating to applications to enter final judgment, whether by reference to the Constitution of Ireland or to the European Convention of Human Rights Act 2003. It is not immediately apparent that Mr. Beades has raised any issue that casts doubt on the finality of the judgment. If, however, he were to succeed in the ECtHR, that court has power to grant him a remedy, which would by definition be a remedy for the breach which he now alleges, and therefore the existence of those proceedings is not in itself a good reason to take the exceptional step of imposing an indefinite stay on a judgment that is final and conclusive.

14. Finally, it is noteworthy that, consistent with the position of the European Court of Human Rights as a court which can entertain complaints made against Member States, that court has power to issue interim measures restraining action by the Member State pending a determination of an issue before the ECtHR. It does not appear that this jurisdiction was invoked in this case.

15. In all the circumstances, it is sufficient to conclude that the facts of this case do not reach the level where the court might have to consider whether, and exceptionally, a stay could be granted on a final and conclusive judgment because a party has made a complaint to the European Court of Human Rights. Accordingly, the application for a stay is dismissed. The Court will, however, grant a short stay to permit Mr. Beades to arrange his affairs, if that is possible, and address the consequences of the judgment. The Bank has not been particularly active in pressing this claim and, accordingly, it does not appear that a short stay could prejudice the Bank. Having regard, however, to the fact that the substantive judgment was delivered almost three months ago, a significant period has already elapsed, during which Mr. Beades could have taken any steps to put himself in a position to satisfy the judgment and/or negotiate with the Bank, and it is appropriate to grant a further 4-week stay as and from today’s date.