Supporting Documents:
162-18 AFL.pdf 162-18 Respondnets Notice.pdf

THE SUPREME COURT

BETWEEN

RESULT: The Court does not grant leave to the Defendant / Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 12th November, 2018

DATE OF ORDER: 12th November, 2018

DATE OF PERFECTION OF ORDER: 12th November, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 13th November, 2018 AND WAS IN TIME.

General Considerations

1. 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 33rd 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 determination.

2. Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3. In that context it should be noted that the respondent opposes the grant of leave.

Decision

4. As appears from the applicant’s notice filed, the essential argument advanced by the applicant (“Mr. Carty”) is that the original order made by Gilligan J. (in respect of which Mr. Carty was found to be in contempt thus leading to his committal) involved taking a different view of the law from that adopted by McDermott J. in what is said to be a similar case.

5. A number of factors need to be identified in relation to that argument. First, Mr. Carty has never sought to appeal the original order of Gilligan J. A party is bound to obey an order of the Court as long as it stands or else risk being found in contempt. If a party considers that an order of the Court which is adverse to them is wrong in some respect then it is not open to that party simply to ignore the order concerned, but rather it is incumbent on the party in question to seek to have that order changed whether by appeal or otherwise.

6. In those circumstances, it must be open to at least some doubt as to whether the issue which Mr. Carty wishes to raise truly arises in the context of a potential appeal from the committal order made by Allen J, being the order which Mr. Carty actually seeks to appeal. The underlying reasoning behind that order stems from the fact that an order had been made by Gilligan J. and the finding of the trial judge that Mr. Carty was in contempt by being in breach of that order.

7. However, it is unnecessary for the purposes of this application to reach any definitive conclusion on that question. As noted earlier, it is no longer the constitutional function of the Supreme Court simply to correct what are said to be errors in judgments. This is particularly so where what is said to be in error is a judgment of the High Court in respect of which the ordinary constitutional route of review is to appeal to the Court of Appeal. If Mr. Carty is correct in asserting that there are inconsistencies between differing judgments of the High Court (and this Court expresses no view on that question) and if he is also correct in arguing that those inconsistencies are relevant to the particular question of whether Allen J. was correct to find him in contempt, then the appropriate course of action is to appeal, in the ordinary way in which the Constitution provides, to the Court of Appeal.

8. There are no exceptional circumstances disclosed which would justify a direct appeal to this Court. On that basis the Court refuses leave to appeal.

And it is hereby so ordered accordingly.