Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF THE CONSTITUTION

BETWEEN

BETWEEN

RESULT: The Court does not grant leave to appeal to this Court under Article 34.5.3 of the Constitution from the order of the Court of Appeal made on the 28th July, 2017.

REASONS GIVEN:

1. Jurisdiction

This determination relates to the application of the appellant in the underlying proceedings (“Mr. C”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., sitting as a single judge) which was delivered ex tempore on the 28th July, 2017.

As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

This application arises out of the same substantive issue as that with which Determinations IESCDET 97 and IESCDET 98 are concerned – that is, the applications brought by Mr. C pursuant to Article 40.4 of the Constitution to have his 94-year old mother (“A C” referred to as “Mrs C”) released from what he alleges to be unlawful detention in a hospital. The background is set out in IESCDET 97 and will not be repeated here.

3. The Order appealed against

Mr. C’s appeals against the refusal of relief in each of his two applications under Article 40.4 remains pending before the Court of Appeal and a hearing date has been allocated

On the 28th July 2017 Mr. C moved a motion before the President of the Court of Appeal seeking a number of reliefs which can be summarised as follows:

(i) An order for the early trial of certain issues described by Mr. C as “preliminary” questions of law. These were: the lawfulness of all reports and orders made in the wardship proceedings, where Mr. C claims that the process was flawed by reason of the absence of a “mother document”, the absence of a “visible date of perfection” on the orders; the “intermingling” of the Article 40.4 and wardship procedures; the admission of hearsay evidence in breach of Mrs. C’s right to medical confidentiality; breach of the rules of the Superior Courts; unfair procedures in the High Court; and the failure to serve the wardship orders on Mrs. C’s children.

(ii) An injunction to prevent the administration to Mrs. C of specified medications which, it is alleged, will cause her early death.

(iii) An order that Mrs. C be given her liberty and permitted to return home.

(iv) A declaration that Mrs. C is not of unsound mind.

(v) A declaration that the High Court procedure was unconstitutional.

(vi) A declaration that Kelly P. is not entitled to take decisions in a matter where his orders are under appeal.

(vii) Such orders as are necessary to enable Mrs. C’s children to visit her twice a day while she remains in hospital.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

The notices filed by the applicant and the respondents are available on this website.

Mr. C submits that Ryan P. erred in thinking that he could not determine the application before him when sitting as a single judge, arguing that O. 86 RSC permits a judge of the Court of Appeal to make interlocutory or procedural orders in the circumstances. In the alternative, that Court should have made three judges available for the hearing of the motion, or given the case priority over another case.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

This application does not meet the criteria set out in the Constitution for leave to appeal to this Court. The order complained of was made in the course of pre-hearing case-management, and this Court will interfere with that process only in the most exceptional circumstances.

Mr. C has clearly misunderstood the nature of that jurisdiction. The orders sought by him are almost all in the nature of final orders and are, as Ryan P. pointed out, matters to be dealt with in the hearing of the appeal before the Court of Appeal on the 27th November 2017.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And It is hereby so ordered accordingly.