Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court refuses leave to the applicant to appeal to the Supreme Court.

Reasons given:

1. This is an application for leave to appeal against a decision of the Court of Appeal (O’Donoghue v. Allied Irish Banks plc and others [2017] IECA 177) in which that Court upheld the order of the High Court (Gilligan J. - O’Donoghue v. AIB Mortgage Banks plc and others [2017] IEHC 344) refusing the reliefs sought by the applicant and striking out his proceedings as being bound to fail.

2. The applicant had sought an order restraining the defendants from taking any steps in pursuit of the disposal of all or part of the Government of Ireland shareholding in the defendant bank. His contention was and is that the sale of the shares would be contrary to the common good and thus unlawful having regard to Article 6 of the Constitution. The applicant believes that it is in the interests of the common good that the shareholding continue to be in public ownership.

3. Article 6 of the Constitution reads as follows:

(1) All powers of government, legislative, executive and judicial, derive under God from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.

(2) These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.

• The Minister’s shareholding had been acquired pursuant to the provisions of the Credit Institutions (Financial Support) Act 2008. Those provisions had been held to be constitutional by this court in Collins v. Minister for Finance [2016] IESC 73, and the Act required the Minister to recoup any financial support given to credit institutions so far as possible.

• The order sought by the applicant would sterilise the Minister’s shareholding and prevent him from exercising the right of any shareholder to sell his shares.

• The applicant had adduced no evidence that it was in the interest of the public good that the sale be restrained. He was contending that his own personal argument as to what was good for the people of Ireland should prevail over the views of elected members of Government.

• No personal interest of the applicant was affected by the proposed sale.

• The applicant’s undertaking as to damages was not capable of being sustained.

• The applicant had delayed in instituting proceedings.

• No claim or cause of action had been made out as against the bank and the proceedings as against it were accordingly frivolous and vexatious.

• So far as the proceedings against the State parties were concerned, the issues in the case were purely political and the court had no legal competence to determine them.

• The case made by the applicant would require the breaching of European Union law in that the State aid afforded to the bank was permitted on the basis of express conditions.

The application for leave

6. The notices filed by the applicant and the respondents are available on this website and it is not proposed to summarise them here.

7. The Court also considers it desirable to point out that a determination of the Court on an application for leave, while 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 precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues upon which leave has been granted, will in due course be disposed of in the substantive decision of the Court.

Decision

8. In order to obtain leave to appeal to this Court an applicant must demonstrate that the application raises a question of general public importance, or that it is otherwise in the interests of justice that an appeal should be brought. This application does not meet the constitutional criteria. The applicant has failed entirely to deal with the primary argument against him – that this is a non-justiciable controversy involving a matter that is entrusted by the Constitution to the elected government of the State – other than by asserting that the Court of Appeal erred in so finding. The decision of that Court was based on well-established jurisprudence on the separation of powers.

9. While the subject-matter of the application could undoubtedly be described as concerning the public interest, it is the view of the Court that the appeal is manifestly unstateable as a matter of law. Leave will therefore be refused.

And it is hereby so ordered accordingly.