Supporting Documents:
132-18 AFL.doc 132-18 Rspndts Notice.pdf

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Plaintiff/Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 31st July, 2018

DATE OF ORDER: 31st July, 2018

DATE OF PERFECTION OF ORDER: 1st August, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th August, 2018 AND WAS IN TIME.

REASONS GIVEN:

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. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2. The application for leave filed, and the respondent’s notice thereto, 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 in detail.

Discussion

3. This application has its origins in a dispute between the parties as to the terms of credit extended to the applicant (a cattle dealer) by the respondent mart owner (which later changed its name to “Aurivo”). After a four-day hearing on the merits, in which the applicant was represented by senior and junior counsel, his claim that he had a binding contract on particular terms was dismissed by the President of the High Court. An appeal on the merits was dismissed by the Court of Appeal on the 5th May 2016 (see Tolan v Connaught Gold Co-Operative Society [2016] IECA 131). An application for leave to appeal to this Court was refused (see Tolan v Aurivo Co-Operative Society Limited [2016] IESCDET 107). In separate proceedings, Aurivo obtained an award of damages against the applicant. This was upheld by the Court of Appeal on the 28th October 2016, on the basis that counsel for the applicant conceded in that court that the issues in the case had been disposed of in Tolan v Connaught Gold. A further application for leave to appeal to this Court was refused (see Aurivo Co-Operative Society v Tolan [2017] IESCDET 87).

4. The applicant subsequently sought to re-enter this matter by way of motion in the High Court. He made various complaints about the manner in which his litigation had been conducted and heard. He also alleged that he had become aware in September 2016, for the first time, that the trial judge (Kearns P.) was a brother-in-law of the solicitor he had retained. He sought an order setting aside the judgments of the High Court and Court of Appeal and a rehearing before an “impartial” judge.

5. Having considered the relevant authorities, Noonan J. concluded that the relationship between the President and the solicitor could not give rise to a reasonable apprehension of bias against the applicant, as opposed to the respondent. He also rejected, as being unfounded on evidence, an allegation that the President had discussed the matter with the solicitor in advance of the hearing (see Tolan v Connaught Gold [2017] IEHC 351).

6. This decision was upheld by the Court of Appeal (see Tolan v Connaught Gold [2018] IECA 267).

Decision

7. In his application for leave to appeal to this Court the applicant continues to complain of decisions made by his legal representatives in the original proceedings. These are not matters with which this Court can properly concern itself. He also maintains his complaints in respect of Kearns P. He alleges that the Court of Appeal made certain factual errors in its analysis.

8. The Court considers that no point of law of general public importance arises. In dealing with the issue of objective bias, the High Court and Court of Appeal applied well-established case-law. Complaints about the manner in which litigation was conducted, or about alleged factual errors, do not meet the constitutional threshold for an appeal.

9. Since the applicant has had a full hearing on the merits and an appeal in respect of both his original claim and his subsequent attempt to re-open the proceedings, the Court does not consider that the interests of justice require a further appeal.

And it is hereby so ordered accordingly.