Supporting Documents:
 Appl.for Leave to Appeal. doc.pdf  Respondent_s Notice.DOC
THE SUPREME COURT
DETERMINATION
BETWEENPAUL MC CANN AND PATRICK DILLON
AND BANK OF SCOTLAND PLAINTIFFS AND
THE TRUSTEES OF THE VICTORY CHRISTIAN FELLOWSHIP BEING
BRENDAN HADE SHEILA HADE AND GERRY BYRNE DEFENDANTS / APPLICANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court declines an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 10th June 2015 by Mahon J, Peart and Hogan JJ concurring, [2015] IECA 117.
REASONS GIVEN:
1. This determination concerns an application to appeal to the Supreme Court from the judgement of the Court of Appeal dated 10th June 2015. This in turn was an appeal from the judgement of the High Court dated 29th November 2013, Gilligan J. Summary judgement was granted to the Bank of Scotland PLC in the High Court in the sum of €18,758,244.88 and costs. On appeal it was conceded by the Trustees of the Victory Christian Fellowship, through counsel, that the said sum was due and owing. Instead, the Trustees sought declarations that Paul McCann and Patrick Dillon had been invalidly appointed receivers by Bank of Scotland and orders were sought requiring the receivers to vacate two different premises.
2. The grounds upon which those reliefs were sought from the Court of Appeal related to alleged representations by the Bank of Scotland to the Trustees; receipt by Bank of Scotland of confidential information allegedly unlawfully passed on by a person herein named as Mr Epsilon without the permission of the Trustees; and certain other arguments.
3. In the judgment of the Court of Appeal of 10th June 2015, reference is made to the normal “obligation on a party not to disclose confidential information without authorisation.” Reference is also made to the fact that Mr Epsilon could have “felt himself under a legal obligation to inform the bank of information (albeit received by him in confidence) … which was information which was potentially detrimental to the interests of the [Trustees]) which had the effect of invalidating some or all of the contents” of an earlier report made by him. This disclosure was argued before the Court of Appeal to have invalidated the appointment of the receivers. The disclosure was about the withdrawal of charitable status and certain receipts related to building works, apparently. Other grounds were also argued.
4. The judgment of the Court of Appeal shows at paragraph 42 why the arguments of the applicant Trustees were not accepted:
The reality in this case is that the [Trustees], by the end of May 2013 were rapidly heading towards a fairly hopeless situation in terms of reaching a compromise with the bank. Refinancing through Bank of Ireland had not been realised (and was unlikely to be so), the indebtedness of the bank was substantial, and was increasing. The bank had a contractual entitlement to appoint receivers, and had a reason for so doing in any event in the absence of the confidential information being disclosed to them. To this extent the bank, in making a decision to appoint a receiver, will usually take into consideration a variety of factors and information. It may have been the case and probably was the case, that the confidential information provided to it by [Mr Epsilon] did go some way to prompt the bank to make its decision to appoint receivers. However, it has not been established as a matter of probability that the confidential information disclosed to the bank caused or contributed in any major way to its decision to appoint receivers, or that in the absence of such information, the bank would not [have] moved in any event to appoint receivers. It is also a fact that the withdrawal of the charitable tax status by the Revenue Commissioners, which was clearly of concern to the bank, was information disclosed to it on 28th May 2013 with the authority of the [Trustees], and this information was therefore properly available to the bank prior to the appointment of the receivers, albeit only shortly before their appointment. It is almost certainly the case that the decision to appoint receivers had been taken, at least in principle, prior to this information being disclosed to the bank…
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; under Article 34.2 establishes the Court of Appeal; and under Article 34.5.3° sets out its appellate jurisdiction. This reads:
4 1° The Court of Appeal shall—
i save as otherwise provided by this Article, and
ii with such exceptions and subject to such regulations as may be prescribed by law,
have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
6. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The article relevant to this appeal, that where the Court of Appeal has already given judgment on a matter, is now quoted:
3° The Supreme Court shall, subject to such
regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—
i the decision involves a matter of general public importance, or
ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.
7. The decision of the Supreme Court under Article 34.5.5° is in all cases “final and conclusive.”
8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
9. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
10. On the question of an issue or issues of general public importance, the applicant Trustees argue that the Court of Appeal failed to “correctly balanced the legal and equitable rights of the parties.” The Trustees asserted that the decision of the Court of Appeal has “created confusion as to the correct balance between the legal and equitable rights of parties; particularly in the case of a financial institution.” General claims are made that issues in relation to confidentiality and receivers are of general public importance. Furthermore, it is argued that this appeal should be allowed because the Court of Appeal “failed to have regard to the interests of justice which weighed in favour of the [Trustees] being aware of the confidential information before the bank exercised its contractual rights against them.” This, it is claimed is both of general public importance and that, further, it is in the interests of justice that the issue be determined by the Supreme Court.
11. The respondent, Bank of Scotland PLC, opposes the application for leave to appeal. It is claimed that the matter is not one of general public importance. Bank of Scotland claimed that there has been no failure to “correctly balance the legal and equitable rights” of the parties; that the matter in relation to the disclosed information concerning the withdrawal of charitable status and the receipts issue was small in comparison with the difficult financial situation of the Trustees. This issue, Bank of Scotland claim is a matter concerning “the contents of an undisputed private contract”.
12. From the standpoint of the tests whereby this Court may assume jurisdiction to allow an appeal from a judgment of the Court of Appeal under Article 34.5.3° of the Constitution, the applicant Trustees have not met these. The points made are not of general public importance. The case concerns a private contract which allowed the appointment of receivers in particular circumstances. The debt in question is not disputed. While relations between bank and its clients may carry an obligation of confidentiality, this is not the case in which to consider whether duties of candour may also arise from clients in favour of banks. These points have not been argued in this case. Instead, the focus has been on particular facts in relation to whether the undoubted indebtedness of the Trustees should not have applied in particular circumstances so as to enable as a matter of private contract the Bank of Scotland to appoint receivers. No fundamental test as to the administration of such a private arrangement is engaged in the Court of Appeal judgment and there is nothing in the analysis that might be said to impact more generally and outside the specific and individual circumstances of this case.
13. On neither ground as set out in Article 34.5.3° does this Court have an entitlement under the Constitution to allow an appeal from the Court of Appeal in this case.
14. It follows that the applicant is not entitled to a further appeal.
AND IT IS HEREBY ORDERED ACCORDINGLY
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