Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to the First Named Defendant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the first named defendant in the underlying proceedings (“Mr. Darcy”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Charleton, Peart and Irvine JJ.) delivered on 14 July 2016. The order appealed against was also made on the 14 July 2016 and perfected on the 18 July 2016. 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 a 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

In these proceedings generally the plaintiff bank (“AIB”) sought orders to the effect that very substantial debts alleged to be due by the defendants (“the Darcys”) to AIB stand well charged on certain properties together with ancillary orders. AIB’s proceedings succeeded in the High Court before Keane J. and an appeal was brought to the Court of Appeal.

3. The Order appealed against

There are in fact two separate applications for leave to appeal before this Court arising out of the same judgment of the Court of Appeal. This determination relates to the application brought by Mr. Darcy. Insofar as relevant to that application for leave the Court of Appeal had to consider an argument put forward on behalf of Mr. Darcy which centred on a previous appeal brought in these proceedings to this Court. In order to understand the point raised and the decision of the Court of Appeal it is necessary to say just a little about the prior history of proceedings between the parties. On the 22nd July 2010 AIB issued previous proceedings against the Darcys seeking possession of the same properties. McGovern J. in the High Court granted an order for possession on the 16th April 2012. An appeal was brought against that order to this Court. This Court took the view that, in the light of the decision in the High Court by Dunne J. in Start Mortgages v. Gunn [2011] IEHC 275, there was an arguable issue between the parties as to whether AIB was entitled to possession and an order remitting the matter to plenary hearing was made.

AIB ultimately decided to discontinue those proceedings and also instituted these new proceedings on the basis that the law in the intervening period had been amended by reason of the Land and Conveyancing Law Reform Act 2013. One of the issues which was argued before the Court of Appeal was that the discontinuance of the earlier proceedings and the commencement of new proceedings to the same end was impermissible either because it was in breach of the previous order of this Court remitting the earlier proceedings to plenary hearing or because it amounted to an abuse of process. The Court of Appeal rejected that argument, amongst others, and dismissed the appeal.

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.

In his notice of application it is asserted that there has been no-compliance with the earlier order of this Court which was said to have deprived Mr. Darcy of a right to a fair hearing. It is said that the Court of Appeal lacked jurisdiction to interpret or vary a previous order of this Court. The application does not expressly set out the basis on which it is said that the constitutional threshold for leave to appeal is met.

In substance AIB suggest that no arguable basis for the appeal is put forward and that any issue is not of general public importance.

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.

The principal point on which Mr. Darcy seeks to place reliance is based on a misunderstanding of the effect of this Court’s previous order in these proceedings. This Court ordered that the proceedings “be adjourned to plenary hearing as if these proceedings had been commenced by plenary summons” and gave directions that the matter be remitted to the Chancery List to be further prosecuted there. There is nothing in that order which required that the case necessarily had to be prosecuted by AIB to a final decision after a plenary hearing. On the contrary the order makes clear that the matter was to be conducted as if it had been commenced by plenary summons. But any case commenced by plenary summons can be discontinued.

It can, as the Court of Appeal noted, sometimes amount to an abuse of process to discontinue one case only to start more or less the same case again in the future. However, there is no reason in principle why a party cannot avail of a change in the law which is to its advantage by discontinuing existing proceedings and commencing new ones at a time when the more advantageous amended law had come into force. There is, therefore, no substance to the point put forward and, in accordance with the decisions of this Court in cases such as Lyons v. Ireland and ors [2015] IESCDET 38, the Court will not grant leave to appeal.

6. Conclusion

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

And It is hereby so ordered accordingly.