Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to Thomas Kearney to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. This determination relates to an application brought by Thomas Kearney in person, the applicant, referred to as “the applicant”, in which he is applying for an extension of time to apply for leave to appeal and, if that is successful, he seeks leave to appeal to this Court from the decision of the Court of Appeal given on the 23rd February, 2015, which was perfected on the 10th March, 2015.

2. Bank of Scotland plc and Patrick Horkan are the defendants/respondents, and are referred to as “the respondents”.

3. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-

“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.”

5. 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.

6. 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.

7. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. 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.

8. In the application the applicant seeks to appeal the entire decision of the Court of Appeal.

Extension of time

9. The applicant certified that the application for leave and notice of appeal in this matter was served on Mason, Hayes and Curran, Solicitors for the respondents, on the 22nd April, 2015.

10. The applicant was thus out of time, a matter which he explained as being due to his ill-health. The applicant sought from the Supreme Court Office the appropriate forms to make an application to enlarge time for service of a notice of appeal. The applicant provided to the Supreme Court Office a medical certificate.

11. The respondents opposed the applicant’s application for an extension of time on a number of grounds, which were considered by the Court.

12. It is clear that the applicant became ill, and a medical certificate provided speaks of a serious illness.

13. In the circumstances, which include the applicant’s ill-health, the fact that he is a lay litigant, and that he had commenced steps to make the application within the time provided for in o.58 r.4 of the Superior Courts Rules, the Court will extend time to make the application for leave to the 22nd April, 2015.

14. On the 17th April, 2015, the applicant lodged an application for leave and notice of appeal to the Supreme Court in the Office of the Supreme Court.

15. The applicant seeks leave to appeal against the decision of the Court of Appeal (Kelly, Irvine and Hogan JJ.) on the 23rd February, 2015. An ex tempore judgment was delivered by Kelly J., with which Irvine and Hogan JJ. agreed.

16. The matter before the Court of Appeal was an application by the applicant for an order extending time within which to file a notice of appeal against the order of the High Court (Kearns P.) made on the 18th November, 2014.

17. The Court of Appeal refused the application for an extension of time within which to file a notice of appeal, and ordered that the applicant pay to the respondents the costs of the motion to be taxed in default of agreement.

18. The ex tempore judgment of Kelly J. sets out the three matters to be taken into account by a court in considering extending time for leave to appeal in accordance with Eire Continental Trading Company v. Clonmel Foods Limited [1955] I.R. at 170. The Court of Appeal accepted that it could be inferred that the applicant had a bona fide intention to appeal formed within the permitted time, thus the first ground was met. The Court of Appeal concluded that the applicant had demonstrated a form of mistake, which satisfied the second matter under Eire Continental.

19. Thus, the issue before the Court of Appeal was whether the applicant had established that an arguable ground of appeal exists. The Court of Appeal considered the order made by the President on the 18th November, 2014, the notice of appeal to the Court of Appeal, the allegations made against Kearns P., the statement of claim of the applicant against the respondents, and recent court decisions. Kelly J. concluded:-

“… it is difficult to see how the President could come to any conclusion other than the one which he did namely, that this action ought to be struck out. That is what he was invited to do by the [respondents] on the hearing at which [the applicant] did not choose to be present, notwithstanding that that hearing was specifically fixed and notwithstanding the fact that he had apparently retained the services of a stenographer to attend with a view to taking a note of what went on even though he himself did not attend.

In these circumstances, I am driven to the conclusion that [the applicant] has failed to demonstrate the existence of an arguable ground of appeal. Therefore, he fails on the third of the three matters identified in Eire Continental Trading v. Clonmel Foods. Accordingly, he does not come within the area where this Court can exercise its discretionary jurisdiction in his favour. For my part I would refuse the application for an extension of time within which to appeal.”

“Article 34.6.1° of the Constitution of Ireland states that ‘Every person appointed a judge under this Constitution shall make and subscribe the following declaration’

‘In the presence of Almighty God I, do, solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.’

The passages written hereunder, at Section 6 of this Form 1, clearly give witness to instances where some judges have not subscribed to the above declaration. They also show instances of some judges failing in their duty to execute their office (as judges), without fear or favour.

It is not facetious or disrespectful to suggest that perhaps it is time to seek an Amendment to the wording of Article 34.6.1° of the Constitution of Ireland, so as to accommodate those judges who would knowingly choose to violate their declaration; a declaration that is actually written into the Constitution, thus, a declaration that is an integral part of the Constitution of Ireland – as expressed at Article 34.6.1° of that Constitution.

[Emphasis added]”

22. The respondents opposed the application for leave to appeal, as set out in their response.

23. Having considered all the papers in this application the Court is not satisfied that the decision of the Court of Appeal involves a matter of general public importance or that it is necessary in the interests of justice that there be an appeal to the Supreme Court.

24. The applicant has had an appeal to the Court of Appeal which was determined as set out above. The application of the applicant does not raise issues within the jurisdiction of the Supreme Court.

25. In all the circumstances, the Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

And it is hereby so ordered accordingly.