Supporting Documents:
134 of 16 AFL.pdf Resp Notice. 134 of 16.doc

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF A PETITION FOR ADJUDICATION OF BANKRUPTCY BY NOEL SHERIDAN AND PETER QUINN TRADING UNDER THE STYLE AND PRACTICE OF SHERIDAN QUINN SOLICITORS AGAINST JOHN GAYNOR

RESULT: The Court does not grant leave to appeal.

REASONS GIVEN:

1. Jurisdiction

This is an application for leave to appeal against a decision of the Court of Appeal (the President, Irvine J., Fullham J.) granting an order pursuant to Order 86, rule 12 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court dismissing a notice of appeal issued by the applicant on the 4th January, 2016 against the order of the High Court (Costello J.) made on the 7th December, 2015 on the basis that the same was time-barred, the said motion having been adjourned to the 10th October, 2016 on a peremptory basis, when it was ordered that the motion be granted and that the said appeal be dismissed and that the applicant herein pay costs to the respondents of the motion and of the appeal, to be taxed in default of agreement.

As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the Thirty Third 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 interests of justice necessary that there should 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 as 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. Background and the Application for leave

The notices filed by the applicant and the respondents are available on the Courts Service website. Nevertheless, given that the applicant is a litigant in person, it may be helpful to set out more detail by way of background.

It should be noted that the applicant has sought an extension of time within which to apply for leave to appeal as when he attended in the office of the Supreme Court on the 7th November, 2016 for the purpose of submitting his application for leave to appeal, the form of appeal provided by him was not in compliance in accordance with the Rules of the Superior Courts and ultimately it was necessary to submit a version of his application for leave in the format in which it now appears. The respondents in their response object to the extension of time on the basis that the applicant has not identified any lawful excuse for his failure to submit a properly prepared application for leave to appeal within the time provided by the Rules of the Superior Courts. In the circumstances of this case, bearing in mind the fact that the applicant is a lay litigant (although it appears from the respondents' notice that he may have some form of assistance from his former solicitor) and given that he first attempted to apply for leave to appeal within the time fixed for doing so by the Rules of the Superior Courts, it is the view of the Court that it would be appropriate to extend the time for making the application for leave to appeal. The application was in fact furnished to the Court on the 25th November, 2016.

That is not the only procedural difficulty in relation to the matter. The matter was referred to the Court by the Registrar of the Supreme Court in accordance with paragraph 8(d) of Practice Direction SC16 in circumstances where the applicant for leave to appeal did not comply with the requirements of the Practice Direction in relation to the filing of books of additional papers. Notwithstanding the fact that the appropriate book of additional papers have not been filed by the applicant, the Court is of the view that it is in a position to deal with this matter, however unsatisfactory it is to have to do so in the absence of all the appropriate papers required by Practice Direction SC16.

The application for leave to appeal arises from a decision of the Court of Appeal on appeal from a decision of the High Court in bankruptcy proceedings brought against the applicant by the respondents. It is necessary to set out some detail as to proceedings in the High Court. In essence, the applicant has complained about the manner in which the bankruptcy proceedings were conducted in the High Court. The applicant's complaint related not only to the hearing before the High Court itself but also to the fact that he had been prevented from bringing an application to the High Court under the provisions of s. 8(5) of the Bankruptcy Act 1988. It appears that for reasons which are not entirely clear from the papers before the Court that the applicant was prevented from filing such application in the Central Office (there is a suggestion in the papers that the application was not appropriately formulated) and that as a consequence of the refusal by the Courts Service to accept or issue his application to dismiss the bankruptcy summons, the applicant brought judicial review proceedings against the Courts Service. His application for leave to apply for judicial review was dismissed by order of the High Court on the 30th November, 2015 but in the meantime Costello J. indicated in the High Court that she would permit the applicant to argue the issues which he stated gave rise to his desired application to dismiss the bankruptcy summons.

The applicant is obviously aggrieved by the process that took place in the course of the bankruptcy proceedings, but it is clear that the essence of his complaint lay in a judgment obtained by the respondents against him on the 8th December, 2003. The applicant has contended that there has been "fraud to which the applicant has been subject since 2003". He stated in his application that:

"Evidence of this 2003 fraud is clear, both as to the fact of fraud and as to the Courts Service knowledge of it. Strong corroborative evidence in the form of 'the record' emanating from the Court and Courts Service remained in disputable and unchallenged and rendered the order of possession of Ms. Justice Finlay Geoghegan unenforceable.

The Courts Service when given an opportunity to answer for how an order came into being on the 8th December, 2003 failed to provide any adequate answer or explanation for how the document calling itself a Court Order bearing a date of 8th December 2003 arrived upon the record.

A Court Order could not properly be expected in Cause 2002 539S Peter Quinn and Noel Sheridan v. John Gaynor on December 8th 2003 (a) without a Court listing on that date, (b) on the removal of the aforesaid cause from the common law list before it could be adjudicated upon on the 17th November 2003 by Judge Donovan, (c) the failure to list or to order its re-entry on foot of a motion the before the Court for re-entry into the common law list, (d) the transfer of the said motion to the 'Examiner's Court' which lacked jurisdiction to list it, adjourn, hear it, or adjudicate upon it and (e) the evidence upon the record of the failure to transfer the motion back to the common law lists, (f) the evidence that the cause then expired.

The the (sic) only realistic inference for the Court to to (sic) draw on the material before it emanating from the record by the Court is that of forgery of a document bearing date of the 8th December 2003 and the subsequent passing of it as the outcome of a Court adjudication which was pronounced, uttered and spoken by the judge named thereon.

The falsified record and the certification of it as being true by the Courts Service in and of itself makes out a sufficient case of fraud as does the Courts Service correspondence of the principal registrar, Registrar of the Examiner's Court and head of Supreme Court and High Court Operations which stand upon the record."

3. The Respondents' Notice

The respondents in their notice set out some information by way of background to this matter. They are solicitors and the applicant is a former client of theirs. They represented him in previous proceedings. Subsequently, an order was made in favour of the respondents by the High Court dated the 8th December, 2003, that they recover from the applicant the sum of €77,016.57 in respect of legal fees due and owing by the applicant to the respondents. A sum of €13,529.67 was paid by the applicant to the respondents on or about the 6th January, 2004. The balance of the judgment remained unsatisfied and the sum of €63,486.90 remains due and owing by the applicant to the respondents. On the 16th February, 2004 the respondents registered a judgment mortgage in respect of the applicant's interest in certain of his lands. Proceedings were then issued by the respondents seeking a declaration that the judgment mortgage was well charged on the applicant's interest in the lands and seeking an order for sale. An order was made by the High Court on the 12th July, 2004 declaring that the principal sum secured by the judgment mortgage was well charged on the applicant's interest in his lands and it was further ordered that those lands be sold in default of payment by the applicant within one month from the date of the said order.

A further order was made by the High Court on the 11th March, 2013 whereby the applicant was directed to deliver up to the respondents clear and vacant possession of the lands and costs of that application were directed to be paid by the applicant to the respondents when the same were taxed and ascertained. A certificate of taxation measured costs of €37,193.60 as being due and owing by the applicant to the respondents on foot of the said costs order. The certificate of taxation was dated the 22nd April, 2015. No appeal was lodged by the applicant against the costs order or the certificate of taxation.

A demand was made on the 14th May, 2015 calling upon the applicant to discharge the sum due in respect of costs within fourteen days. The applicant failed to respond to this demand and consequently a bankruptcy summons was issued on the 15th June, 2015. Following the service of the bankruptcy summons on the applicant on the 18th June, 2015, he did not pay the sum referred to therein or secure or compound for it to the satisfaction of the respondents thereby, committing an act of bankruptcy within the meaning of s. 7(1)(g) of the Bankruptcy Act 1988. Thus, it can be seen that the Bankruptcy proceedings are only concerned with the sum due as a result of the taxation of costs in respect of the 2013 application to Court for clear and vacant possession.

The applicant then attempted to lodge what was described by the respondents as "an inchoate, improperly formulated application to dismiss the bankruptcy summons" but did not do so in the prescribed manner and as a consequence the Courts Service refused to accept same. Thereafter the respondents petitioned to adjudicate the applicant a bankrupt. On the 11th November, 2015 the applicant applied for leave to challenge by way of judicial review the refusal by the Courts Service to accept or issue his application to dismiss the bankruptcy summons. On the 30th November, 2015 that application for judicial review was dismissed by order of the High Court. In the meantime, the High Court indicated that the applicant would be permitted to raise any argument that might have resulted in the dismissal of the bankruptcy summons as a defence to the petition in accordance with judgment of the High Court (Costello J.) in Gladney v. O'M [2015] IEHC 718. The petition, having been adjourned from time to time, was heard on the 7th December, 2015 and in the course of the application, evidence was adduced by the applicant and by the respondents and the applicant was permitted to cross-examine the second named respondent but ultimately the applicant was adjudicated a bankrupt. Then, the applicant, as he was entitled to do, made an application to show cause against his adjudication in bankruptcy pursuant to the provisions of s. 16 of the Bankruptcy Act 1988. The applicant did not attend at the hearing of the application and it was dismissed on its merits by order of the High Court dated the 20th April, 2016. No appeal was lodged against that order. In the meantime, the applicant had also lodged an appeal to the Court of Appeal seeking to set aside the adjudication in bankruptcy. An issue was raised by the respondents in relation to whether or not that appeal was time-barred pursuant to the provisions of Order 86A, rule 9(1) of the Rules of the Superior Courts in relation to expedited appeals. On the 19th February, 2016 the respondents were granted liberty to issue a notice of motion seeking to dismiss the appeal. Ultimately the matter came on for hearing on the 10th October, 2016. On that date, the Court of Appeal indicated that it was prepared to treat the hearing of the motion as the applicant's application to extend time within which to appeal and indicated that it was prepared to accept that the first two limbs of the test enunciated in Éire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170 had been satisfied. Accordingly the applicant was invited to identify any arguable grounds of appeal. The applicant maintained that he did not owe any money to the respondents as the judgment in the plenary proceedings dated the 8th December, 2003 had been procured by fraud and he asserted that the provisions of the 1988 Act had not been complied with. He also alleged that he was the victim of a conspiracy by the respondents and members of the judiciary. In circumstances where it was the view of the Court of Appeal that the applicant had not identified any arguable ground of appeal against his adjudication in bankruptcy they acceded to the application to dismiss the appeal.

4. Decision

Following the Thirty Third Amendment of the Constitution, 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, or another Court from which the Court of Appeal has appellate jurisdiction prescribed by law, 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. The text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 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 interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests 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.

It is against that background that it is necessary to consider whether the constitutional threshold is met in this case.

The application for leave to appeal arises from an appeal to the Court of Appeal from a decision of the High Court in bankruptcy proceedings brought against the applicant by the respondents. In essence, the applicant has complained about the manner in which the bankruptcy proceedings were conducted in the High Court. This complaint related not only to the hearing before the High Court itself but also to the fact that he had been prevented from bringing an application to the High Court pursuant to the provisions of s. 8(5) of the Bankruptcy Act 1988.

It is important to bear in mind a number of points. The adjudication of the applicant as a bankrupt was in respect of the sum of €37,193.60 being the amount found on taxation to be due on foot of the order of the High Court of the 11th March, 2013, by which it had been ordered that the applicant was to give up clear and vacant possession of the lands over which a well charging order had been made on the 12th July, 2004 in turn made on foot of the judgment mortgage registered by the respondents. Neither the order for costs nor the certificate of taxation were the subject of an appeal or challenge. The applicant has referred to the order of the 8th December, 2003 as a fraud and has referred to forgery of the court order. If the original order was a "fraud" or a "forgery" as alleged by the applicant, it is difficult to understand why that order was not appealed or challenged within the time limited for seeking to appeal the order or to have the order set aside on the basis that it was a "fraud" or a "forgery". A judge in bankruptcy or indeed in other proceedings will not, in general, be in a position to go behind what appears on its face to be a valid judgment or court order. In circumstances where it appears that no steps were taken by the applicant to have the judgment set aside on the grounds of fraud, it is difficult to see any basis upon which the validity of the judgment could have been challenged in the course of the bankruptcy proceedings. It is not enough for an applicant for leave to this Court to simply make assertions or allegations of fraud in respect of what is on its face a valid Court order, without more. The matters raised by the applicant in his Application for leave are not sufficient. However, it is important to bear in mind that what is in issue in this application is not the judgment of 2003 against the applicant but the decision of the Court of Appeal.

The issues raised by the applicant for leave in this case do not give rise to any issue of general public importance or specify any basis as to why it is necessary in the interests of justice to allow the applicant leave to appeal the judgment of the Court of Appeal. The Court of Appeal gave consideration to the application to dismiss the notice of appeal pursuant to the provisions of the Rules of the Superior Courts on the basis that the same was made out of time. There is no suggestion that in making the order dismissing the notice of appeal the Court of Appeal did not have regard to well established principles in relation to such applications. It must be remembered that while the applicant has raised many issues relating to and surrounding the background to these bankruptcy proceedings which led to the making of the order by the Court of Appeal, the application for leave to appeal is rooted in the decision of the Court of Appeal to dismiss the notice of appeal in accordance with well established principles. The applicant has not engaged with the Constitutional threshold now required to apply for leave to this Court since the 33rd Amendment to the Constitution came into force. Quite simply, the applicant herein has not met the constitutional threshold for leave to appeal to this Court and therefore the application for leave to appeal is refused.

AND IT IS HEREBY SO ORDERED ACCORDINGLY