Supporting Documents:
 
THE SUPREME COURT
DETERMINATION AURIVO CO-OPERATIVE SOCIETY LIMITED RESPONDENT APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.
Result: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.
Reasons Given:
1. The notices lodged by the applicant and respondent are available on this website.
Jurisdiction
2. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
3. 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; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:
“1º The Court of Appeal shall –
(i) Save as otherwise provided by this Article,
(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 also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
4. Article 34.4.3° 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 its decisions under Article 34.5.3°.
5. Under Article 34.5.4˚ it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a “leap-frog” appeal.
6. The Article relevant to this appeal is Article 34.5.3°, which states:
7. The decision of the Supreme Court under Article 34.5.6 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.
9. The statutory framework for the exercise of the right to appeal 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.
10. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
11. The Constitution has retained the entitlement of one appeal as a 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.
No precedential value
12. The Court considers it desirable to point out that a determination of the Court on an application for leave, which is final and conclusive as far as the parties are concerned, is a decision in relation to that application only. The decision is whether the question, or questions, raised, and the facts underpinning them, meet the constitutional criteria for leave. Save in the rarest of circumstances, it will not be appropriate to rely upon a grant or refusal of leave as having a precedential value in relation to the substantive issues or in the context of different cases. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of this Court.
Background facts and procedural history
13. In this application the applicant seeks leave to appeal against a decision of the Court of Appeal that he says was given on the 28th October, 2016, in proceedings entitled Aurivo Co-operative Society v. Tolan. The neutral citation he gives is [2016] IECA 131, which in fact relates to a written judgment delivered on the 5th May, 2016, in Tolan v. Connacht Gold Co-Operative Society. (Connacht Gold is now Aurivo).
14. Leave to appeal to this Court from that latter decision has already been refused – see [2016] IESCDET 107.
15. What did occur on the 28th October, 2016, was an order dismissing the applicant’s appeal against a High Court order granting summary judgment in the sum of €154,830.66 to the plaintiff. Those proceedings had been dealt with in the High Court by Ryan J., as he then was, on the 4th November, 2013. On the 5th December, 2013, the Supreme Court had granted a stay on the High Court order pending the determination of separate proceedings that were listed in the High Court for the 18th February, 2014. Those proceedings were the aforementioned Tolan v. Connacht Gold Co-Operative Society Ltd.. Mr. Tolan, in summary, claimed that he had a binding contract with the co-operative as to terms and periods of credit, and that he was badly damaged and, in effect, put out of business by a unilateral alteration to those terms. He was unsuccessful in these proceedings in both the High Court and the Court of Appeal, and this Court refused leave to appeal on the 7th July, 2016.
16. According to the respondent’s notice, the matter now under consideration was then listed before the Court of Appeal on the 28th October, 2016. Again according to the respondent, the Court inquired of counsel for the applicant whether the decision in Tolan v. Connacht Gold disposed of the issues in Aurivo v. Tolan and was told that such appeared to be the case. The Court then dismissed the appeal.
17. In his notice of application, Mr. Tolan asserts that counsel had attended at the Court of Appeal only for the purpose of fixing a date for the hearing. He believes that counsel had then intended to lodge submissions that would have been beneficial to him. It is clear that he wishes to argue again the issues about the terms of credit. There is an assertion that new information has come to light, resulting in the re-opening of the High Court proceedings. He gives no detail at all as to what he means by that, but according to the respondent Mr. Tolan is attempting to re-open the proceedings on the basis of allegations about the conduct of the trial judge.
18. Having regard to the earlier determination of this Court, the applicant has not shown any ground that meets the constitutional criteria for an appeal. Leave will therefore be refused.
And it is hereby so ordered accordingly.
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