Supporting Documents:
 
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
Brendan Dowling
APPLICANT
AND
ACC Loan Management Limited
RESPONDENT
APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION
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 28th day of April 2015 by Ryan P, Kelly and Irvine JJ concurring;
REASONS:
1. This determination concerns an application brought by the applicant in person, Brendan Dowling, in which the applicant seeks a determination under Article 34.5.3° of the Constitution granting leave to appeal to this Court from the decision of the Court of Appeal delivered on the 28th day of April 2015 by Ryan P, Kelly and Irvine JJ concurring.
2. The applicant was the defendant in High Court proceedings entitled ACC Loan Management Limited, plaintiff v Brendan Dowling, defendant; High Court record number 2013/1056S. Those proceedings sought to recover a loan of money through the summary judgment procedure. Before O’Malley J, the respondent was legally represented while the applicant was self-represented. The High Court decided that the loan should not be determined by the summary judgment procedure. O’Malley J held that an issue as to the proper calculation of interest on the amount due meant that a plenary hearing should take place. This decision was appealed by ACC Loan Management Limited to the Court of Appeal, wherein it was sought to reverse the decision of the High Court thereby obtaining summary judgment against the applicant.
3. In the judgment of the Court of Appeal of 28th April 2015, it was acknowledged that for the applicant to successfully resist summary judgment it was not necessary for him to “prove that he had a good defence.” The test applied was that the applicant had to demonstrate “that he might have a defence if the facts he alleged were accepted as true”. The point raised by the applicant concerned the EURIBOR interest rate, meaning the average interbank interest rate at which European banks are prepared to lend to one another. This rate had been manipulated, according to the applicant, by a group of banks of which Coöperatieve Centrale Raiffeisen-Boerenleenbank BA, parent company of the respondent and generally known as Rabobank, was a participant. Since the precise rate was unascertainable, the interest due on the loan was claimed by the applicant to be uncertain. Further, it was argued that the contract of loan thereby became unenforceable and that an implied term in the contract so rendered it even apart from any considerations of public policy. As against that argument, the respondent claimed that there was no loss shown by the applicant; the connection with Rabobank was not demonstrated; and no element of unenforceability tainted the contract.
4. The judgment of the Court of Appeal shows at paragraph 10 why the arguments of the applicant were not accepted:
Mr Dowling, who presented his case very candidly and very clearly, says what it comes down to is this. If, given a chance, if the matter were referred to plenary hearing and the whole relationship were to be explored, by which I am understanding to mean not just his relationship with ACC, but ACC’s relationship with Rabobank and possibly others as well, if the whole thing were gone into in sufficient detail, you would never know what might come up with, and it might well be that Mr Dowling would discover some materials in that process that would yield up a defence. Unfortunately, from his point of view, that is not a basis on which a court can act, that is an entirely speculative suggestion and there is no reason to suppose that there is any factual basis underlying it.
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 Brendan Dowling has urged that the issues which he raised in the Court of Appeal involve the adherence by judges to their oath of office; that he has no effective remedy for the wrong done to him; and that Article 6 of the European Convention on Human Rights is engaged. It is claimed by him that the interests of justice require an appeal because of the “fraudulent manipulation of interest rates associated with EURIBOR”, which wrong he seeks to ascribe to the respondent claiming that there “were directors common to both banks” at that time. The applicant also claims that non-correct mathematical calculations were presented to the Court of Appeal and further asserts that a plenary hearing is required in order to arrive at a reasoned calculation of loss.
11. The respondent, ACC Loan Management Limited, opposes the application for leave to appeal. It is claimed that the matter is not one of general public importance; that no novel legal issue is engaged; that general legal principles had been applied to the case; and that affidavit evidence before the Court of Appeal had demonstrated no loss to the applicant.
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 Brendan Dowling has not met these. The points made are not of general public importance. Claims as to the interests of justice are so general as to fail to relate to any specific fact. It was open to the Court of Appeal to take the view which it did. The vague and unsupported nature of what is asserted by Brendan Dowling meant that the order sought was in the nature of speculation that something might turn up during a lengthy plenary hearing rather than the assertion of a defence which might be accepted on hearing witnesses. No fundamental test as to the administration of the summary judgment procedure 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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