Supporting Documents:
 37-2019 Permanent TSB t.a Irish Life v James Walsh AFL Web.pdf  37-19 Respondents Notice.web.pdf
THE SUPREME COURT
DETERMINATION BETWEENPERMANENT TSB T/A IRISH LIFE PLAINTIFF DEFENDANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Defendant to appeal to this Court directly from the High Court.
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: High Court |
DATE OF JUDGMENT OR RULING: 31st January, 2019 |
DATE OF ORDER: 5th February, 2019 |
DATE OF PERFECTION OF ORDER: 8th February, 2019 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 1st March, 2019 AND WAS IN TIME. |
General Considerations
1. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3 thereof and the many determinations made by this Court since the enactment of The 33rd Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court.
2. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both the determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESC DET 134 and in an unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (a firm) v. Quinn Insurance Limited (under administration) [2017] IESC 73. The additional criteria required to be met in order that a so called “leapfrog appeal” direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v. Director of Public Prosecutions [2017] IESC DET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
3. It should be noted that any ruling in the determination is the decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.
4. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.
Application
5. The defendant to the proceedings, Mr. James Walsh, (“Mr. Walsh”) seeks leave to appeal to this Court from the judgment and order of the High Court (Barrett J.) dated respectively the 31st January and 5th February 2019. By his order the High Court judge affirmed an order of the Circuit Court dated the 18th January, 2018 requiring Mr. Walsh, and all persons in occupation of 25, Crosswaite Park, Dun Laoghaire, County Dublin (“the premises”) to vacate and deliver up possession of the said premises to Permanent TSB (“the bank”).
Background facts
6. Mr. Walsh sought to defend the Circuit Court possession proceedings on the basis that he was not indebted to the bank in the sum claimed by reason of a restructuring agreement concluded with a Mr. Paul Keenan, mortgage manager of the bank in March 2012. The bank, in a replying affidavit sworn by a bank official other than Mr. Keenan, denied any such agreement and in support of that position exhibited two letters written by Mr. Walsh post-dating the alleged agreement and which, it claimed, were inconsistent with any concluded restructuring agreement. These letters are set out in full in the judgment of Barrett J. delivered following the conclusion of Mr. Walsh’s appeal against the order of the Circuit Court.
7. Having considered the evidence on the appeal, which was confined to the affidavits submitted by the parties, the High Court judge concluded, inter alia, that the aforementioned letters undermined Mr. Walsh’s proposed defence based upon the alleged restructuring agreement. He did not direct an oral hearing and proceeded to affirm the decision of the Circuit Court.
Discussion
8. It is asserted that leave to appeal the order for possession affirmed by the High Court judge is warranted in circumstances where it is claimed that there is no judicial guidance as to the threshold at which a judge should remit Circuit Court proceedings such as these for a plenary hearing as is provided for in O. 5B r. 8(2) of the Circuit Court Rules. Given the consequences of an order for possession for a homeowner and the large number of possession proceedings dealt with in the Circuit Court, it is claimed that the factors which a judge ought to take into account and the principles to be applied when exercising his/her discretion when deciding whether or not to direct a plenary hearing, are matters of general public importance that need to be addressed by this Court.
9. It is to be inferred from Mr. Murphy’s application that he considers that the proceedings should have been remitted for an oral hearing particularly in light of the bank’s failure to have Mr. Keenan swear an affidavit to contest his evidence concerning the restructuring agreement for which he had contended. Such default had denied him the opportunity of serving a notice to cross-examine.
Decision
10. First, it is not apparent from the judgement of Barrett J. that Mr. Walsh applied to have the proceedings remitted to plenary hearing on the basis that there was a conflict of fact on the affidavits. Neither is it clear that he sought liberty to defend the proceedings on the basis that Mr. Keenan had not sworn an affidavit to challenge his evidence as to a concluded restructuring agreement. Further, it is not apparent from his judgement that there was any dispute between the parties concerning the principles to be applied or the circumstances in which proceedings intended to be dealt with on affidavit ought to be remitted for plenary hearing.
11. It was, of course, for Mr. Walsh to argue in favour of the principles which he maintained were relevant to the Court’s assessment as to whether or not the proceedings should be remitted for an oral hearing and whether the failure of the bank to procure an affidavit from Mr. Keenan was a factor which should have weighed in its assessment. It is not the function of this Court to provide Mr. Murphy with a platform to raise these matters for the first time, if that is in fact the situation.
12. However, lest the Court be wrong in its understanding as to what occurred in the court below, this Court is in any event satisfied, for reasons which will now be summarised, that the constitutional threshold has been not been met on the present application.
13. It is claimed that there is doubt as to the test or threshold to be applied by a judge when considering whether proceedings brought by way of civil bill seeking possession should be remitted to plenary hearing and that this is a matter of general public importance. This alleged lacuna in the law is, according to the applicant, to be contrasted with the definitive guidance available to a court when considering whether a plenary hearing should be directed on an application for summary judgement. In this regard the Court has been referred to decisions such as Aer Rianta v. Ryanair Ltd [2001] 4. I.R. 607 and Harrisrange Ltd v. Duncan [2003] 4. I.R. 1 which set forth in some detail the proper approach to determining when proceedings of that nature should be referred for a plenary hearing.
14. Contrary to what is submitted on behalf of Mr. Walsh, the principles which guide the Court as to when proceedings designed to be determined expeditiously on affidavit, such as those commenced by special summons or civil bill and wherein an order for possession is sought, should be remitted to plenary hearing are well established. They are the same as those which apply in summary summons proceedings wherein a plaintiff seeks the recovery of a liquidated sum. The authorities state that the principles to be applied are the same regardless of which summary procedure is under consideration. See for example the decision of Dunne J. in Anglo Irish Bank Corporation plc v. Oisin Fanning [2009] IEHC 141. And, as is acknowledged by the applicant, the relevant principles are to be found in the decisions referred to in the last preceding paragraph. For completeness, this Court would add to the authorities identified by the applicants the decision of Murphy J. in First National Commercial Bank v. Anglin [1996] IESC 1 which is universally relied upon as identifying the test to be applied by the Court when faced with an affidavit or affidavits seeking leave to defend the proceedings at an oral hearing. The guidance provided is in the following terms: –
“The mere assertion in an affidavit of a given situation which was to be the basis of a defence did not of itself provide leave to defend: the court had to look at the whole situation to see whether the defendant had satisfied the court that the was a fair or reasonable probability of the defendants having a real or bona fides defence”.
15. Neither is there any lack of guidance as to when summary proceedings should be referred to a plenary hearing due to the presence of a conflict of fact on the affidavits. The authorities include National Irish Bank Limited v. Graham [1995] 2 I.R. 244, Director of Corporate Enforcement v. Seymour [2006] IEHC 369 and Bayworld Investments v. McMahon [2004] 2 I.R. 199.
16. In National Irish Bank Limited v. Graham, proceedings in which the plaintiff sought an order for possession under a deed of mortgage, Finlay C.J. considered the circumstances in which proceedings which were intended to be disposed of on affidavit might be referred for a plenary hearing given the presence of disputed facts on affidavit. At p. 249 of his judgement he stated as follows:-
“The purpose of a plenary hearing instead of a summary judgment in a case of this description is for the purpose of resolving a dispute of fact which remains between the parties and the determination or resolution of which is necessary for the decision in the case.”
17. Furthermore, it is well-settled law that the very presence of a factual dispute on the affidavits filed by the parties in summary proceedings does not preclude their summary disposal. And, the fact that much of the jurisprudence on the point emanates from proceedings commenced by way of summary summons rather than summary proceedings brought by way of special summons or civil bill is irrelevant.
18. When a court is considering whether leave to defend should be granted in any summary proceeding, the Court is entitled to reach a conclusion as to the credibility of the defence proposed and in so doing may resolve disputed issues of fact. That this is so is clear from decisions such as those of Hardiman J. in Aer Rianta v. Ryanair Ltd [2001] IESC 94 and Clarke J., as he then was, in Irish Bank Resolution Corporation v. McCaughey [2014] IESC 44. In their respective judgements they highlight, as examples of cases in which disputed issues of fact were resolved on the affidavits in a summary manner, the decisions in National Westminster Bank v. Daniel [1993] 1 W.L.R. 1453, a case in which the affidavits filed by the defendant were mutually contradictory, and First National Commercial Bank v. Anglin [1996] 1 I.R. 75. wherein the chronology asserted by the defendant was entirely inconsistent with commercial documentation which was not, in itself, disputed.
19. In light of the letters admittedly authored by Mr. Walsh which post-dated the restructuring agreement asserted in his affidavit, it was for the High Court judge on the facts before him to decide whether he could deal with the matter summarily on the basis that the letters were inconsistent with the defence for which he contended or whether a plenary hearing was warranted. That assessment was for him to make on the specific facts of that case. That being so, and in light of the clear guidance available as to when any proceedings of a summary nature should be referred to plenary hearing, it cannot be stated that the appeal proposed raises any issue of general public importance.
20. Finally, in light of the Court’s decision to the effect that the constitutional threshold has not been met on the present application, it is not necessary to consider whether the applicant has, as he contends, a right of appeal to this Court given that the decision in respect of which leave to appeal is sought was made by the High Court on an appeal from the Circuit Court.
21. The Court therefore refuses to grant leave to appeal.
And it is hereby so ordered accordingly.
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