Supporting Documents:
52-18 AFL.pdf 52-18 Rspndt Notce.DOCX52-18 Rspnts Notice.pdf

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicant 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: 26th February, 2018

DATE OF ORDER: 12th March, 2018

DATE OF PERFECTION OF ORDER: 29th March, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 9th April, 2018 AND WAS IN TIME.

General Considerations

1. 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 a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (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) IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2. Furthermore the application for leave filed and the respondent’s notice 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.

3. In that context it should be noted that the respondent opposes the grant of leave.

Decision

4. As will be seen from the notices filed by the respective respondents, the notice party (“the Institute of Chartered Accountants”) does not oppose the grant of leave. However, the respondent (“the Data Protection Commissioner”) does draw certain matters to the Court’s attention.

5. In simple terms, it is suggested that, while the parties agree that the High Court might have determined the issue which is now said to give rise to a matter of general public importance, nonetheless that question was strictly speaking premature at the time when the case was before the High Court. This is said to be so because a final decision on whether, having regard to the decision of the CJEU in Mr. Nowak’s earlier proceedings ((Case C-434/16) Peter Nowak v. Data Protection Commissioner [2017] ECLI:EU:C:2017:994), there are any remaining bases on which disclosure might not properly be directed, has not yet been made.

6. It is not fully clear as to the stage which the relevant decision-making process has reached. Certainly, this Court is unaware of any reason why that matter has not been brought to finality. Be that as it may, it is appropriate for this Court to take into account the fact that the issue is premature.

7. It must be recalled that the applicant (“Mr. Nowak”) now seeks leapfrog leave to appeal directly to this Court from the High Court. While there are, undoubtedly, cases where it makes sense for this Court to entertain a point which may, strictly speaking, either be moot or, as here, premature, it is generally preferable that issues of general importance are determined in cases where the relevant issue is clearly central to the final resolution of the proceedings between the parties. Against that background it does not seem to this Court that it is appropriate to entertain an appeal in these proceedings at this time.

8. It obviously does not follow from this view that the Court is determining that an issue of the type sought to be raised by Mr. Nowak might not, in appropriate proceedings and at an appropriate stage, represent an issue which might meet the constitutional threshold. That is a matter to be decided on another occasion.

9. At this stage it is the view of this Court that the more appropriate course of action would be that Mr. Nowak should pursue an appeal, in the ordinary way, to the Court of Appeal. If that course of action is adopted, it might be that there will be greater clarity about whether the issue truly needs to be addressed in these proceedings. This is also a case where there might well be some advantage in having the issues further explored before the Court of Appeal.

10. In those circumstances the Court will refuse leave to appeal.

And it is hereby so ordered accordingly.