Supporting Documents:
THE SUPREME COURT
DETERMINATION
TRIODE NEWHILL LHP LTD., NOMINEES CAMPUS RETAIL MANAGEMENT LTD.
AND
TRIODE NEWHILL LHP LTD., NOMINEE MKP STORES LTD. APPLICANT AND
SUPERINTENDENT ALAN MURRAY RESPONDENT
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 15th November, 2018 |
DATE OF ORDER: 28th November, 2018 |
DATE OF PERFECTION OF ORDER: 3rd December, 2018 |
| APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES |
| RESULT: The Court does not grant leave to appeal to this Court, pursuant to Article 34.5.3. |
Introduction
1. This is an application for leave for appeal from a judgment of the Court of Appeal (Peart, Irvine and Whelan JJ.), dated the 15th November, 2018 ([2018] IECA 356). The order of the Court of Appeal was made on the 28th November, 2018, and was perfected on the 3rd December, 2018.
General Considerations
2. The principles applied in deciding whether or not to grant leave to appeal having regard to the criteria incorporated into the Constitution under the 33rd Amendment have been considered in many 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. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
3. 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.
Background
4. The substantive issue in these proceedings was summarised by the Court of Appeal:
“This is an appeal against the order made by the High Court (Barrett J.) dated the 20th February 2018 in answer to a Consultative Case Stated to the High Court by District Judge Seamus Hughes arising from applications made to him for the ad interim transfer of two wine, beer and spirit off-licences attaching to two separate premises in County Westmeath which trade under the well-known Spar brand” (para. 1).
5. This application for leave to appeal centres on the order of the Court of Appeal as it relates to costs, wherein it was ordered that the applicant pay the costs of the appeal to the Court of Appeal and the costs of the proceedings in the High Court, “but only 50% thereof”. In summary, the applicant seeks leave to appeal on the basis of the award of costs having been unfair, the case proceeding as it did by way of a consultative case stated.
The Applicant’s Case
6. As proceedings arose due to a consultative case stated forwarded to the High Court by Judge Hughes of the District Court, the applicant indicates that at no point during these proceedings did they seek to challenge the decisions of the District Court, the High Court or the Court of Appeal. The applicant contends that, in those circumstances, it was unfair to be asked to pay 50% of the costs in both the High Court and the Court of Appeal, and that it is therefore in the interests of justice necessary that there be an appeal to this Court.
7. The applicant argues that the resolution of the present issue is of general public importance as it will have significant consequences for future licensing applications, for both off-licenses in the District Court and on-licenses in the Circuit Court.
8. Finally, the applicant has applied for an extension of time for the bringing of the application for leave to appeal as, on the advice of counsel, the matter was relisted in the Court of Appeal on the 19th December, 2018, after the order of that Court was perfected on the 3rd December, 2018, so that it could be “clarified”. It is said that this situation arose due to the complexity of the judgment of the Court of Appeal and the order as to costs.
9. According to the Rules of the Superior Courts (“RSC”), Order 58, s.16(1), an application for leave to appeal to this Court must be filed within 21 days of the perfecting of the order in respect of which appeal is sought. Filing the application for leave to appeal on the 28th January, 2019, from the date of perfection of the order, the applicant was out of time by 35 days. If time is seen to begin running from the subsequent date of the 19th December, 2019, the applicant will have been out of time by 19 days.
The Respondent’s Case
10. The respondent submits that, though the substantive matter in issue in the Court of Appeal proceedings was of general public importance, the question of costs is not.
11. It is said that the Court of Appeal decided in favour of the respondent on the substantive issue in the appeal, and therefore that costs in the High Court and the Court of Appeal should “follow the event”. As such, the respondent argues that, not only has the applicant not been penalised by the costs order, but has benefitted by having been ordered to pay only 50% of the total costs.
12. As regards the application for an extension of time, the respondent contends that the portion of the order relating to costs was not confusing and that its clarification by relisting in the Court of Appeal was needless. It is said that, even the date of clarification, the 19th December, 2018, was within time from the date of the perfection of the order on the 3rd December, 2018. Despite this, no application was made, and, it is argued, even if time was set to run only from the 19th December, 2018, the application would still be out of time, and no valid reason has been provided for this.
Discussion
13. The judgment of this Court in the case of Éire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170 set down the criteria to be applied when considering an extension of time. That applicant must show that:
• He or she had a bona fide intention to appeal formed within the permitted time;
• The existence of something like a mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient; and
• An arguable ground of appeal exists.
14. Applying these criteria, and considering also the RSC, Order 58, s.16(1), it appears to the Court that the points made by the respondent, summarised at para. 12 above, are significant. While the applicant may have had a bona fide intention to appeal within the permitted time, and while there may indeed have been a mistake as to procedure, the test in Éire Continental is clear that the burden is on the applicant to establish these matters. In these proceedings, it appears that no reason was given which would persuade this Court to grant an extension of time. But even were the Court minded to extend the time, the question of general public importance and the interests of justice should equally be determined. Can it be said that this application comes within either of the constitutional thresholds of raising an issue of general public importance or it being in the interests of justice that an appeal should be granted?
15. This Court has considered the fact that the case has proceeded on the basis of a consultative case stated rather than an appeal sought by the applicant, and the unfortunate circumstance, from the applicant’s perspective, that they have been asked to pay 50% of the costs. Quite simply, however, on no analysis can this costs issue be said to be of general public importance, nor that it is in the interests of justice necessary that there be an appeal to this Court. On the present facts, the relevant constitutional thresholds simply cannot be met.
Procedural Comment
16. It may be helpful to address an issue causing confusion, given the change in procedure for applications for leave to appeal to this Court following the 33rd Amendment to the Constitution. Purely for the purposes of future clarity, and without any degree of admonishment, it should be pointed out that section 9 of the application for leave to appeal, “Exceptional Circumstances: Article 34.5.4”, is not intended to be used, as it was in this case, as an opportunity to argue the exceptional nature of a case in general. Rather, and as set out immediately below that heading on the form, its purpose is solely to provide reasons as to why the exceptional circumstances threshold has been met in a case to justify a ‘leapfrog’ appeal: an appeal of a High Court judgment directly to this Court.
Decision
17. For the above reasons, leave to appeal to this Court is refused.
And it is hereby so ordered accordingly.
|