Supporting Documents:
74-17 AFL.pdf74-17 Rspndt Notce.pdf

SUPREME COURT

DETERMINATION

IN THE MATTER OF

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

Result: Leave to appeal is refused

Reasons Given:

1 Facts

The applicant, who is now a litigant in person, seeks an extension of time to bring this application, and also leave to appeal against the decision of the Court of Appeal of the 9th of February 2017, which in turn dismissed his appeal from the order of the High Court of the 1st of June 2016, extending his term of bankruptcy until the 30th of March 2020. The application was lodged in the Supreme Court Office on the 16th of May 2015. The explanation offered for the delay was “yes to correct appeal documents as required by court although appeal lodged on time”.

2 The central issue raised is that among the evidence relied upon by the High Court in making its order was evidence that the bankrupt was the owner of substantial properties not disclosed to the Official Assignee as required under statute. Although the Official Assignee already had some information about these properties, he obtained more information when he entered premises at Holles Street, Dublin 2, owned by the bankrupt but let to a company, Coalport Limited, which is associated with the applicant. The Official Assignee had a warrant pursuant to s.27 of the Bankruptcy Act 1988, permitting entry to property owned or held by the bankrupt, and was admitted to the premises by a receiver who had been appointed by one of the bankrupt’s lenders. The High Court found that as landlord, the bankrupt, and therefore the receiver appointed to his property, had not the right to permit entry to the premises in Holles Street, and that a warrant under s.28 of the Bankruptcy Act 1988 was required. The Court of Appeal approached the case on this basis, without so determining, and this Court adopts the same approach.

3 The documentation obtained appeared to show that the bankrupt was owner of apartments at Aras na Cluaine, which had not been disclosed to the Official Assignee. The Official Assignee was already on notice of the bankrupt’s interest in the said premises because he had been called on to pay the management fee in respect thereof. The documentation obtained from the visit to the premises at Holles Street was itself property of the bankrupt which vested in the Official Assignee by law on the adjudication of bankruptcy.

4 The essential point raised by the applicant is that in the light of the foregoing holding of the High Court, it follows that the entry onto the premises was not authorised by law, and he contends, in breach of constitutional rights, and accordingly any evidence obtained was required to be excluded. Both the High Court and the Court of Appeal held that no constitutional right of the applicant was implicated, and that the evidence, although obtained without legal authorisation, should be admitted applying the balancing test appropriate to the question of admission of illegally obtained evidence.

5 Although the applicant now represents himself, reference is made to an English lawyer assisting him. The papers are professionally presented.

6 On the assumption that it is the case that entry to the premises was unauthorised and illegal, the Court of Appeal approved of and endorsed the conclusion of the High Court, that no constitutional right of the applicant was involved and still less violated. In doing so, and furthermore, in applying a balancing test to the question of admission of illegally obtained evidence, both the Court of Appeal and the High Court applied familiar law and established legal principles to the question of admission of evidence in civil cases. Furthermore, it is clear that the evidence obtained as a result of the visit to the premises at Holles Street, was only a portion of a wide range of evidence available to the High Court in making its decision to extend the bankruptcy. The High Court held that the decision was not dependent upon the evidence obtained in Holles Street. Accordingly, therefore, even if the applicant were to succeed in the argument, it could not result in a successful appeal and a reversal of the decision of the High Court and Court of Appeal. This Court refuses leave to appeal. It is accordingly unnecessary to consider the applicant’s application for an extension of time.

And It is hereby so ordered accordingly.