Supporting Documents:
127-17 AFL.doc127-17 Respndt Notce.DOC127-17 Rspndt Notce Sheehan solrs.pdf

BETWEEN

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

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment and order of the Court of Appeal.

REASONS GIVEN

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Finlay Geoghegan, Peart and Hogan JJ.) delivered on the 4th July, 2017, and from the resulting order of that Court made on the same date and perfected on the 19th July, 2017.

2. John Keon, who is referred to in this Determination as “the applicant”, seeks leave to appeal to this Court from the said judgment and order of the Court of Appeal. His application for leave is opposed by Mark Gibbs (referred to as “the first named respondent” or “the receiver”) and the entity formerly known as the Private Residential Tenancies Board, now the Residential Tenancies Board (referred to as “the second named respondent” or “the Board”). Mr. Gibbs and the Board are collectively referred to as “the respondents”.

Jurisdiction

3. 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 Thirty-third 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.

4. Any ruling in a determination is a 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 in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

Background Facts

5. The full factual background and history of the proceedings are more fully recited in the judgments of the High Court ([2015] I.E.H.C. 812) and the Court of Appeal ([2017] I.E.C.A. 195) and in the parties’ application and responding documents. Accordingly, what is presented here is a summary version only.

6. Briefly stated, the applicant was the tenant of an apartment premises in Salthill, County Galway, under a letting agreement made on the 6th June, 2012, between a Mr. Joe McNamara as landlord and himself as tenant for the fixed term of two years from that date. Some years previously the landlord had mortgaged these premises as security for a bank loan. Following default, the bank appointed the first named respondent as receiver over the assets secured by the mortgage, including the apartment in question. The receiver notified the applicant of his appointment on the 5th October, 2012, and directed that rent be paid to him from November, 2012 onwards. The applicant made three such payments of rent but has not paid any further rent since February, 2013. In March, 2013, the receiver informed the applicant that he intended to sell the premises and required vacant possession for that purpose. The applicant informed him that he had sublet the apartment to some university students but that he would deliver up possession after their final exams in May, 2013; this, however, he failed to do.

7. Having previously served a 14-day warning notice demanding rent, the receiver thereafter served a notice of termination per section 34 of the Residential Tenancies Act 2004 (“the 2004 Act”). After it became clear that vacant possession would not be forthcoming, the receiver referred the matter to the Board for determination. Following an initial adverse decision by an adjudicator, the applicant brought an appeal to the Tenancy Tribunal. That Tribunal delivered a determination on the 23rd June, 2015, by which it ordered the applicant to deliver up possession of the apartment premises within fourteen days and to pay arrears of rent and damages. The determination order of the Tribunal was sent under cover of letter dated the 26th June, 2015; it was said to have the following effect:

“This determination order shall, on expiry of the period of twenty-one days from the date of issue, become binding on the parties concerned, unless an appeal is made by any of the parties directly to the High Court on a point of law before then, pursuant to s. 123 (3) of the Residential Tenancies Act 2004”.

8. By this stage the applicant had changed solicitors. By letter dated the 24th July, 2015, the applicant, through his new firm of solicitors, purported to lodge a notice of appeal directly with the Board; it responded five days later pointing out that a finding of the Tribunal could not be appealed otherwise than to the High Court. On the 19th August, 2015, the applicant issued a motion to extend time for the service of a notice of appeal against the decision of the Tribunal. This motion has led directly, through the judgments of the High Court and the Court of Appeal, to the application for leave to appeal to this Court. It should be noted that although the applicant attempted to bring judicial review proceedings in respect of the decision of the Tribunal, he was refused leave in this respect by Binchy J. on the 3rd September, 2015.

The Relevant Statutory Provisions and Rules of Court

9. Section 123(3) of the 2004 Act provides that a party may appeal a determination of the Tribunal to the High Court on a point of law “within the relevant period”. Section 123(8) defines the “relevant period” as meaning the period of 21 days from the date of issuance of the determination order concerned. Order 84C of the Rules of the Superior Courts (RSC) concerns statutory appeals; Rule 2(5)(a) thereof prescribes a notice period of 21 days “[s]ubject to any provision to the contrary in the relevant enactment”. Rule 2(5)(b) then states that the appeal may instead issue within “such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter.” The applicant sought an extension of time pursuant to the Rule last quoted.

The High Court

10. The judgment of Baker J. on the application for an extension of time to appeal was delivered on the 21st December, 2015 ([2015] I.E.H.C. 812). The learned judge considered whether (i) the applicant had established the existence of a good and sufficient reason and (ii) whether such an extension of time would result in an injustice to a third party. She applied the well-known three-stage test set out in Éire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170 (“Éire Continental”), which requires an applicant to show (a) that he or she formed a bona fide intention to appeal within the relevant time; (b) the existence of something like mistake; and (c) that he has an arguable ground of appeal.

11. Baker J. did not find the applicant’s reasons for his delay satisfactory. Addressing the merits of the application, the learned judge noted that the majority of the grounds put forward related to an alleged want of fair procedures. She held that the applicant’s arguments concerning the appointment of the receiver could not succeed as no point of law was engaged. She further observed that the landlord’s interests would be prejudicially affected if time was extended. Ultimately, she concluded that the applicant had not made out any good and sufficient reason why he should be permitted to appeal, and that the interests of the landlord far outweighed those of the applicant to prosecute an appeal which, in the view of Baker J., was not stateable.

The Court of Appeal

12. The applicant appealed to the Court of Appeal. Its judgment was delivered by Hogan J. (Finlay Geoghegan and Peart JJ. concurring) on the 4th July, 2017 ([2017] I.E.C.A. 195). The learned judge first drew attention to a jurisdictional issue concerning whether section 123(3) of the 2004 Act and Order 84C Rule 2(5) RSC, when read together, in fact permit of any extension of the time within which to appeal. However, in light of his clear views on the merits of the underlying application for an extension, it was not necessary to express a concluded view on this jurisdictional point. He considered it plain that this was a case where no discretionary extension of time should be granted.

13. The learned judge focused on a single, critical factor: whether the applicant could point to the existence of any arguable grounds of appeal. In the absence of same, any appeal would be futile. Reviewing the grounds as advanced, Hogan J. concluded that he had not put forward any ground of substance, beyond purely generalised complaints, in relation to the alleged breach of fair procedures before the Tribunal. Thus no arguable ground of appeal for the purposes of section 123(3) had been identified. Accordingly, there would be no point in granting a discretionary extension of time, if such discretion even existed. It was therefore not necessary to express a view on the other factors addressed by Baker J. The appeal was dismissed.

Appeal to this Court

14. The applicant seeks leave to appeal against the said judgment and order of the Court of Appeal. He seeks an order setting aside the orders of the Court of Appeal and the High Court, with an order over permitting him to appeal to the High Court on a point of law. In the alternative, he requests an order setting aside the judgment of the Court of Appeal with permission to renew his application for leave to apply for judicial review with a view to quashing the original determination order. The respondents oppose the application for leave and intend to ask this Court to dismiss the appeal if leave is granted. The applicant is not seeking to have a provision of any Act of the Oireachtas declared unconstitutional or incompatible with the European Convention on Human Rights, nor does any party seek to ask this Court to depart from or distinguish one of its own decisions or to make a reference to the Court of Justice of the European Union. The parties do not intend to request a priority hearing of the appeal.

15. The reasons submitted by the applicant in support of his application are set out in detail in his Application for Leave and Notice of Appeal document. The respondents’ reasons for opposing the granting of leave are likewise set out in their respective replying documents. These documents are available together with this determination on the Courts Service website; accordingly, the parties’ reasons are set out here in summary form only.

Application for Leave and Notice of Appeal

16. The applicant makes nine points in support of his application for leave to appeal. First, he points out that the Éire Continental test has stood for 62 years and asks whether it still applies, and, if so, whether it applies to statutory appeals. His second point is related: the judgment of the Court of Appeal suggests that an applicant must not only satisfy the test in Order 84C Rule 2(5), but also the Éire Continental test and the requirements of various judicial dicta. This, he says, could be seen as an attempt to frustrate appeals. Third, he asks how the requirement to strictly construe provisions limiting access to the courts can be reconciled with the provisions of the 2004 Act. Point 4 is related to Point 2, and asks how that multi-factor test can be reconciled with the right of access to the courts, particularly where the appeal may involve a dwelling or even a primary residence.

17. The applicant’s fifth and sixth points are also related. He asks whether it is legally permissible for a receiver to issue and prosecute Circuit Court ejectment proceedings at a time when the applicant’s appeal is pending before the Court of Appeal, and whether such behaviour amounts to an abuse of process. His seventh point concerns what he refers to as the catastrophic housing crisis in Ireland at present, the trend towards appointing more receivers, and the registration of properties with the Board in such a manner as to frustrate the tenant’s right of access to Court and which in his view make it easier for a receiver to gain possession of property. Point 8 is repetitious and again refers to the pursuit of parallel Circuit Court ejectment proceedings alongside proceedings in the superior courts. Finally, his ninth point is said to be of general public importance and refers to the lack of natural and constitutional justice applied by persons who are members of boards such as the PRTB and who determine matters of a quasi-judicial nature. His point is that such persons do not adhere to the same standards of justice as judges do. This leads to a denial of constitutionally enshrined rules for persons appearing before such boards and tribunals. This, he says, presents problems in that any court which is later called upon to review the first instance decision will be bound by the initial determinations of fact made by the decision-maker, however perverse those findings may be. The applicant submits that it is constitutionally repugnant for the members of the judiciary to have their hands tied in this way, and that they must be able to review the totality of the process before the Board.

Respondent’s Notice

18. The first named respondent submits that nothing in the case involves any matter of general public importance, nor would the interests of justice be served by extending the time to bring an appeal against the Tribunal’s determination order. In relation to the applicant’s first and second points, the receiver submits that the necessity to demonstrate arguable grounds is readily identifiable with the “good and sufficient reasons” test. It was not held that the applicant must satisfy both the Order 84C and Éire Continental tests; rather it was held that in the absence of an arguable ground of appeal, the appeal would be futile. In relation to the third point, he says that it is the applicant’s own failures, rather than anything in the 2004 Act, which prevented him from prosecuting the appeal. As to point 4, he says that no issue arises in this case as to the apartment being the applicant’s primary residence. In relation to the fifth and sixth points, the receiver submits that the applicant has mischaracterised the “ejectment” proceedings, and that in fact he was strictly observing the enforcement process. As to point 7, he says that the absence of registration of the tenancy would not have entitled the tenant to any greater access to court. The receiver submits that point 8 is misconceived, in that it interprets his Circuit Court application as parallel to the determination order, as opposed to consequent thereto. Finally, he submits that the applicant’s ninth point is premised on a meritorious appellant being deprived of a right of appeal due to a finding of fact in a lower tribunal, but says that there is no merit in the applicant’s appeal in this case, nor has any error of fact been identified.

19. The second named respondent points out that the applicant has made no attempt to address the constitutional considerations necessary to seek an appeal to this Court, and states that his application should be dismissed for this reason alone. The Board moreover submits that the Court of Appeal was correct to raise the jurisdictional issue concerning whether provision exists to extend time under the 2004 Act at all. It then addresses each of the applicant’s submissions in turn. It submits that as the basis for the decision of the Court of Appeal was that the applicant had failed to establish an arguable ground, the same being essential regardless of what test is applied to the extension of time, there is no merit in the applicant canvassing the issues raised at points 1-4. It is well-settled that an applicant for an extension of time must demonstrate arguable grounds. The Board submits that the applicant’s points 5-8 are irrelevant to the application and were not considered and determined by the Court of Appeal. Accordingly, they cannot be advanced in this Court. The same applies to the matters set out at the applicant’s paragraph 9. Thus it is submitted that the applicant has failed to satisfy either of the constitutional criteria for leave to appeal.

Decision

20. As is clear from the terms of Article 34.5.3° of the Constitution, leave to appeal to this Court from the Court of Appeal will only be granted where the decision involves a matter of general public importance, or in the interests of justice it is necessary that there be a further appeal. These are the criteria which an applicant must address in their application for leave. The present application makes barely any attempt to demonstrate how the constitutional threshold has been met; only one of the applicant’s nine points in support of the appeal in fact makes any reference to either of these constitutional criteria. It is not this Court’s function to parse an applicant’s wide-ranging application with a view to discerning from it what might be an appropriate point for this Court to consider on an appeal. Nonetheless, the Court has considered each of the matters urged by the applicant. Having done so, it is satisfied that neither of the constitutional thresholds for leave to appeal has been met.

21. The applicant first refers to alleged confusion concerning whether his application for an extension of time was to be decided by reference to the Rules of the Superior Courts, the Éire Continental test, or both. His main point is that the “good and sufficient reason” test in Order 84C Rule 2(5)(b) is a standalone test and it was inappropriate to import the Éire Continental criteria into it as well. The Court does not see that the judgment under appeal has created any uncertainty regarding the appropriate test to be applied when seeking an extension of time to appeal from a statutory body. It is clear that Hogan J. held that regardless of what test is applied to an application for an extension of time, the existence of an arguable ground is a pre-requisite. In so stating, the learned judge was merely applying well-established case law. The applicant could not demonstrate same and that was the sole basis for the decision of the Court of Appeal. It is entirely unobjectionable that the requirement to demonstrate “good and sufficient reason” for extending the time to appeal should import a need to show that an arguable ground of appeal exists.

22. The judgment of the Court of Appeal concerns the routine application of the test concerning an application for an extension of time. Contrary to the applicant’s contentions, that judgment has not in any way altered or modified that test, or caused any uncertainty regarding its content. It has long been clear that the existence of an arguable ground is a prerequisite to establishing an entitlement to an extension of time. This was the narrow basis for the Court of Appeal’s decision and no point of general public importance arises therefrom, nor could it be said to be in the interests of justice to grant leave on such issue. This is sufficient to dispose of the application for leave to appeal.

23. The Court has also considered the applicant’s other points and is satisfied that none of them present a basis upon which leave could be granted. The majority of those points do not arise directly out of the judgment of the Court of Appeal; several purport to challenge once more in this forum the lawfulness of certain actions taken by the receiver, and by his final ground of appeal the applicant attempts to draw into question the constitutionality of the appellate system concerning statutory bodies. The Court need not express any view on the merits or otherwise of this argument. It will suffice to say that this application is not the place to make it. Some of his other grounds are factually and/or legally misconceived, and others are irrelevant to the proceedings. The applicant has, in several sections of his application, bemoaned the failure of the courts below to identify or define a point of law which would have been sufficient to ground an appeal to the High Court; it is simply not the courts’ role to do this on the applicant’s behalf. On other occasions the applicant has referred to an alleged confusion which exists as regards the date of the determination order, it being asserted that there was an earlier determination order dated the 16th June, 2015, and that this confusion has penalised the applicant alone. First, it is clear that there was but one determination order made, that of the 23rd June, 2015, and that time commenced from its date of issue. In any event, the applicant could not avail of any alleged confusion as the other date he points to pre-dates that order, and it has never been doubted but that his 21 days began on the 23rd June. There was no confusion, but if there was he got the benefit of it, and certainly was not penalised thereby, as time undoubtedly began to run on the later date. Despite this, the applicant lodged his appeal out of time.

24. Put simply, none of the reasons cited in support of this application come close to satisfying the constitutional criteria for leave to appeal to this Court.

25. In conclusion, for the reasons recited above, this Court will refuse leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.