Supporting Documents:
166-17 AFL.pdf166-17 Respondents Notice 2.pdf 166-17 Rspondts Notice.pdf

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to the Defendant / Applicant to appeal to this Court from an order of the Court of Appeal.

REASONS GIVEN:

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 13th November, 2017

DATE OF ORDER: 13th November, 2017

DATE OF PERFECTION OF ORDER: 14th November, 2017

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON: 12th December, 2018 AND WAS IN TIME.

1. This is an application for leave to appeal from an order of the Court of Appeal made on 13 November, 2017 dismissing an appeal from an order of the High Court (McGovern J.) made on 6 March, 2014. The order of the High Court granted the first named plaintiff possession of three properties in Fairview, Dublin.

Jurisdiction

2. 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.

3. 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 Thirty-third 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] IESC DET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Cooper (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this Determination.

4. It should be noted that 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 be disposed of in due course in the substantive decision of the Court.

Discussion and Decision

5. The reserved written High Court judgment of McGovern J. delivered on 25 February, 2014 which sets out the factual background is published: Permanent TSB plc v. Beades [2014] IEHC 81. Suffice it to say that in the High Court the first named plaintiff was the only plaintiff and its claim was for an order for possession of the three named premises in Fairview Dublin. Its claim was made pursuant to a mortgage executed by the defendant/applicant on the 23 December, 2002 as security for a loan from the first named plaintiff (or its predecessor) of €1.2m drawn down on 20 December, 2002.

6. The first named plaintiff claimed that it was entitled to possession of the premises in accordance with the loan agreement and mortgage as an event of default taken place and the loan was then in default. As appears from the High Court judgment at the date of the hearing in the High Court the applicant had not put any affidavit before the Court which disputed the claimed default in the loan or the agreements entered into. He had raised a number of other defences relating to the form of proceedings and procedural steps taken. The High Court judge dealt with each of those and rejected same for the reasons stated.

7. Subsequent to the High Court the first named plaintiff transferred the benefit of the mortgages at issue to the second named plaintiff/respondent. On 17 October, 2016 the Court of Appeal made an order joining it subject to certain terms as to costs. This Court has been furnished with a copy of the transcript of the hearing before the Court of Appeal on 13 November, 2017 which includes the notes of the ex tempore judgments delivered by Ryan P. (Irvine J. concurring) and Whelan J. concurring with Ryan P. with some additional observations. It appears from those judgments that in the Court of Appeal the applicant sought to have additional evidence admitted from a valuer who valued the premises for the first named plaintiff and also from forensic accountants in relation to purported evidence of overcharging. Ryan P. set out and applied the well-established principles in relation to the admission of new evidence on appeal. He expressed the view that the applicant had not satisfied one of the relevant requirements namely that the evidence could not have been put before the High Court by the applicant exercising reasonable diligence. Notwithstanding that view he considered the evidence sought to be admitted in determining the appeal. He concluded that the appeal could not succeed even taking into account certain points not advanced in the High Court and the additional evidence. He also expressed himself in agreement with the judgment of McGovern J in the High Court.

8. The application to this Court and the respondent’s notice are published with this determination. Suffice it to say that the applicant sets out 13 reasons for which he contends the decision of the Court of Appeal involves matters of general public importance. Each of those is responded to seriatim in the respondent’s notice. The respondent essentially contends that each of the matters identified relates to issues where the Court of Appeal either expressly or by agreeing with the judgment of the High Court applied well established principles to the specific facts of this claim and does not involve a matter of general public importance.

9. The Court is satisfied that the respondent is correct in its submission. The applicant has not satisfied the Court that the judgments of the Court of Appeal involve a matter of general public importance. The Court is further satisfied that the applicant has had the benefit of a full hearing with a reserved written judgment in the High Court followed by an appeal where he was granted indulgence by new points and fresh evidence being considered and a detailed ex tempore judgment delivered by that court. Hence it is not in the interests of justice to permit a further appeal.

10. The application for leave is refused.

And it is hereby so ordered accordingly.