Supporting Documents:

THE SUPREME COURT

DETERMINATION

Between:

RESULT: The Court does not make an order cancelling the Direction given in relation to this appeal.

REASONS GIVEN:

1. This determination relates to an application by Daniel Gallagher, the plaintiff/applicant, referred to as “the applicant”, in which he seeks an order under Article 64.3.3° of the Constitution to cancel, insofar as this appeal is concerned, the Direction given by the Chief Justice under Article 64.3.1° specifying appeals which were to be heard in the Court of Appeal.

2. The Minister for Justice, Equality and Law Reform, the defendant/respondent, is referred to as “the respondent”.

3. Article 64.3.1 permitted the Chief Justice, on or after the establishment day as defined, to give a direction under the seal of Court providing that certain classes of appeals should be heard in the Court of Appeal. Such a direction is required to be made with the concurrence of the other judges of this Court.

4. On the 29th October, 2014, the Chief Justice made such a direction ("the Direction"). This appeal was included within the classes of appeals specified in the Direction. Article 64.3.1 required the Chief Justice in making the Direction and the members of the Court in concurring with same to be "satisfied that it is in the interests of the administration of justice and the efficient determination of appeals" that the Direction should be made. The position is, therefore, that the Chief Justice and the members of the Court were satisfied that it was in the interests of the administration of justice and the efficient determination of appeals that this appeal was among a class of appeals which should be transferred to the Court of Appeal.

5. In substance, the Direction divided the existing case load of this Court in such a way as will result in both the Court of Appeal and this Court sharing the task of dealing with the appeals which were outstanding in this Court on the establishment day. It follows that part of the benefits to the administration of justice which were perceived to derive from taking such a course of action was that it might be expected that all such appeals would be dealt with in a more timely fashion than would have been the case had either all, or almost all, existing appeals remained in this Court, or been transferred to the Court of Appeal.

6. However, in recognition of the fact that the Direction was, in accordance with the provisions of Article 64, made without consultation with the parties to the appeals specified therein, Article 64.3.3 permits any party to an appeal which is the subject of the Direction to apply to this Court in accordance with such regulations as might be prescribed for an order cancelling the effect of the Direction. The court is entitled to allow that application if "it is just to do so". It is such an application with which this determination is concerned.

7. It is necessary to recall the changes brought about to Article 34 of Bunreacht na hEireann as a result of the coming into force of the 33rd Amendment to the Constitution. That amendment came into force, of course, when the establishment day referred to in the amendment was fixed by the Government, which day was the 28th October, 2014. Thereafter, instead of the previous provisions of the Constitution which stated that this Court should, "with such exceptions and subject to such regulations as may be prescribed by law", have appellate jurisdiction from all decisions of the High Court, it now provides that the Court of Appeal shall have such jurisdiction.

8. The jurisdiction of this Court is now specified as being, "subject to such regulations as may be prescribed by law", to be an appellate jurisdiction from the Court of Appeal provided that this Court is satisfied either that the relevant decision of the Court of Appeal "involves a matter of general public importance" or, alternatively, that it is in the interests of justice necessary that there be an appeal to this Court.

9. In addition, where those factors are present and where this Court is satisfied that there are "exceptional circumstances warranting a direct appeal", this Court has jurisdiction to permit an appeal direct from the High Court to this Court. Such a direct appeal from the High Court has sometimes been referred to as a "leap-frog" appeal.

10. The position in respect of appeals within the superior courts in respect of decisions of the High Court arising after the establishment day is now clear. The Constitution has retained the entitlement of one appeal as of right (subject to express exclusions or regulation by statute) but that one appeal is now from the High Court to the Court of Appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or such as that it is in the interests of justice that there be a further appeal to this Court. Exceptionally, there may be an appeal direct to this Court where there are "exceptional circumstances warranting a direct appeal".

11. The new constitutional regime, therefore, presumes:-

(i) that the ordinary entitlement to have an appeal from a determination of the High Court continues but is now to be fulfilled by an appeal to the Court of Appeal; and

(ii) that, in the absence of exceptional circumstances, even where an appeal to this Court might be constitutionally warranted by reason of it raising an issue of general public importance or it being otherwise in the interests of justice that such an appeal be brought, it is presumed that such an appeal is better taken when the issues have been refined by the hearing of an appeal in the Court of Appeal. In so saying, it does, of course, have to be acknowledged that the Constitution itself does recognise that there may be exceptional circumstances where the latter imperative does not apply. That leap-frog jurisdiction is, however, expressly stated in the Constitution to be an exceptional one.

13. Given that the default position is that all new appeals from the High Court, save in the exceptional circumstances in which a leapfrog appeal is warranted, will go to the Court of Appeal and only then on by further appeal to this Court if the constitutional criteria for a further appeal are met, it follows that, in the absence of special circumstances, there is no good reason why an appeal which, today, would lie to the Court of Appeal but which was before this Court simply because the appeal was brought prior to the establishment day, should not be transferred to the Court of Appeal and enjoy exactly the same rights of appeal as the same case would enjoy were it determined in the High Court now rather than prior to the establishment day.

14. It is not possible to give an exhaustive account of the type of special circumstances which might warrant the court acceding to an application to cancel the Direction insofar as a particular appeal is concerned. It is only necessary to say that, given that the focus of Article 64 itself is concerned with considerations of the efficient administration of justice, and given the view taken by this Court by the inclusion of the appeal in question in the Direction, there would, at the level of principle, have to be a weighty countervailing factor identified to warrant cancelling the Direction.

15. The Court is satisfied that it should only cancel the Direction in relation to a specific appeal where the party applying for such cancellation brings to the attention of the Court a significant countervailing factor or factors which would justify the Court in departing from the view already taken that it was in the interests of the efficient administration of justice that the appeal be so transferred to the Court of Appeal.

Applicant’s Application

16. The applicant moves this application submitting that there was already a judgment in the Supreme Court, on the 7th June, 2013.

17. In fact, it appears that there was a motion before the Supreme Court on the 7th June, 2013. An ex-tempore ruling delivered, on the 7th June, 2013, was as follows:-

“1. When this motion was called there was no appearance by or on behalf of Daniel Gallagher, the plaintiff/appellant, referred to as “the appellant”.

2 The motion had been peremptorily adjourned to today’s date.

3. The Court received a written request from the appellant for an adjournment on the grounds of ill health, and he sent a medical report.

4. The defendant/respondent, referred to as “the respondent”, has brought a motion to strike out, for failure to file complete books of appeal, the appellant’s appeal from the order of the High Court (Ryan J.) dated the 26th July, 2011, which dismissed the appellant’s proceedings.

5. The books of appeal remain incomplete.

6. The Supreme Court Office has requested the appellant to provide the transcript of the High Court proceedings.

7. The Court requested the Supreme Court Office to accept the incomplete books of appeal.

8. The Court requested the respondent to file in the Supreme Court Office the transcripts of the High Court proceedings in this matter.

9. The Registrar was requested to write a letter to the appellant setting out the decision of the Court together with a copy of the ex tempore ruling of the Court.

10. The appeal will thus stand ready in the list.

11. The appellant has raised the issue of Digital Audio Recording (DAR). The issue of DAR is a separate matter to the books of appeal. The appellant may apply to the trial judge on that issue.

12. The Court reserved the issue of costs.”

19. The applicant states that his Books of Appeal are in the Supreme Court since the 26th March, 2012, but could not be filed as a transcript was requested in the order of the Court. He pointed out that a transcript was no benefit to him as he cannot read. He said that his wife sent affidavits and other documents to the Supreme Court.

20. The applicant states that he had a serious farm accident on the 4th April, 2013. He refers to motions before the High Court on the 4th June, 2015.

21. There are further statements in relation to an application for the DAR, which has been refused.

22. He alleges that because of his disabilities, including dyslexia, he needs an audio of the DAR of the High Court proceedings to assist in his submissions to the Supreme Court.

23. The applicant also makes reference to another Supreme Court appeal, relating to farmland, and that he has been falsely imprisoned on three occasions for remaining in possession of the lands. He stated that on the 10th July, 2009, while being transported from Letterkenny Courthouse to Castlereagh Prison in a prison van he was injured. He states that had it not been for the false imprisonment in his original case there would have been no personal injury as he would not have been in a prison van.

24. The applicant addressed further another case, which has been in the Courts many times, in relation to lands.

Respondent’s Notice of Opposition

25. The respondent referred to the Direction of the Court under Article 64.3.1° of the Constitution.

26. It was submitted that in order to consider cancellation of the effect of such a direction this Court would require to be satisfied that the decision concerned either involved a matter of general public importance or that the interests of justice require that there be an appeal to the Supreme Court.

27. It was submitted that the present case relates to a July, 2011, High Court dismissal of the applicant's claim in damages for personal injury following less than two full days of hearing and is not a matter concerning any question of public or private law of such fundamental importance as would render it necessary in the interests of justice to have the matter determined by the Supreme Court rather than the Court of Appeal. Therefore the premises required to overturn the original Article 64 direction are clearly not present.

28. It was further submitted that the within High Court appeal is a case which is most readily disposed in the Court of Appeal further to the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise costs, being also the clear function of a direction made pursuant to Article 64.3.1°.

29. It was submitted that in the same interests of the administration of justice and expeditious determination of proceedings, the Direction transferring this appeal to the Court of Appeal should now be affirmed.

Decision

30. As this Court has already determined that it would be in the interests of the efficient administration of justice that this appeal be transferred to the Court of Appeal, the purpose of an application under Article 64.3.3°, such as this application, is to enable a party to the appeal to bring to the attention of the Court any special factors connected with the appeal which might persuade the Court that, contrary to its initial view, the appeal should be retained in this Court by the cancellation of the Direction insofar as it is applicable to this case.

31. The applicant has referred to an order of the Court. This was an order in relation to a motion as set out in paragraph 17 above. A decision in such a motion does not mean that the appeal has been heard in part or at all by the Supreme Court. It is simply a decision on a motion to strike out an appeal and in case-managing the appeal. It is not a reason of itself to retain this appeal in this Court.

32. The issue as to the DAR is also not a reason to retain this case.

33. Nor does the reference to other appeals of the applicant in relation to land have any relevance to this appeal.

34. This is an appeal in relation to a personal injuries action, brought by the applicant. The applicant claims that he was injured when being driven in a prison van. The applicant lost his claim in the High Court, and lodged an appeal in the Supreme Court. The appeal has been transferred to the Court of Appeal by Direction given under Article 64.3.1°

35. The Court is satisfied that the appellant has not brought to the attention of the Court any special factors connected with this appeal, such as to warrant cancellation of the Direction in relation to this case. In the absence of any special circumstances, there is no good reason why there should be a cancellation of the Direction.

36. Consequently, the Court does not make an order cancelling the Direction that this appeal be heard by the Court of Appeal.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.