Supporting Documents:
140-18 AFL.doc140-18 Respondents Notice.pdf

THE SUPREME COURT

BETWEEN

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

RESULT: The Court grants leave to the Plaintiff / Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 23rd July, 2018

DATE OF ORDER: 24th July, 2018

DATE OF PERFECTION OF ORDER: 4th September, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 11th September, 2018 AND WAS IN TIME.

General Considerations

1. 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 33rd 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] 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. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2. Furthermore the application for leave filed and the respondent’s notice 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.

3. In that context it should be noted that the respondent opposes the grant of leave.

Decision

4. These proceedings concern an attempt to have the court decide a preliminary issue of law which relates to a dispute which is referred by an agreement in writing for expert determination.

5. It is correct to state that there has not, before now, been an Irish case which is directly on point. The issue is one of common law and there is a substantial body of United Kingdom authority on the subject. It does not follow, therefore, that the absence of Irish authority necessarily gives rise to an issue of general public importance. There may be circumstances where the application of UK common law principles would both be clear and where there would be no reason to suggest that those principles would not also form part of the common law of Ireland.

6. In that context, the applicants (“Dunnes”) refer to the cases of Mercury Communication Ltd v. Director General of Telecommunications [1996] 1 WLR 48 and Barclays Bank Plc v. Nylon Capitol LLP [2012] 1 All ER (Comm) 912. The respondents (“Point Village”) seek to differentiate between cases such as those, which concerned the question of whether an expert was entitled to embark on a particular type of determination by virtue of factors such as there being said to be a condition precedent (as in Barclays) and a dispute as to the scope of the expert’s mandate (as in Mercury), on the one hand, and the necessary resolution by the relevant expert of a contested question of interpretation or law for the purposes of fulfilling his undisputed mandate, on the other.

7. There can be little doubt that the question of the extent to which an expert can decide questions of law or, as here, a court can be asked in advance to determine questions of law which relate to a dispute which parties have agreed to refer for determination by an expert , is of general importance. Parties frequently resort to expert determination as a means of resolving disputes. The extent to which it may be permissible to invoke the jurisdiction of the Court to resolve an issue of law which forms part of the determination which the expert is required to make has, therefore, the potential to arise regularly.

8. While it may well be said that there is significant United Kingdom authority on the point, it remains the case that the common law in Ireland on this issue has not yet been determined. It is the view of this Court that this is not one of those cases where it can be said that it is sufficiently clear both that the common law in this jurisdiction is identical to the common law in the United Kingdom and that the common law in the United Kingdom is itself sufficiently clear so as to remove any doubt as to the appropriate principles to be applied.

9 On the basis of that analysis, the Court does consider that an issue of general public importance has been raised.

10 The Court also notes that it is suggested that it may be in the interests of justice that an appeal be allowed, having regard to the contention that the Court of Appeal dismissed the proceedings in circumstances where all that was sought was a stay. Point Village argues that it is clear that the sort of stay sought would, in effect, have prevented the proceedings from ever going ahead. There are some circumstances in which a party may seek a stay which may be described as conditional or provisional in that proceedings may be stayed unless and until some eventuality occurs. On the other hand, the term “stay” is sometimes used in the context of a permanent prohibition on the proceedings going any further.

11. However, Dunnes argue that the question of a dismissal of the proceedings never arose in the course of the hearing before the Court of Appeal. It is certainly the case that this Court has indicated that one of the circumstances which may meet the constitutional threshold under the “interests of justice” heading is where something occurs in the course of the proceedings before the Court of Appeal itself which arguably gives rise to an injustice in respect of which there would not otherwise be, therefore, any appeal.

12. In the view of this Court it is therefore in the interests of justice that the Court consider whether, in all the circumstances of the case, it was appropriate for the Court of Appeal to dismiss the proceedings in the context of an appeal against a stay application. The Court will, therefore, grant leave on that ground as well.

13. The Court will, therefore, grant Dunnes leave to appeal on all grounds as set out in the notice of application but it will be a matter for the case management judge to ensure that all of the grounds put forward come properly within the ambit of the basis identified in this determination for the grant of leave.

14. The Court therefore grants leave to appeal.

And it is hereby so ordered accordingly.