Supporting Documents:

THE SUPREME COURT

DETERMINATION

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

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by Permanent TSB Plc., which was the plaintiff in the underlying proceedings which commenced in the Circuit Court and is hereinafter referred to as “the Bank”. The Bank seeks leave to appeal under Article 34.5.3° of the Constitution from a judgment of the Court of Appeal (Ryan P., Irvine J. and Hogan J.) delivered on 28th July, 2016 by Hogan J. and the order of the Court of Appeal dated 28th July, 2016, which was perfected on 1st September, 2016.

1.2 As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment of the Constitution, it is necessary, in order for this Court to grant leave, that it be established to the satisfaction of this Court that the decision sought to be appealed either involves a matter of general public importance or that in the interests of justice it is necessary that there be an appeal to this Court.

1.3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

2.1 By orders of the Circuit Court, Dublin Circuit, County of the City of Dublin made by Her Honour Judge Linnane on 23rd February, 2015 in –

(a) title jurisdiction civil bill proceedings for possession (Record No. 2014/01781), and

(b) title jurisdiction civil bill proceedings for possession (Record No. 2014/01782),

2.2 Mr. Langan appealed from the said orders to the High Court under Record Nos. 2015/40CA and 2015/39CA. On the hearing of the appeals, the High Court judge (Baker J.) stated a case to the Court of Appeal pursuant to the provisions of s. 38 of the Courts of Justice Act 1936, s. 74 of the Court of Appeal Act 2014 and Order 86B of the Rules of the Superior Courts on the application of Mr. Langan. The questions raised on the case stated were:

1. If a property is not rateable by virtue of the Valuation Act 2001 or otherwise, is the Circuit Court’s jurisdiction under s. 22(1) of the Courts (Supplemental Provisions) Act 1961 excluded?

2. In the alternative, does the Circuit Court have jurisdiction by virtue of the property not having a rateable valuation that exceeds €253.95?

3. Is the Circuit Court entitled to proceed to judgment, unless it [is] shown by evidence that there is a rateable valuation which exceeds 253.95?

4. If there is no certificate of rateable valuation how does the Court exercise its power to estimate rateable valuation under s. 31 of the County Officers and Courts (Ireland) Act 1877 (the Act of 1877)?

5. Is the plea in a Civil Bill taken together with evidence on affidavit of a professional assessment of rateable valuation, “sufficient legal evidence” on which the Court can make an estimate of rateable valuation for the purposes of s. 31 of the Act of 1877?

1. Yes, subject to the answer given in respect of Q3.

2. No.

3. Where the defendant has put the jurisdiction of the Circuit Court at issue, that Court is not entitled to proceed to judgment in respect of a domestic dwelling which has been rendered unrateable by the Valuation Act 2001, unless the case in question comes within either Part 10 of the [Land and Conveyancing Law Reform Act 2009] or s. 3 of the [Land and Conveyancing Law Reform Act 2013].

4. Does not arise.

5. Does not arise.

3.1 The order appealed against is the order of the Court of Appeal made on 28th July, 2016 in which the questions raised in the case stated are answered in the terms set out in para. 2.3 above.

4. Contentions of the parties

4.1 The Bank’s application for leave to appeal and Mr. Langan’s respondent’s notice in response are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the Bank suggests that the constitutional threshold for leave to appeal has been met.

4.2 It is necessary to comment on the unsatisfactory manner in which the respondent’s notice has been submitted on behalf of Mr. Langan. The form of the respondent’s notice is prescribed in rule 18(1) of Order 58 of the Rules of the Superior Courts 1986, as amended, the relevant form being Form No. 2. Form No. 2 in Section 1 (“Respondent Details”) requires the respondent, inter alia, to set out what the respondent intends. Six options are set out and each option is preceded by a box in which the respondent is required to tick the appropriate option. In this case, Mr. Langan’s solicitors did not use the prescribed form. As regards the third, fourth and fifth option:

“not to oppose the application for leave to appeal,

to ask the Supreme Court to dismiss the appeal.

to ask the Supreme Court to affirm the decision of the Court of Appeal . . .”,

4.3 Accordingly, it is only necessary to outline the basis on which the Bank contends that the constitutional threshold for the granting of leave has been met. The Bank contends that the decision of the Court of Appeal sought to be appealed against involves a matter of general public importance. Referring to the statement in the judgment of the Court of Appeal (at para. 49) that the conclusions of that Court “are likely to lead to consequences which are both unfortunate and unintended” and will “create additional costs for litigants and will serve to deprive the parties of access to local courts in a manner which the Constitution actually intended”, the Bank contends that, as well as it being of public importance that such consequences should be avoided if possible, and it is submitted that it is possible, it is in the interests of justice that the “additional costs for litigants” be avoided and that the ability to “access local courts” be preserved. It is suggested that the interpretation given by the Court of Appeal to the concept of “local and limited jurisdiction” in Article 34.3.4° of the Constitution may well have broad implications for the Circuit Court’s jurisdiction in various matters. Recognising that the said interpretation of Article 34 appears to emanate from a judgment of the former Supreme Court in Grimes v. Owners of SS Bangor Bay [1948] I.R. 350, it is submitted on behalf of the Bank that the Court of Appeal erred in its interpretation and/or application of that judgment or, alternatively, if the Court of Appeal did apply it correctly, it should be overruled and only this Court has jurisdiction to do that.

5. Discussion

5.1 As is clear from a range of determinations made by this Court since the Thirty Third Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. The text of the Constitution now makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against meets one or other of the two constitutional criteria outlined earlier.

5.2 While the Bank suggests that it is in the “interests of justice” that the consequences of the decision of the Court of Appeal be eliminated, in reality, the constitutional criterion which is invoked on behalf of the Bank is that the decision of the Court of Appeal involves a matter of general public importance rather than the more case specific criterion that it is in the interests of justice necessary that there be an appeal.

5.3 The Court is satisfied that the Bank has demonstrated that the decision of the Court of Appeal sought to be appealed against does involve a matter of general public importance so that the constitutional threshold for granting leave has been met in this case. Moreover, in Section 6 of the Bank’s application for leave the grounds of appeal which will be relied on if leave to appeal is granted have been clearly set out by reference to the decision of the Court of Appeal. However, the response in Section 5 of Mr. Langan’s respondent’s notice merely traverses each of the twelve grounds of appeal relied on by the Bank by asserting that the Court of Appeal was correct and did not err. This approach is, of course, in line with the Court’s understanding that Mr. Langan is not opposing the granting of leave. Following the approach adopted in Director of Public Prosecutions v. Heffernan [2016] IESCDET 32, it is appropriate to note that, whether the Court of Appeal was correct or not, will be a matter for the appeal to this Court. It is only if there is no reasonable possibility that this Court might conclude that the Court of Appeal was wrong that it would be appropriate to decline leave where the underlying issue sought to be raised are of general public importance. Having regard to the grounds advanced in Section 6 of the Bank’s application for leave there is no basis for forming the view that the Bank has no reasonable possibility of succeeding on the appeal if leave is granted. Accordingly, leave will be granted.

6. Conclusion

6.1 The Court, therefore, grants leave to the Bank to appeal against the decision of the Court of Appeal on the following grounds:

Whether the Court of Appeal was incorrect in its answers to each of the questions posed in the case stated from the High Court and, if so, the consequences for this case.

AND IT IS HEREBY SO ORDERED ACCORDINGLY