Supporting Documents:
THE SUPREME COURT
DETERMINATION
IN THE MATTER OF THE CONSTITUTION A C APPLICANT AND
CORK UNIVERSITY HOSPITAL AND THE HEALTH SERVICE EXECUTIVE RESPONDENTS AND
IN THE MATTER OF THE CONSTITUTION
A C APPLICANT AND
CONSULTANT DR J C CORK UNIVERSITY HOSPITAL AND THE HEALTH SERVICE EXECUTIVE RESPONDENTS
APPLICATION REFERRED TO IN ARTICLE 34.5.3 OF THE CONSTITUTION
RESULT: The Court does not grant leave to appeal to this Court under Article 34.5.3 of the Constitution from the order of the Court of Appeal made on the 26th May 2017.
REASONS GIVEN:
1. Jurisdiction
This determination relates to an application by the appellant in the underlying proceedings (“Mr. C”) for leave to appeal, under Art. 34.5.3 of the Constitution, from an ex tempore judgment of the Court of Appeal (Ryan P., sitting as a single judge) delivered on the 26th May, 2017.
As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.
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 of 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
This application is related to the applications dealt with in IESCDET 97.The substantive issue in Mr. C’s appeals, concerning his challenge to the alleged detention of his 94-year old mother in hospital (“A C”), is outlined in that Determination and will not be further described here.
3. The Order appealed against
On the 26th May 2017 an application was made by Mr. C in the Court of Appeal for discovery by the respondents of all documents, records or other material (including those in electronic form) as requested in a letter of voluntary discovery. The application for discovery was refused by Ryan P.
No discovery appears to have been looked for in the High Court proceedings. Mr. C has not informed this Court what, precisely, was sought by way of discovery but it is apparent from the papers that there were 25 categories. Ryan P. summarised what was being sought as “in effect, all the materials relating to his mother during her time in Cork University Hospital and all the materials that led to the application for wardship and all surrounding documents that he can think of and he has used considerable ingenuity to devise categories and described them”.
In refusing the application, Ryan P. referred to the principle that the Court would permit additional evidence to be adduced only where there were special circumstances showing that the new material was relevant to the case, was credible and should be considered by the Court. It was necessary for the party to prove that they did not have and could not have had access to the materials previously. He considered that Mr. C had not satisfied these requirements and in particular had not shown that it was relevant. The question in the appeal was whether the High Court had been correct on the materials and information available to it.
4. The Contentions of the Parties
The notice of application for leave to appeal together with the response is 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 applicant suggests that the constitutional threshold for leave to appeal has been met.
Mr. C says that what he is seeking is corroborative proof to rebut the allegation that his mother is of unsound mind. He says that he did not have time to look for discovery when this issue arose unexpectedly in the High Court on the 11th July 2016 and did not have time to consult with his mother. On his case, he is not adducing new evidence but rather evidence that existed at the time of the High Curt hearing but was “suppressed”. Mr. C repeats a number of the complaints made in his other applications as to the alleged deficiencies in the High Court procedure and outcome. Most of these are not relevant to the question as to whether discovery should be permitted by an appellate court for the purpose of adducing new evidence.
5. Discussion
As is clear from a range of determinations made by this Court since the 33rd 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. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.
Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.
The order sought to be appealed related to an application for discovery in the course of an appeals process. Discovery was refused on the basis of the application of well-established case-law and principles. Mr. C has not demonstrated that any issue arises therefrom that meets the constitutional criteria for leave to appeal to this court.
6. Conclusion
The Court, therefore, refuses leave to appeal under Art. 34.5.3.
And It is hereby so ordered accordingly.
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