Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court refuses the application for leave to appeal to this Court directly from the High Court.

REASONS GIVEN:

1. This determination relates to an application by Dunnes Stores, the applicant, referred to as “the applicant”, in which it seeks leave to appeal judgments of the High Court (McGovern J.) dated the 21st May, 2015 and 18th June, 2015, resulting in an order dated the 18th June, 2015, which was perfected on the 19th June, 2015.

2. An Bord Pleanala, the respondent in the appeal, is referred to as “the Board”. The Board opposes the application for leave to appeal.

3. The first named notice party, Indego, is referred to as “Indego”. Indego opposes the application for leave to appeal.

4. The second named notice party, South Dublin County Council, is referred to as “the Council”. The Council opposes the application for leave to appeal.

5. This determination relates to an application by the applicant seeking leave to appeal to this Court directly from the High Court under Article 34.5.4° of the Constitution. As a result of the amendments to the Constitution, brought about by the 33rd Amendment, the previous position, under which an applicant unhappy with a decision of the High Court had an entitlement to appeal to this Court, save with limited statutory exceptions, was replaced by two provisions. Article 34.5.3° now provides for the same right of appeal from the High Court as previously existed in respect of an appeal to this Court, except that the right is now transferred to an entitlement to appeal to the Court of Appeal. However, a further appeal from a decision of the Court of Appeal is available, with leave, to this Court. Alternatively, under Article 34.5.4°, it is possible to seek leave to appeal directly from the High Court to this Court. Such an appeal may be referred to as a “leapfrog” appeal, as it involves by-passing what might otherwise be regarded as the new normal appellate structure involving an appeal to the Court of Appeal with the possibility of a second appeal to this Court.

6. As the Court is still in a time of transition, it is appropriate to re-iterate some general observations, under the Constitution, to grant or refuse, such application for leave.

7. At this time this Court, and the Court of Appeal, are seeking to address the existing list of undecided appeals which were brought to this Court prior to establishment day, which came into force as a result of the 33rd Amendment and the Court of Appeal coming into being. Thus, during this transitional phase, this Court will be dealing with appeals of a type which might not necessarily warrant leave to appeal to this Court under the new regime.

8. It will take some time for a body of jurisprudence to develop concerning the basis upon which this Court will grant leave to appeal under the Constitution, whether under Article 34.5.3° or Article 34.5.4°.

9. The starting point is the relevant provisions of the Constitution.

10. Article 34.5.3° provides:-

“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decision of the Court of Appeal, if the Supreme Court is satisfied that:

(i) the decision involves a matter of general public importance, or

(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

“Notwithstanding section 4.1 hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court, if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied is the presence of either or both of the following factors:

(i) the decision involves a matter of general public importance, or

(ii) the interests of justice.”

12. The additional requirement which must be present, in order that leapfrog leave be given, is, in accordance with the words of Article 34.5.4. “that there are exceptional circumstances warranting a direct appeal to” this Court.

13. Fox v. Judge Alan Mahon and Ors [2015] IESCDET 2 asks the question as to whether it truly is the case that an appeal to this Court is likely to arise anyway and further whether, even if it is, the appeal is likely to “look the same” when it gets to this Court.

14. So far as that criteria is concerned, it is possible to identify, at one end of the spectrum, a single issue case involving only a legal issue which undoubtedly meets the constitutional threshold of importance. Of course, even in such a case, it would be of some assistance for this Court to have the added views of the Court of Appeal. Nonetheless there may be a countervailing question as to whether the efficient use of court time and resources, and the burden in time and costs for the parties which would be occasioned by having to face two appeals, would be justified. The case at that end of the spectrum might be described as a single issue case with clearly identified arguments where a second appeal to this Court would be likely to involve only a rehash of the arguments which would be made to the Court of Appeal. At the other end of the spectrum there may be cases where the issues which might arise on appeal would have been many and varied, including questions of the sustainability of the facts found by the trial judge or routine questions concerning whether the trial judge had properly applied well settled law to the circumstances of the case. Even if, in the midst of such an appeal, there might be a point, or points, which might ultimately be considered as possibilities for meeting the constitutional threshold for an appeal to this Court, it would be difficult to see how the process of bringing such a case to final determination would not be significantly improved by an appeal to the Court of Appeal.

15. Thus, it is important to note that the further one gets away from the "single important issue of law" case, the more weight has to be attached to the risk that the overall appellate process might be impaired by departing from the default position of an appeal to the Court of Appeal.

16. Returning to issues of broad principle, it is, of course, also necessary to identify what might be said to be the exceptional circumstances justifying a direct appeal to this Court for without such circumstances the Constitution does not permit a direct appeal. It would be both wrong and dangerous to attempt, at this very early stage of the process, to identify an exhaustive approach to that question. However, in the context of this case, two issues obviously have the potential to arise.

17. First, it may be said that the very issues in the case itself are of such general public importance, or involve such questions involving the interests of justice, that the potential appeal is thus rendered exceptional. The Court is prepared to accept, at the level of principle, that there may be such cases. However, it is important, in that context, to emphasise the comments already made by reference to the determination of this Court in Fox. The new constitutional appellate arrangements regard an appeal to the Court of Appeal as the norm and a direct appeal to this Court as the exception. To the extent that there may be reason to believe that an appeal which might come to this Court would be the same, or largely the same, whether it arrived via the Court of Appeal or directly, then the importance of the case itself may, in some cases, outweigh any advantages which might be perceived to derive from an intermediate appeal to the Court of Appeal. But even in that context it must be acknowledged that the sort of issues raised would have to be of a particular level of importance to warrant describing the circumstances of the appeal as exceptional in the sense in which that term is used in the Constitution. Not every case which meets the basic constitutional threshold for appeal to this Court can, thus, be regarded as exceptional. If it were otherwise then every case which could be appealed to this Court would also qualify for leapfrog leave.

18. The second criteria which may often arise is one of urgency. There clearly will be cases where, in one way or another, a clock in the real world is ticking. In such cases, even if there may be perceived to be some merit in, or advantage to, an intermediate appeal, the balance may favour a direct appeal to this Court, precisely because the downside of any delay which would be caused by two appeals would be disproportionate in the circumstances of the case.

19. For present purposes it is sufficient to identify that at least many applications for leapfrog leave may turn, at the very broadest level, on an assessment of the balance between the two factors already identified. Of course the court must first be satisfied that the constitutional threshold for an appeal to this Court has been met. The Constitution itself requires as much. If the court is not so satisfied then the application must be refused. However, where the court is satisfied that that constitutional threshold has been met the court will have to consider whether, either deriving from the nature of the appeal itself or from external circumstances such as urgency, it can be said that there are exceptional circumstances justifying a leapfrog appeal. In attempting to reach an assessment on that question the court may well have to analyse the extent to which, on the one hand, there may be perceived to be a disadvantage in not going through the default route of a first appeal to the Court of Appeal and balance that against any disadvantage, whether in the context of putting the courts and the parties to unnecessary trouble and expense or in relation to a delay in achieving an ultimate resolution of urgent proceedings, which might be involved by running the risk of there being two appeals. In that later context it should be acknowledged that there will only truly be a saving of time and expense for both the courts and the parties, if it is likely that there will be a second appeal irrespective of the decision of the Court of Appeal.

20. Doubtless other considerations will come into play as further applications for leapfrog leave have to be considered by this Court. However, for present purposes the aforementioned provides a sufficient outline of the broad principles to be applied.

21. Before going on to apply those principles to the circumstances of this case, there are a number of additional matters on which the Court would wish to comment. First, it is important to emphasise that a party will, ordinarily, be entitled to raise any arguable grounds of appeal should that party bring their appeal to the Court of Appeal. The only limitation which might arise exists in those types of cases where there may be provision by law limiting the right of appeal. On the other hand, any appeal to this Court, whether an ordinary appeal or a leapfrog appeal, requires leave and, thus, requires at a minimum that the basic constitutional threshold be met. It follows that there may be grounds of appeal from the High Court which a party would be entitled to pursue in the Court of Appeal but which would not meet that constitutional threshold and which could not, therefore, be pursued before this Court. In making that point the Court is not leaving out of consideration the possibility that there might be cases where the interests of justice would require that a particular point be permitted to be canvassed on appeal to this Court even where that point might not, of itself, meet the constitutional criteria for importance. The precise application of the "interests of justice" criteria has not yet been the subject of any detailed consideration by this Court.

22. It must, therefore, however, be recognised by potential appellants that one of the possible consequences of seeking to pursue only a leapfrog appeal is that the appellant may, thereby, lose their entitlement to raise some of the points which they might have wished to raise on appeal because this Court might not be prepared to grant leave in respect of all of the grounds sought to be raised.

23. In the same context it is important to draw attention to the provisions of s. 9 of the Court of Appeal Act, 2014 which inserts a new s. 7B into the Courts (Supplemental Provisions) Act, 1961. That section permits the Court of Appeal, either of its own motion or on the application of a party, to stay the proceedings before it to enable an applicant to apply to this Court for leave to bring a leapfrog appeal. Thus, there is no reason in principle why a party cannot file a broad notice of appeal before the Court of Appeal, seek to have that application stayed pending an application to this Court for a leapfrog leave, and, thus, retain its entitlement to run its case before the Court of Appeal should it fail in its application for leave to this Court.

24. Finally, it is important to draw the attention of parties to the provisions of the new rules of the superior courts insofar as they apply to appeals to this Court. Order 58 r.18(1)(d) requires that a respondent who intends, on the hearing of any appeal to this Court, to contend that the judgment or order appealed from should be affirmed on grounds other than those set out in the judgment or order of the court below, to set out "a concise statement of the additional grounds on which it is alleged the judgment or order appealed from should be affirmed". This is in contrast to the provisions of r. 18(3) which requires a respondent who seeks to "vary the decision or order of the court below (i.e. to cross appeal)" to itself seek leave to appeal in the ordinary way. Thus it is important to emphasise that a party who is content with the result of either the High Court (in the case of a leapfrog appeal) or the Court of Appeal (in the case of an ordinary appeal) can raise any further or different grounds justifying the ultimate decision which it wishes to stand over simply by including the relevant statement in the respondent's notice. On the other hand, a party who wishes to urge that the ultimate result of the case should be different must itself seek leave to appeal in the ordinary way. One of the issues which this Court may well have to address in the future is the circumstances in which the interests of justice might require allowing leave to cross appeal on a ground or in relation to a matter in circumstances where the issues sought thereby to be raised would not, on a standalone basis, justify granting leave to appeal to that party were it the appellant.

25. The application to the High Court which was the subject of the order of the High Court (McGovern J.) made on 18th June, 2015 and perfected on 19th June, 2015 was an application in judicial review proceedings in the Commercial Court in respect of which leave had been granted to apply by way of judicial review for certain reliefs on certain grounds by order of the High Court (Noonan J.) made on 17th November, 2014. The primary relief originally sought was an order of certiorari quashing the decision of the Board to grant planning permission for the development specified in the order, which decision was dated 23rd September, 2014. There were two stages in the process in the High Court which led to the order made on 18th June, 2015, namely:

(a) the hearing and determination of an application brought by the applicant by a motion dated 18th May, 2015, which application was refused in a judgment delivered by the High Court (McGovern J.) on 21st May, 2015; and

(b) the hearing and determination of an application of the applicant for leave to appeal against such refusal under s. 50A(7) of the Planning and Development Act 2000 (the Act of 2000), which was refused in a judgment delivered by the High Court (McGovern J.) on 18th June, 2015.

(a) an order pursuant to Order 84, rule 23(2) of the Rules of the Superior Courts 1986, as amended (the Rules), to amend the applicant’s statement required to ground an application for judicial review dated 17th November, 2014 (the applicant’s Statement) to include certain additional reliefs and grounds of relief against the Board;

(b) an order joining as respondent in the proceedings South Dublin County Council, which originally had been joined in the proceedings as a notice party and which had given notice of decision to grant planning permission on 24th March, 2014 for the development the subject of the proceedings and in respect of which, on the appeal to it, the Board granted the planning permission dated 23rd September, 2014;

(c) an order pursuant to Order 84, rule 23(2) of the Rules to amend the applicant’s statement to include certain additional reliefs and grounds of relief against South Dublin County Council; and

(d) if necessary, an order pursuant to s. 50(8) of the Act of 2000 extending time for the making of an application to amend the applicant’s statement to include the additional reliefs and grounds of relief against the Board and South Dublin County Council specified.

(i) That, by reason of the provisions of s. 37(1)(b) of the Act of 2000, which he found were quite clear and unambiguous, once the Board had made its decision dated 23rd September, 2014 it had the effect of annulling the decision of South Dublin County Council dated 24th March, 2014, so that there was no decision of South Dublin County Council which could be challenged and there was simply no decision of South Dublin County Council to quash. Section 37(1)(b) of the Act of 2000 provides:

“Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority.”

(ii) That the applicant had not adduced sufficient evidence to the Court to grant an extension of time pursuant to s. 50(8) of the Act of 2000.

“Whether section 37(1)(b) of [the Act of 2000], which provides that the decision of [the Board] on appeal shall operate to annul the decision of the planning authority as and from the time when it was given, precludes challenging the decision of the planning authority after the Board has made its decision when the grounds of challenge against the planning authority raise grounds of pre-determination bias and/or a reasonable apprehension that the planning application has been prejudged which only came to light after the Board had made its decision.”

“The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

28. The basis of the applicant’s contention that the decision sought to be appealed involves a matter of general public importance is that the decision of the High Court as to the proper construction and application of s. 37(1)(b) of the Act of 2000 was wrong in law. The applicant advances a number of arguments for the proposition that the proper construction and application of that provision is a matter of general public importance. If the High Court was correct in holding that the provision precluded a challenge of a decision of the planning authority, in this case, South Dublin County Council, after the Board had made its decision, notwithstanding the fact, as alleged by the applicant against South Dublin County Council, that there are clear grounds for bias, or a reasonable apprehension of bias, the integrity of the planning process could not be given effective protection, it was submitted. It is a matter of exceptional public importance that the manner in which decisions of the planning authority are made are not immune from judicial scrutiny. Further, it is submitted that the proposed point of law is fundamentally public in nature, because it is intended to clarify in what circumstances the public might still be able to challenge the decision of the planning authority which has not been made in accordance with the principles of fair procedures and natural and constitutional justice.

29. The basis of the applicant’s contention that in the interests of justice it is necessary that there be an appeal directly from the High Court to this Court is the suggestion that an appeal to the Court of Appeal is unlikely to fully dispose of the matters at issue. That is also the basis of the applicant’s contention that there are exceptional circumstances warranting a direct appeal to this Court. At the core of the applicant’s submission that an appeal to the Court of Appeal is unlikely to dispose of the matters in issue is the fact that there are two decisions of this Court in which it has been held that there is no appeal from a refusal by the High Court of a certificate for leave to appeal under s. 50A(7) of the Act of 2000: Irish Asphalt Limited v. An Bord Pleanála [1996] 2 I.R. 179; and Irish Hardware Association v. An Bord Pleanála [2001] 2 I.L.R.M. 291. The applicant submits that those decisions were wrongly decided and should be set aside. The Court of Appeal does not have the ability to reverse those Supreme Court decisions so that, the applicant submits, the Court of Appeal is unlikely to dispose of the matters at issue.

30. While the applicant’s position is that it does not require a certificate of leave to appeal the refusal by the High Court to extend the time within which to bring an application by way of judicial review or to amend the grounds of challenge, it submits that it would be more “convenient” that the appeal against the orders refusing such relief be heard together with the appeal against refusal of the certificate of leave to appeal, because, it is submitted, the appeal against the orders refusing such relief “involves a consideration of the same issue of law in respect of which certification is sought and/or the effect of s. 37(1)(b)” of the Act of 2000.

31. The Board opposes the application for leave to appeal on the following grounds:-

“(i) This appeal arises from two judgments of McGovern J of 21 May 2015 (which dealt with the substantive application) and of 18 June 2015 (which dealt with the application for a certificate pursuant to s.50A(7) of the Planning and Development Act, 2000 (‘the 2000 Act’)). On each occasion the Board took a neutral stance (save in respect of costs).

(ii) Whereas it is clear that the substantive application involved an application to amend the pleadings and an application for an extension of time within which to seek leave to apply for judicial review, it is, so far as the Board is concerned, unclear whether the application also involved an application for leave to seek judicial review of South Dublin County Council's decision of 24 March 2014 or that the Judgment of 21 May 2015 can properly be characterised as refusing an application for leave to seek judicial review of that decision.

(iii) In this regard, the Board refers to the [applicant’s] Notice of Motion of 18 May 2015 and the Judgment of 21 May 2015 and in particular paragraphs 1 and 13 of that Judgment.

(iv) Insofar as the [applicant’s] application involved an application to extend time to bring judicial review proceedings against South Dublin County Council, the Board's position is that an appeal lies to the Court of Appeal against the refusal of same without a need for certificate (A. B. v Minister for Justice [2002] 1 IR 296) and within such appeal the [applicant] is entitled to challenge the findings made by the High Court on the application for an extension of time, including any finding as to the meaning and effect of section 37(1)(b) of the 2000 Act made by the High Court on that application.

(v) Insofar as there was an application to amend the existing grounds before the Court, the Board's position is, again, that an appeal lies to the Court of Appeal in this case against the refusal of same without a need for a certificate.

(vi) Insofar as the High Court' by its Judgment of 21 May 2015 and/or its Order of 18 June made a decision to refuse leave to bring judicial review proceedings against South Dublin County Council, no appeal lies to this Court in respect of that decision, having regard to the provisions of s.50A(7) and to the refusal of the High Court on 18 June 2015 to grant leave to appeal.

(vii) No appeal lies to this Court from the refusal of the High Court to grant leave to appeal having regard to the decisions of the Supreme Court in Irish Asphalt v An Bord Pleanala [1996] IR 179 and Irish Hardware Association v South Dublin County Council 2 [2001] 2 ILRM 291.”

(i) The [applicant] argues that a decision of the High Court to refuse leave to appeal to the Court of Appeal pursuant to section 50A(7) of the Planning and Development Act 2000 (the PDA 2000) can itself be appealed without a certificate for leave to appeal. A similar argument has previously been rejected by the Supreme Court, in the context of the provisions of the Local Government (Planning and Development) Act 1992; in Irish Asphalt Ltd. v. An Bord Pleanala [1996] 2 I.R. 179, and Irish Hardware Ltd. v. An Bord Pleanala [2001] 2 I. L. R. M. 291. The [applicant] contends that these two judgments were wrongly decided, and invites the Supreme Court to overrule same.

(ii) In response, it is accepted that the mere fact that an appellant seeks to overrule an earlier judgment will not necessarily result in leave to appeal being refused in every case: if it were otherwise, then the Supreme Court could never exercise its exceptional jurisdiction to overrule an earlier judgment. It is submitted, however, that in determining whether the decision in respect of which leave to appeal is sought involves a matter of general public importance and/or an appeal is necessary in the interests of justice, the Supreme Court is entitled to attach some weight to the underlying merits of the appeal. If, for example, the grounds of appeal were clearly unarguable, then it is difficult to see how the constitutional criteria under article 34.5.4 could be fulfilled.

(iii) It is submitted that article 34 leave to appeal should be refused in the peculiar circumstances of this case, where not only has the point been decided (Irish Asphalt), but the Supreme Court has already revisited the issue, and refused to overrule its earlier judgment (Irish Hardware). The law on this issue is settled, and is clear and unambiguous. (The grounds for saying that Irish Asphalt and Irish Hardware were correctly decided and summarised under the next heading below).

(iv) In the alternative, it is respectfully submitted that if leave to appeal is to be granted pursuant to article 34.5.4 then same should be confined to what might be described as the Irish Asphalt/ Irish Hardware issue. More specifically, it is submitted that in circumstances where the [applicant’s] principal reason for seeking a direct appeal to the Supreme Court is that the Court of Appeal does not have the ability to overrule the judgments in Irish Asphalt/ Irish Hardware, then this is the only issue which needs to be determined by the Supreme Court on a direct appeal. It is not necessary for the Supreme Court to determine the substance of the underlying appeal. If the Supreme Court were to overrule Irish Asphalt / Irish Hardware, then the Court of Appeal could hear and determine the [applicant’s] appeal against the refusal by the High Court of a certificate for leave to appeal. The other issues, e.g. the issues of delay alleged bias or the interpretation of section 37 of the PDA 2000, are not matters which meet the constitutional criteria for a direct appeal.

34. The Council submitted, inter alia, that:-

(i) It is not in the interests of justice or finality of litigation to seek to re-litigate a matter which this Court has already twice determined. A decision of a full Supreme Court given in a fully argued case and on a consideration of all of the relevant materials should not be overruled unless there are strong reasons for so doing. No such reasons have been identified here. In this case, the decisions of two separate Supreme Courts would have to be overruled.

In those circumstances, none of the conditions that must exist in order to justify a direct appeal are present here. The decision does not involve a matter of general public importance, it is not necessary in the interests of justice that there be an appeal to the Supreme Court and there are no exceptional circumstances warranting a direct appeal to the Supreme Court.

(ii) The Council submitted that the sole basis for the applicant seeking a "leapfrog" appeal is that there are two existing Supreme Court decisions that cannot be overruled by the Court of Appeal. However that alone does not constitute exceptional circumstances justifying a direct appeal. As set out above, the case law on appeals against refusal of leave to appeal is well established and an attempt to overturn well established case law does not constitute an exceptional circumstance.

(iii) Moreover, in relation to that part of the appeal relating to an extension of time, or indeed the substantive question as to whether or not leave should have been given for the question certified, the applicant does not proffer any justification at all for a leapfrog appeal and there is no reason why these issues cannot be dealt with before the Court of Appeal.

(iv) The Supreme Court has made it clear in its determinations to date on direct appeals that part of a case only may be granted leave to appeal with the remainder being determined by the Court of Appeal.

35. On an analysis of the applicant’s submissions, the applicant has to overcome two hurdles to satisfy this Court that the applicant should be given leave to appeal directly to this Court from decisions of the High Court. The first hurdle is to show that there is a right of appeal from a decision of the High Court to refuse a certificate under s. 50A(7) of the Act of 2000. As has been acknowledged by the applicant, it has been decided by this Court in its decisions in Irish Asphalt Limited v. An Bord Pleanála [1996] 2 I.R. 179 and Irish Hardware Association v. South County Dublin County Council [2001] 2 I.L.R.M. 291 that no appeal lies to this Court from a refusal of the High Court to grant a certificate under s. 50A(7). The applicant contends, however, that those decisions were wrong and should be reversed. The mere assertion that previous decisions of this Court are wrong is not a basis per se upon which to grant leave to appeal directly to this Court. In merely contending that the decisions referred to were wrong, the applicant has not satisfied this Court that there are exceptional circumstances warranting a direct appeal in this case.

36. Even if the applicant were to satisfy the Court that its contention that those decisions of the Supreme Court were wrong and should be reversed is correct, it would also have to overcome the second hurdle of satisfying this Court that the point of law raised by the applicant before the High Court as to the application of s. 37(1)(b) of the Act of 2000 involves a matter of general public importance and/or that it is in the interests of justice that the decision of the High Court on the point of law be appealed against. Given that the applicant has not satisfied the Court on the requirement of exceptional circumstances warranting the granting of “leap frog” leave, it is not necessary, nor would it be appropriate, to express a view as to whether either or both of those preconditions have been complied with at this juncture. That being the case, the question whether it would be “convenient” that the appeal against the order of the High Court refusing an extension of time should go directly to this Court does not arise.

37. Consequently, the Court refuses the application for leave to appeal to this Court directly from the High Court.

And it is hereby so ordered accordingly.