Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

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

REASONS GIVEN:

1. This determination relates to an application by John Callaghan, the applicant, who is referred to as “the applicant”, in which he seeks leave to appeal the judgments of the High Court (Costello J.) delivered on the 11th June, 2015, and, in respect of the application in the High Court for leave to appeal, the 24th July, 2015; the High Court order was made on the 30th July, 2015, and perfected on the 28th August, 2015.

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

3. Ireland and the Attorney General are respondents in the appeal, and are referred to as “the State”. The State opposes the application for leave to appeal.

4. Element Power Ireland Limited, Element Power Ireland, and North Meath Wind Farm Limited, are notice parties/respondents in the appeal, and are referred to as “notice parties”. The notice parties oppose the application for leave to appeal.

General Principles

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 one 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 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 may be 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 from the Court of Appeal 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 applicants that one of the possible consequences of seeking to pursue only a leapfrog appeal is that the applicant 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 applicant.

The Application

25. The High Court, on the 11th June, 2015, refused the applicant’s application for leave to seek judicial review in respect of a decision by the Board to designate the proposed application for a wind farm by the first named notice party to be a strategic infrastructure development, within the meaning of the Planning and Development (Strategic Infrastructure) Act 2006.

26. The applicant applied for a certificate for leave to appeal, seeking a certificate on three points of law. Section 50A(7) of the Planning and Development Act, 2000, as amended, provides that an appeal may only be taken where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is in the public interest that an appeal should be taken.

27. The High Court reviewed the law and found that the crucial point to be considered was whether there was uncertainty to each point of the applicant’s three points. If there was no uncertainty, then a certificate for leave to appeal must be refused.

28. It was common case that this is the first case to challenge the procedures introduced by s. 37A of the Act of 2000, as amended. The High Court held that the fact that a point of law is novel, does not of itself answer the question as to whether the law is certain or uncertain.

29. The High Court held that the law was clear in relation to the second and third points raised by the applicant. The Court held that the situation was different in relation to the first point which raised the question as to whether or not the applicant is entitled to fair procedures in respect of the pre-application process mandated by the s. 37A procedure in the Act of 2000, as amended. The High Court was satisfied that on the first issue the applicant had raised a point of law of exceptional public importance, and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal or the Supreme Court.

30. Consequently, the High Court certified that the applicant may appeal the judgment of the 11th June, 2015, on the first issue as follows:-

“Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006, when construed in light of s. 50(2) and s. 143 of the Planning and Development Act 2000, such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to s. 37A of the Planning and Development Act, 2000”.

32. The applicant pointed out that the High Court indicated that the applicant should try to expedite the appeal.

33. The applicant submitted that the High Court had determined that the applicant had raised a point of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal or the Supreme Court.

34. The applicant stated that a direct appeal to the Supreme Court would avoid the delay that would result in the event that an application for leave to appeal to the Supreme Court was made and/or granted after an appeal to the Court of Appeal.

Response of Board

35. The Board opposes the application for leave to appeal to the Supreme Court, for the following reasons:-

(i) The applicant’s case for a grant of leave appears to rely heavily on the fact that the learned judge has certified the point of law set out therein in accordance with s.50A(7) of the Planning and Development Act, 2000 (as amended) (“the PDA”).

(ii) Every point so certified will attract the dual labels of being a point of law of exceptional public importance and that it is in the public interest that an appeal be brought.

(iii) However, the classification of a point of law as being within s.50A(7) does not equate with satisfaction of the constitutional threshold for a leap-frog appeal. Merely because, it is in the public interest that an appeal be brought per se does not mean that the appeal should be brought to the Supreme Court. If the fact of certification were to be sufficient, the Supreme Court would be the de facto appellate venue in all planning matters by virtue of the relevant holdings made by the High Court on the requisites to grant a certificate pursuant to s.50A(7).

(iv) It is respectfully suggested that it was not the intention behind the creation of the Court of Appeal that a whole range of cases (i.e. planning cases) would track an inexorable course to the Supreme Court. This is not the legislative intention behind s.75 of the Court of Appeal Act, 2014 which clearly indicates the intent of the Oireachtas that even appeals certified in accordance with s.50A(7) should be brought to the Court of Appeal.

(v) Thus, and with respect to the applicant there must be something identified which demonstrates a pressing reason as to why the Supreme Court must hear this appeal as opposed to the Court of Appeal. Pressing and weighty reasons should be provided, particularly given the clear import of s.75. The applicant has not demonstrated these.

(vi) There is no obvious or clear reason why the Court of Appeal cannot deal effectively with points of law of exceptional public importance nor why the public interest fails to be served by a planning appeal proceeding in the Court of Appeal.

(vii) Further, the Court may note the applicant’s motion for discovery and for a “Protective Costs Order” under s.50B of the PDA which were refused by McGovern J. These refusals have been appealed to the Court of Appeal and the Applicant has indicated that he is fully desirous of prosecuting that appeal. Thus, on the applicant’s own terms there are already two live issues in the Court of Appeal. It is presumed that if the applicant prosecutes this appeal in the Supreme Court then issues regarding the applicability of s.50B of the PDA and the special costs rules therein may well arise again. In short, by reason of how the applicant has prosecuted the case, it is respectfully submitted that the logical and sensible venue for disposing of the matter is the Court of Appeal where, to put it simply, all matters can be heard together.

(viii) The only substantive reason to prefer the Supreme Court put forward by the applicant is delay – i.e. he relies on the fact that the Notice Party has emphasized its commercial interest in expedition in these proceedings. In this respect, although the Court is a better judge of its own resources than the Respondent, it appears far more likely that an appeal could be brought on in the Court of Appeal considerably faster than in the Supreme Court. Thus, the applicant’s only real point in this respect resolves into one about finality. If, for example, there is to be a further appeal from the Court of Appeal to the Supreme Court then there is added time. That alone, however, cannot – it is submitted – be a ground on which leave to appeal to this Court can or should be granted.

(ix) The Constitution clearly states now that the constitutional right of appeal from the High Court is best met by allowing an appeal to the Court of Appeal. The legislature intends this to apply even in the context of certified appeals. Thus, the Irish legal system now presumes that appeals to the Supreme Court should ordinarily come from the Court of Appeal. The Board would rely on what this Court said in Redic v DPP [2015] IESCDET 22 where it was held that “[t]he Court finds that the applicant has not demonstrated that it is in the interests of justice that this matter not be dealt with by the Court of Appeal.” This reflects the orientation which is required – what exceptional circumstances are shown which do not simply describe the appeal, but which demonstrate that the Court of Appeal cannot adequately deal with the matter?

(x) It is respectfully suggested that none have been shown. There is nothing exceptional to warrant a leap-frog.

36. The State opposes the application for leave to appeal to the Supreme Court for the following reasons:-

“The within proceedings are subject to the statutory judicial review procedure provided under section 50 and 50A of the Planning and Development Act 2000 (as amended) (‘the PDA 2000’). The [applicant] was refused leave to apply for judicial review on the basis that he had not demonstrated ‘substantial grounds’ for questing the validity of An Bord Pleanála’s decision. The [applicant] then applied to the High Court for leave to appeal to the Court of Appeal. The High Court granted leave to appeal on a single point of law only.”

(i) It is submitted that there are no “exceptional circumstances” warranting a direct appeal to the Supreme Court. The applicant has been granted leave by the High Court to appeal to the Court of Appeal, and there is no good reason as to why he should not be required to exhaust that right of appeal.

(ii) Whereas it is, of course, acknowledged that the Supreme Court’s appellate jurisdiction is not limited by the provisions of section 50A(7) of the PDA 2000 and section 75 of the Court of Appeal Act 2014; and, further acknowledged that the Supreme Court may entertain appeal even in circumstances where the High Court has refused leave to appeal, it is respectfully submitted that the fact that the planning legislation envisages that appeals in planning matters will normally be determined by the Court of Appeal is a factor to which the Supreme Court may have regard in the exercise of its discretion under article 34.5.4°.

(iii) Insofar as the applicant contends that a direct appeal would avoid delay, this contention is predicated on the implicit assumption that an appeal from the Court of Appeal is inevitable. It is submitted that this is not so, for the grounds which follow.

(iv) It is respectfully submitted that neither the “general public interest” nor the “interests of justice criteria” are met. As set out in more detail under Heading 5 below, the within judicial review proceedings raise a net issue of statutory interpretation. It is submitted that this issue is one which can properly be resolved by the Court of Appeal. The applicant has not made any challenge to the constitutionality of the underlying legislation. It is submitted that the applicant has not identified any basis for suggesting that the aforementioned criteria are not met by his appeal to the Court of Appeal.

(v) The applicant has been refused leave to seek judicial review on all grounds advanced in the within proceedings. It is submitted that it can neither be of general public importance nor in the interests of justice for the Supreme Court to entertain an appeal on matters on which an applicant for judicial review has failed to obtain leave.

(vi) If and insofar as the Applicant/Appellant seeks to rely—in support of his argument that the High Court decision of June 2015 involves a matter of general public importance—on the fact that the High Court granted leave to appeal to the Court of Appeal, it is submitted that such reliance is misconceived. The Supreme Court exercises an independent constitutional discretion under article 34.5.4°, and the views of the High Court pursuant to the provisions of section 50A of the PDA 2000 cannot be determinative of the exercise of this discretion.

(vii) Further or in the alternative, it is submitted that if and insofar as the fact that the High Court has granted leave to appeal might have any relevance to the independent constitutional discretion under article 34.5.4°, it is significant that the High Court granted leave to appeal on a single point of law only. Notwithstanding this, the grounds of appeal set forth by the applicant go much further than this single point of law. It is respectfully submitted that if leave to appeal is to be granted by the Supreme Court, then same should similarly be confined to this single point of law.

(viii) Finally, it is respectfully submitted that the fact that the applicant has sought to raise issues in respect of the application and transposition of the Environmental Impact Assessment Directive (“EIA Directive”) does not represent a good ground for allowing leave to appeal to the Supreme Court. The interpretation of the relevant provisions of the EIA Directive has been addressed by the CJEU. In particular, the judgments in Case C 416/10 Krizan; and Case C 431/92 Commission v. Germany. The application of these principles to the facts is a matter for the national courts. The judicial review proceedings do not raise any novel points which necessitate either a reference to the CJEU, nor, it is respectfully submitted, an appeal to the Supreme Court. It is noted, in this regard, that the High Court did judge not certify for appeal any point regarding the application and transposition of the EIA Directive, nor did she consider that there was any lack of clarity such that a reference to the CJEU was required.

Response of Notice Parties

37. The notice parties oppose the application for leave to appeal for the following reasons:-

(i) In these proceedings, the High Court has refused the application for leave to apply for judicial review and granted leave to appeal in relation to a single point of law (in circumstances where six points of law had been proposed by the applicant in written legal submissions, which were reduced to three points at the hearing on the application for leave to appeal). In order to certify the single point of law, the High Court was required to find, and did find, that its decision involved “a point of law of exceptional public importance and that it is desirable in the public interest that appeal should be taken”.

(ii) The notice parties acknowledge that the High Court certified a single point of law as being of exceptional public importance. Accordingly, the notice parties do not contend that the single point of law certified for appeal by the High Court does not involve a matter of general public importance.

(iii) However, as is apparent from s. 4 of the notice of appeal, and indeed the grounds of appeal in s. 6 of the notice of appeal, the applicant seeks to appeal against the entirety of decision of the High Court and does not confine its appeal to the single point of law certified by the High Court.

(iv) Moreover, notwithstanding the express refusal of the High Court to certify a point of law in relation to the transposition of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”), in s. 8 of its notice of appeal, the applicant purports to request the Supreme Court to make a reference to the Court of Justice of the European Union on questions of interpretation of certain provisions of the EIA Directive. The purported questions for request for a preliminary ruling pursuant to Article 267 TFEU are entirely unrelated to the single question certified for appeal which exclusively concerns issues of national law.

(v) Accordingly, the appeal as framed by the applicant in his notice of appeal involves issues extraneous to the single point of law certified for appeal by the High Court and those extraneous issues do not involve a matter or matters of general public importance.

(vi) Secondly, it is not necessary in the interests of justice that there be an appeal to the Supreme Court. Indeed, in its notice of appeal, the applicant does not even contend that a direct appeal to the Supreme Court is necessary in the interests of justice. The interests of justice can be served by the Court of Appeal determining the single point of law certified for appeal.

(vii) The applicant has not established, or even asserted, that it is in the interests of justice that his application be acceded to.

(viii) Thirdly, notwithstanding the contents of Part 5 of the notice of appeal, there are no exceptional circumstances which would warrant a direct appeal to the Supreme Court in this case. In this respect, the applicant’s reliance on the decision of McGovern J. in Dunnes Stores v. An Bord Pleanála [2015] I.E.H.C. 387 is misplaced. The statement of the learned High Court judge in Dunnes Stores which is relied upon by the applicant on this application was clearly expressed obiter, in circumstances where the High Court judge made an observation on the likelihood of cases certified for appeal being appealed directly to the Supreme Court. It is axiomatic that the High Court has no jurisdiction beyond deciding whether to certify a point (or points) of law for appeal and cannot determine whether the Court of Appeal or the Supreme Court should determine an appeal so certified by the High Court.

(ix) The single point of law certified for appeal by the High Court … relates to an issue in respect of which there is a well-established body of jurisprudence, including Supreme Court authority. There is no unusual or exceptional complexity involved in the determination of the single point of law certified for appeal by the High Court. The applicant offers no reason whatsoever as to why the Court of Appeal could not discharge its statutory functions and determine the appeal in the ordinary course, pursuant to the provisions of the Court of Appeal Act 2014. As the Supreme Court noted in Fox v. Judge Mahon & Ors. [2015] I.E.S.C. DET 2, it is important to emphasise that the new constitutional regime presumes that the constitutional right of appeal from the High Court is best met by allowing an appeal to the Court of Appeal.

(x) The applicant appears to rely on the entry of the proceedings in the Commercial List of the High Court as an “exceptional circumstance”. Clearly, the entry of the High Court proceedings in the Commercial List cannot constitute an exceptional circumstance for the purposes of an application for leave to appeal to the Supreme Court directly from the High Court. Moreover, the commercial considerations of the notice parties are not exceptional circumstances upon which the applicant (who is opposed to the notice parties’ proposed development) is entitled to rely in grounding an application for leave to appeal directly to the Supreme Court from the High Court. As set out below, in the event that, notwithstanding the opposition of the notice parties, the Supreme Court grants the within application for leave to appeal, the notice parties will request a priority hearing on the basis of the impact of delay on the commercial considerations of the notice parties. However, those commercial considerations are not “exceptional circumstances” for the purpose of the Supreme Court acceding to an application for leave to appeal directly from the High Court.

(xi) The applicant has failed to demonstrate that there are exceptional circumstances warranting a direct appeal to the Supreme Court.

38. The jurisdiction of the Supreme Court is as set out earlier in this determination. In short, in relation to an application for leave to appeal directly from the High Court to the Supreme Court, the applicant must show that the decision of the High Court involves a matter of general public importance or that it is in the interests of justice that leave be granted, and that there are exceptional circumstances warranting the granting of leave for a leapfrog appeal.

39. The certification by the High Court under s. 50A(7) of the Planning and Development Act, 2000, as amended, is not the equivalent of the constitutional threshold upon which leave to appeal is granted by the Supreme Court. If such were the case then all such appeals would go to the Supreme Court, rather than the Court of Appeal, which would be contrary to the new appellate structure established under the Constitution and the Court of Appeal Act, 2014. The decision by the High Court that a point of law was within s. 50A(7) does not of itself meet the constitutional threshold for leave to appeal to the Supreme Court. Such an appeal will, in general, be heard in the Court of Appeal.

40. The new constitutional appellate structure establishes a system where an appeal to the Court of Appeal is the norm, and a direct appeal from the High Court to the Supreme Court is the exception. Thus, it is for an applicant to advance exceptional circumstances upon which the Court could establish that the situation was exceptional. This he has not done.

41. The reason given of “delay” is based on an assumption that if the appeal is heard in the Court of Appeal that there would thereafter be an application for leave to appeal to the Supreme Court, which would be granted, and that there would be a second appeal. Such an assumption is not a reason in itself to grant leave to appeal directly from the High Court.

42. The Court was informed that the applicant brought a motion for discovery and for a ‘Protective Costs Order’, which were refused in the High Court. These issues have been appealed to the Court of Appeal. It is more logical and a more efficient use of court time if all appeals are heard by the Court of Appeal, rather than part in the Court of Appeal, while at the same time another aspect of the applicant’s case is listed in the Supreme Court. In general, it is more efficient and effective if all matters on appeal be heard by the Court of Appeal.

43. The issue raised by the applicant on this application is one of statutory interpretation, a matter which may more appropriately heard by the Court of Appeal, in all the circumstances.

44. The Court is satisfied that the single point of law certified by the High Court does not meet the criteria for leave to appeal to the Supreme Court.

45. There appears to be a wide ranging appeal posited in the notice of appeal, including the issue of a reference to the Court of Justice of the European Union, which appears to be unrelated to the single question certified. All in all, these papers are indicative of a wish for a wide ranging appeal rather than the type of net issue appropriate on an appeal in the Supreme Court.

46. The Court is satisfied that the constitutional threshold for leave to appeal from the High Court directly to the Supreme Court has not been met.

47. 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.