Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court does not grant leave to the applicants to appeal to this Court directly from the High Court.

Reasons Given:

Jurisdiction

1. The applicants in this case seek leave for a “leapfrog” appeal to this Court against a decision of the High Court. They have also lodged an appeal against the decision in the Court of Appeal. It appears from the papers that the case is subject to expedited procedures in that Court.

2. 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. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are exceptional circumstances warranting a direct appeal to this Court.

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 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.

Background

4. The respondents to this application were employed by the applicants in connection with the construction of a motorway in or around 2007/2008. They issued proceedings against the applicants in the High Court in respect of alleged underpayment of wages and unlawful deductions from wages. The claims were settled on the day of the hearing (the 29th April 2015), and were accordingly struck out with an order for the respondents’ costs, to be taxed in default of agreement.

5. The figure in respect of costs was not agreed and the matter went to taxation. On the 30th July 2015 a certificate was issued by the Taxing Master in the sum of €113,655.27. The applicants did not seek a review of taxation but did not pay the amount certified.

6. On the 25th November 2015 the respondents obtained a European Enforcement Order (“EEO”) for the certified sum from the Master of the High Court, pursuant to the ex parte procedure set out in O.42B(4)(2) of the Rules of the Superior Courts. The applicants were given a copy of the EEO on the 18th January 2016.

7. The applicants applied to the Master on the 22nd June 2016 to withdraw the EEO, arguing that the money was not, as required by EC Regulation 805/2004 and the EEO procedure, due on foot of an “uncontested” claim. The Master refused the application, and his refusal was appealed to the High Court. The applicants contended, in addition to the argument that the claim was not “uncontested”, that the Master did not have jurisdiction to grant an EEO. The appeal was dismissed by the High Court (O’Connor J. – see [2017] IEHC 443), which held that an agreement to a consent judgment and to the ascertainment of costs came within the Regulation.

The application for leave

8. The notices filed by the parties are available on this website and will not be discussed in any detail. In brief, the applicants maintain the position that a sum certified by the Taxing Master in respect of costs cannot be characterised as an “uncontested” claim. The exceptional circumstances warranting a “leapfrog” appeal are said to lie in “the importance of the issue”; in the fact that an EEO cannot be challenged in the country where enforcement is sought; and in the possibility that an appeal to the Court of Appeal “will not necessarily serve to reduce the issues to be determined”. It is suggested that a reference to the Court of Justice of the European Union may be necessary.

Discussion

9. It is clear that 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 respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. 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 involves a matter of general public importance or that it is otherwise in the interests of justice 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 in those circumstances. 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 appeal.

10. In addition, leave to appeal directly from the High Court requires the applicant to demonstrate that there are exceptional circumstances warranting such an appeal.

11. Against that background it is necessary to address the basis upon which it said that the constitutional threshold is met in this case.

Decision

12. As the applicants have an appeal pending before the Court of Appeal this Court will refrain from expressing any view on the merits of the case one way or the other. It is simply observed that the applicants have not made out a case that satisfies the constitutional criteria for a direct appeal to this Court, in that no exceptional circumstances have been demonstrated that would justify the invocation of that procedure. It is insufficient for this purpose to baldly assert that the issue is important.

And it is hereby so ordered accordingly.