Supporting Documents:
  
THE SUPREME COURT
DETERMINATION CIARA QUINN, COLETTE QUINN, BRENDA QUINN, AOIFE QUINN, SEÁN QUINN JUNIOR AND PATRICIA QUINN PLAINTIFFS/APPLICANTS AND
ANGLO IRISH BANK RESOLUTION CORPORATION LIMITED (IN SPECIAL LIQUIDATION)
AND
KIERAN WALLACE DEFENDANTS/RESPONDENTS AND
SEAN QUINN, DARA O’REILLY, AND LIAM MCCAFFREY THIRD PARTIES
APPLICITON FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the plaintiffs/applicants to appeal to this Court directly from the High Court
REASONS GIVEN:
1. This determination relates to an application by the plaintiffs, referred to as the “Applicants”, seeking leave to appeal to this Court directly from the High Court under Article 34.5.4° of the Constitution. The application is necessary as a result of amendments to the Constitution brought about by the 33rd Amendment. As an alternative to exercising the right of appeal from the High Court to the Court of Appeal provided for in Article 34.5.3°, a party may now seek leave to appeal directly from the High Court to this Court under Article 34.5.4°. Such an appeal has come to be colloquially known as a “leapfrog” appeal, because it involves bypassing what might otherwise be regarded as the normal appellate structure involving an appeal to the Court of Appeal with a possibility of a second appeal to this Court.
2. Under Article 34.5.4° this Court is given appellate jurisdiction from a decision of the High Court as follows –
3. In the determination of this Court on the first occasion on which the Court had to consider whether to grant leapfrog leave, that is to say, the determination in Barlow and Ors. v. The Minister for Agriculture, Food and Marine and Ors. [2015] IESCDET 8, the Court set out general principles as to the proper approach, under Bunreacht na hÉireann, to the grant or refusal of such leave. In so doing, the Court reiterated some of the points it had made in relation to determinations in respect of applications under Article 64.3.3° (an application to cancel, as regards the appeal in issue, the Direction given by the Chief Justice under Article 64.3.1° specifying appeals which were to be heard by the Court of Appeal) and it did so by reference to its determination on the first such application, that is to say, in Fox v. Mahon and Ors. [2015] IESCDET 2. This determination is based on the relevant principles set out in those determinations.
4. The Applicants seek leave to appeal to this Court against a judgment dated 20th May, 2015 and order dated 21st May, 2015 of the High Court (Haughton J.) refusing the motion by the Applicants seeking leave to amend the statement of claim delivered in the High Court proceedings. That motion had been preceded by a judgment delivered in this Court on 27th March, 2015 against an appeal by the Respondents of a decision of the High Court on a preliminary issue as to whether the Applicants had standing to advance claims in the High Court proceedings based on s. 60 of the Companies Act 1963 and the EU Market Abuse Regulations in support of their claims that certain share pledges and guarantees were unenforceable, invalid and/or of no legal effect. The decision in this Court was that the Applicants did not have standing to invoke those legislative provisions. However, the Applicants point to the fact that in the judgment of Clarke J. delivered on 27th March, 2015, with which the other members of the Court concurred, there was a statement to the following effect:
“There does not seem to be a plea contained in the statement of claim which suggests that the security and guarantees are allegedly void or unenforceable on a separate and stand-alone basis, as opposed to being invalid by being closely connected to the lending transactions which are said to be void or unenforceable due to illegality.”
Arising from that statement the Applicants sought leave of the High Court to amend their pleadings to introduce such a plea.
5. The reasons advanced on behalf of the Applicants for leave under Article 34.5.4° are clear and succinct. First, as regards the pre-conditions stipulated in Article 34.5.4°, the Applicants do not contend that the appeal involves a matter of general public importance such as would, in itself, qualify for the granting of leave. However, they do contend that it is in the interests of justice, having regard to the particular circumstances of the case, that the appeal against the decision of the High Court be heard by the Supreme Court directly rather than by the Court of Appeal. The principal reason advanced for that contention is that, this Court having already decided the preliminary issue, and the Applicants’ application to amend the statement of claim, as they put it, having “stemmed from the precise wording of the decision” of this Court, that decision is of such seminal importance to the question whether the Applicants may amend the statement of claim, it seems likely that the matters at issue in the appeal would come to this Court for determination in any event. It is suggested that it is in the interests of all the parties that the Supreme Court be charged with interpreting the decision on the preliminary issue in the same proceedings. Harking back to one of the principles enunciated in the determination in Barlow v. Minister for Agriculture, Food and Marine, it is suggested that the matter at issue arising from the decision of the High Court is so narrow that, if the appeal were to go to the Court of Appeal first, the second appeal to this Court, which clearly implies an assumption that leave would be given, which, of course, might not be the case, would most likely involve “a rehash of the arguments” made in the Court of Appeal. On the basis of the foregoing, it is suggested that it is in the interests of justice that the Applicants be given leave to appeal directly to this Court with the objective of ensuring the efficient use of court time and resources and to save the parties the time, cost and expense of two potential appeals.
6. While a separate Respondent’s Notice has been filed on behalf of each of the Respondents, each opposes the Applicants’ application for leave to appeal on precisely the same grounds. The position of each is that it is not necessary, in the interests of justice, that there be an appeal directly to the Supreme Court in the circumstances. It is emphasised that the appeal arises from a procedural motion and concerns the question whether or not the Applicants should have been granted leave by the High Court to amend their pleadings, so that the subject matter of the appeal and the principles engaged are well established and, it is suggested, are “relatively unremarkable”. Each of the Respondents rejects the argument that the application could be considered exceptional on any basis. In particular, while accepting that consideration of the judgment delivered on 27th March, 2015 is of central importance to the disposal of the Applicants’ motion to amend, it is pointed out that the judgment of this Court is a final and conclusive judgment and that there is no basis why it falls to be considered in any different way to any other judgment delivered by this Court. Further, if the Applicants are correct in suggesting that this Court should entertain an appeal on a routine procedural application simply because the appeal was likely to involve differing contentions about the scope of the application of a previous judgment of this Court, the Respondents point to the reality that such a basis could be offered in connection with almost any appeal.
7. The Court is not satisfied that the constitutional pre-condition relied on by the Applicants, namely, that it is in the interests of justice that their application be acceded to, has been established. The motion in respect of which the appeal is being brought relates to a procedural, as distinct from a substantive, issue. It is an issue on which there is a well established body of jurisprudence. The circumstance that it was initiated following the decision of this Court on the preliminary issue in the same case does not mean that the Court of Appeal would be in any way hindered in dealing with it. It is the type of appeal which the constitutional framework embodied in Article 34, as amended, clearly envisages being dealt with by the Court of Appeal.
8. Further, the Court is not satisfied that the Applicants have demonstrated that there are exceptional circumstances warranting a direct appeal to this Court. The mere fact that the motion was preceded by a final judgment delivered by the Court on a preliminary issue as to the standing of the Applicants to pursue separate and distinct bases for their claim for relief against the Respondents does not give rise to any circumstance of a nature which would warrant a direct appeal to this Court, rather than an appeal to the Court of Appeal, on the subsequent motion.
9. In reaching the foregoing conclusions, the Court has not attached any weight to the unusual circumstances, as outlined in the Applicants’ application for leave, in which the Applicants had earlier indicated an intention not to appeal the decision of the High Court refusing the motion to amend the statement of claim. At the relevant time, the substantive action had been listed for hearing in the High Court on 3rd June, 2015 and both sides were anxious that the hearing should proceed on that day and both sides made concessions. However, due to the intervention of the Director of Public Prosecutions, the trial date was vacated and a new trial date has been fixed for 12th January, 2016. Accordingly, there are no serious time strictures in relation to an appeal by the Applicants. The Applicants’ application for leave to appeal directly to this Court is refused.
And It is hereby so ordered accordingly.
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