Supporting Documents:
 189-18 AFL.pdf  189-18 Resp Notice.pdf
THE SUPREME COURT
DETERMINATION
BETWEENPERMANENT TSB PLC FORMERLY IRISH LIFE & PERMANENT PLC PLAINTIFF AND
GERRY BURNS AND ANN BURNS DEFENDANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Defendants / Applicants to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 28th November, 2018 |
DATE OF ORDER: 28th November, 2018 |
DATE OF PERFECTION OF ORDER: 29th November, 2018 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 19th December, 2018 AND WAS IN TIME. |
General considerations
1 The applicants seek leave to appeal against the decision of the Court of Appeal (Irvine, Whelan and Baker JJ.) of 28 November 2018, dismissing their appeal against the order of the High Court (Ní Raifeartaigh J) of 16 January 2017, granting an order for possession to the respondents, Permanent TSB, in respect of three premises in counties Leitrim and Cavan which had been the subject of a mortgage dated 8 November 2006. The mortgage was entered into in 2007 as security in respect of loans advanced in the sum of €457,500 to the applicants. The advance is not denied. The applicants defaulted in repayment, and by letter of 18 February 2014, the bank demanded possession of the premises. The applicants did not comply, and proceedings were commenced by way of special summons seeking possession. The applicants raised technical issues in respect of proceedings for recovery of possession which they contend are of general importance.
2 It appears that the applicants argued that the proceedings should have been the subject of a full plenary hearing. It is also argued that the High Court and Court of Appeal failed to have regard to the failure of the bank to produce the original loan offer letter signed by the applicants. They further alleged failure of the bank to provide proof of the securitisation of the loan and its subsequent de-securitisation, and a failure to have regard to the fact that the mortgage was a tracker mortgage.
3 The general principles applied by this court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O’Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
4 Furthermore the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties. No aspect of this ruling has precedential value as a matter of law.
Discussion
5 It is contended that the appeal involves a matter of general public importance or it is in the interests of justice that there be an appeal to the Supreme Court because “it is the [applicants’] position that it is a matter of general public importance that the burden of proof required in proceedings be properly enforced, in order that justice and equity be done and be seen to be done”. It is also argued that “it is a matter of general public importance that full compliance with the European law as set out in s. 3(1) European Conventions on Human Rights Act 2003, specifically with regard to Article 10 ECHR, and to the supremacy of EU as established in Costa v ENEL (1964) Case 6/64. It is the [applicants’] position that the learned judge in the High Court and the learned judges in the Appeal Court erred in fact and in law failing to have proper regard for the above principles”.
6 The court is satisfied that the appeal does not involve any matter of general public importance and that it is not necessary in the interests of justice that there should be an appeal to the Supreme Court. No issue of the supremacy of EU law arises, nor does any issue under the European Convention on Human Rights Act 2003 appear to be involved in this case. The careful decisions of the High Court and the Court of Appeal involved the application of settled and established law to the facts. Accordingly, leave to appeal will be refused.
And it is hereby so ordered accordingly.
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