Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court does not grant leave to the Defendants to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the defendants in the underlying proceedings (“the Kellehers”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., Kelly P. and Edwards J.) delivered on 27th July 2016. The order appealed against was also made on the 27th July 2016 and perfected on the same date. 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.

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 a 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.

2. The Proceedings

This determination arises out of the same proceedings which are the subject of a separate determination by this Court in respect of appeal no. 2016/115. It is unnecessary, therefore, to again set out the nature of the underlying proceedings in detail. In substance the solicitors acting on behalf of the Kellehers (James Coady & Sons) were given leave by Birmingham J., sitting in Cork, to come off record. This occurred at a hearing which the Kellehers did not attend. That hearing took place on the same day as the substantive proceedings were listed for hearing. Having given James Coady & Sons leave to come off record, Birmingham J. transferred the case for hearing to Keane J. Keane J. proceeded to hear the case in the absence of the Kellehers and gave judgment in favour of the plaintiffs (“Mullins Lynch Byrne”) for a sum in respect of legal fees due. The Kellehers brought an appeal initially to this Court against that decision but the appeal in question was transferred, under Art. 64 of the Constitution, to the Court of Appeal.

3. The Order appealed against

As noted in the determination in respect of appeal no. 115/2016, the initial intention had been that the appeal against the order of Birmingham J. permitting James Coady & Sons to come off record and the substantive appeal against the judgment given by Keane J. would be heard on the same day. However, it did not prove possible to deal with both appeals within the timeframe which the Court had allocated. Thus the appeal in respect of the order whereby Birmingham J. permitted James Coady & Sons to come off record was dealt with but the appeal in respect of the substantive decision of Keane J. was adjourned. While there had been attendance by and on behalf of the Kellehers in respect of the appeal from the order of Birmingham J., there was no appearance on the adjourned date when the appeal in respect of the substantive order of Keane J. came before the Court of Appeal. There had, in the intervening period, been correspondence from the Kellehers enclosing a medical report on the basis of which an adjournment was sought. The Court of Appeal had communicated with the Kellehers, on receipt of that correspondence, to say that, if an adjournment was sought, there should be an attendance or oral evidence from a doctor. In circumstances where no such attendance or oral evidence occurred on the day in question, it would appear that the Court of Appeal decided to go ahead with the matter and dismissed the appeal.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

On behalf of the Kellehers it is suggested that they have been deprived of an opportunity to be heard. Reference is also made to what is said to be professional negligence proceedings arising out of the services which were the subject of the claim for fees.

In all the circumstances it is suggested that an important issue arises whereby the interests of justice require an appeal to this Court by virtue of the circumstances in which both the High Court hearing and the appeal to the Court of Appeal went ahead in the absence of the Kellehers or any representative on their behalf.

In their responding notice Mullins Lynch Byrne suggest that no grounds have been put forward to substantiate the allegation that there was anything incorrect in the manner in which either the High Court or the Court of Appeal handled the case. It is said that the Kellehers have a “culture” of choosing not to attend hearings which they are required to attend notwithstanding that they are aware that the hearing concerned is taking place.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, 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 material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 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 otherwise is in the interest of justice necessary 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 for any error made by the High Court. 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 review on appeal to this Court.

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

As noted earlier the backdrop to this application for leave is the fact that the Kellehers were not present either on the occasion when the substantive trial before the High Court or the appeal to the Court of Appeal went ahead. On the other hand it is clear that the Kellehers were aware, on both occasions, that respectively the trial and the appeal were due to be heard. That brings the focus of this application to the circumstances in which the Kellehers were not in attendance despite knowing that the hearing of the respective trial and appeal were listed. This Court took a recent opportunity in Tracey and anor v. McDowell and ors [2016] IESC 44 to address the general question of the circumstances in which procedural failure may justify striking out proceedings. Those principles would appear, at least at a general level, to be equally applicable to the circumstances in which a court can properly go ahead with a claim in the absence of a defendant or dismiss an appeal due to non-appearance. As pointed out in Tracey, procedural failures may be either sufficiently serious or sufficiently persistent so as to make it proportionate for the Court to impose very significant sanctions or consequences.

The mere fact, of itself, that a case proceeds in the absence of a defendant or, indeed, an appeal is dismissed in the absence of an appellant, does not necessarily, therefore, give rise to any issue justifying an appeal let alone an issue which meets the constitutional threshold for leave to appeal to this Court in the regime which applies subsequent to the adoption of the 33rd Amendment. Trial courts and appellate courts must have a reasonable margin afforded to them in assessing what response is appropriate to significant or persistent procedural failure.

However, there is a more fundamental issue which seems to this Court to arise on this application. It is clear that, to a significant extent, the role exercised by this Court in the period up to the adoption of the 33rd Amendment has now been transferred to the Court of Appeal. The ordinary right of appeal from the High Court now lies to that court. No further appeal is permitted unless the constitutional threshold is met. It is against that backdrop that the issues which arise on this application need to be assessed. What would the situation have been in this Court, prior to the 33rd Amendment, if a party was dissatisfied with the fact that its appeal was dismissed due to non-attendance. The answer is that the party could have brought an application before this Court seeking to have its appeal re-entered. This Court would then have been required to consider whether such a course of action was appropriate in all the circumstances.

It seems to this Court that the proper procedure which should be followed by the Kellehers is to apply to the Court of Appeal to reinstate their appeal setting out whatever explanation for non-attendance or non-compliance with the directions of that court may be available to them. Such a course of action, rather than an appeal to this Court, should be the first port of call. In the event that the Court of Appeal is persuaded to reinstate the appeal then the substantive appeal can go ahead on the merits. In the event that the Court of Appeal is not so persuaded then it would always be open to parties in a position such as that of the Kellehers to seek leave from this Court to appeal against that decision (i.e. a reasoned decision by the Court of Appeal not to reinstate rather than the initial decision of the Court of Appeal to dismiss the appeal for non-attendance). Whether leave would be given in such circumstances would be dependent on whether the issues which arose on the application to reinstate the appeal and the manner in which that application was dealt with by the Court of Appeal gave rise to considerations which met the constitutional threshold for a further appeal to this Court. However, unless and until this Court has a judgment of the Court of Appeal setting out why an appeal should not be reinstated in the light of all the circumstances which came to light in such an application, then this Court has no adequate basis for assessing whether issues which meet the constitutional threshold have truly arisen.

In those circumstances this Court is of the view that an appeal to this Court could not be appropriate at this stage. The proper course of action for the Kellehers to adopt is to bring an application before the Court of Appeal seeking to have their appeal against the order of Keane J. reinstated. It is not for this Court to give any indication as to what order the Court of Appeal should make on such an application, not least because this Court does not have available to it all of the evidence or materials which may be placed before the Court of Appeal in the context of such an application.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And It is hereby so ordered accordingly.