Supporting Documents:
THE SUPREME COURT
DETERMINATION LAURENCE FLYNN APPLICANT AND
JUDGE SEAN Ó DONNABHÁIN RESPONENT AND
MATER PRIVATE HOSPITAL NOTICE PARTY
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court refuses leave to Laurence Flynn to appeal to the Supreme Court directly from the High Court.
REASONS GIVEN:
1. This is an application by Laurence Flynn, the applicant, and referred to as “the applicant” seeking leave to appeal to this Court directly from the High Court under Article 34.5.4° of the Constitution.
2. The applicant seeks leave to appeal from the decision of the High Court delivered on the 8th June, 2015, in which the High Court refused the applicant’s ex parte application for leave for judicial review of an order made by Judge Ó’Donnabháin on the 27th March, 2015.
3. As a result of the amendments to the Constitution, brought about by the 33rd Amendment, the previous position, under which a party 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 the 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 has come to be colloquially known as a “leapfrog” appeal, for 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. It should also be noted that the leave required in either case is the leave of this Court.
4. The starting point is the wording of the relevant provisions of the Constitution itself.
5. Article 34.5.3° provides as follows:
“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.”
Article 34.5.4°, on the other hand, provides:
6. It is not necessary for present purposes to enter into a detailed consideration of the proper interpretation of the criteria specified for an “ordinary” appeal from the Court of Appeal to this Court save to note that the relevant decision of the Court of Appeal must either involve a matter of “general public importance” or there must be some other reason requiring that the interests of justice be met by an appeal. The criteria, under Article 34.5.4°, for a leapfrog appeal, include, but are not confined to, both of those matters, for it is specified that it is a pre-condition for this Court to grant leapfrog leave either that the relevant decision of the High Court involves a matter of general public importance or that the interests of justice require such an appeal. This much is, therefore, at least clear. In order for this Court to grant leave to bring a leapfrog appeal, it must be the case that the issues raised are such that they would justify granting leave for a second appeal from the Court of Appeal to this Court, had the course of action of an appeal to the Court of Appeal been adopted by the appellant. Therefore, the basic constitutional threshold of public importance or public interest, which must be met in respect of an application to bring an ordinary appeal from the Court of Appeal to this Court, must also be met in the context of a leapfrog appeal.
7. 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.
8. The applicant wishes to appeal from the entire decision of the High Court.
9. The applicant gave information about the decision that is sought to be appealed, as follows:-
“(i) I brought an Application before Mr. Justice Noonan on the 8th of June last, requesting leave to bring a Judicial Review against the Respondent’s decision, made on the 27th of March last, on the grounds that the Respondent failed of observe fair procedure when he dismissed my case against the ‘Mater Private Hospital’.
(ii) As far as I can tell, from the ruling of Mr. Justice Noonan, it was found that since I had Appealed the decision, the subject matter of the Judicial Review, and as that Appeal had been heard by Ms Justice Baker and an Order made, on the 6th of May last, wherein my Appeal was refused that I then could not take up a Judicial Review as an alternative. In making his decision Mr. Justice Noonan referred to a number of legal cases, one of which I believe was the Supreme Court decision in Cooke v. Cronin [1999] IESC 54.”
10. The applicant also gave extensive information about an action he brought in negligence against the Mater Private Hospital on the 19th February, 2010, stating inter alia, that the cause of his action was derived from the defendant’s investigation and dismissal of his complaint that findings in the radiograph report, dated the 29th June, 2009, as relates to his left pterygoid hamulus bone appearing normal, are wrong. He states that the Medical Council decided not to investigate his complaint.
11. He sets out the judgment of the High Court (Hogan J.) in earlier judicial review proceedings, Flynn v. Medical Council [2012] IEHC 477, dated 22nd November 2012.
12. He states that Hogan J., in separate but related appeal proceedings, gave judgment dated the 14th February, 2014, and order dated 7th March, 2014 (perfected on the 28th May, 2014). It was ordered that he must within twelve months obtain appropriate medical evidence to support his contentions; that the matter be re-entered before the Cork Circuit Court and that the defendants could apply to have the matter dismissed if the medical evidence was not furnished. A motion was brought by the respondents to re-enter and dismiss the matter for failure to obtain and furnish a medical report and on the 27th March, 2015, the Circuit Court ordered that the action be dismissed. The applicant states that the order to dismiss the action of the 27th March, 2015, occurred while an appeal hearing was pending on the order of the 19th December, 2014, to refuse interrogatories. Notice of Appeal is dated the 30th December, 2014.
13. The applicant set out his reasons why the Supreme Court should grant leave to appeal in Part 5 of his application. He referred inter alia to the right of a person to constitutional justice, and fair procedures, to give guidance as to the rules in deciding an application for judicial review when the applicant has had an appeal refused on the same decision that the applicant says infringed his right to fair procedure; he sets out further matters on which he seeks guidance in the application.
14. The applicant set out the following reasons as to why there are exceptional circumstances warranting a direct appeal to the Supreme Court:-
(i) To prevent a possible conflict of interest from arising, as Mr. Justice Hogan, now of the Court of Appeal, was the presiding Judge in matters directly related to this, in that of Flynn v. Medical Council JR [2012] IEHC 477 and in Flynn v. Bon Secours health Systems Limited [2014] IEHC 87 which is the Judgment, dated 14/02/14, Order dated 7th March 2014, that formed the basis for the Defendant’s application for an Order of Dismissal.
(ii) To decide on the applicability of the second limb of the Cooke test, Cooke v. Cronin [1999] IESC 54, in matters where it is alleged that a doctor or doctors misrepresented the exam or rest results of a patient’s injury by the medical findings made or the impression given.
The Principle involved.
‘Where the facts are peculiarly within the defendant’s knowledge, the plaintiff’s claim should not be summarily dismissed because of gaps in the plaintiff’s case if the necessary evidence might be obtained as a result of discovery or interrogatories: Wickstead v Browne (1992) 30 NSWLR 1 at 11.’
(iii) To decide on the extent that a Party, to an action, may rely on an independent report, commissioned by the other party and shared by that party, to find out, with the use of interrogatories, if the other party agrees with those findings that are in conflict with the findings that they had made.”
15. In this matter, in the High Court, the learned trial judge held:-
“This is an application for leave by Mr. Lawrence Flynn, the applicant in this case, for judicial review of an order made by Judge Ó Donnabháin on the 27th March 2015. It would appear that the applicant was the plaintiff in a medical negligence case in the Circuit Court, which appears to arise, as far as I can make out from the applicant’s pleadings, out of the alleged misreading of CT scans in relation to a bone condition that the plaintiff suffered from by doctors in the Mater private hospital.
On the 7th of March 2014 or on some date in 2014 March, an order was made giving the plaintiff a period of 12 months to obtain expert evidence, medical evidence in support of his case, which is an essential prerequisite on foot of many decisions of both the High and Supreme Court, including Cooke v. Cronin, which says that a medical negligence case, indeed any professional negligence case, cannot be pursued by a plaintiff in the absence of supporting expert evidence. If such evidence is not forthcoming, the case cannot proceed. Accordingly, an order appears to have been made at that time indicating to the plaintiff that if he didn’t produce a report within a period of 12 months, the defendants would be at liberty to apply to dismiss his case. It would appear that on the 19th March of this year the defendants issued a notice of motion which came on for hearing before the respondent on the 27th of March and on that date the respondent asked the applicant if he had the medical report and apparently the applicant indicated that he was not in a position to produce such a report and accordingly his claim was dismissed. He says that that order was made in breach of fair procedures, which in his grounding affidavit are not specifically identified. He says the judge made a mistake in relation to interpreting the date for the order, although precisely how that arises is not entirely clear to me. However, the most critical issue about al of this is that the order of the Circuit Court that is now sought to be judicially reviewed was appealed by Mr Flynn to the High Court. His appeal was unsuccessful. And the effect of that is in reality to render moot this application which cannot be entertained by me in circumstances where he has already availed of an alternative remedy by way of an appeal to the High Court. Accordingly, it seems to me that the applicant has made out no arguable grounds or stated a case for the grant of leave in this case and I must dismiss this application and I am refusing leave. Very good. Thank you, Mr. Flynn.”
16. It is necessary to consider what would be the exceptional circumstances justifying a direct appeal to this Court from the High Court.
17. First, it may be said that the very issues in the case itself are of such 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, 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 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, such as in an acute medical condition where there is a crucial time factor. 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.
20. In this case the first issue therefore is whether the application meets the threshold for an appeal to this Court. Thus, does the decision of the High Court involve a matter of general public importance or in the interests of justice it is necessary that there be an appeal to the Supreme Court.
21. The Court is satisfied that the refusal to grant leave to proceed by way of judicial review by the High Court in this case does not give rise either to a matter of general public importance, nor in the interests of justice is it necessary that there be an appeal to the Supreme Court.
22. There is established case law on the discretion which may be exercised by the High Court when on an application for leave to appeal by way of judicial review there are alternative options for an applicant.
23. Further, although it is not strictly necessary to address the matter, for clarity the Court is satisfied that it is not an exceptional circumstance, that a member of the Court of Appeal has made decisions in cases relating to an applicant, such that this Court would grant a leapfrog application.
24. Consequently, the Court refuses leave to the applicant to appeal to the Supreme Court directly from the High Court in this matter.
And it is hereby so ordered accordingly.
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