Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

Results given:

1. Jurisdiction

This determination relates to an application by the plaintiff in the underlying proceedings (Ms. O’Reilly)) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Finlay Geoghegan, Peart and Hogan JJ.) delivered on 13th June, 2016. The order appealed against was also made on the 13th June, 2016 and perfected on the 14th June, 2016. 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. As the application for leave to appeal was technically out of time it may also be necessary to consider whether it would be appropriate to extend time.

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

In the underlying proceedings Ms. O’Reilly seeks orders relating to certain disciplinary proceedings in which the defendant (“The Garda Commissioner”) was named as the defendant. On the 29th October, 2015 Ms. O’Reilly brought an application before the High Court seeking to join members of a board of enquiry to these proceedings. That application was refused by Gilligan J. on the 26th January, 2016.

3. The Order Appealed Against

Ms. O’Reilly appealed that refusal. However, the Court of Appeal dismissed her appeal. At para. 6 of the ex tempore judgment of Finlay Geoghegan J., speaking for the Court, it is held that the members of the board of inquiry were not necessary parties. The judgment went on to clarify that it was unnecessary to join the members just to obtain evidence or documents. However, in addition, the Court of Appeal awarded the costs of the appeal to the Garda Commissioner with a stay on that costs order pending the outcome of the substantive proceedings in the High Court. It is only in respect of that part of the order of the Court of Appeal which ordered costs against Ms. O’Reilly that leave is sought to appeal to this Court.

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.

To an extent Ms. O’Reilly relies on what she says are serious issues raised in her substantive proceedings generally together with the hardship said to arise from imposing an order for costs on her. In particular it is suggested that the interests of justice require an appeal to this Court because of what is said to be the intimidatory tactic of the Garda Commissioner in seeking costs in respect of various matters even though the substantive hearing has not yet taken place.

In substance the Garda Commissioner argues that no adequate basis has been set out by Ms. O’Reilly for suggesting that the constitutional threshold for leave to appeal to this Court has been met.

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.

It is very important to emphasise that this Court is, on this application, concerned only with the question of whether the constitutional threshold for leave to appeal to this Court, in respect of the order for costs made on the appeal in the Court of Appeal, has been met. This Court is not concerned with the merits of the issues which Ms. O’Reilly seeks to raise in her underlying proceedings. Those merits will be considered by the High Court in due course. Whether the issues raised in the proceedings generally do or do not include questions of general public importance is not relevant to this application which concerns only a single costs order made on an appeal against the refusal of an interlocutory motion.

Order 99, Rule 1(4A), while following on from the general provision contained in that order to the effect that costs remain in the discretion of the court, nonetheless makes clear that the courts, when they have determined any interlocutory application, should make an award of costs, save where it is not possible justly to adjudicate on the costs concerned. That provision was introduced as an amendment to the Rules of the Superior Courts and is designed to encourage courts dealing with interlocutory applications to finalise the costs of those applications at the time of dealing with the application concerned rather than reserving the costs to some future occasion. It has also become the well settled practice of the courts to start from the proposition that a party who brings and loses an interlocutory application should pay the costs under the “costs follow the event” principle unless there is good reason for departing from that principle including the possibility that it may not be proper or appropriate to determine the costs at that interlocutory stage.

It follows that it is standard practice across a whole range of different types of litigation that parties who bring and lose interlocutory applications (or appeals against interlocutory orders) have to pay the costs of the interlocutory application even though they may have a perfectly good case in the underlying proceedings. The logic behind that approach is that, by bringing what has been found to be either an unmeritorious interlocutory application or an unmeritorious appeal, the party concerned, irrespective of whether they have a good case generally or not, has put the other side to unnecessary expense and the default position should be that they must recompense the other side for the costs reasonably incurred in defending the interlocutory application or appeal therefrom. While the Court retains a discretion to depart from that default position the principles by reference to which it is considered appropriate for the Court so to depart are well-established.

In this case the Court of Appeal dismissed the appeal brought by Ms. O’Reilly in relation to her application to join the members of the Board of Inquiry. Having come to that view (and it is important to emphasise that no appeal is sought to be brought against that dismissal) it was entirely within normal practise to exercise the discretion of the Court of Appeal to award costs against Ms. O’Reilly on the basis that she had, by bringing an appeal which failed, put the Garda Commissioner to expense.

It does not seem to this Court to be appropriate to seek to characterise the actions of a party, who does no more than seek to be recompensed for the costs of having been put to defending an appeal which is ultimately dismissed, as acting in an intimidatory fashion. The Garda Commissioner was put to the expense of defending the appeal. The appeal failed. It is entirely in accord with the ordinary exercise of courts discretion that such costs should follow the event. That is so irrespective of the merits or otherwise of Ms. O’Reilly’s underlying proceedings on which, as already noted, this Court expresses no view.

For those reasons this Court is not satisfied that an appeal from a standard order for costs comes close to meeting the constitutional threshold which now applies to appeals to this Court. It follows that it is unnecessary to consider whether, had that threshold been met, it would have been appropriate to extend time in all the circumstances of the case.

6. Conclusion

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

And It is hereby so ordered accordingly.