Supporting Documents:

THE SUPREME COURT
DETERMINATION

BETWEEN

BETWEEN

BETWEEN

RESULT: The Court refuses the applicant leave to appeal to this Court in each of these three applications.

REASONS GIVEN:

Jurisdiction

1. These Determinations relate to three applications brought by the applicant, (Mr. Lavery), seeking leave to appeal to the Court directly from the High Court under Article 34.5.4 of the Constitution, As a result of amendments to the Constitution, brought about by the 33rd Amendment, the previous position, under which a party unhappy with the 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, which 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 “leap frog” appeal, as it involves bypassing what might otherwise be regarded as the now normal appellate structure, involving an appeal to the Court of Appeal, with the possibility of a second appeal to this Court. It should be noted that the leave required in either case is the leave of this Court.

2. The determinations relate to three orders granted by the High Court, being, respectively, that granted by Kelly P. on the 29th April, 2016 (070/2016) (the first application); Humphreys J. granted on the 13th June, 2016 (087/2016) (the second application); and, again, Humphreys J. granted on the 13th June, 2016 (088/2016) (the third application).

3. As is clear from the terms of the Constitution, and the many determinations made by this Court since the enactment of the 33rd Amendment to the Constitution, 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 interests of justice necessary that there be an appeal to this Court.

4. 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 as 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. Save in the rarest of circumstances, it will not be appropriate to rely on a refusal of leave as 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.

5. The application and the response are set out herewith on the Court’s website.

The First Application

6. In the first set of proceedings, Mr. Lavery seeks leave to appeal against a judgment and order of the High Court (Kelly P.), delivered on the 29th April, 2016. The respondents are stated to be District Judge Sean McBride (now retired and represented by his own solicitor, as the nominated respondent), and His Honour Judge John O’Hagan. It is unclear why Judge O’Hagan is joined, or even mentioned.

7. It appears that, on the 29th April, 2016, Mr. Lavery brought an ex parte application to the High Court (Kelly P.). It is unnecessary, and undesirable, to outline, in any great detail, the various allegations which are made in the grounding affidavit which was brought before the President. Suffice it to say, Mr. Lavery seeks to make a series of very surprising and broad allegations in relation to the respondent, and alleges that the respondent was guilty of “fraud, perjury and treason”. The application to the President appears to be the culmination of a series of other applications (not before this Court), wherein Mr. Lavery sought that a number of members of the High Court bench would set aside the judgments and orders of (a) McDermott J. in a judicial review, Case No. 2013/682 JR, and (b) Baker J. in plenary proceedings, Case No. 2015/4819 P. Mr. Lavery sought that these orders be “set aside”, and also sought an order staying the costs awarded.

8. In his judgment, (now the subject of this application), the President of the High Court stated that he was satisfied that the orders, which were sought by the applicant, were not ones which could be granted, and particularly could not be granted on an ex parte basis. The President pointed out, (correctly), that one High Court judge does not sit as an appeal judge in respect of orders made by another High Court judge, and certainly no High Court judge could make a set-aside order in respect of another judge’s order, in circumstances where such is sought on an ex parte basis. The President concluded that the application was not well-founded, and he refused the reliefs which were prayed for by Mr. Lavery.

9. It is quite clear that the application herein does not meet the constitutional threshold. It raises neither a point of general public importance, nor is it in the public interest that an appeal be brought to this Court. No basis for either contention has been made out in the application. Mr. Lavery’s grievances appear to be set out in an extremely long and discursive affidavit, which explores materials going back many years. It is unnecessary to set them out here. It is sufficient only for this Court to conclude that the constitutional thresholds have not been met, and, moreover, the criteria for a leapfrog appeal had not been met either, in that there is no exceptional element justifying a direct appeal to this Court. Insofar as Mr. Lavery might have an appeal, such an appeal against the President’s order would lie to the Court of Appeal.

10. For that reason alone, this application for leave must be refused. However, in addition, the Court would point out that, despite requests made upon the 5th day of August, 2016, and 30th September, 2016, Mr. Lavery failed to file full and proper books of additional papers. On foot of s.8(d) of the Supreme Court Practice Direction S.C. 16 (issued pursuant to s.7(7) of the Courts (Supplemental Provisions) Act 1961 as inserted by s.44, par (a)(iv) of the Court of Appeal Act 2014), this alone would warrant the application being dismissed.

The Second Application

11. Turning then to the second matter, (087/2016), this is an application brought against an order and judgment of Humphreys J., delivered on the 13th June, 2016. Humphreys J.’s judgment also applies to the third application, (088/2016). In brief, Mr. Lavery’s contention is as follows:

“On the 13th June, 2016 I was denied my right to a hearing under Article 38.1 of the Constitution by (Humphreys J.) recognition of the Director of Public Prosecutions who had no standing in Case No. 2016 228 J.R. as respondent”

12. The sole substantive relief claimed in the proceedings was an order of certiorari, quashing an order made in Cavan District Court on the 25th February, 2016, which order remanded Mr. Lavery to the 15th April, 2016 to the same court. Mr. Lavery contended, before Humphreys J., that the District judge was precluded from dealing with the charges against him in the District Court by reason of a stay which he (Mr. Lavery) maintained had been put in place in the context of yet another judicial review (619/2015). He alleged that this stay remained in place after leave had been refused by Humphreys J. in those proceedings, on the basis of mootness, on the 21st December, 2015.

13. The respondent contends that it was demonstrably clear that the stay which the applicant referred to in judicial review proceedings 619/2015 was of an interim nature, and had clearly lapsed on the determination of the proceedings when leave was refused on the 21st December, 2015. It was pointed out that the purpose of any stay would have been to maintain the status quo, and would, in any event, have entitled the District judge to adjourn the proceedings, and would not have entitled Mr. Lavery to a dismissal of the proceedings in the District Court.

14. The matter at issue again appears to be the culmination of a series of earlier unsuccessful applications for judicial review brought against other judges of the District Court. It is unnecessary for the purposes of these proceedings to outline them here. It is also necessary to point out that, on the 4th July, 2016, in the context of High Court proceedings, 2016/228 JR, Humphreys J. made an Isaac Wunder order against Mr. Lavery, in the following terms:

“That the applicant … be restrained from instituting any High Court proceedings, and be further restrained from issuing and serving any Notice of Motion on any person or party whatsoever without the leave of a judge of the High Court.”

16. For the purposes of these proceedings, it will be sufficient to point out that the constitutional criteria are not met. The point at issue does not raise a question of general public importance, nor is it in the interests of justice that an appeal should be brought to this Court. Moreover, there is no basis for a leapfrog appeal, which is the basis of the application. Insofar as Mr. Lavery might wish to appeal, such an appeal would lie to the Court of Appeal. Insofar as any issue arises, such issue arises only in the individual circumstances of the case, and the facts do not give rise to any point of general public importance. Furthermore, the Court would point out that, yet again, Mr. Lavery failed to respond to correspondence from the Supreme Court office which, in itself, would warrant this appeal being dismissed.

The Third Application

17. The third application (088/2016), again concerns an allegation wherein the applicant contends he was denied his right to a hearing under Article 38.1 of the Constitution by Humphreys J., allowing counsel for the Director of Public Prosecutions to stand in place of District Judge Denis McLoughlin. Again, no grounds are asserted which could, in any circumstances, conceivably reach the constitutional threshold which is set out.

18. In the event that the applicant has an appeal, his right of appeal lies to the Court of Appeal. Furthermore, as in the earlier cases, the applicant has not responded to correspondence from the Supreme Court office in relation to processing his appeal, and, as a consequence, this would warrant the dismissal of the appeal on these grounds alone.

Conclusion

19. The Court, therefore, refuses leave to appeal in each of the three applications herein. These applications could not conceivably have raised issues which would come within the constitutional thresholds laid down for this Court. As a consequence, the Court will award the respondent in the first application his costs, and the respondent in the other two cases, costs also. There will be a stay on this order for two weeks, during which time the applicant may make such written submissions as he may consider appropriate in relation to the costs. In the absence of any communication, or submission, the stay upon the orders for costs will be automatically removed, and will become operative, and may be executed.

And it is hereby so ordered accordingly.