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 15th June 2016. The order appealed against was also made on the 15th June 2016 and perfected on the 20th 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.

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 these proceedings generally the plaintiffs (“Mullins Lynch Byrne”) sued the Kellehers for legal fees said to be due and owing. The Kellehers instructed James Coady & Sons Solicitors to act on their behalf. In circumstances to which it will be necessary to refer in somewhat more detail, James Coady & Sons sought to come off record and brought an application in that regard. The application was acceded to by Birmingham J. sitting in the High Court in Cork on the 2nd May, 2014. It should also be noted that the Kellehers were not present when that application was moved. Furthermore, the substantive action was listed for hearing on the same day and went ahead before Keane J. without either the Kellehers or any representative being present. Judgment was entered against the Kellehers.

Appeals were brought before the Court of Appeal in respect of both the decision to allow James Coady & Sons to come off record and the substantive judgment. The two appeals were initially listed for hearing on the same day but it proved impossible to deal with both appeals in the time allocated so that the appeal in respect of the order of Birmingham J. permitting James Coady & Sons to come off record was dealt with on the 15th June, 2016 with the appeal against the order made by Keane J. in relation to the substantive proceedings being adjourned. The Court of Appeal dismissed the appeal in respect of the order permitting James Coady & Sons to come off record. This determination relates to an application for leave to appeal that decision of the Court of Appeal.

As noted earlier the order of the Court of Appeal was perfected on the 20th June 2016. It followed that, in accordance with the Rules of the Superior Courts, an application for leave to appeal to this Court was required to be brought no later than the 18th July. The notice of appeal was received on the 23rd August. It follows that leave to appeal could only be considered if it were appropriate to extend time.

For completeness it should be noted that the Court is also considering an application for leave to appeal against the dismissal by the Court of Appeal of the appeal against the substantive order of Keane J. However, that application will be the subject of a separate determination of the Court.

3. The Order appealed against

In substance the Court of Appeal held that there was no legitimate basis for finding that the decision by Birmingham J. to allow James Coady & Sons to come off record was outside of the range of decisions open to Birmingham J. in the circumstances of the case. It should be noted that the original motion brought by James Coady & Sons seeking to come off record had been returnable before the High Court in Dublin at a later date. However, the Court of Appeal was satisfied that the Kellehers had been informed that the motion was being brought forward so as to be heard in Cork and would be mentioned before the Court on the 2nd May and, subsequently, that the matter was to be determined on Tuesday 6th May being the date when the substantive proceedings were listed for hearing. While it would, of course, ordinarily be unusual for an order to be made on an occasion prior to the original return date, the Court of Appeal was satisfied that the Kellehers were on full notice of the fact that the Court had directed an earlier hearing date (and, indeed, a change of venue). In addition, the Court of Appeal was satisfied that, while attendance in Cork to oppose the motion might have been inconvenient for the Kellehers, it would not have proved impossible for them to attend had they wished. Also, the Court of Appeal was satisfied that there was evidence from which it could properly have been held by the Birmingham J. that the relationship of trust between the Kellehers and James Coady & Sons had broken down to the extent that it was inevitable that James Coady & Sons would have to have been given leave to come off record for that firm could not, in the Court of Appeal’s view, in those circumstances have reasonably have been required to continue to represent the Kellehers.

While each of the members of the Court of Appeal gave separate ex tempore judgments the substance of each of the three judgments is broadly the same and is along the lines just indicated.

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.

In essence the reasons put forward on behalf of the Kellehers for suggesting that this case meets the constitutional threshold for appeal stem from an assertion that issues concerning the interests of justice arise where an application is heard by the High Court at a time before and at a place different from the time and place specified in the notice of motion. A further matter is relied on which stems from the fact that the Kellehers had given James Coady & Sons instructions, prior to the hearing on the 6th May, to apply for an adjournment of the motion and of the proceedings. It is said that an issue arises as to whether James Coady & Sons were, in those circumstances, obliged to seek an adjournment.

In substance James Coady & Sons submit that no true issue concerning natural justice arises because, it is said, the Kellehers were aware of the hearing and it would not have proved impossible for them to attend.

In the respondents’ notice James Coady & Sons also suggest that the Kellehers have not established that they meet the criteria set out in the case law stemming back to Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 17, concerning the circumstances in which an extension of time to appeal should be granted.

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 important to emphasise that this determination is concerned solely with the question of whether the constitutional threshold for leave to appeal to this Court has been met in relation to the judgment of the Court of Appeal which dismissed the Kellehers’ appeal against the order of Birmingham J. allowing James Coady & Sons to come off record. This determination has no relevance to the separate issue which arises in relation to the fact that the claim in the substantive proceedings went ahead in their absence and the circumstances in which the Kellehers’ appeal against the High Court order was dismissed by the Court of Appeal.

The circumstances in which it is appropriate for a court to allow a solicitor to come off record are well established and do not give rise to any issue of general public importance such as would meet the threshold for allowing a further appeal to this Court from a decision in that regard by the Court of Appeal. There is nothing in the papers to suggest that the application of those principles by Birmingham J. in the High Court in this case was anything other than an orthodox application of those principles to the facts of the case.

The only unusual feature of this aspect of the case was the fact that the motion by James Coady & Sons seeking to come off record was brought forward in time and moved to Cork. However, that fact needs to be seen against the backdrop of the fact that the substantive proceedings themselves had been transferred to Cork and had been fixed for hearing at a date prior to the original return date for the motion to come off record. The motion to come off record would, therefore, have been redundant had it not been heard either before or at least on the same day as the substantive proceedings. In those unusual circumstances it is not surprising that the High Court made an order (which was within its jurisdiction) bringing forward the time for the hearing of the motion and directing that the motion would be heard in Cork.

It would, of course, have been wrong of the High Court to have heard that motion unless the Court was satisfied that the Kellehers were aware of the change of time and venue. However, the High Court was so satisfied for good reason. Being so satisfied it was within the jurisdiction of the High Court to ensure that the motion was heard prior to the timing of the substantive trial. The Court of Appeal was satisfied, in those circumstances, that there was nothing untoward in the approach adopted by Birmingham J. In being so satisfied the Court of Appeal was simply applying generally accepted principles to the effect that it is open to the High Court to abridge time and to deal with any matters within an abridged timescale provided that the High Court is satisfied that any parties affected have been made award of the change and that the alteration did not make it practically impossible for a party to appear. No issues of general public importance arise under that heading either.

Finally, there is the suggestion that James Coady & Sons were bound, because of the instructions from the Kellehers, to seek to adjourn the motion. However, this was a motion between the Kellehers and James Coady & Sons. In those circumstances James Coady & Sons could not be bound by any instruction relating to the motion. If it were otherwise a solicitor could never come off record against the wishes of their client for they would be bound not to pursue such an application, or to adjourn it indefinitely, if so instructed. In the limited context of a motion to come off record a client and that client’s solicitor are opponents rather than solicitor and client and in that context the solicitor concerned cannot be bound by the client’s instructions in respect of the motion. It follows that there is no arguable ground put forward under that heading for the potential appeal.

In all of those circumstances the Court is not satisfied that it has been shown that the constitutional threshold (for pursuing a further appeal against the order giving James Coady & Sons liberty to come off record) has been met. The Court again reiterates that, in coming to that conclusion, the Court, in this determination, expresses no view on what subsequently occurred either before Keane J. in the High Court or in the Court of Appeal in relation to the substantive case.

6. Conclusion

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

And It is hereby so ordered accordingly.