Supporting Documents:
 
THE SUPREME COURT
DETERMINATION
PATRICK HORKAN PLAINTIFFS / RESPONDENT DEFENDANT / APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to Migjen Gjyrevci to appeal to
this Court from the order of the Court of Appeal delivered on the 20th April, 2015.
REASONS GIVEN:-
1. This determination relates to an application by Migjen Gjyrevci, the applicant, referred to as “the applicant”, in which he seeks leave to appeal to this Court from the decision of the Court of Appeal delivered on the 20th April, 2015.
2. Patrick Horkan, the respondent, is referred to as “the respondent”.
3. This Court has jurisdiction to hear an appeal from the Court of Appeal in the circumstances described in Article 34.5.3° of the Constitution, which states:-
“3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a 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.”
4. The decision of the Supreme Court under Article 34.5.6° is, in all cases, “final and conclusive”.
5. The constitutional framework established by the 33rd Amendment of the Constitution thus requires, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, that it be demonstrated that either “a matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal” to this Court.
6. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014, and in particular the provisions of s. 44 of that Act which inserts a new s. 7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.
7. The Constitution has retained the entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that Court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.
8. It is not addressed expressly in the application but it appears to be inherent that the applicant makes his application against the entire decision of the Court of Appeal.
9. The applicant is a lay litigant, which the Court has borne in mind in considering the application.
10. The applicant does not ask the Court to depart from one of its own decisions, or to make a reference to the Court of Justice of the European Union.
11. The applicant states that these proceedings relate to injunctive relief sought by a receiver, and that the issues are fully identified in the affidavits. The applicant states that the learned High Court judge was in favour of the receiver, and this was affirmed by the Court of Appeal, effectively making interlocutory orders mandatory and rendering the proceedings moot.
12. The applicant stated that this appeal demands, in the interests of justice, that an appeal be heard by the Supreme Court as interlocutory orders were made mandatory.
13. The applicant stated that: (i) the learned High Court judge and the Court of Appeal erred in law and in fact in making interlocutory orders mandatory; (ii) that this raises issues of importance and matters of public importance in the context of receivership cases; (iii) a book of authorities will be filed, and a page was attached setting out the case law relied on.
14. If leave to appeal were granted, and if an appeal were successful, the applicant would seek an order allowing the appeal and “to go back into the properties”.
15. The applicant referred to the judgment of Laffoy J. in Kavanagh v. McLaughlin [2015] IESC 27.
16. The applicant said that K.B.L. Bank Ireland Plc had not the right in law to appoint a receiver under Laffoy J.’s Supreme Court judgment and that it would be a miscarriage of justice to allow the orders of the High Court to stand without giving the applicant the right to present his case in full before the Supreme Court as a matter of general public importance.
17. The applicant explained that he was looking for an extension of time to appeal the High Court order on the ground that he was misrepresented by his legal representatives in the High Court and that KPMG entered his properties due to this misrepresentation. This refers to his summons against KPMG, Patrick Horkan and KBC Bank, which he states was never shown to the trial judges, and so he feels he was misrepresented.
18. The respondent opposes the application for leave to appeal. The respondent stated that the order in which leave to appeal is sought by the applicant concerned an application by the applicant to extend time within which to appeal to the Court of Appeal from the order of the High Court of the 17th December, 2014. The respondent stated that the effect of the order was to restrain the applicant from interfering with the respondent’s role as receiver of certain properties identified in the plenary summons. Thus, the respondent submitted, it was not correct for the applicant to assert that the Court of Appeal “approved” of the High Court order. The decision of the Court of Appeal, the respondent stated, concerned the narrow question of whether or not to extend time within which to appeal from the High Court order and did not consider the underlying substance of the appeal, save to the extent necessary in the test as established in Eire Continental v. Clonmel Foods Limited [1955] I.R. 170.
19. The respondent filed the following reasons for opposing leave to appeal:-
“Far from involving a matter of general public importance, the decision in respect of which leave to appeal is sought represents an orthodox application of a test which has been accepted as representing the proper approach of an appellate court to an application of this nature for over 60 years.
In the Court of Appeal, the only ground of appeal identified by the [applicant] in seeking to discharge the onus of demonstrating that the appeal was at least arguable was that the injunction granted by the High Court was mandatory in nature. The Respondent does not accept that the High Court Order was mandatory in nature: the substance of the relief sought by the Respondent in the High Court was prohibitory.
In any event, it is not the case that mandatory injunctive relief may not be granted on an interlocutory basis. The locus classicus of the jurisdiction to grant interlocutory injunctive relief – Campus Oil v Minister for Industry and Commerce (No. 2) [1983] I.R. 88 – was itself a case in which the Supreme Court concluded that it was appropriate to grant interlocutory relief.
There is no other good reason to allow the Appellant to appeal from the Order of the Court of Appeal. In particular, the Respondent contends that it is not necessary (in the interests of justice or otherwise) that there be an appeal to the Supreme Court from the Judgment and Order of the Court of Appeal.
The Respondent further does not accept that the effect of either the High Court Order or the Court of Appeal Order is to render the underlying proceedings moot. The Appellant will be afforded a full opportunity of defending the Respondent’s claim at the trial of the action and enjoys the benefit of the Respondent’s undertaking as to damages until the determination of the underlying proceedings. On 29th May 2015 the Respondent delivered its Statement of Claim and a Defence is currently awaited from the Appellant.”
20. The judgment of the Court of Appeal was an ex tempore judgment delivered by Kelly J., with whom Irvine J. and Hogan J. agreed. The sole issue was the application by the applicant to extend time to appeal against the order of the High Court (Binchy J.) of the 17th December, 2014. The order related to a series of injunctions. As is well established in law, there were three matters to be considered by the Court of Appeal: (i) was there an intention to appeal by the applicant within the permitted time limited for the appeal; (ii) the question of a mistake; and (iii) whether there was an arguable basis for the appeal which is sought to be brought. The first point was conceded and the second was accepted by the Court of Appeal. Thus, the only issue was whether there was an arguable case. The Court of Appeal was satisfied that no arguable case had been demonstrated by the applicant. Thus, the application was refused.
21. The Court of Appeal applied the correct test in law.
22. The applicant submitted that the injunctions were mandatory and could not be granted on an interlocutory basis. Whatever the description of the injunctions, mandatory or prohibitory, such injunction may, as a matter of law, be granted on an interlocutory basis.
23. The applicant has referred in this application to the case Kavanagh v. McLaughlin [2015] IESC 27, and referred to the judgment of Laffoy J. This is a matter which the applicant may pursue at the substantive hearing of the action.
24. As the Court was informed that there was an undertaking as to damages by the respondent until the determination of the proceedings, the proceedings have not been rendered moot. The Court was informed that on the 29th May, 2015, the respondent delivered the statement of claim and that a defence is awaited from the applicant.
25. In the circumstances of the case, the applicant has not raised a point of substance for consideration within the jurisdiction of the Court.
26. Nor does any matter of general public importance arise at this time.
27. Further, the Court is satisfied that it would not be necessary in the interests of justice that there be an appeal to this Court.
28. The Court is satisfied that the constitutional threshold for leave to appeal to the Court has not been met.
29. The Court does not grant leave to the applicant to appeal to this Court from the judgment of the Court of Appeal delivered on the 20th April, 2015.
And it is hereby so ordered accordingly.
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