Supporting Documents:
 69-17 AFL.pdf 69-17 Rspndt. Notce (2).DOC
THE SUPREME COURT
DETERMINATION ALLIED IRISH BANKS PLC AND DAN MORRISSEY (IRELAND) LIMITED (IN RECEIVERSHIP) PLAINTIFFS/RESPONDENTS AND
PHILIP MORRISSEY JUNIOR 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 appeal.
Reasons Given:
Introduction
1. By special summons dated the 3rd November 2015 the plaintiffs sought an order requiring the defendant to deliver up possession of certain property in Co. Kildare. The basis of the claim related to mortgages dated the 27th October 2006 and the 4th October 2007 and a mortgage debenture dated the 20th August 2009, to which the parties were the plaintiff bank and Dan Morrissey (Ireland) Ltd. Monies advanced to the company on foot of the mortgages were not repaid and the bank appointed a receiver.
The High Court proceedings
2. Having issued the proceedings the plaintiffs applied on the 23rd November 2015 to have the matter entered into the Commercial Court list. The applicant appeared in person. He informed the presiding judge that he had no legal representation but had made an application for civil legal aid. He had a letter from the Legal Aid Board, dated the 20th November 2015, which stated that he would be given an appointment in not less than four months from that date. The judge ruled that the matter came within the scope of O.63A, rr.1(a)(i) and 1(b) of the Rules of the Superior Courts. Having been informed by the plaintiffs that a contract for the sale of the lands was due to close shortly, he felt that the commercial urgency was such that he could not adjourn a hearing pending the decision by the Legal Aid Board as to the applicant’s eligibility. A period of three weeks was allowed for the applicant to file an affidavit, and the case was listed for hearing on the 17th December 2015.
3. The applicant did not file an affidavit. At the hearing on the 17th December (before Hedigan J.) he said that he wanted a full hearing of the case and wanted legal aid for that purpose.
4. The evidence adduced by the plaintiffs included the fact that the applicant had originally asserted that he occupied the lands as a tenant. The plaintiffs had therefore served a termination notice on the 30th September 2014 to expire on the 20th January 2015. The applicant then took the matter before the Private Residential Tenancies Board (“the PRTB”), claiming that under his tenancy agreement, dating from 2007, he was entitled to twelve months notice. The PRTB ruled that there was insufficient evidence to establish an agreement of a nature that could bind the receiver, and that the termination notice was valid.
5. The applicant had appealed this decision to the Tenancy Tribunal. However, his claim before that body was that he was in the process of purchasing the property, by way of a rental purchase agreement. Since this would have given him a proprietary interest the Tribunal declined jurisdiction.
6. Taking these matters into consideration, Hedigan J. said that he would have given the time and opportunity to avail of legal aid if he could identify any realistic ground of defence in the applicant’s submissions. However, on the evidence, the defence raised by the applicant in respect of the claimed rental purchase agreement was unsustainable given the documentary evidence and the applicant’s initial position before the PRTB. The order sought by the plaintiffs was therefore made, with a stay of three months. The order included a declaration that the applicant had no legal or equitable interest in the lands.
The application for legal aid
7. The applicant sought legal aid for the purpose of appealing the two High Court orders. However, by letter dated the 18th April 2016 the Legal Aid Board refused his application by reference to the criteria for the grant of legal aid set out in s.28(2)(c) and (e) of the Civil Legal Aid Act 1995. Section 28(2)(c) requires the Board to be of the opinion that the person concerned is “reasonably likely to be successful in the proceedings, assuming that the facts put forward by him or her in relation to the proceedings are proved before the Court or Tribunal concerned”. Section 28(2)(e) requires the Board to be of the opinion that in all the circumstances of the case (including the probable cost to the Board, measured against the likely benefit to the applicant) it is reasonable to grant legal aid.
8. The Board informed the applicant that in its view he was unlikely to be successful in the appeal against the order for possession “as it would be difficult to establish that the Bank impliedly consented to your occupation and renovation of the property”. It also considered that the case failed the test in s. 28(2)(e).
The Court of Appeal decision
9. The applicant proceeded with an appeal and was represented by senior counsel at the appeal hearing. An application was made to adduce new evidence, in the form of affidavits sworn by himself and his father Philip Morrissey Senior. The case being made in the affidavits was that the applicant had an equitable interest in the property, on foot of an agreement with his father on behalf of the company that he could purchase the house and land by way of deductions from his wages.
10. Two ex tempore judgments were given on the date of the hearing. Ryan P., with whom Stewart J. agreed, considered that such documentary evidence as there was, including the proposed new evidence, was as consistent with a tenancy as with a purchase. However any doubt about the matter was entirely removed by the applicant’s own words and actions in his case before the PRTB. It was noted that the applicant had said at that stage that his tenancy dated from 2007. Having regard to the fact that the terms of the mortgage contained the usual provision that the mortgagor would not assign, lease or transfer the property without consent, the case now being made about the rental purchase was inherently incredible. Furthermore, there was no explanation as to why the proposed new affidavit evidence had not been put before the High Court.
11. Irvine J. agreed with Ryan P. and concentrated in her judgment on the ground of appeal claiming that it was impermissible for the High Court to have proceeded with the hearing in circumstances where the applicant’s family home was at stake and he did not have legal aid. Referring to the decision of this court in Magee v Farrell [2009] 4 I.R. 703, she rejected the proposition that a party to civil litigation had an entitlement to legal aid. The applicant, she felt, should have been able to put in an affidavit within the three weeks permitted to him.
The application for leave
12. The notices filed by the parties are available on this website.
The Criteria
13. As is clear from a range of determinations made by this Court since the 33rd Amendment of 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, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, 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 it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 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 interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests 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.
14. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.
15. 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 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.
Discussion
16. The issues canvassed by the applicant in this application relate entirely to the question of his asserted right to legal aid, without reference to any possible substantive defence to the plaintiffs’ claim. Having regard to the fact that the asserted rental purchase agreement claimed before the High Court was found not to have any credible basis in the light of the evidence that he had made a case inconsistent with it before the PRTB, and that the High Court judge was at pains to say that he would have adjourned for legal representation if he had thought that there was any substance to it, it is difficult to see that there was any unfairness to the applicant in the refusal to adjourn. The case made before Court of Appeal was that the applicant could prove with the newly-produced affidavits, that he had a rental purchase agreement. That court does not appear to have been informed of the reasons for the refusal of legal aid, or of the fact that the case made to the Legal Aid Board was a completely different one based on a claim that the Bank had impliedly consented to the applicant’s occupation of the property.
17. Given this history there is no reason to suppose that the outcome of the case could have been any different had an adjournment been granted in the High Court. In those circumstances no matter of general public interest, and no sustainable point engaging the interest of justice, arises from the question whether Irvine J.’s view of the decision in Magee v. Farrell was correct.
18. Leave to appeal will accordingly be refused.
And it is hereby so ordered accordingly.
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