Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

Result: The Court grants leave to the Applicant to appeal to this Court directly from the High Court

Reasons given:

Jurisdiction

1. The applicant seeks leave to appeal the decision of the High Court (Ní Raifeartaigh J.) in respect of his challenge to a decision of the Committee on Procedure and Privileges of Dáil Éireann. Ní Raifeartaigh J. dismissed the proceedings on the ground that the case was non-justiciable – see O’Brien v Clerk of Dáil Éireann and Others [2017] IEHC 179. The respondents (the Committee, Ireland and the Attorney General) intend to oppose the appeal but do not oppose the grant of leave to appeal.

2. 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.

The proceedings

3. The issues in the case are set out fully in the notices filed by the parties. Those notices are available on this website and will not be discussed in any detail here.

The criteria

4. The criteria for a leapfrog appeal, where the appellant wishes to proceed in this Court rather than the Court of Appeal, have been discussed in a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force. It is clear that 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 respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. 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 is otherwise in the interests of justice 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 in those circumstances. 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 appeal.

5. In addition, leave to appeal directly from the High Court requires the applicant to demonstrate that there are exceptional circumstances warranting such an appeal.

6. Against that background it is necessary to address the basis upon which it said that the constitutional threshold is met in this case.

Decision

7. It appears to be accepted by the respondents that the case meets the criteria of general public importance and/or the interests of justice. It is submitted by the applicant that the matter is suitable for a direct appeal in that any clarification of the existing authorities (if clarification is required) should come from this Court. Further, it seems that the case concerns a single issue of law and its parameters would therefore be unlikely to be reduced by further analysis in the Court of Appeal.

8. In those circumstances the Court will grant leave to appeal on the grounds set out in the notice of application (subject to any possible refinement in case-management). The Court will further direct that the matter be listed for mention on the 9th October, 2017, at the same time as the directions hearing in Kerins v McGuinness 2017 IESCDET 77, for the purpose of considering the desirability of case-managing the two cases together. It is not expected that submissions will be lodged by that date.

And it is hereby so ordered accordingly.