Supporting Documents:
07-2018 AFL.pdf07-2018 Rspndt Notce.pdf

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APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicants (John Lawless, Rita Cunniffe and Aidan Cunniffe) to appeal to this Court from the Court of Appeal

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 13th October, 2017

DATE OF ORDER: 25th October, 2017 (3)

DATE OF PERFECTION OF ORDER: 11th December, 2017 (3)

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 8th January, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

The “Slip rule appeal”

3. The history of this application dates back to the 7th February, 2012, when Finlay Geoghegan J. made a well-charging order against certain property interests of these three applicants. The order noted that the sum due to the plaintiff on foot of the judgment was €3,793,872.13, and directed that, in default of payment of that sum plus interest within one month, the lands were to be sold.

4. It appears that in the course of the hearing the applicants alleged that the facility letter produced by the bank in the summary judgment proceedings was a forgery, but that they had entered into a secret parole agreement with the receiver not to raise this as an issue. In return, the receiver was alleged to have agreed to sell them the secured lands and write off their debt at a discount. Finlay Geoghegan J. found this account to be entirely inconsistent with the history of the court proceedings and concluded that there was no question of fact that required to be remitted to plenary hearing.

5. The approved note of the ruling records that there had been evidence before Finlay Geoghegan J. that in fact some part of the judgment sum had been paid in satisfaction of the debt. She considered that it would not be appropriate to specify a particular sum as having been paid. The note further records that she said that the order should declare the judgment debt was well charged, less any sum received by the plaintiff in reduction of the debt. Clearly, the order as drawn up did not do this.

6. On the 7th February, 2014, this Court dismissed the applicant’s appeal and affirmed the High Court order, save that the matter was remitted for reconsideration of the part of the order referring to the amount due and owing to the plaintiff.

7. Nothing further seems to have occurred on this aspect until the plaintiff issued a motion on the 6th July, 2016, to amend the order of Finlay Geoghegan J. by inserting the words “less any sum received by the plaintiff in reduction of the judgment debt”. This motion was dealt with by McGovern J. The applicants opposed the motion. They asserted that the receiver had not sold the lands for the highest available price, and that credit should also be given for the amount of the shortfall. It was argued that this was what the Supreme Court had intended. McGovern J. disagreed and amended the order in accordance with the notice of motion.

8. On appeal, Mr Lawless argued that the Supreme Court order extended to a review of the substance of the order of Kelly J. granting summary judgment. The Court of Appeal held that the wording of the amendment correctly reflected the intent of both Finlay Geoghegan J. and the Supreme Court.

9. The applicants appear to believe that this Court can deal with this issue in the context of a motion, filed before the hearing of the appeal in the Court of Appeal, that sought access to the Digital Audio Recording (hereafter “D.A.R.”) of the hearing in this Court in February, 2014. At the time it was averred that the D.A.R. was necessary for the purposes of that appeal. That motion does not appear to have been issued. In a supplemental affidavit, the applicants now accept that the Court of Appeal judgment was correct in its summary of the Supreme Court ruling, but dispute the conclusion that no liquidated figure should have been inserted into the High Court order. It is contended that the Supreme Court should hear the D.A.R. motion in order to ascertain whether the issue remitted by this Court has been properly addressed in the High Court and Court of Appeal, and that this hearing should take place before deciding on the application for leave. The applicants say that they seek leave only for the purpose of facilitating the hearing of the motion.

10. The respondents say that they have never been served with the motion.

The “V.A.T. receipt” appeal and the “Strike out” appeal

11. In 2013 the applicants issued plenary proceedings (record no. 2013 6018P) against the bank, K.P.M.G., the receiver (Mr. Wallace), the auctioneer and the purchasers of the secured property. A statement of claim was delivered in January, 2014. The applicants repeated the claim that the facility letter was a forgery that did not reflect the true agreement between the parties; that there had been a secret deal with the receiver; and that the receiver and the bank had committed theft and fraud.

12. In July, 2014 the applicants issued a motion seeking an order directing K.P.M.G. and Mr. Wallace to produce a V.A.T .invoice. They argued that the receiver was, in law, their agent, and that he had provided them with a service, being the reduction of their indebtedness to the bank. They were therefore entitled to deduct the V.A.T., and for that purpose were entitled to an invoice. In a ruling given on the 16th September, 2014, Gilligan J. held that they were “fundamentally mistaken” as to the legal relationship between themselves and the receiver (while leaving open the possibility that the Revenue Commissioners might agree with them on the V.A.T .issue). The Court of Appeal took the same view, having engaged in a detailed examination of the leading authorities including Bula v Crowley [2003] 1 I.R. 396 and Customs and Excise Commissioners v Redrow Group plc [1999] 1 W.L.R. 408.

13. In this application for leave the applicants imply (without any clear statement to this effect) that Bula v Crowley has become outdated by reason of the increasing incidence of receiverships. They assert that the Court of Appeal did not give proper consideration to Revenue and Customs v Secret Hotels2 Ltd [2014] U.K.S.C. 16, and therefore misapplied the decision in Redrow. They have not identified a point of law in respect of which the courts below might be said to have erred.

14. The applicants’ plenary proceedings were subsequently struck out by Gilligan J. The Court has not been provided with a copy of the order or ruling but it is described in detail in the judgment of Whelan J. The trial judge had ordered the proceedings to be struck out pursuant to O.19, r.28 RSC as failing to disclose a reasonable cause of action, and also in the exercise of the Court’s inherent jurisdiction to strike out a claim that was frivolous or vexatious and an abuse of process. In brief, the Court of Appeal concluded that Gilligan J. had erred in holding that the statement of claim did not disclose a cause of action on its face, but that he had been correct in invoking the inherent jurisdiction of the Court. The claims made were barred by virtue of the rule in Henderson v Henderson [1843] 67 E.R. 313, or were res judicata, or depended upon claims originally made by Mr. Lawless’s mother and subsequently withdrawn by her.

15. In this application the applicants say that they wish to appeal this order “for the sake of completeness” because the ruling in respect of the V.A.T. receipt was made in these proceedings. No other argument is put forward.

The Isaac Wunder appeal

16. At the time of striking out the applicants’ plenary proceedings, Gilligan J. refused to make an Isaac Wunder order against the applicants. However, he acceded to a further application to this effect made by the bank in January, 2016. On appeal, the Court of Appeal had regard to the importance of the constitutional right of access to the courts but found that the trial judge, having declined to make the order at an earlier stage, was correct in so doing at the point when he had cogent evidence of habitual, persistent institution of vexatious or frivolous proceedings. Having considered the relevant authorities, the Court had particular regard to the applicants’ persistent raising of issues that had previously been determined, with “a persistent rolling forward of the same core issues”. It concluded that the litigation, in large measure, was calculated to disparage and oppress the defendants rather than as a vehicle that could realistically achieve any positive or legitimate outcome for the benefit of the appellants.

17. The applicants say that the Court of Appeal failed to consider the fundamental basis of their submissions, which they describe as “the interaction between the making of an Isaac Wunder order and Article 6 of the European Convention of Human Rights in circumstances where the High Court had previously refused to make such an order”. It is asserted that this raises issues of fundamental public importance that must be determined by this Court before the applicants take the matter to the European Court of Human Rights.

Decision

18. In reaching its conclusions on each of the issues before it, the Court of Appeal applied well-established case law. The applicants have not explained how, in their view, that Court erred, by reference to any formulated or identifiable point of law in respect of any of the four matters. It is not sufficient for an applicant simply to assert that a decision gives rise to “issues” – it is necessary that the point of law sought to be argued be identified with some precision. Further, the applicants having had a full hearing on each of the matters in the High Court and having had a full appeal on the merits of each, the Court does not find that an appeal is necessary in the interests of justice.

And it is hereby so ordered accordingly.