Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF

BRIAN O’DONNELL AND MARY PATRICIA O’DONNELL

BETWEEN

Result: The Court does not grant leave to the Applicants to appeal to this Court directly from the High Court.

Reasons Given:

1. This is an application for leave to appeal to the Supreme Court direct from the High Court pursuant to Article 34.5.4 of the Constitution from the decision of Costello J. delivered on the 18th April, 2016, (O’Donnell & anor v. Lehane [2016] IEHC 205), by which she refused an application brought by the applicants herein, Brian O’Donnell and Mary Patricia O’Donnell, (hereinafter referred to as “the bankrupts”), to compel the Official Assignee either to permit them to lodge a motion to extend time for appeal to the Supreme Court from a judgment of the High Court in 2011, and to bring an appeal if successful; or alternatively for an order assigning to the bankrupts the chose in action in respect of the judgment (which must be assumed to be the right to bring an application to extend time to appeal against the judgment, and if necessary to appeal the judgment).

2. Costello J. refused the application on the grounds that the Supreme Court had by a decision of the 8th December, 2015, which was perfected by order of the 17th February, 2016, refused a personal application by the same applicants to extend the time for appeal against the judgment. The ground of the Supreme Court’s decision (Denham C.J., MacMenamin and Laffoy J.J.) was that the applicants lacked locus standi to bring any such application since the chose in action had vested in the Official Assignee (the respondent to this application) when the bankrupts were adjudicated by order of the High Court of the 2nd September, 2013. Costello J. also ordered that the Official Assignee recover against the bankrupts “in person” the costs of and incidental to the motion and order to be taxed in default of agreement.

3. The bankrupts now apply for leave to appeal to this Court pursuant to Article 34.5.4° of the Constitution. It is by now well established that if such an appeal is to be permitted, the Court must be satisfied that the constitutional threshold is met (namely that the appeal involves an issue of general public importance and/or that it is in the interests of justice that such an appeal be brought) and that there are exceptional grounds justifying an appeal direct to this Court. The applicants contend that the order of the Supreme Court has been misunderstood, and that “it is a matter of general public importance that the judgment of the Supreme Court be clarified as it involves important issues involving bankruptcy, which is now a regular occurrence in Ireland. Bankruptcy is a punitive process and issues regarding it should be dealt with on an (sic) basis”. The applicants also contend that there are exceptional circumstances warranting a direct appeal to the Supreme Court because “the matter involves the interpretation of a judgment of the Supreme Court by the High Court and the Court of Appeal clarifying the interpretation will only involve an extra layer of costs and expense. The Court of Appeal now only has listings for 2017 and there is a likelihood the appellants will be discharged before this matter will be dealt with. In the unique circumstances of this case the Supreme Court is best placed to deal with this matter.”

4. The applicants also seek to appeal the order made in respect of costs, which were awarded against them personally outside of their bankruptcy estates. In this particular application they have not asserted that any matter of general public importance arises from that order, although they have done so in respect of a similar order made in other proceedings. Leave to appeal to this Court has been granted in respect of that issue in that matter – see O’Donnell v Lehane [2016] IESCDET 126

5. The facts relied upon are already sufficiently set out in the judgment of Costello J. The applicants’ application for leave and notice of appeal and the respondent’s notice are also available on this website. Accordingly it is not considered necessary to set out the facts in any greater detail.

6. The Court also considers it desirable to point out that a determination of the Court on an application for leave, while 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 precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues upon which leave has been granted will in due course be disposed of in the substantive decision of the Court.

7. The first consideration in this case is whether there are exceptional grounds justifying an appeal directly to this Court from the High Court. In this respect the applicants rely upon the fact that the issue involved in this case is the interpretation of a decision of an order of the Supreme Court. They argue that an appeal to the Court of Appeal would “only involve an extra layer of cost and expense”, and that a priority listing should be granted because they may be discharged from bankruptcy in the short term.

8. The question of interpretation of the order is not exclusively a matter for this Court: on the contrary, once made, it is a matter for any court where an issue requires to be determined as to the interpretation of the order. In this case the order of the Supreme Court was interpreted by the High Court, and there is in principle no reason why it cannot be interpreted on appeal by the Court of Appeal. It does not follow from the fact that the order requiring interpretation is an order of the Supreme Court, that any determination of the Court of Appeal would or could be the subject of a successful application for leave to appeal to this Court. Accordingly, it is incorrect to suggest that a determination by the Court of Appeal will only involve an extra layer of costs and expense: there is no guarantee that any decision of the Court of Appeal would result in leave being granted to appeal to this Court. However, the Court expresses no view at this stage, as to the question of whether the interpretation of an order made in a particular case raises any issue of general public importance, or whether it is in the interests of justice that an appeal be brought to this Court.

9. An argument that a matter is urgent does not of itself mean that a point of law of general public importance has arisen.

10. The Court does not consider that any issue raised by the applicants is of such a nature as to warrant a “leap-frog” appeal to this court and will accordingly refuse leave. The applicants remain entitled to pursue an appeal to the Court of Appeal. The issue as to the lawfulness of the costs order in the related matter will be determined by this Court in due course.

And it is hereby so ordered accordingly.