Bank of Ireland Mortgage Bank v Kane
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,O'Malley J.,Baker J. |
| Judgment Date | 25 January 2021 |
| Neutral Citation | [2021] IESCDET 6 |
| Date | 25 January 2021 |
| Court | Supreme Court |
| Docket Number | Supreme Court record no: S:AP:IE:2020:000133 High Court record no: 2015 No. 1909 S |
[2021] IESCDET 6
Clarke C.J.
O'Malley J.
Baker J.
Supreme Court record no: S:AP:IE:2020:000133
Court of Appeal record no: A:AP:IE:2019:000285
High Court record no: 2015 No. 1909 S
THE SUPREME COURT
DETERMINATION
RESULT: The Court does not grant leave to the Defendant / Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
| DATE OF JUDGMENT OR RULING: 9 th October, 2020 |
| DATE OF ORDER: 9 th October, 2020 |
| DATE OF PERFECTION OF ORDER: 27 th October, 2020 |
| THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 25 th November, 2020 AND WAS NOT IN TIME. |
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
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 Thirty-third 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, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O'Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
It should be noted that any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court's consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.
Furthermore, the application for leave filed and the respondent's notice 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 any detail.
The applicant seeks leave to appeal the decision of the Court of Appeal dismissing his appeal against the grant of summary judgment to the respondent in the High Court. The application is out of time, the order having been perfected on the 27 th October, 2020 and this application having been filed on the 25 th November 2020. However, it is clear that the applicant has had health issues in recent times and the respondent does not object to an extension of time.
On the 8th October 2015 the respondent issued a summary summons seeking the sum of €1,930,347.34. This sum was particularised in the special indorsement of claim by reference to sums due in respect of principal and interest on foot of three loan accounts. The dates of offer and acceptance were set out in respect of each of the three loans. It was pleaded that the applicant had not repaid the monies as and when they were to have been repaid, that the loans had been called in by demand letter issued on the 11th May 2015, and that they had not been repaid.
The respondent subsequently amended the summons, pursuant to an order granted by the High Court, by the alteration of certain of the figures.
The applicant continued to make some payments, albeit in sums lower than the amounts contracted for, until the 1st February 2019. Details of the sums due...
To continue reading
Request your trial