Brennan v Flannery

JurisdictionIreland
JudgeClarke J.,MacMenamin J.,Laffoy J.
Judgment Date29 July 2015
Neutral Citation[2015] IESCDET 32
CourtSupreme Court
Date29 July 2015

[2015] IESCDET 32

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN
MARGARET BRENNAN
PLAINTIFF / APPLICANTS
AND
THOMAS FLANNERY CATHERINE FLANNERY
T & C DEVELOPMENTS LIMITED
THE NATIONAL HOUSE BUILDING GUARANTEE COMPANY LIMITED SEAMUS QUINN

AND

MIDLAND DESIGN SERVICES LIMITED
DEFENDANTS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal
1

This determination concerns an application by the plaintiff, Margaret Brennan, in which she seeks leave to appeal from the Court of Appeal. In accordance with Article 34.5.3 of the Constitution, the Court must, before giving such leave, be satisfied that the issues sought to be raised either involve a matter of general public importance, or alternatively that it is otherwise in the interests of justice that an appeal to this Court be permitted.

2

The consequence of promulgation and enactment by the People of Article 34 of the Constitution has been generally considered by this Court in Fox v. Mahon & Others [2015] IESC DET 2. This determination is based on the relevant principles set out in that determination. Specifically, and as is pointed out in Fox, it is a general principle that, save in exceptional circumstances outlined in Fox v. Mahon, the Court of Appeal is to provide the avenue for appeals from the High Court, and that its decision is to be final, save where there is a point of general public importance, or it is in the public interest that it should be determined further by this Court.

3

On the 19th November, 2014 a division of the Court of Appeal, (Finlay-Geoghegan J. presiding, Irvine J., Mahon J.), directed that an issue be tried as to whether the first named defendant in the proceedings, Thomas Flannery, and the second named defendant, Catherine Flannery, (Mr. and Mrs. Flannery), were personally liable for damages and costs awarded by the High Court in an order dated the 15th May, 2013. The Court of Appeal directed that this issue should be determined before any other issue in the appeal.

4

On the 9th March, 2015, the Court of Appeal (Kelly J. presiding; Irvine J., Mahon J.) delivered its judgment on this question now appealed. The Court held that Thomas Flannery, and Catherine Flannery, were not personally liable to the plaintiff, who now appeals that determination by the Court of Appeal on the preliminary issue.

5

The situation is this, Margaret Brennan, the plaintiff, commenced an action in 2003 against a series of defendants. The first three defendants were, (as now), Thomas Flannery, Catherine Flannery and T. & C. Developments. The other defendants included the National House Building Guarantee Company Ltd. Prior to the judgment of the Court of Appeal, a division of the Court of Appeal upheld an appeal brought by the National House Building Guarantee Company Ltd., and reduced the entitlement of Mrs. Brennan to damages against that company. It did so because it held there was an upper limit in the guarantee bond, which was executed in respect of the dwelling, the subject of the proceedings. The Court of Appeal concluded the trial judge wrongly awarded an amount in excess of that upper limit.

6

The matter which arises for decision herein now relates to the same general background of facts.

7

On the preliminary issue of the first and second defendants' liability, the Court of Appeal found that, in November, 1999, Mrs. Brennan entered into two contractual agreements. She agreed with Mr. and Mrs. Flannery, the first and second defendants, for the purchase by her of a site of land, identified by contract, for a sum of £5,000. On the same day, she entered into a building agreement. In the Court of Appeal, Kelly J., speaking for the Court, held that this second agreement was, on its face, made between Mrs. Brennan and the third defendant, T. & C. Developments Limited (the company). The contract price was specified to be the sum of £80,000. Under the terms of the agreement, the company was to build the house on behalf of Mrs. Brennan.

8

Mrs. Brennan found that the house was defective. She brought an action to the High Court. It was heard by the High Court. The High Court judge's first decision was the subject of the appeal aforesaid brought by the National House Building Guarantee Company Ltd. That...

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    ...provide otherwise. What is sought in this case is a second appeal. As pointed out by this court in Brennan v Thomas Flannery and Ors [2015] IESCDET 32, ‘…it is a general principle that, save in exceptional circumstances [such as those] outlined in Fox v. Mahon & Others [2015] IESCDET 2, the......
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    ...provide otherwise. What is sought in this case is a second appeal. As pointed out by this court in Brennan v Thomas Flannery and Ors [2015] IESCDET 32, ‘…it is a general principle that, save in exceptional circumstances such as those outlined in Fox v Mahon and Ors., the Court of Appeal is ......
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    ...provide otherwise. What is sought in this case is a second appeal. As pointed out by this court in Brennan v Thomas Flannery and Ors. [2015] IESCDET 32 ‘…it is a general principle that, save in exceptional circumstances such as those outlined in Fox v Mahon and Ors. [2015] IESCDET 2, the Co......
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