C. v The Minister for Social Protection Ireland and anor

JudgeDenham C.J.,Clarke J.,MacMenamin J.
Judgment Date15 September 2016
Neutral Citation[2016] IESCDET 111
Judgment citation (vLex)[2016] 9 JIC 1503
CourtSupreme Court
Date15 September 2016

[2016] IESCDET 111



Denham C.J.

Clarke J.

MacMenamin J.



RESULT: The Court grants leave to the Plaintiff/Applicant to appeal to this Court directly from the High Court and also grants leave to the Defendants/Respondents to cross appeal to this Court directly from the High Court.
1. Jurisdiction

This determination relates principally to an application by the plaintiff in the underlying proceedings (‘Mr. C.’) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgment of the High Court (Binchy J.) delivered on April 29, 2016. The order appealed against was made on June 14, 2016 and perfected on June 29, 2016. However, in addition, this determination also relates to an application by the defendants in the underlying proceedings (‘the State’) to cross appeal in respect of a separate judgment in relation to costs given by the High Court (Binchy J.) in this matter which was delivered on June 14, 2016. The order sought to be cross appealed was made on the same day and was perfected on June 29, 2016. Without prejudice to the contention of the State that this Court should not grant Mr. C. leave to appeal directly to it under Art. 34.5.4 of the Constitution, the State suggests that, in the event that the Court determines that leave to bring such a direct appeal should be granted, it would be appropriate to also grant leave to the State to appeal against that costs order. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.


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.

2. The Proceedings

The proceedings concern s.249(1) of the Social Welfare (Consolidation) Act, 2005 which has the effect of excluding from the entitlement to be paid a contributory old age pension any person who is serving a term of imprisonment. Mr. C. contended that the section in question was inconsistent with a number of articles of the Constitution and claimed a declaration in that regard. Certain ancillary relief in the form of damages and injunctions were also sought. In addition a declaration was sought that the provision in question was incompatible with the European Convention on Human Rights (‘ECHR’) and damages for breach of rights guaranteed by that convention were sought under s.3 of the European Convention on Human Rights Act, 2003.

3. The Order appealed against

For the reasons set out in the judgment of Binchy J., the substantive claim made by Mr. C. under both the Constitution and the European Convention on Human Rights Act, 2003 were dismissed. As already noted the trial judge gave a separate judgment on the question of costs. For the reasons set out in that separate judgment Binchy J. awarded Mr. C. two thirds of his costs of the proceedings.


A single court order embodying both the dismissal of the substantive proceedings and providing for the costs in the manner just described was made on the June 14 last. Mr. C. seeks leave to bring a leapfrog appeal directly to this Court in respect of the dismissal of his substantive claims. The State, without prejudice to its contention that leapfrog leave should not be granted, seeks, in the event that such leave is granted, to appeal the costs aspect of the order.

4. The Contentions of the Parties

The respective notices of application for leave to appeal and cross appeal together with the relevant responses are published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which Mr. C. suggests that the constitutional threshold for leapfrog leave to appeal has been met and the basis on which, without prejudice, the State suggests that leave to bring a cross appeal should be given.


In essence it is argued on behalf of Mr. C. that the issue which he seeks to raise on this appeal affects a number of elderly persons in the prison population each year. Any person who in imprisoned at a time after they become entitled to a contributory old age pension, by reasons of having made an appropriate number of pension contributions, is potentially affected by the section and thus affected by the outcome of a challenge to the constitutionality of the section concerned or the raising of issues concerning its compatibility with Convention on Human Rights. Attention is also drawn to what was said to be a suggestion made on behalf of the State during the hearing in the High Court to the effect that the proceedings might have implications for other disqualifications from the entitlement to receive a state contributory pension.


Insofar as a justification...

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1 cases
  • KRA [No 3] v Minister for Justice and Equality
    • Ireland
    • High Court
    • 3 October 2016
    ...68 (5th July, 2016) at para. 14; D.P.P. v. Avadenei [2016] IESCDET 101 (8th July, 2016); and C. v. Minister for Social Protection [2016] IESCDET 111 (15th September, 2016) which has similarity to the present case where the losing party sought leave to appeal and the State also sought leave ......

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