David Hall v Minister for Finance and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 20 February 2013
• Neutral Citation: [2013] IESC 10
• Court: Supreme Court
• Docket Number: [Appeal No: 32/2013]
• Date: 20 February 2013

[2013] IESC 10

THE SUPREME COURT

Fennelly J., McKechnie J., MacMenamin J.

[Appeal No: 32/2013]

Between/

David Hall

Applicant

and

Minister for Finance, Ireland, the Attorney General and the Central Bank of Ireland

Defendants/Respondents

and

The Irish Bank Resolution Corporation and

The Educational Building Society Limited

Notice Parties

Banking – Financial institutions – Assistance to institutions – Challenge to assistance provided by Minister for Finance – Teachtaí Dála seeking to be added as parties to appeal from first instance decision

Facts: The appellant had brought a challenge to the first respondent”s decision to provide assistance to a number of financial institutions following the onset of the economic crisis. This challenge had been dismissed as first instance, and the appellant brought an appeal to the Supreme Court. The current motion was made by five persons, all members of the Dáil, seeking to be joined to the appeal.

Held by Fennelly J, MacMenamin J concurring, that the High Court had dismissed the appellant”s claim on the basis he lacked standing to bring such a claim in relation to the procedures of Dáil Éireann. The TDs seeking to be added however clearly possessed such standing. Their application was made under ord 15 of the Rules of the Superior Court 1986. Whilst the rules therein did not directly address the joinder of parties in circumstances such as the current, the Supreme Court possessed inherent jurisdiction to add parties

The issue to be determined in the current case was whether the circumstances were exceptional so as to meet the criteria detailed in earlier case law. The Supreme Court considered the application did not come within the purpose of ord 15, as the applicants effectively sought not to join the current appeal, but rather take a role in any proceeding remitted to the High Court. O”Keeffe v An Bord Pleanála [1993] 1 IR 39 considered.

The application would therefore be refused.

Mr. Justice Fennelly

1 The Court has before it a motion brought by five persons, all Teachtaí Dála, who seek to be joined either as appellants or as notice parties to an appeal pending before the court. The application is made pursuant to Order 15, Rule 1 and/or Rule 13 of the Rules of the Superior Courts ( S.I. No. 15 of 1986).

2 The appeal is taken by the appellant from the judgment of the President of the High Court delivered on 31st January 2013. In that judgment, the learned President dismissed the appellant”s challenge to the validity of the mechanisms or procedures whereby the first-named Respondent, the Minister for Finance (hereinafter ‘the Minister’), provided financial support to three financial institutions arising from the financial crisis which has engulfed the nation since 2008.

3 The appellant claimed that the Minister did not have the power to issue the so-called promissory notes, in a total sum of €30.6 billion, as consideration for the capital provided by the State to the former Anglo Irish Bank and Irish Nationwide Building Society (later both subsumed in the Irish Bank Resolution Corporation).

4 The appellant contended before the High Court that provision of financial support pursuant to s. 6(1) the Credit Institutions (Financial Support) Act 2008 constituted an appropriation of revenue or other public monies within the meaning of Article 17 of the Constitution, which was unlawful in the absence of a resolution of the Dáil. It was common case that there was no such resolution. In the alternative, if the Minister had such power, the appellant claimed that the section was unconstitutional.

5 The appellant had instituted the proceedings as a citizen. He is not a member of either House of the Oireachtas. The Minister and the other defendants pleaded in their defences that the appellant lacked the necessary locus standi to maintain the proceedings. The submission made on behalf of those defendants was that the appellant did not claim any loss, damage or prejudice over and above any other citizen: he was seeking to police Oireachtas procedures; his claim was that the rights of Dáil Éireann and its members had been by-passed by the failure of the Minister to seek a resolution of the Dáil in accordance with the constitutional provisions; such a claim, they submitted, could be maintained only by a member of the Dáil.

6 The learned President considered the authorities on the issue of the locus standi of persons to challenge government acts or the constitutionality of acts of the Oireachtas. He held that the appellant was endeavouring to assert a jus tertii, in effect by seeking to advance a case which should more properly be brought, and which might well yet be brought, by an individual member or members of Dáil Éireann. He pointed out that there were other suitable plaintiffs and no member of the Dáil was precluded from mounting the very challenge which had been brought by the appellant.

7 The learned President dismissed the appellant”s claim, on the ground that he lacked standing, and without ruling on the substantive issues. He did not rule on the validity of his challenge either to the lawfulness of the Minister”s acts or the constitutionality of the statutory provision on which he relied.

8 The appellant has served notice of appeal against the judgment of the learned President and the consequent order of the High Court made on 1st February 2013.

9 The scope of the appeal is crucial to the present motion. It has three aspects. In the first instance, the appellant asks this Court for a declaration that he has the requisite locus standi to pursue his claim. Success on this ground would thus reverse the ground on which the High Court dismissed his application. Secondly, he asks for an order, ‘if necessary, should this Court decline to determine the substantive issues absent a determination at first instance, remitting the matter to the High Court for determination of the substantive issues in the proceedings.’ In this way, the appellant recognises that this Court, by virtue of its exclusively appellate jurisdiction, will rarely entertain on appeal an issue of law which has not been decided by the High Court.

10 In addition, however, the appellant invites the Court in what he describes as ‘the special circumstances of this case having regard both to the urgency and the public interests arising, to make such further or other order as ought to have been made in the High Court…’ Assuming that the Court accepts that invitation, the appellant seeks declarations effectively granting him the relief which he had sought but which had not been determined in the High Court.

11 The five applicants are all members of Dáil Éireann. In that capacity they are indisputably endowed with the standing which counsel for the Minister persuaded the learned President was necessary to maintain the present proceedings. Each applicant has sworn a grounding affidavit from which it is clear that he or she is aggrieved at the fact that Dáil Éireann was not consulted about and had not approved the making and issuance of the promissory notes. Each applicant is motivated by a wish to see important issues raised in the proceedings determined and to avoid uncertainty and delay as well as to avoid further expensive litigation in the event that the substantive issues are not determined by reason of an issue of standing.

12 The appellant does not object to the applicants being joined with him as appellants or notice parties.

13 Counsel for the applicants fully accepted, at the hearing of the application, that, in the event that they are joined to the proceedings, they will not be permitted to advance any arguments other than those already put forward on behalf of the appellant in the High Court. More significantly, counsel also stated that the applicants would not seek to argue in this Court at the hearing of the appeal that the Court should grant the substantive reliefs sought in the High Court. That should not be seen as a concession. It accords with the apparent acceptance by the appellant that it is only in exceptional circumstances that this Court will entertain argument on appeal on issues not decided by the High Court.

14 In these circumstances, counsel for the applicants explained their objective, in the event that they are joined as parties to the appeal.

15 The first objective is that they wish to support the appellant by...