Delaney v Allied Irish Bank

CourtSupreme Court
JudgeDenham C.J.,McKechnie J.,O'Malley J.
Judgment Date18 March 2016
Neutral Citation[2016] IESCDET 38
Date18 March 2016

[2016] IESCDET 38



Denham C.J.

McKechnie J.

O'Malley J.



RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment of the Court of Appeal of the 28th January 2016.

This determination relates to an application by Mr. Joseph Delaney, ‘(the applicant’), who seeks leave to appeal to this Court from a judgment of the Court of Appeal delivered on the 28th January, 2016, and from the resulting order of that Court perfected on the same date. In its judgment, the Court dismissed his appeal against the High Court judgment (13/01/2015) and order of Cregan J (03/03/2015: perfected the 12/03/2015), dismissing the applicant's claim against the respondents on the basis that the same was unstateable and bound to fail.


Mr Declan Taite and Ms Sharon Barret are receivers appointed by NAMA over certain property in relation to which the applicant claims an interest and a right to possession. Together with Allied Irish Banks, (AIB), these parties are hereinafter referred to collectively as ‘the respondents’.


The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.


Article 34 of the Constitution: provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; confers the full and original jurisdiction on the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states that:-

‘1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.’


Article 34.4.3° of the Constitution provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.


Under Article 34.5.4° it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a ‘leap-frog’ appeal. It does not feature on this application.


The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:-

‘3° The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.’


Article 34.5.6° states that the decision of the Supreme Court shall in all cases be ‘final and conclusive’.


Primarily, this Court is now, ‘subject to such regulations as may be prescribed by law’, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal ‘involves a matter of general public importance’, or, alternatively, that ‘in the interests of justice’, it is necessary that there be an appeal to this Court. Thus, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, it must demonstrate that either or both of these pre-conditions exist.


The statutory framework for the moving of an application seeking leave to appeal to this Court, is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which amend, by insertion, s.7 of the Courts (Supplemental Provisions) Act, 1961.


The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.


In summary, the Constitution has retained an entitlement of one appeal as of right from the High Court to the Court of Appeal, subject to any express statutory exception or regulation that may 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 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.’

The Instant Proceedings:

Following the issue of a Plenary Summons on 4th December, 2013, the applicant, a lay litigant, particularised his claim as normal, but thereafter amended the same on a further six occasions. I mention this not to critise but to highlight the difficulty there was for the trial court, in precisely formulating the claim as then made. Of the several issues raised many have been disposed off and /or, are no longer being pursued. Following an unsuccessful application for an interlocutory injunction, on the ‘property issue’ (para. 17 infra) the respondents issued a motion, pursuant to Order 19 r.28 of the Rules of the Superior Courts (RSC) and to the court's inherent jurisdiction, seeking to have the remainder of the claim dismissed, on the basis that it was unstateable and bound to fail. The High Court so agreed as did the Court of Appeal.


The live issues which agitate this application, relate to the use of this truncated type of procedure so as to terminate the entirety of the claim without a full hearing on its merits and secondly and more essentially, the allegation of negligence made by the applicant against the respondent Bank. Whilst the background to these proceedings is fully set out in the judgment of the High Court and to a lesser extent in that of the Court of Appeal, it is nonetheless necessary to give a thumbnail account of what happened factually, so as to appreciate the context in which the legal issues arise.

Background - At Trial and Court of Appeal Level:

Between 20th August and 15th September, 2008, the applicant caused to be withdrawn from an account over which he had control, at AIB, Edenderry, County Offaly, a total of €346,000.00 made out in six different bank drafts, which he gave to one Gerard Killaly and another individual, who can be disregarded for the purposes of this case. Some one or more of these drafts were then lodged by Mr. Killaly, an Accountant, into his own account also held at the same branch. Apparently, Mr. Killaly, who had looked after the applicant's tax affairs for a number of years, had previously approached Mr. Delaney looking for financial help, saying that his difficulties in this regard were of a temporary nature only.


On 12th December, 2008, Mr. Killaly (and his wife) purported to grant to the applicant a lease of certain premises, known as 82, JKL Street, Edendery as a form of security for this loan. By April 2009 the Bank, which had become aware of Mr. Delaney's occupation of the premises, disputed the Lessors right to grant the lease alleging that they had executed a prior mortgage in its favour, over such premises, a condition of which prohibited any letting, assignment or parting with possession, without its consent in writing. No such consent had ever been given. In fact the Killalys had requested the Bank's consent to the creation of a second mortgage which it had expressly refused.


In any event in the title/trespass injunction application made by the applicant in these proceedings, (para supra), The High Court so found in favour of the bank in a judgment delivered on 4th February, 2014. It was in this context that Mr. Taite and Ms. Barrett were joined, having been appointed by NAMA, which in the interval had acquired the...

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