O'Donoghue v Martin
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 26 May 2020 |
| Neutral Citation | [2020] IEHC 297 |
| Date | 26 May 2020 |
| Court | High Court |
| Docket Number | [Record No. 2016/9712 P.] |
AS CONSOLIDATED BY ORDER OF THE HIGH COURT DATED 3RD APRIL, 2017 WITH THE HIGH COURT
AND
AND
[2020] IEHC 297
Pilkington J.
[Record No. 2016/9712 P.]
[Record No. 2016/11154 P]
THE HIGH COURT
Leave to appeal – Points of law – National Asset Management Agency Act 2009 s. 194 – Defendants seeking leave to appeal – Whether the defendants’ argument reached the threshold on either aspect of the requirements within s. 194 of the National Asset Management Agency Act 2009
Facts: The first and second defendants, Messrs Martin (the applicants), applied to the High Court seeking an order pursuant to s. 194 of the National Asset Management Agency Act 2009 granting them leave to appeal Pilkington J’s judgment delivered on the 24th July, 2019 ([2019] IEHC 598) and also her ex tempore judgment on 11th October, 2019 (solely in respect of costs), to the Court of Appeal. The applicants identified the precise points of law on which it sought the certification of the Court for leave to appeal to the Court of Appeal in the following terms: (a) Does a counterclaim fall within the definition of “legal proceedings commenced” as prescribed by the Act? (b) Are damages ever an adequate remedy where a party would likely be adjudicated bankrupt? If so, how is a court to assess such adequacy? (c) In considering any alleged delay in the commencement of proceedings, must a court assess the distinct period and reasons for delay from each alleged cause of action? If so, must a court assess the reasonableness of each delay and consider the context of each period of delay? (d) Whether a court, on an application for leave to bring proceedings, is permitted to: (i) determine the reasonableness of a belief on affidavit evidence only; and (ii) substitute its own assessment of the understanding attributed to the alleged statements by witnesses on affidavit? (e) Whether, on an application for leave, a court ought to make final determinations on claims advanced in the application?
Held by Pilkington J that the criteria for leave had not been satisfied in respect of any of the grounds advanced by the applicants. With regard to ground (a), in her view the dual test set out in s. 194 of ‘exceptional public importance’ and ‘desirable in the public interest’ was not satisfied. She held that Arklow Holidays v An Bord Pleanála [2007] 4 I.R. 112 and Dellway Investment Limited & ors v NAMA & ors [2010] IEHC 375 confirm that the issues raised pursuant to s. 194 must transcend the facts of the specific case. She had difficulty in discerning how the grounds advanced within categories (b) to (e) did so. She noted that the applicants may well take issue and fundamentally disagree with her judgment and assessment of those issues but, in her view, the points raised by the applicants were more appropriate to grounds within a conventional appeal process as opposed to the undoubtedly higher threshold criteria within s. 194.
Pilkington J held that she would decline the reliefs sought by the applicants at paragraph 1 of the Notice of Motion.
Reliefs refused.
This is an application by the first and second named defendants, Patrick and Noel Martin (‘the applicants’), seeking an order pursuant to s. 194 of the NAMA Act 2009 granting them leave to appeal my judgment delivered on the 24th day of July, 2019 [2019] IEHC 598 (‘my judgment’) and also my ex tempore judgment on 11th October, 2019 (solely in respect of costs), to the Court of Appeal (‘the s. 194 application’).
It does not appear that the judgment in respect of costs has any relevance to this application, save that an order is also sought staying both judgments pending the determination of this appeal.
Section 194 of the NAMA Act, 2009 (‘the 2009 Act’) headed “Limitation of Certain Rights of Appeal to the Court of Appeal” states, in its operative portions, as follows:-
“194. - (1) The determination of the Court of an application for leave to apply for judicial review, of an application for judicial review, of an application for leave to apply for an order, or an application for an order, under section 182, is final and no appeal lies from the decision of the Court to the Court of Appeal in either case, except with the leave of the Court.
(2) The Court shall grant leave under subsection (1) only if that Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.
(2A) On an appeal from a determination of the Court in respect of an application referred to in subsection (1), the Court of Appeal:-
(a) has jurisdiction to determine only the point of law certified by the Court under subsection (2), and to make only such order in the proceedings as follows from that determination, and
(b) shall, in determining the appeal, act as expeditiously as possible consistent with the administration of justice.
(3) This section does not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”
Within the original application the applicants sought the following reliefs:-
“(a) A declaration that the first and second named defendants do not require the leave of this Honourable Court to deliver and serve the amended defence and counterclaim in the within proceedings on National Asset Loan Management DAC (‘NALM’);
(b) In the alternative, insofar as this Honourable Court may deem necessary, an order granting the first and second named defendants leave to bring an application pursuant to s. 182(2) of the National Asset Management Agency Act, 2009 in respect of the non-damages reliefs sought against NALM in the amended defence and counterclaim herein;
(c) Further, an order pursuant to s. 182(2) of the National Asset Management Agency Act, 2009, permitting the first and second named defendants to seek reliefs in the amended defence and counterclaim herein other than for damages against NALM and to deliver and serve the amended defence and counterclaim on NALM.”
Accordingly, and it is common case that, insofar as the applicants seek reliefs pursuant to the NAMA Act, they do so pursuant to the relevant provisions of s. 182, and accordingly, s. 194 (1) is triggered arising from my judgment.
Within its submissions, the applicants to the motion identify the precise points of law on which it seeks the certification of this Court for leave to appeal to the Court of Appeal in the following terms:-
(a) Does a counterclaim fall within the definition of “legal proceedings commenced” as prescribed by the Act?
(b) Are damages ever an adequate remedy where a party would likely be adjudicated bankrupt? If so, how is a court to assess such adequacy?
(c) In considering any alleged delay in the commencement of proceedings, must a court assess the distinct period and reasons for delay from each alleged cause of action? If so, must a court assess the reasonableness of each delay and consider the context of each period of delay?
(d) Whether a court, on an application for leave to bring proceedings, is permitted (i) determine the reasonableness of a belief on affidavit evidence only; and (ii) substitute its own assessment of the understanding attributed to the alleged statements by witnesses on affidavit?
(e) Whether, on an application for leave, a court ought to make final determinations on claims advanced in the application?
The submissions of counsel for the applicants, linked (d) and (e) above and also, sought to slightly reformulate those grounds to include the issue of estoppel. I will deal with this aspect of the matter below.
In the decision of the Divisional Court in Dellway Investment Limited & ors v. NAMA & ors [2010] IEHC 375 ( ‘ Dellway’), the court set out to define the criteria that would constitute, as the Act describes it, “a point of exceptional public importance and that it is desirable in the public interest that an appeal should be taken …”. In Dellway, the court stated the criteria as follows:-
“4.4 Likewise, the judgment in Arklow Holidays v. An Bord Pleanála [2007] 4 IR 112, suggests that a number of tests must be met before a case is certified. The matters required to be established were noted as being:-
“(i) There must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [1998] 2 I.R. 511;
(ii) The importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case; see Kenny v. An Bord Pleanála (No.2) [2001] 1 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance; see Fallon v. An Bord Pleanála [1992] 2 I.R. 380. That, of itself, is insufficient for the point of law concerned to be properly described as of “exceptional public importance”;
(iii) The requirement that the court be satisfied “that it is desirable in the public interest that an appeal should be taken to the Supreme Court” is a separate and independent requirement from the requirement that the point of law be one of exceptional public importance; see Kenny v. An Bord Pleanála (No.2) [2001] 1 I.R. 704. On that basis, even if it can be argued that the law in a particular area is uncertain, the court may not, on the basis, inter alia, of time or costs, consider that it is appropriate to certify the case for the Supreme Court; see Arklow Holidays Ltd v. Wicklow County Council [2004] IEHC 75 …”
The principles were distilled by MacMenamin J. in the case of Glancré Teoranta v. An Bord Pleanála and...
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