Dún Laoghaire Rathdown County Council v West Wood Club Ltd

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Finlay Geoghegan J.
• Judgment Date: 30 April 2018
• Neutral Citation: [2018] IESCDET 63
• Court: Supreme Court
• Date: 30 April 2018

[2018] IESCDET 63

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Finlay Geoghegan J.

BETWEEN

DÚN LAOGHAIRE RATHDOWN COUNTY COUNCIL

Plaintiff

AND

WEST WOOD CLUB LIMITED

Defendant

Jurisdiction – Recovery of rates – State Aid – Plaintiff seeking leave to appeal from the order and judgment of the Court of Appeal – Whether the decision of the Court of Appeal involved matters of general public importance

Facts: The plaintiff, Dún Laoghaire Rathdown County Council, brought three sets of proceedings against the defendant, West Wood Club Ltd, in the Circuit Court for unpaid rates in respect of the years 2011, 2012 and 2013. It claimed the sums of €176,800 for both 2011 and 2012 and €173,264 for 2013. The defendant contended that the receipt of rates by the plaintiff from West Wood, the receipt of State grants from the Exchequer and the subsequent expenditure of that income on leisure centres owned and operated by the plaintiff in competition with the privately owned and non-State subsidised leisure centres operated by West Wood amounted to a form of unlawful State Aid. The plaintiff argued in the Circuit Court that the court had no jurisdiction to entertain the “State Aid” defence; that argument was accepted by that court. The jurisdictional ruling was then appealed to the High Court. On the 17th December, 2015, the High Court judge referred three questions to the Court of Appeal for determination: (1) Does the Circuit Court have jurisdiction, in proceedings issued for the purpose of the recovery of rates, to determine whether the collection of rates and expenditure of the proceeds thereof amounts to State Aid which should have been notified to the European Commission pursuant to Articles 107 – 109 of the Treaty of the Functioning of the European Union?; (2) Is the issue raised by the defendant, as a matter of law, a challenge to the validity of the rate itself and thus a matter to be dealt with by way of judicial review only?; (3) If the Circuit Court has jurisdiction in such proceedings, and were to hold that the plaintiff is entitled to judgment for the amount of the rates unpaid but also that the collection of the rates in the circumstances amounts to a State Aid which has not been notified to the European Commission, would it have jurisdiction to award to the defendant damages in an amount equal to the amount of the judgment granted to the plaintiff or in any amount in order to ameliorate the effect of the (ex hypothesi) unlawful actions of the plaintiff? The answers given by the Court of Appeal in its judgment dated the 25th July, 2017 were as follows: (1) Yes, but only where the defence raises an issue which involves a clear error on the face of the proceedings or there is no doubt as to the illegality of the decision in the sense explained and described by the Supreme Court in Dublin City Council v Williams [2010] IESC 7; (2) No; (3) It would be premature and unnecessary to answer this question. The applicant sought leave to appeal against the said judgment and order of the Court of Appeal. The applicant suggested that the answers to the questions posed in the Consultative Case Stated from the High Court should be as follows: (1) Yes; (2) No; (3) Yes. It also maintained that it was entitled to costs in respect of the High Court hearing and the Consultative Case Stated to the Court of Appeal. The applicant submitted that the decision of the Court of Appeal raised matters of general public importance and that it was in the interests of justice that leave be granted.

Held by O’Donnell J, McKechnie J and Finlay Geoghegan J that the decision of the Court of Appeal involved matters of general public importance.

O’Donnell J, McKechnie J and Finlay Geoghegan J held that they would grant leave. The Court would permit the applicant to argue the costs issue.

Application granted.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the applicant to appeal to this Court from the judgment and order of the Court of Appeal

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT: 25th July, 2017

DATE OF ORDER: 25th July, 2017

DATE OF PERFECTION OF ORDER: 3rd August, 2017

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON THE 1st NOVEMBER, 2017, AND WAS THEREFORE OUT OF TIME

REASONS GIVEN

1 This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Peart J., Hogan J. and Hanna J.) dated the 25th July, 2017, and from the resulting order of that Court made on the same date and perfected on the 3rd August, 2017.

2 West Wood Club Limited, referred to in this determination as ‘the defendant’ or ‘the applicant’, seeks leave to appeal to this Court from the said judgment and order of the Court of Appeal. Dún Laoghaire Rathdown County Council (also referred to in this determination as ‘the plaintiff’ or ‘the respondent’) does not oppose the application for leave but intends ask the Court to affirm the decision of the Court of Appeal on grounds other than those set out in the decision of that court.

Jurisdiction

3 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

4 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESC DET. 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] I.E.S.C. 73. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

5 It should be noted that any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court's consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive...