Fox v Mahon

• Jurisdiction: Ireland
• Judge: Denham C.J.,O'Donnell Donal J.,Clarke J.
• Judgment Date: 22 January 2015
• Neutral Citation: [2015] IESCDET 2
• Court: Supreme Court
• Date: 22 January 2015

[2015] IESCDET 2

THE SUPREME COURT

DETERMINATION

Denham C.J.

O'Donnell Donal J.

Clarke J.

Between:

TONY FOX

APPLICANT

AND

JUDGE ALAN MAHON JUDGE MARY FAHERTY

AND

JUDGE GERALD KEYS MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN MATTERS

AND

PAYMENTS

RESPONDENTS

APPLICATION REFERRED TO IN ARTICLE 64.3.3° OF THE CONSTITUTION

RESULT: The Court does not make an order cancelling the direction.

REASONS GIVEN:

1 This determination relates to an application brought by the plaintiff/appellant (‘Mr. Fox’) in which he seeks a determination under Article 64.3.3 of Bunreacht na hEireann to cancel, insofar as this appeal is concerned, the Direction given by the Chief Justice under Article 64.3.1 specifying appeals which were to be heard in the Court of Appeal.

2 As this is one of the first determinations made by the Court on such an application it is important to set out the proper approach to such applications in more detail than might otherwise be necessary.

3 Article 64.3.1 permits the Chief Justice, on or after the establishment day as defined, to give a direction under the seal of Court providing that certain classes of appeals should be heard in the Court of Appeal. Such a direction is required to be made with the concurrence of the other judges of this Court.

4 On the 29th October, 2014, the Chief Justice made such a direction (‘the Direction’). For present purposes it is sufficient to note that this appeal was included within the classes of appeals specified in the Direction. Article 64.3.1 required the Chief Justice in making the Direction and the members of the Court in concurring with same to be ‘satisfied that it is in the interests of the administration of justice and the efficient determination of appeals’ that the Direction should be made. The position is, therefore, that the Chief Justice and the members of the Court were satisfied that it was in the interests of the administration of justice and the efficient determination of appeals that this appeal was among a class of appeals which should be transferred to the Court of Appeal.

5 In substance, the Direction divided the existing case load of this Court in such a way as will result in both the Court of Appeal and this Court sharing the task of dealing with the appeals which were outstanding in this Court on the establishment day. It follows that part of the benefits to the administration of justice which were perceived to derive from taking such a course of action was that it might be expected that all such appeals would be dealt with in a more timely fashion than would have been the case had either all, or almost all, existing appeals remained in this Court, or been transferred to the Court of Appeal.

6 However, in recognition of the fact that the Direction was, in accordance with the provisions of Article 64, made without consultation with the parties to the appeals specified therein, Article 64.3.3 permits any party to an appeal which is the subject of the Direction to apply to this Court in accordance with such regulations as might be prescribed for an order cancelling the effect of the Direction. The court is entitled to allow that application if ‘it is just to do so’. It is such an application with which this determination is concerned.

7 It is necessary to recall the changes brought about to Article 34 of Bunreacht na hEireann as a result of the coming into force of the 33rd Amendment to the Constitution. That amendment came into force, of course, when the establishment day referred to in the amendment was fixed by the Government which day was the 28th October, 2014. Thereafter, instead of the previous provisions of the Constitution which stated that this Court should, ‘with such exceptions and subject to such regulations as may be prescribed by law’, have appellate jurisdiction from all decisions of the High Court, now provides that the Court of Appeal shall have such jurisdiction.

8 The jurisdiction of this Court is now specified as being, ‘subject to such regulations as may be prescribed by law’, to be an appellate jurisdiction from the Court of Appeal 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 it is in the interests of justice necessary that there be an appeal to this Court.

9 In addition, where those factors are present and where this Court is satisfied that there are ‘exceptional circumstances warranting a direct appeal’, this Court has jurisdiction to permit an appeal direct from the High Court to this Court. Such a direct appeal from the High Court has sometimes been referred to as a ‘leap-frog’ appeal.

10 The position in respect of appeals within the superior courts in respect of decisions of the High Court arising after the establishment day is now clear. The Constitution has retained the entitlement of one appeal as of right (subject to express exclusions or regulation by statute) but that one appeal is now from the High Court to the Court of Appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or such as that it is in the interests of...