Mackeral v O'Donoghue

• Jurisdiction: Ireland
• Judge: Denham C.J.,Dunne J.,Charleton J.
• Judgment Date: 15 July 2015
• Neutral Citation: [2015] IESCDET 27
• Court: Supreme Court
• Date: 15 July 2015

[2015] IESCDET 27

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Denham C.J.

Dunne J.

Charleton J.

Between:

ROY MACKAREL

APPLICANT

AND

JUDGE JAMES O'DONOGHUE, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

CATHAL O'BRIEN

AND

MONAGHAN COUNTY COUNCIL

NOTICE PARTIES

APPLICATION REFERRED TO IN ARTICLE 34.5.4° OF THE CONSTITUTION

RESULT:

The Court does not make an order allowing a direct appeal to this Court under Article 34.5.4° of the Constitution. Consequently, any jurisdiction in relation to this appeal is exercisable by the Court of Appeal.

REASONS:

1 This determination concerns an application brought by the applicant, Roy Mackarel, in which the applicant seeks a determination under Article 34.5.4° of the Constitution to allow a direct appeal to this Court from the determination of Noonan J in the High Court on the 18th day of February 2015. The background, it appears, is that Roy Mackarel was employed by Monaghan County Council as a part time fireman for some years up to his dismissal in December 2007. Cathal O'Brien, named as a notice party to these proceedings, was also a fireman but there were difficulties between the two. When Cathal O'Brien retired in April 2012, he presented a plaque to the fire station which listed all fire-fighters since 1922 but left out the name of Roy Mackarel. The plaque was not erected but was seen lying on a table by up to 7 firemen during or after the retirement event. Proceedings for defamation were issued in the Circuit Court by Roy Mackarel against his former employer and against Cathal O'Brien. Those proceedings came on for trial in Carrickmacross Circuit Court in July 2014 before Judge James O'Donoghue. There were issues at that trial connected with: the notice of trial, which contained the wrong date, but apparently was corrected in correspondence; a claim that the trial ought to have been adjourned because of an application by Roy Mackarel for discovery of documents related to the making and ordering of the plaque; and the apparent fact that counsel for the county council had once in the past represented Roy Mackarel on another matter, apparently employment related at a time when he was a fireman. Roy Mackarel's case for damages for defamation was dismissed by the Circuit Court. That same month, he served a notice of appeal to the High Court. Instead of pursuing that remedy, Roy Mackarel sought leave on October 7th 2014 to initiate a judicial review of the proceedings in the Circuit Court. The named respondents were the judge who heard his defamation case and the State but included the original defendants in the Circuit Court as notice parties. The grounds in the leave application heard by Noonan J related to the failure to adjourn amounting to a denial of constitutional procedures and the alleged professional conflict as to counsel for the county council, resulting, it is said, in his own counsel being denied the opportunity to make submissions on that issue. By a written judgment, that of February 18th 2015, Noonan J refused leave to commence the judicial review, holding, firstly, that there was no stateable case demonstrated and, secondly, on discretionary grounds, that the appeal in the ordinary way to the High Court against the order of the Circuit Court was ‘a perfectly adequate remedy for all his complaints.’ Roy Mackarel claims that these issues are such that he should be permitted, with leave of this Court, to by-pass the ordinary appeal to the Court of Appeal and to come directly with this appeal to the Supreme Court.

2 An appeal from the High Court to the Court of Appeal did not exist prior to the establishment of that court pursuant to the 33rd Amendment to the Constitution as provided for in Article 64. Under Article 64.3.1° of the Constitution, the establishment day for the Court of Appeal was the 28th October, 2014. On the 29th October, 2014, the Chief Justice, with the concurrence of the members of the Court, gave a direction under the seal of the Court, providing that certain appeals should be heard and determined by the Court of Appeal. As and from the direction, all such appeals from decisions of the High Court should go directly to the Court of Appeal. Only in exceptional circumstances do appeals come directly to this Court. The jurisdiction of the Court of Appeal and the conditions for bypassing an appeal from a High Court decision to the Court of Appeal and appealing instead to the Supreme Court are set out in Article 34 of the Constitution, in the form in which it now is since the 33rd Amendment to the Constitution providing for the new appellate jurisdiction. Article 34 provides for the public administration of justice; describes the courts established by the Constitution and those which may be established by law; provides for the full and original jurisdiction of the High Court; and under Article 34.4 establishes the Court of Appeal and sets out its appellate jurisdiction. This reads:

4 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 shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

3. Article 34.4 of the Constitution also provides that the Court of Appeal shall not be excepted from jurisdiction as to questions concerning the validity of any law having regard to the provisions of the Constitution. Article 34.4 of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from decisions of the Court of Appeal. This is set out in Article 34.5.3° and 4° of the Constitution. The former relates to appeals where there has been a determination by the Court of Appeal and the latter where a litigant seeks to come directly from the High Court to the Supreme Court. The relevant articles are now quoted:

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.

4 ° Notwithstanding section 4.1° hereof, the Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the High Court if the Supreme Court is satisfied that there are exceptional circumstances warranting a direct appeal to it, and a precondition for the Supreme Court being so satisfied...