Pepper Finance Corporation v Cannon

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 04 February 2020
• Neutral Citation: [2020] IESC 2
• Court: Supreme Court
• Docket Number: [Supreme Court Appeal No: 120/2018]
• Date: 04 February 2020

BETWEEN:

PEPPER FINANCE CORPORATION (IRELAND) DAC

RESPONDENT/PLAINTIFF

AND

BRIAN CANNON

AND

CHRISTINA CANNON

APPELLANTS/DEFENDANTS

[2020] IESC 2

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

[Supreme Court Appeal No: 120/2018]

THE SUPREME COURT

Extension of time – Order for possession – Jurisdiction – Appellants seeking extension of time – Whether the Supreme Court has jurisdiction to grant leave to appeal from a decision of the High Court made on appeal from the Circuit Court

Facts: The appellants, Mr and Ms Cannon, were almost nine months out of time in lodging an appeal against an order made by the County Registrar for possession of their family home. The Circuit Court judge refused to extend time, and her decision was upheld in the High Court. The substantive issue sought to be argued in an appeal, if time was extended, was that the County Registrar failed to carry out an assessment of the fairness of the terms of the mortgage, as required under Council Directive 93/13/EC on Unfair Contract Terms in Consumer Contracts (implemented in the State by the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. 27/1995)). This case raised an issue concerning the factors that an appellate court should take into account in exercising its discretion whether or not to extend time to appeal in circumstances where an appellant may meet some but not all of the criteria identified in Éire Continental Trading Co. Ltd. v Clonmel Foods Ltd. [1955] I.R. 170. There was a distinct issue in the case which needed to be resolved before the applicability of the Éire Continental test was considered, concerning the jurisdiction of the Supreme Court having regard to the 33rd Amendment to the Constitution. Under the previous constitutional regime such appeals were barred by virtue of s. 39 of the Courts of Justice Act 1936. It was therefore necessary for the Supreme Court to determine whether an appeal lies under the new constitutional jurisdiction of the Court.

Held by O’Malley J that the Supreme Court has jurisdiction to grant leave to appeal from a decision of the High Court made on appeal from the Circuit Court, notwithstanding s. 39 of the 1936 Act, provided that the constitutional criteria are satisfied. It seemed to O’Malley J that this case met the constitutional criteria. O’Malley J held that the extension of time should not be granted, largely because she did not find any grounds for belief that an appeal on the grounds indicated could succeed.

O’Malley J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice O'Malley delivered on the 4th day of February 2020

Introduction

1 In granting leave to appeal in this case, the Court observed that it raised a similar issue to that in Seniors Money Mortgages v. McGovern (in which judgment is also delivered today). This issue concerns the factors that an appellate court should take into account in exercising its discretion whether or not to extend time to appeal in circumstances where an appellant may meet some but not all of the criteria identified in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170. In this case the appellants were almost nine months out of time in lodging an appeal against an order made by the County Registrar for possession of their family home. The Circuit Court judge refused to extend time, and her decision was upheld in the High Court.

2 The substantive issue sought to be argued in an appeal, if time is extended, is that the County Registrar failed to carry out an assessment of the fairness of the terms of the mortgage, as required under Council Directive 93/13/EC on Unfair Contract Terms in Consumer Contracts (implemented in this State by the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (S.I. 27/1995)).

3 That very brief synopsis of the background demonstrates that there is a distinct issue in the case which must be resolved before the applicability of the Éire Continental test is considered, concerning the jurisdiction of this Court having regard to the 33rd Amendment to the Constitution. The appeal is against a decision of the High Court made on appeal from the Circuit Court. There is no doubt but that under the previous constitutional regime such appeals were barred by virtue of s.39 of the Courts of Justice Act 1936, which continues to provide that the decision of the High Court (or the High Court on Circuit) on an appeal under that part of the Act shall be “final and conclusive and not appealable”. It is therefore necessary to determine whether an appeal lies under the new constitutional jurisdiction of this Court. On this aspect, the Court requested oral and written submissions from the Attorney General, as well as from the parties. The Court is grateful for the assistance received.

The jurisdictional issue

The 33rd Amendment to the Constitution

4 Prior to the 33rd Amendment, Article 34.4.3° of the Constitution provided that the Supreme Court should have appellate jurisdiction from “all” decisions of the High Court “with such exceptions and subject to such regulations as may be prescribed by law”. There was no doubt that a provision such as s.39 of the Act of 1936 constituted an exception prescribed by law.

5 The Amendment provided for the establishment of the Court of Appeal. Article 34.4.1° sets out the appellate jurisdiction of that Court in the following terms:

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 other courts as may be prescribed by law.

6 The text here clearly indicates that the Court of Appeal now enjoys the jurisdiction previously exercised by the Supreme Court in respect of appeals from the High Court. Thus, as observed in Grace and Sweetman v. An Bórd Pleanála [2017] IESC 10, restrictions imposed on an appeal to this Court under the previous regime now prima facie apply to the Court of Appeal.

7 The Amendment also altered the scope and machinery of the Supreme Court's jurisdiction. Article 34.5.3° deals with appeals to this Court from decisions of the Court of Appeal as follows:

5.3° 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.

8 The next sub-article, Article 34.5 then provides:

4° Notwithstanding section 4.1° hereof [i.e. the jurisdiction of the Court of Appeal], 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 is the presence of either or both of the following factors:

i the decision involves a matter of general public importance;

ii the interests of justice.

9 Article 34.5.5° remains unchanged, and sets out an express prohibition on the enactment of any law excepting from the jurisdiction of the Supreme Court cases involving questions as to the validity of any law having regard to the provisions of the Constitution.

10 It is also relevant to note certain provisions of the Court of Appeal Act 2014. Firstly, s.8 of that Act provides for the general jurisdiction of the new court. Subject to specific exceptions not relevant here, there is now vested in the Court of Appeal “all appellate jurisdiction which was, immediately before the establishment day, vested in or capable of being exercised by the Supreme Court”.

11 Section 74 provides that references to the Supreme Court, in relation to an appeal, in any enactment passed or made before the establishment of the Court of Appeal are to be construed as references to the Court of Appeal unless the context otherwise requires. (An express exception to this general rule was provided for in relation to appeals to the Supreme Court from the then still-extant Court of Criminal Appeal.)

12 Prior to the date of establishment of the Court of Appeal, the Oireachtas had frequently provided in the legislation governing certain types of legal issue that a decision or determination of the High Court in a case governed by the enactment in question was to be final, subject to a right of appeal to the Supreme Court in certain circumstances. Thus, for example, the right of appeal in an immigration or environmental law case might be subject to the grant of permission to appeal by the High Court judge who decided the case, with such permission to be given only in accordance with particular statutory criteria. It was established by the jurisprudence of this Court that there was no appeal against a refusal to give permission.

13 Section 75 of the Act of 2014 now provides that any reference to such a decision or determination is to be construed as being without prejudice to Article 34.5.4°. It also provides that a reference to the “Supreme Court” in such legislation is to be construed as a reference to the Court of Appeal unless the context otherwise requires.

14 Section 76 deals with a different category of litigation, where pre-2014 legislation in respect of various matters made the decision of the High Court final in all respects, with no provision for a right of appeal in any circumstances. The section stipulates that such measures are to be construed as being without prejudice to Article 34.5.4° of the Constitution.

15 I do not suggest that the interpretation of a...