Persona Digital Telephony Ltd v The Minister for Public Enterprise Ireland

• Jurisdiction: Ireland
• Judge: Denham C.J.,McKechnie J.,Dunne J.
• Judgment Date: 25 July 2016
• Neutral Citation: [2016] IESCDET 106
• Court: Supreme Court
• Date: 25 July 2016

[2016] IESCDET 106

THE SUPREME COURT

DETERMINATION

Denham C.J.

McKechnie J.

Dunne J.

BETWEEN

Persona Digital Telephony Limited

Sigma Wireless Networks Limited

Applicants/Appellants

AND

The Minister for Public Enterprise

Ireland

The Attorney General

AND

Denis O'Brien

Respondents

AND

Michael Lowry

Third Party

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave, pursuant to Article 34.5.4 of the Constitution, to appeal to this Court directly from the High Court.

REASONS GIVEN:

1 This determination relates to an application for leave to appeal to the Supreme Court from the judgment of the High Court delivered on the 20th April, 2016 and the order made on the 12th May, 2016 and perfected on the 24th May, 2016.

2 An application is brought by Persona Digital Telephony Limited and Sigma Wireless Networks Limited, the applicants/appellants, referred to as ‘the applicants’, who seek leave to appeal to this Court from the judgment of the High Court. Thus, it is an application for a ‘leapfrog’ appeal.

3 The Minister for Public Enterprise, Ireland and the Attorney General, defendants/respondents, are referred to collectively as ‘the State’. The Minister for Public Enterprise is referred to individually as ‘the Minister’.

4 Denis O'Brien, a respondent, is referred to as ‘the respondent’.

5 Michael Lowry, the third party, is referred to as ‘the third party’. The notice of this application was sent to his solicitors as a courtesy and was not served on the third party. The solicitors for the third party confirmed to the Office of the Supreme Court that the third party would not be participating in the appeal to this Court.

Jurisdiction

6 This determination relates to an application by the applicants seeking leave to appeal to this Court directly from the High Court under Article 34.5.4° of the Constitution. As a result of the amendments to the Constitution, brought about by the 33rd Amendment, the previous position, under which an applicant unhappy with a decision of the High Court had an entitlement to appeal to this Court, save with limited statutory exceptions, was replaced by two provisions. Article 34.5.3° now provides for the same right of appeal from the High Court as previously existed in respect of an appeal to this Court, except that the right is now transferred to an entitlement to appeal to the Court of Appeal. However, a further appeal from a decision of the Court of Appeal is available, with leave, to this Court. Alternatively, under Article 34.5.4°, it is possible to seek leave to appeal directly from the High Court to this Court. Such an appeal may be referred to as a ‘leapfrog’ appeal, as it involves by-passing what might otherwise be regarded as the new normal appellate structure involving an appeal to the Court of Appeal with the possibility of a second appeal to this Court.

7 This Court, and the Court of Appeal, continues to address the existing list of undecided appeals which were brought to this Court prior to establishment day. Thus, during this transitional phase, this Court is dealing with appeals of a type which might not necessarily warrant leave to appeal to this Court under the new regime.

8 It will take some time for a body of jurisprudence to develop concerning the basis upon which this Court will grant leave to appeal under the Constitution, whether under Article 34.5.3° or Article 34.5.4°.

9 The starting point is the relevant provisions of the Constitution.

10 Article 34.5.3° provides:-

‘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.’

Article 34.5.4°, on the other hand, provides:

‘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 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.’

11 It is not necessary for present purposes to enter into a detailed consideration of the proper interpretation of the criteria specified for an ‘ordinary’ appeal from the Court of Appeal to this Court save to note that the relevant decision of the Court of Appeal must either involve a matter of ‘general public importance’ or there must be some other reason requiring that the ‘interests of justice’ be met by an appeal. The criteria, under Article 34.5.4°, for a leapfrog appeal, is that the relevant decision of the High Court involves a matter of general public importance or that the interests of justice require such an appeal. This much is, therefore, at least clear. In order for this Court to grant leave to bring a leapfrog appeal, it must be the case that the issues raised are such that they would justify granting leave for a second appeal from the Court of Appeal to this Court, had the course of action of an appeal to the Court of Appeal been adopted by the appellant. Therefore, the basic constitutional threshold of public importance or interests of justice, which must be met in respect of an application to bring an ordinary appeal from the Court of Appeal to this Court, must also be met in the context of a leapfrog appeal.

12 The additional requirement which must be present, in order that leapfrog leave be given, is, in accordance with the words of Article 34.5.4. ‘that there are exceptional circumstances warranting a direct appeal to’ this Court.

13 So far as that criteria is concerned, it is possible to identify, at one end of the spectrum, a single issue case involving only a legal issue which undoubtedly meets the constitutional threshold of importance. Of course, even in such a case, it would be of some assistance for this Court to have the added views of the Court of Appeal. Nonetheless there may be a countervailing question as to whether the efficient use of court time and resources, and the burden in time and costs for the parties which would be occasioned by having to face two appeals, would be justified. The case at that end of the spectrum might be described as a single issue case with clearly identified arguments where a second appeal to this Court would be likely to involve only a rehash of the arguments which would be made to the Court of Appeal. At the other end of the spectrum there may be cases where the issues which might arise on appeal would have been many and varied, including questions of the sustainability of the facts found by the trial judge or routine questions concerning whether the trial judge had properly applied well settled law to the circumstances of the case. Even if, in the midst of such an appeal, there might be a point, or points, which might ultimately be considered as possibilities for meeting the constitutional threshold for an appeal to this Court, it would be difficult to see how the process of bringing such a case to final determination would not be significantly improved by an appeal to the Court of Appeal.

14 Thus, it is important to note that the further one gets away from the ‘single important issue of law’ case, the more weight has to be attached to the risk that the overall appellate process might be impaired by departing from the default position of an appeal to the Court of Appeal.

15 Returning to issues of broad principle, it is, of course, also necessary to identify what might be said to be the exceptional circumstances justifying a direct appeal to this Court for without such circumstances the Constitution does not permit a direct appeal. It would be both wrong and dangerous to attempt, at this very early stage of the process, to identify an exhaustive approach to that question. However, in the context of this case, two issues obviously have the potential to arise.

16 First, it may be said that the very issues in the case itself are of such general public importance, or involve such questions involving the interests of justice, that the potential appeal is thus rendered exceptional. The Court is prepared to accept, at the level of principle, that there may be such cases. However, it is important, in that context, to emphasise the comments already made by reference to the determination of this Court in Fox v Mahon & Others [2015] IESCDET 2. The new constitutional appellate arrangements regard an appeal to the Court of Appeal as the norm and a direct appeal to this Court as the exception. To the extent that there may be reason to believe that an appeal which might come to this Court would be the same, or largely the same, whether it arrived via the Court of Appeal or directly, then the importance of the case itself may, in some cases, outweigh any advantages which might be perceived to derive from an intermediate appeal to the Court of Appeal. But even in that context it must be acknowledged that the sort of issues raised would have to be of a particular level of importance to warrant describing the circumstances of the appeal as exceptional in the sense in which that term is used in the Constitution. Not every case which meets the basic constitutional threshold for appeal to this Court can, thus, be regarded as exceptional. If it were otherwise then every case which could be appealed to this Court would also qualify for leapfrog leave.

17 The second criteria which may often arise is one of urgency. There clearly will be cases where, in one way or another, a clock in the real world is ticking....