A Petition for Adjudication of Bankruptcy- Sheridan and Quinn t/a Sheridan Quinn Solicitors v Gaynor

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,Dunne J.
• Judgment Date: 29 November 2017
• Neutral Citation: [2017] IESCDET 124
• Court: Supreme Court
• Date: 29 November 2017

[2017] IESCDET 124

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

Dunne J.

IN THE MATTER OF A PETITION FOR ADJUDICATION OF BANKRUPTCY BY NOEL SHERIDAN AND PETER QUINN TRADING UNDER THE STYLE AND PRACTICE OF SHERIDAN QUINN SOLICITORS AGAINST JOHN GAYNOR

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

RESULT: The Court does not grant leave to appeal.

REASONS GIVEN:

1. Jurisdiction

1 This is an application for leave to appeal against a decision of the Court of Appeal (the President, Irvine J., Fullham J.) granting an order pursuant to Order 86, rule 12 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the Court dismissing a notice of appeal issued by the applicant on the 4th January, 2016 against the order of the High Court (Costello J.) made on the 7th December, 2015 on the basis that the same was time-barred, the said motion having been adjourned to the 10th October, 2016 on a peremptory basis, when it was ordered that the motion be granted and that the said appeal be dismissed and that the applicant herein pay costs to the respondents of the motion and of the appeal, to be taxed in default of agreement.

2 As is clear from the terms of the Constitution, and 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, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there should be an appeal to this Court.

3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. Background and the Application for leave

4 The notices filed by the applicant and the respondents are available on the Courts Service website. Nevertheless, given that the applicant is a litigant in person, it may be helpful to set out more detail by way of background.

5 It should be noted that the applicant has sought an extension of time within which to apply for leave to appeal as when he attended in the office of the Supreme Court on the 7th November, 2016 for the purpose of submitting his application for leave to appeal, the form of appeal provided by him was not in compliance in accordance with the Rules of the Superior Courts and ultimately it was necessary to submit a version of his application for leave in the format in which it now appears. The respondents in their response object to the extension of time on the basis that the applicant has not identified any lawful excuse for his failure to submit a properly prepared application for leave to appeal within the time provided by the Rules of the Superior Courts. In the circumstances of this case, bearing in mind the fact that the applicant is a lay litigant (although it appears from the respondents' notice that he may have some form of assistance from his former solicitor) and given that he first attempted to apply for leave to appeal within the time fixed for doing so by the Rules of the Superior Courts, it is the view of the Court that it would be appropriate to extend the time for making the application for leave to appeal. The application was in fact furnished to the Court on the 25th November, 2016.

6 That is not the only procedural difficulty in relation to the matter. The matter was referred to the Court by the Registrar of the Supreme Court in accordance with paragraph 8(d) of Practice Direction SC16 in circumstances where the applicant for leave to appeal did not comply with the requirements of the Practice Direction in relation to the filing of books of additional papers. Notwithstanding the fact that the appropriate book of additional papers have not been filed by the applicant, the Court is of the view that it is in a position to deal with this matter, however unsatisfactory it is to have to do so in the absence of all the appropriate papers required by Practice Direction SC16.

7 The application for leave to appeal arises from a decision of the Court of Appeal on appeal from a decision of the High Court in bankruptcy proceedings brought against the applicant by the respondents. It is necessary to set out some detail as to proceedings in the High Court. In essence, the applicant has complained about the manner in which the bankruptcy proceedings were conducted in the High Court. The applicant's complaint related not only to the hearing before the High Court itself but also to the fact that he had been prevented from bringing an application to the High Court under the provisions of s. 8(5) of the Bankruptcy Act 1988. It appears that for reasons which are not entirely clear from the papers before the Court that the applicant was prevented from filing such application in the Central Office (there is a suggestion in the papers that the application was not appropriately formulated) and that as a consequence of the refusal by the Courts Service to accept or issue his application to dismiss the bankruptcy summons, the applicant brought judicial review proceedings against the Courts Service. His application for leave to apply for judicial review was dismissed by order of the High Court on the 30th November, 2015 but in the meantime Costello J. indicated in the High Court that she would permit the applicant to argue the issues which he stated gave rise to his desired application to dismiss the bankruptcy summons.

8 The applicant is obviously aggrieved by the process that took place in the course of the bankruptcy proceedings, but it is clear that the essence of his complaint lay in a judgment obtained by the respondents against him on the 8th December, 2003. The applicant has contended that there has been ‘fraud to which the applicant has been subject since 2003’. He stated in his application that:

‘Evidence of this 2003 fraud is clear, both as to the fact of fraud and as to the Courts Service knowledge of it. Strong corroborative evidence in the form of “the record' emanating from the Court and Courts Service remained in disputable and unchallenged and rendered the order of possession of Ms. Justice Finlay Geoghegan unenforceable.

The Courts Service when given an...