Rayan Restaurant Ltd v Gerald Kean p/a Keans Solicitors

• Jurisdiction: Ireland
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 16 June 2016
• Neutral Citation: [2016] IESCDET 78
• Court: Supreme Court
• Date: 16 June 2016

[2016] IESCDET 78

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

RAYAN RESTAURANT LIMITED

APPLICANT

AND

GERALD KEAN PRACTISING AS KEANS SOLICITORS

FIRST NAMED RESPONDENT

AND

FRANCIS McGAGH

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

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

1.1 This determination relates to an application by the Applicant in which it seeks leave pursuant to Article 34.5.3° of the Constitution to appeal from a judgment of the Court of Appeal (Kelly J., Irvine J. and Hogan J.) delivered on 9th November, 2015 and the order of the Court of Appeal of the same date, which was perfected on 19th November, 2015.

1.2 As is clear from the terms of the Constitution and from 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 under Article 34.5.3°, 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 be an appeal to this Court.

1.3 The Court considers it desirable to point out that a determination of the Court on an application for leave, which 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 on the application will, in due course, be disposed of in the substantive decision of the Court.

2. The proceedings

2.1 The High Court proceedings underlying the Applicant's application are plenary proceedings (Record No. 2010/4539P) (the substantive proceedings) in which the Applicant, as plaintiff, claims damages for alleged professional negligence against, as defendants, its former legal representatives, the First Named Respondent and the Second Named Respondent (collectively the Respondents), who were retained to act on its behalf in the proceedings in the Circuit Court, which were concluded on 17th November, 2004, and in an appeal against the decision of the Circuit Court, which was ultimately struck out.

2.2 By order of the High Court (White J.) made on 26th June, 2013, which was amended by order of the High Court dated 24th April, 2015, following a hearing of motions by the First Named Respondent and the Second Named Respondent that the substantive proceedings be struck out, it was ordered that the said motions be granted, that the substantive proceedings be struck out, and that the Applicant pay the costs of the substantive proceedings, such costs to be taxed in default of agreement.

2.3 The Applicant appealed the decision of the High Court to the Supreme Court. The appeal was transferred to the Court of Appeal pursuant to the direction made by the Chief Justice on 29th October, 2014 pursuant to Article 64.3.1° of the Constitution. The Applicant's appeal (the substantive appeal) is still pending in the Court of Appeal.

3. The orders appealed against

3.1 The orders of 9th November, 2015 of the Court of Appeal from which the Applicant seeks leave to appeal...