Rowan v Kerry County Council

JurisdictionIreland
CourtSupreme Court
JudgeMs. Justice Dunne,O'Donnell J
Judgment Date30 January 2018
Neutral Citation[2018] IESC 2
Docket Number[S.C. No. 131 of 2016],SC Record No. AP:IE:2016:000131 Record No. 2011/895 J.R. Appeal No. 346/12
Date30 January 2018
BETWEEN/
MICHAEL ROWAN
APPLICANT/APPELLANT
AND
KERRY COUNTY COUNCIL
RESPONDENT
AND
TIMOTHY MULVIHILL
NOTICE PARTY

[2018] IESC 2

SC Record No. AP:IE:2016:000131

Record No. 2011/895 J.R.

Appeal No. 346/12

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Jurisdiction - Leapfrog appeal - Planning and development - Applicant seeking leave to appeal against a decision of the High Court - Whether a party to proceedings in the High Court which were concluded and could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment to the Constitution coming into force could subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court

Facts: The applicant, Mr Rowen, brought proceedings against the respondent, Kerry County Council, by way of judicial review in 2011. Mr Rowan was unsuccessful in those proceedings. An application was made by Kerry County Council and the notice party, Mr Mulvihill, for costs against Mr Rowan. In a reserved judgment delivered on the 5th March, 2012, the High Court judge rejected the applicant's argument that the case was one to which s. 3 of the Environment (Miscellaneous Provisions) Act 2011 applied. Mr Rowan issued a notice of appeal directly to the Supreme Court in relation to the award of costs against him. The Supreme Court on the 18th December, 2015 ruled that a certificate of leave to appeal under s. 50A(7) of the Planning and Development Act 2000 was required in relation to an appeal in respect of costs and accordingly it dismissed Mr Rowan's appeal in circumstances where no such certificate had been obtained. Mr Rowan filed a notice of motion in the High Court on the 25th April, 2016 seekinginter aliathe re-entry of the proceedings and seeking a certificate that the decision of the High Court involved a point of law of exceptional public importance, namely: Does the question as to whether proceedings fall within the scope of ss. 3 and 4 of the 2011 Act fall to be determined on an objective basis or on a subjective basis by reference to the motivation of the party bringing the proceedings? Birmingham J refused to grant a certificate. Thereafter, an application for leave to appeal was made to the Supreme Court. Notices were filed by Kerry County Council and by Mr Mulvihill in response to the application for leave. A determination on the application was made on the 27th February, 2017. By that determination this Court declined to grant leave to appeal the decision of the High Court refusing a certificate but directed that there be an oral hearing confined to hearing the submissions of the parties on the question of the proper parameters of the jurisdiction of the Court in a case such as this where an extension of time was sought to appeal an order made before the Thirty Third Amendment to the Constitution together with the issue of whether an extension of time would be appropriate and whether the basic constitutional threshold of issue of general public importance is met. Accordingly, following a hearing before the Court, a further determination was issued in which the Court determined that: "Subject to a jurisdiction in that regard existing it would be appropriate to extend time and grant leave." The Court directed a further hearing before an extended panel of the constitutional jurisdictional issue addressed in the determination. As was made clear in that determination, the issue left over to be considered concerned the question of the extent, if any, to which the Thirty Third Amendment to the Constitution may be retrospective in the sense that the new constitutional measures thereby introduced can be held to apply to potential appeals in respect of orders of the High Court which were made prior to the Thirty Third Amendment coming into force. Accordingly, the Court determined that there was an issue of significant constitutional principle concerning whether the proper interpretation of the Thirty Third Amendment is such that it can be held to confer a jurisdiction on the Supreme Court to grant leave to appeal directly from the High Court in cases where the High Court order sought to be appealed was made prior to the Amendment coming into effect.

Held by Dunne J that the issue was whether a party to proceedings in the High Court which were concluded and could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment to the Constitution coming into force could subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court. Dunne J held that a final order was made in the proceedings in March 2012 and that the subsequent Amendment to the Constitution did not revive those proceedings despite the fact that there was an uncertified appeal in existence at the time when the Thirty Third Amendment came into force; thus, there was no jurisdiction to embark on a leapfrog appeal.

Dunne J held that she would refuse the application for leave to appeal to the Supreme Court. O'Donnell J also handed down a judgment in the matter.

Application refused.

Judgment of O'Donnell J delivered on the 30th day of January 2018
1

The facts and procedural background to this matter have been set out in the judgment to be delivered by Ms Justice Dunne. I agree with the orders that she proposes. These proceedings have already occupied too much court time. The 33rd Amendment to the Constitution did not have as its object, and should not be interpreted as permitting the revival of controversies that have long since been determined. In particular, I do not believe that it was within the contemplation of the amending provisions of the new Article 34.5.4 creating a leapfrog appeal, that cases which had been determined should be revived but only those cases which prior to the coming into force of Article 34..5.4, had required a certificate of a trial judge that they involved points of law of exceptional public importance, but where such certificate had been refused, or as here, not even sought within a reasonable period of the decision. Nor do I see any particular benefit in attempting to define the precise point at which this case passed beyond the scope of possible appeal under Article 34.5.4.

2

The somewhat unusual procedural history of this application for leave to appeal to the Supreme Court means that the focus at the oral hearing was upon the question of jurisdiction. Previous panels of this Court had considered in principle the questions of the legal significance of the underlying issue which was sought to be appealed, and the question of extension of time. I see the practicality of this approach and the logic in particular of the extension of time for an application in circumstances where an applicant could simply not have sought leapfrog appeal until the provision existed in law. Looked at in this way, the applicant could not be responsible for the lapse of time between the decision in this case and the coming into force of the 33rd Amendment. However, that is to look at a question exclusively from the applicant's position. There remains the question whether from the respondent's position it is appropriate to further agitate on appeal a decision of the High Court that was determined almost six years ago. I do not think that the applicant is entitled to rely on the period during which he sought to appeal the decision, without seeking a certification of the High Court judge. This was contrary to the jurisprudence of this Court, and, as was found, indeed to the jurisdiction of the Supreme Court. It was misconceived at a minimum to launch that appeal without making even a precautionary application to the High Court for a certificate, and the applicant should not now benefit from what was at best his own misplaced presumption in that regard. In any event, there is also a question of whether even if a case is capable of meeting the constitutional threshold, the Court should exercise its jurisdiction. The effect of the 33rd Amendment is to grant the Supreme Court jurisdiction in appeals meeting the constitutional threshold, but there remains a residual question of whether it is appropriate to exercise that jurisdiction in any case. The amendment limits those cases which may be appealed to this Court: it does not compel the Court to exercise the jurisdiction in every case which satisfies the test appeal. A mundane example may arise where in a particular case it is apparent that there may be an important issue of law, but it is neither clearly presented nor precisely identified so as to permit to the Court to have a clear hearing and determination of the issue. In such a case, it may be that the Court would decline to grant leave.

3

I would however be reluctant to offer any bright line rule on a jurisdictional basis, which at its margins, (admittedly at some remove from this case) could give rise to some almost metaphysical issues of analysis. Instead, I would prefer to approach this, and any future case (which in any event must be increasingly rare) on the basis of discretion. In those circumstances I would not be prepared to extend the time to bring this application for leave, and in any event would not consider it appropriate for the Court to exercise its jurisdiction in this case, given the lapse of time and the entitlement of the defendant and relevant notice parties to treat the matter as determined. Accordingly I would refuse this application.

Judgment of Ms. Justice Dunne delivered on the 30th day of January 2018

The applicant in these proceedings (hereinafter referred to as 'Mr. Rowan') seeks leave to appeal against a decision of the High Court made herein on the 5th March, 2012. The respondent will be referred to hereinafter as 'Kerry County Council' and the notice party to the proceedings will be referred to as 'Mr. Mulvihill'.

Background

The procedural background to this matter is somewhat...

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2 cases
  • Owens and Dooley v DPP
    • Ireland
    • Supreme Court
    • 27 May 2019
    ...Both parties have referred to a decision of this Court in which I give judgment in the case of Rowan v. Kerry County Council [2018] IESC 2 where I stated at para. 15: ‘There is a large measure of agreement between the parties as to the principles applicable to the question as to whether le......
  • Merriman v Fingal County Council
    • Ireland
    • High Court
    • 14 February 2018
    ...Dunne J. in her judgment for the Supreme Court (handed down on the day the within application was heard) in Rowan v. Kerry County Council [2018] IESC 2, in which the Supreme Court actually emphasised in bold text the two-prong dimension of s.50A(7). (iii) The Law Concerning Applications Pur......

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