Sheridan v Gaynor

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Clarke J.,MacMenamin J.,Laffoy J.
• Judgment Date: 29 June 2016
• Neutral Citation: [2016] IESCDET 90
• Date: 29 June 2016

[2016] IESCDET 90

THE SUPREME COURT

DETERMINATION

Clarke J.

MacMenamin J.

Laffoy J.

BETWEEN

NOEL SHERIDAN

AND

PETER QUINN TRADING UNDER THE STYLE

AND

PRACTICE OF SHERIDAN QUINN

PLAINTIFFS/RESPONDENTS

AND

JOHN GAYNOR

DEFENDANT/APPLICANT

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

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

REASONS GIVEN:

1. Jurisdiction

1 This determination relates to an application by the defendant in the underlying proceedings (‘Mr. Gaynor’) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Kelly J., Irvine J. and Edwards J.) delivered on 24th June 2015. The order appealed against was also made on the 24th June 2015 and perfected on the 6th July 2015. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd 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 interest of justice necessary that there be an appeal to this Court.

2 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 a 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. The Proceedings

3 In the underlying proceedings the plaintiffs/respondents (‘Sheridan Quinn’) brought mortgage proceedings arising out of the filing of a judgment mortgage over property comprised in Folio 2538 of the Register of Freeholders Co. Westmeath. That judgment mortgage in turn derived from an order (‘the money judgment’) of the High Court (Kearns J.) in 2003 in debt proceedings in which Sheridan Quinn were plaintiffs and Mr. Gaynor was defendant. The judgment mortgage was registered on the 16th February 2004. Thereafter these proceedings were commenced and an order of the 12th July 2004 declared that the principal sum secured by the judgment mortgage was well charged on Mr. Gaynor's aforementioned land. A number of subsequent orders directing Mr. Gaynor to deliver up possession of the lands were made by the High Court between 2010 and 2013. In that context it is noted that an appeal against one of those orders, an order of Finlay Geoghegan J. of the 26th July 2010, is listed for hearing before this Court on the 12th July next.

4 Thereafter a further application requiring the delivery of clear and vacant possession was brought by Sheridan Quinn and came before the High Court (Barrett J.) who made the order sought on the 12th May 2014 (with that order being perfected on the 15th May of the same year). It was against that order of Barrett J. that Mr. Gaynor appealed to the Court of Appeal.

3. The Order appealed against

5 The Court of Appeal dismissed the appeal brought by Mr. Gaynor against the order of Barrett J. The principal ruling of that court was delivered ex tempore by Kelly J. It is clear from a reading of a note of that judgment that the Court of Appeal came to the view that the only matter before it was the question of whether Barrett J. had been correct to make the order which he did given the circumstances then appearing to the High Court. The Court of Appeal took the view that, not least in the light of the procedural history, Barrett J. had jurisdiction to make the order concerned. In particular it was noted that there had been a series of orders to like effect which had not been complied with. Furthermore, the Court of Appeal noted that the money judgment given by Kearns J. in 2004 was obtained, as the order itself suggests, without Mr. Gaynor being present but that there is a duly authenticated copy of the order available. In particular the Court of Appeal noted that no appeal had been brought against that order nor had any application been brought to set it aside.

6 In those circumstances the Court of Appeal determined that there had been no error by Barrett J. in making the order sought and dismissed the appeal.

4. The Contentions of the Parties

7 The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold...