Student Transport Scheme Ltd v The Minister for Education and Skills

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 14 June 2021
• Neutral Citation: [2021] IESC 35
• Court: Supreme Court
• Docket Number: [Appeal No: 116/2016]
• Date: 14 June 2021

Between:

Student Transport Scheme Limited

Applicant/Appellant

and

The Minister for Education and Skills

Respondent

and

Bus Éireann

Notice Party/Respondent

[2021] IESC 35

Clarke C.J.

O'Donnell J.

MacMenamin J.

Charleton J.

O'Malley J.

[Appeal No: 116/2016]

THE SUPREME COURT

Leave to appeal – Reconsideration – Jurisdiction – Appellant seeking to reopen an application for leave to appeal – Whether there was a fundamental flaw in the process leading to the determination refusing leave to appeal

Facts: The Supreme Court, in a determination of 10th October, 2016 ([2016] IESCDET 123), declined to grant leave to the applicant/appellant, Student Transport Scheme Ltd (Student Transport), to appeal from a judgment of the Court of Appeal ([2016] IECA 152). Student Transport brought a motion seeking, in effect, to reopen the application for leave to appeal to the Supreme Court. As the determination of 10th October, 2016 amounted to a final decision of the Court, it followed, and was accepted by the parties, that the jurisdiction to set aside that final decision of the Court and allow the matter to be reconsidered, arose only under the Greendale jurisprudence (Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514). The respondent, the Minister for Education and Skills, and the notice party/respondent, Bus Éireann, both accepted that there is a jurisdiction, arising in what are said to be very limited circumstances, to reopen a matter which has been the subject of a final decision of the Court. Student Transport also accepted that the threshold which must be met in order to persuade the Court to exercise that jurisdiction is a high one. While the case law in respect of the Greendale jurisprudence had been concerned with circumstances where it is sought to set aside a final order of the Court which arose as a result of the full hearing of an appeal, it was accepted in principle by the parties that the jurisprudence arising in that context applies equally to an application, such as this, in which it is sought to set aside a determination of the Court to refuse leave to appeal. Student Transport suggested that the application of that jurisprudence may differ somewhat when applied in the context of an attempt to reopen an unsuccessful application for leave to appeal.

Held by Clarke CJ that the principles established in the Greendale jurisprudence apply equally to an attempt to set aside a determination of the Court refusing leave to appeal. Clarke CJ concluded that general accusations concerning the way in which the proceedings were conducted before lower courts do not give rise to the proper exercise of the Greendale jurisdiction in respect of a final order, judgment or determination of the Court. Clarke CJ held that to the extent that any aspect of the manner in which proceedings were conducted before lower courts may give rise to an entitlement to have the result of proceedings set aside, then the proper course of action to adopt is to bring plenary proceedings in that regard. Clarke CJ held that if there is a jurisdiction to set aside proceedings on the grounds of the failure of a state authority to conduct those proceedings in a transparent manner, then an attempt to invoke that jurisdiction must also be pursued by plenary proceedings. Clarke CJ was not satisfied that any basis had been put forward for suggesting that there was any fundamental flaw in the process leading to the determination refusing leave to appeal in this case. Clarke CJ held that insofar as any realistic case was made on behalf of Student Transport, it concerned allegations relating to the manner in which the proceedings were conducted before lower courts. Clarke CJ held that to the extent that any such allegations might, conceivably, give rise to an entitlement to reopen the proceedings generally, then same can only be pursued in plenary proceedings and not by an appeal to the Court. Clarke CJ held that such an appeal to the Court would not be an appropriate way in which to determine whether the very limited circumstances in which the principle of finality can be overcome have been established.

Clarke CJ held that the application should be refused.

Application refused.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 14th June, 2021

1. Introduction

1.1 The application with which this judgment is concerned arises from a motion brought by the applicant/appellant (“Student Transport”), seeking, in effect, to reopen an application for leave to appeal to this Court, which application was refused on October 10th, 2016. For the reasons set out in a determination of that date (see, Student Transport Scheme Ltd. v. Minister for Education and Skills [2016] IESCDET 123), this Court declined to grant leave to Student Transport to appeal from a judgment of the Court of Appeal in these proceedings (see, Student Transport Scheme Ltd. v. Minister for Education and Skills [2016] IECA 152). As that determination amounted to a final decision of this Court, it follows, and is accepted by the parties, that the jurisdiction to set aside that final decision of this Court and allow the matter to be reconsidered, arises only under what has come to be known as the Greendale jurisprudence (see, Re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514).

1.2 The respondent (“the Minister”) and the notice party/respondent (“Bus Éireann”) both accept that there is a jurisdiction, arising in what are said to be very limited circumstances, to reopen a matter which has been the subject of a final decision of this Court. For its part, Student Transport also accepts that the threshold which must be met in order to persuade the Court to exercise that jurisdiction is a high one. While the case law to date in respect of the Greendale jurisprudence has been concerned with circumstances where it is sought to set aside a final order of this Court which arose as a result of the full hearing of an appeal, is accepted in principle by the parties that the jurisprudence arising in that context applies equally to an application, such as this, in which it is sought to set aside a determination of this Court to refuse leave to appeal. However, Student Transport does suggest that the application of that jurisprudence may differ somewhat when applied in the context of an attempt to reopen an unsuccessful application for leave to appeal.

1.3 In those circumstances it is, perhaps, appropriate to set out in brief terms the relevant jurisprudence.

2. The Greendale Jurisprudence

2.1 The decision of this Court in Greendale established that there are rare and exceptional circumstances in which this Court may exercise its jurisdiction to set aside a final order or decision. The circumstances relied on by an applicant, seeking to invoke the jurisdiction of this Court in that regard, must show that it is necessary that a final order be set aside on the basis that it should in reality be regarded as a nullity.

2.2 In her judgment in Greendale, Denham J. held that this Court has a jurisdiction and a duty to protect constitutional rights, so that the powers of the Court should be as ample as required to protect such rights. On this basis, she held that this Court has the power to overturn a final order where an applicant successfully establishes that allowing the order in question to remain in place would infringe on their constitutional rights. Some of the language used in the judgment might, if read out of context, suggest a relatively low threshold for there could be a number of circumstances where it might be contended that constitutional rights might be engaged. However, Denham J. expressly stated that this jurisdiction to set aside a final order should be exercised only in very exceptional circumstances and she emphasised that there is a heavy burden on an applicant who seeks to establish that such circumstances are present.

2.3 The circumstances in which this Court may exercise its jurisdiction to set aside a final order are summarised by Denham J. at p. 544 of the report as follows:-

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights”.

2.4 The jurisdiction of this Court to revisit a final order exists as an exception to the provisions of what was Article 34.4.6° of the Constitution (now Article 34.5.6°, following the enactment of the Thirty-third Amendment to the Constitution), which provides that:-

“6° The decision of the Supreme Court shall in all cases be final and conclusive.”

In her judgment in Greendale, Denham J. referred to the importance of finality in respect of judgments and remarked that this Court's jurisdiction to overturn final orders should, therefore, be exercised sparingly. Having regard to the importance of the principle of finality, Denham J. justified the heavy burden resting on any applicant who seeks to have a final judgment set aside on the following basis (see p.539 of the report):-

“If an applicant seeks to have the court exercise its jurisdiction to protect constitutional rights there is also a very heavy onus of proof. The court has to balance the application against the jurisprudence, of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of...