The Governor and Company of the Bank of Ireland v Kevin Gormley

• Jurisdiction: Ireland
• Judge: Mr. Justice Murray
• Judgment Date: 12 March 2020
• Neutral Citation: [2020] IECA 102
• Date: 12 March 2020
• Docket Number: Record No. 2019 448
• Year: 2020
• Court: Court of Appeal (Ireland)

BETWEEN/

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

PLAINTIFF/RESPONDENT

- AND–

KEVIN GORMLEY

DEFENDANT/APPELLANT

[2020] IECA 102

Edwards J.

Faherty J.

Murray J.

Record No. 2019 448

THE COURT OF APPEAL

CIVIL

Digital audio recording – Jurisdiction – Rules of the Superior Courts O. 123 – Appellant seeking to appeal a decision of the High Court refusing his application for the digital audio recording of the hearing of proceedings to which he had been a party – Whether the Court of Appeal had jurisdiction to entertain the appeal

Facts: The appellant, Mr Gormley, sought to appeal a decision of the High Court (Jordan J) of 8 October 2019 refusing his application pursuant to O. 123 of the Rules of the Superior Courts for the Digital Audio Recording (DAR) of the hearing of proceedings to which he had been a party. The proceedings comprised an appeal from a decision of the Circuit Court. The respondent, the Governor and Company of the Bank of Ireland, issued a motion in which it sought the dismissal of the appeal on the basis that the Court had no jurisdiction to entertain it.

Held by the Court of Appeal (Murray J) that it was impossible to see what grounds of appeal the appellant could have. Murray J held that the appellant faced three obstacles, each of which appeared to be insuperable: first, in neither his affidavit grounding the application to the High Court nor his notice of appeal to the Court of Appeal had the appellant identified any proper basis on which he said the DAR should be furnished to him; second, the order was, in any event, a discretionary order, and no valid basis was disclosed for the contention that the trial Judge erred in the exercise of his discretion (Lawless v Aer Lingus Group plc [2016] IECA 235 at para. 22); and third, the order which he sought to appeal against was a replication of an earlier order of Jordan J.

Murray J held that while the Court had jurisdiction to entertain the appeal, it would refuse it.

Appeal refused.

JUDGMENT of Mr. Justice Murray delivered on the 12th day of March 2020

1 The appellant seeks to appeal a decision of the High Court (Jordan J.) of 8 October 2019 refusing his application pursuant to O.123 of the Rules of the Superior Courts for the Digital Audio Recording (“DAR”) of the hearing of proceedings to which he had been a party. The proceedings comprised an appeal from a decision of the Circuit Court. The respondent has issued a motion in which it seeks the dismissal of the appeal on the basis that the Court has no jurisdiction to entertain it. This judgment is addressed both to that motion, and to the underlying appeal.

2 In the proceedings, the respondent sought possession of property at Edenderry, Co. Offaly. Those proceedings were initiated in the Circuit Court by way of Civil Bill for Possession dated 20 January 2016. An order for possession having been granted by that Court (HH Judge Fergus) on 16 January 2019, a notice of appeal of that order was issued on 22 January. That appeal was heard by the High Court (Jordan J.) on 20 May 2019 when the appellant was legally represented by counsel and solicitor. On that date, the Court affirmed the order of the Circuit Court of 16 January 2019 and extended the stay on the execution of the order for possession for a period of twelve months from 20 May 2019.

3 On 10 June, the appellant issued a motion in the Circuit Court seeking the DAR of the Circuit Court proceedings of 16 January. He also issued a separate motion seeking the DAR of the hearing before the High Court of the Circuit Court appeal proceedings on 20 May. The latter motion came for hearing before Jordan J. on 25 June 2019. On that date, the appellant's motion seeking the DAR was heard in full. The Court refused the application at the conclusion of the hearing on that date.

4 On 25 June 2019 the appellant issued a further motion in the High Court seeking, again, the DAR of the proceedings before the Court on 20 May. The motion and affidavit were identical in every respect to those issued on 10 June grounding the application which has been refused on 25. This second application came before Jordan J. on 8 October 2019 and was, again, refused. On 4 November, this appeal was filed against – and only against – the decision of 8 October. Essentially, the contention advanced in the notice of appeal is that where a party to a matter seeks a transcript or recording of a trial, “in order to certain [sic.] the detail of what has happened … then it is … necessary and appropriate that the DAR be made available to that party”. Reference is made to the constitutional mandate that the administration of justice be conducted in public. It is emphasised that the Bank did not offer any legitimate reason to the trial judge as to why he should refuse the DAR.

5 Section 39 of the Courts of Justice Act 1936 appears in Part IV of the Act, which in turn provides for and regulates appeals to the High Court from certain decisions of the Circuit Court. It is clear that the underlying appeal to the High Court the DAR of which was sought by the appellant, falls within that Part of the Act. Section 39 provides as follows:-

“The decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.”

6 The preclusion on appeal to this Court entailed by this provision is not limited to the final decision of the High Court in allowing or refusing the appeal in question. It extends to any interlocutory application made to, and any decision made by, the High Court exercising its appellate jurisdiction under the 1936 Act in the course of appeals from the Circuit Court. This was explained in Kinahan v. Baila (Unreported Supreme Court, 18 July 1985). There, the Court was concerned with an attempt to appeal a decision of the High Court refusing an order for security for costs of proceedings by way of appeal from the Circuit Court.

7 Determining that it followed from s.39 that there was no appeal against such a decision, Finlay C.J. observed of the argument that because the decision was not the disposal of the appeal itself, s.39 did not apply:-

“I am quite satisfied that that does not take this appeal outside Section 39, and I am quite satisfied that any interlocutory application made and any decision made by the High Court exercising its appellate jurisdiction under the Courts of Justice Act 1936 in relation to appeals from the Circuit Court, is captured, as is every other decision by the High Court on a Circuit Court Appeal, by Section 39 and there is no room in the interpretation of Section 39 to make a special exception in relation to matters by way of interlocutory application raised for the first time in the proceedings, provided they are raised in a Circuit Appeal.”.

8 It follows that s.39 excludes an appeal against a wide range of interlocutory orders made by the High Court in the course of an appeal from a decision of the Circuit Court, including orders for discovery, for particulars, orders seeking to strike out the appeal, costs orders and indeed orders made in the course of the ordinary management of the appeal. Such orders are not merely made (as Finlay CJ variously described it) “on” or “in” the appeal, but they are made in furtherance of the appeal, and they are made while the appeal is pending and while the Court is thus seised of it.

9 In one sense, every order made within the title of an appeal from a decision of the Circuit Court can be said to be “in,” or “on” the appeal. However, it is also clear that there exists a narrow category of application which, while it may be brought under the rubric of a Circuit Court appeal, is nonetheless so disconnected in its legal basis and effect from the course of the underlying appeal as to be outside the provisions of s.39. This follows from the judgment of Finlay Geoghegan J. in Kelly v. National University of Ireland Dublin aka UCD v. The Director of the Equality Tribunal [2017] IECA 161, [2017] 3 I.R. 237.

10 In Kelly the plaintiff appealed a decision of the Equality Tribunal made pursuant to the Equal Status Act 2000 that he had failed to establish a prima facie case of discrimination in connection with the refusal by the defendant of his application to join an academic course, to the Circuit Court. In those Circuit Court proceedings, he sought an Order of discovery which was refused. That Order was unsuccessfully appealed by the plaintiff to the High Court in proceedings to which Part IV of the Courts of Justice Act 1936 clearly applied. Subsequent applications were brought to the High Court in those same appeal proceedings, including an application to set aside the earlier Order refusing the appeal. The discovery...