THE SUPREME COURT
LEOPARDSTOWN CLUB LIMITED
TEMPLEVILLE DEVELOPMENTS LIMITED
AND PHILIP SMITH
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Plaintiff/Applicant to appeal to this Court from the Court of Appeal
1. This Determination concerns an application brought by the plaintiff/applicant (hereinafter “Leopardstown”). Leopardstown seek leave to appeal from a decision of the Court of Appeal delivered on 26th July, 2015. The Court of Appeal held that the High Court trial judge, (Charleton J.), misdirected himself in law, and failed to make sufficient explicit or implicit findings of fact, so as to allow him to conclude that Leopardstown had not made any misrepresentation, or any misrepresentation of a material fact, which induced the respondents (Templeville and Philip Smith) to enter into an agreement known as a Mediated Settlement Agreement (MSA). The Court of Appeal concluded that the trial judge had misdirected himself in law and on the facts, in holding that the respondents had actual knowledge of a transverse cable crossing on the intended site of seven tennis courts, to be constructed by the respondents at Leopardstown Racecourse.
2. In its two judgments herein, delivered by Finlay Geoghegan J. and Hogan J., the Court of Appeal held that Leopardstown had failed to establish on the evidence, that Templeville and/or Philip Smith had actual knowledge of the transverse cable at the time of entering into the MSA. The court concluded that the respondents’ constructive knowledge of the transverse cable, at the time of entering into the MSA, was not sufficient to defeat their counterclaim for misrepresentation against Leopardstown.
3. On foot of these findings, the Court of Appeal upheld the respondents’ appeal against so much of the High Court judgment as dismissed their counterclaim which sought rescission of the MSA upon grounds of alleged misrepresentation, and directed that the single issue of Leopardstown’s alleged misrepresentation, be remitted to the High Court for a retrial before a different judge.
4. The applicant, Leopardstown, appeals against the entirety of the Court of Appeal’s judgments and order. It contends that its appeal raises issues of general public importance, such that it is in the interests of justice that there be an appeal to the Supreme Court.
5. This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3 of the Constitution, which states:
6. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
7. The constitutional framework established by the Thirty-third Amendment to the Constitution thus requires in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal it has to be demonstrated that either a “matter of general public importance” arises, or that “in the interests of justice it is necessary that there be an appeal to this Court.”
8. The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act 2014, and in particular s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act 1961. The Rules of Court are set out in the amended Order 58.
9. The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.
The Applicant’s Submissions considered in the light of the constitutional criterion outlined
10. The applicants rely on two essential grounds:
11. Hay v. O’Grady
Leopardstown contend that the Court of Appeal fundamentally misconstrued its role in the appeal herein, as outlined, inter alia, in the judgment of this Court in Hay v. O’Grady  1 I.R. 210. The applicant says that it is necessary that a fundamental misconstruction and misapplication of that authority be corrected by this Court, as the principle addressed therein is so fundamental to the operation of the Court of Appeal, as to make any breach thereof a point of law of real general public importance, such as to necessitate an appeal to the Supreme Court in the interests of justice.
12. The applicant submits the Court of Appeal incorrectly held that the trial judge had made no findings of fact, on whether Leopardstown had made a representation to the respondents, and/or whether, if it had, this constituted a misrepresentation of a material fact which induced the respondents to enter the MSA. The applicants’ case is that, in fact, Charleton J. had expressly found that Leopardstown had made no misrepresentation of any kind. The applicant submits that the Court of Appeal erroneously held that the trial judge had dismissed the respondents’ misrepresentation claim solely on the basis of their constructive knowledge of the transverse cable, when, in fact, the trial judge had held that the respondents had actual knowledge of the cable. The applicant submits that the Court of Appeal fell into fundamental error in disregarding the trial judge’s explicit and implicit findings of fact, and had failed to address the effect of these explicit and logically implicit findings on the relevant issues by wrongly postulating a requirement that such implicit findings should be made explicit in the judgment, or else be treated as not having been made at all.
Gahan v. Boland  I.L.R.M. 218/1
14. The applicant also submits that the Court of Appeal fell into error in its exposition and application of the judgment of this Court in Gahan v. Boland  I.L.R.M. 218/1. It is said that this, too, is a matter of general public importance, and it is in the interests of justice that the law on misrepresentation be explained and clarified on foot of this error.
The Respondents’ Submissions
15. Templeville and Philip Smith contend that the facts said to be found by the High Court judge, are not accurately stated in the applicant’s application. The respondents submit that the Court of Appeal correctly applied Hay v. O’Grady in upholding their appeal. They contend that the Court of Appeal correctly held that the trial judge had failed to make findings of fact as to whether Leopardstown had made a representation in the form of the “MSA map”, as to a fact which was untrue; that Leopardstown intended the respondents to rely on it, and that Leopardstown both intended to, and actually induced the respondents to enter into the MSA.
16. The respondents contend that the Court of Appeal, correctly applying Hay v. O’Grady, held that the trial judge had never asked himself the legally correct question as to whether or not Leopardstown had established that the respondents, both at the time of the negotiations leading to the MSA, and on entering into it, had actual and complete knowledge of the true situation in relation to the ESB cables potentially effecting the site. They submit that, insofar as the trial judge concluded that the respondents had knowledge of the two cables in 2007/2008, this finding was not supported by the evidence; and that even at that point in time it did not appear to constitute complete knowledge of the true situation.
17. The respondents further contend that the Court of Appeal correctly held that any finding of the trial judge on this issue was inferential, and drawn mainly from what amounted to circumstantial evidence. They submit he did not make findings of fact supported by evidence from which such inferences could be drawn. The respondents submit that the Court of Appeal correctly held that the onus of establishing actual and complete knowledge on the respondents’ part was on Leopardstown, and this could not be considered established by the High Court’s findings on Philip Smith’s non-credibility as a witness. Both respondents contend that the Court of Appeal correctly held that Leopardstown had failed to establish a prima facie case that Templeville had full and complete knowledge of the transverse cable, with the consequence that no adverse inference could be drawn from the failure to call a potential witness, Mr. Brendan O’Sullivan, to give evidence. The respondents further submit that the Court of Appeal correctly held that the defence to the counterclaim, relied upon by Leopardstown, required actual and compete knowledge of the true situation, at the relevant time of entering into the MSA, and that constructive knowledge or notice was not sufficient. Finally, under this heading, the respondents contend that the Court of Appeal regarded itself as bound by Hay v. O’Grady  1 I.R. 210, and that its decision was an orthodox application of the principles laid down therein.
Gahan v. Boland  I.L.R.M. 218/1
18. Second, the respondents submit that the Court of Appeal correctly interpreted the law on misrepresentation, as addressed by this Court in Gahan v. Boland.
19. This Court is of the view that the issues raised herein are matters of general public importance, and that it is in the interests of justice that there be an appeal to this Court thereon. Without in any way prejudging the issue, the principle established in the authority of Hay v. O’Grady  I.R. 210, and the jurisprudence derived therefrom, is fundamental to the operation and role of appeal courts, whether it be the Court of Appeal, or this Court. This Court will naturally exercise considerable care, if there is a claim of the misapplication of the principle in Hay v. O’Grady. Such a claim is not to be deployed as a mere tactic in seeking an appeal to this Court from the Court of Appeal, or the High Court. Nonetheless, the legal status of findings of fact, and inferences by a trial judge, are questions which are addressed in more than one important precedent (see Re Gairloch  2 I.R. 1; Northern Bank Finance Corporation v. Charleton  I.R. 149; Pernod Ricard v. Fyffes Plc, Supreme Court, 11th November, 1988; In re M.; J.M. and G.M. v. An Bord Uchtala  IR 510,  ILRM 203; Hanrahan v. Merck Sharpe & Dohme  I.L.R.M. 629,; Hay v. O’Grady  I.R. 210; Duffy v. Rooney, Supreme Court, 23rd April, 1998; O’Mahony v. Tyndale  4 I.R. 101; Re C (A Ward of Court) v. FC, the Supreme Court, 30th July, 2013  IESC 36,  1 I.L.R.M. 1; McMullen v. Kennedy, The Supreme Court,  IESC 29). The legal status of explicit or implicit findings of fact, and inferences by a trial judge, are fundamental to the role of appeal courts. If there is misunderstanding, clarification of the law is a matter of general public importance to be determined by this Court.
Gahan v. Boland
20. The tests and criteria to establish misrepresentation are matters of law which were addressed by this Court in Gahan v. Boland  I.L.R.M. 218/1. The question is as to the nature of what must be proved in order to show misrepresentation; and, in particular, whether it must be shown that the representee was actually induced to enter into the transaction by reason of the misrepresentation? A further question arises as to whether constructive knowledge can constitute a defence to misrepresentation. These are issues of general public importance, and bring the issue within the parameters of the constitutional provisions referred to earlier. Thus, it is necessary that the judgment of this Court in Gahan v. Boland  I.L.R.M. 218/1, and the application of s.86 of the Land & Conveyancing Law Reform Act, 2009, be reviewed, and if necessary clarified. Were it to be the case that the Court of Appeal had misunderstood the principles in Gahan, or that these principles were not sufficiently clear, this, too, would be a matter of general public importance, and it is the interests of justice that the matter be determined by this Court.
And it is hereby so ordered accordingly.