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Determination

Title:
Shatter -v- Guerin
Neutral Citation:
[2017] IESCDET 80
Supreme Court Record Number:
S:AP:IE:2017:000051
Court of Appeal Record Number:
A:AP:IE:2015:000321
High Court Record Number:
2014 No 478 JR
Date of Determination:
07/21/2017
Composition of Court:
Denham C.J., O’Donnell J., O’Malley J
Status:
Approved

___________________________________________________________________________


Supporting Documents:
51-17 AFL.pdf51-17 Rspndts Notce.pdf


THE SUPREME COURT

DETERMINATION

      BETWEEN
Alan Shatter
Applicant/Respondent
AND

Seán Guerin

Respondent/Appellant

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES I.E., AN APPLICATION TO APPEAL TO THE SUPREME COURT FROM THE COURT OF APPEAL.

RESULT: The Court grants leave to appeal to the Supreme Court.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Ryan P., Finlay Geoghegan, Irvine JJ.) Shatter v Guerin [2016] IECA 318, delivered on the 10th November, 2016, and the order of the 2nd March, 2017, which was perfected on 7th March, 2017. The Court of Appeal decision was an appeal from a judgment of the High Court (Noonan J.) Shatter v Guerin [2015] IEHC 301, delivered on the 20th May, 2015.

2. Sean Guerin, the respondent/appellant, referred to as “Mr. Guerin”, seeks leave to appeal to this Court from the said judgment of the Court of Appeal.

3. Alan Shatter, the applicant/respondent, is referred to as “Mr. Shatter”.

Jurisdiction

4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out its appellate jurisdiction under Article 34.4.1°. This states:

        “1º The Court of Appeal shall –

        (i) Save as otherwise provided by this Article,

        (ii) With such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and also shall have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”

6. Article 34.4.3° of the Constitution also provides for the finality of decisions of the Court of Appeal, save for appeals that may be taken to the Supreme Court from its decisions under Article 34.5.3°.

7. Under Article 34.5.4˚ it is possible for a decision of the High Court to be directly appealed to the Supreme Court, bypassing the Court of Appeal. This type of appeal is sometimes referred to colloquially as a “leap-frog” appeal.

8. The Article relevant to this appeal, where the Court of Appeal has already given judgment in a matter, is Article 34.5.3°, which states:

      “The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that -
            (i) the decision involves a matter of general public importance, or

            (ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”

9. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.

10. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied, either that the relevant decision of the Court of Appeal “involves a matter of general public importance”, or, alternatively, that it is “in the interests of justice”, necessary that there be an appeal to this Court. The constitutional framework established by the 33rd Amendment of 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, that it 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.

11. The statutory framework for the exercise of the right to appeal to this Court for such leave is to be found in the Court of Appeal Act, 2014, and, in particular, the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961.

12. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.

13. T he Constitution has retained the entitlement of one appeal as a right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. 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 be a further appeal to this Court.

No precedential value

14. The Court considers it desirable to point out that a determination of the Court on an application for leave, which is final and conclusive as far as the parties are concerned, is a decision in relation to that application only. The decision is whether the question, or questions, raised, and the facts underpinning them, meet the constitutional criteria for leave. Save in the rarest of circumstances, it will not be appropriate to rely upon a grant or refusal of leave as having a precedential value in relation to the substantive issues or in the context of different cases. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of this Court.

Background facts and procedural history

15. The background facts are set out in detail at paras. 2 to 22 of the judgment of the Court of Appeal (Ryan P.), which may be found on the Courts Service website at: [2016] IECA 318.

16. In 2014, the Government announced its decision to hold a review into the allegations made by Sergeant Maurice McCabe about Garda misconduct. Under the terms of reference Mr. Guerin was to undertake a review and interview those who could provide information relevant to the investigation.

17. At the time of the review, Mr. Shatter held the position of Minister for Justice. Mr. Guerin delivered his report to the Taoiseach on the 6th May, 2014 and on the 7th May, 2014, Mr. Shatter resigned his government position.

18. Mr. Shatter complained about statements made in chapters 19 & 20 of Mr. Guerin’s report. He stated that the paragraphs contain seven conclusions “adverse to his interests”.

19. Mr. Shatter brought an ex parte application before the High Court seeking leave to issue judicial review proceedings against Mr. Guerin. Leave was granted by the High Court (Baker J.) on the 30th July, 2014

20. The High Court (Noonan J.) delivered judgment on the 20th May, 2015, dismissing the application of Mr. Shatter on all grounds. The High Court concluded that the subject of Mr. Shatter’s appeal occurred as a result of political decisions of the Government and that it was not the function of the court to adjudicate on them, having regard to the separation of powers. It was held further that Mr. Shatter was seeking to mount a collateral attack on the Commission of Investigation, which the Court would not permit.

21. Mr. Shatter appealed the decision of the High Court to the Court of Appeal (Ryan P., Finlay Geoghegan, Irvine JJ.) which delivered judgement on the 10th November, 2016, in which it upheld the appeal and granted a declaration that the conclusions of Mr. Guerin’s Report were in breach of fair procedures and constitutional and natural justice.

The reasons put forward by Mr. Guerin as to why the Supreme Court should grant leave to appeal

22. The reasons submitted by Mr. Guerin as to why this Court should grant leave to appeal are set out in detail in the application for leave and notice of appeal document, which is available with this determination on the Courts Service website.

23. In summary, Mr. Guerin contends that, inter alia, the following matters are grounds upon which an appeal should be granted:-

        (i) The claim by Mr. Shatter was not properly justiciable, in all the circumstances. The Court of Appeal was not entitled to hold as it did, given the political ramifications of the report. The High Court was correct in finding that Mr. Shatter’s claim was non-justiciable.

        (ii) The issue as to whether or not the requirements of fair procedures and constitutional justice apply in the circumstances, and, if so, the extent to which they apply to an inquiry and report of this nature.

        (iii) The issue of whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation.

        (iv) The issue as to whether or not the duty to make full disclosure when seeking leave for judicial review continues as a legal principle. It was asserted that Mr. Shatter sought leave on the basis of a completely false claim that Mr. Guerin was guilty of actual or apparent bias because he was a member of a committee that had lobbied in respect of the Legal Services Bill.

        (v) The issues raised are important and novel.

The reasons put forward by Mr. Shatter as to why this Court should not grant leave to appeal

24. The reasons submitted by Mr. Shatter as to why this Court should not grant leave to appeal are set out in detail in the Respondent’s Notice document, which is available with this determination on the Courts Service website. In summary, Mr. Shatter contends that Mr. Guerin seeks leave to appeal on the basis that the decision of the Court of Appeal involves matters of general public importance. He does not seek to argue that it is necessary in the interests of justice that there be an appeal. However, Mr. Guerin’s application relates to an infringement of his rights only and does not involve matters of general importance.

25. The Court invited oral submissions from counsel, which were heard on Wednesday 28th June, 2017. Both parties submitted written submissions to the Court on the issue of whether the constitutional criteria were met by the application for leave.

26. In written submissions submitted to the Court on the 9th June, 2017, on behalf of Mr. Guerin, four issues were set out upon which it was submitted that leave should be granted as a matter of general public importance. They can be summarised as follows:-

        (1) Whether Mr. Shatter’s claim was justiciable in the circumstances in which, and/or at the point in time at which, it was initiated.

        (2) The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of the requirements imposed thereby. Questions of public importance arise also from a consideration of what precisely is required by constitutional justice in a context such as this.

        (3) Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

        (4) Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle.

27. In written submissions submitted to the Court on the 20th June, 2017, on behalf of Mr. Shatter as to whether or not leave should be granted, the submissions included, inter alia, the following:-
        (1) The Commissions of Inquiry Act 2004 contains express statutory provisions that provide for the observance of fair procedures. It could never be the case that those protections could be bypassed and a person’s constitutional rights infringed.

        (2) Mr. Guerin relies on arguments irrelevant to the resolution of the litigation. They should be given no weight in considering whether the case involves a matter of general public importance. The Court of Appeal merely applied well settled principles as to an individual’s constitutional rights. The Court of Appeal decision did not involve any point of law of general importance.

        (3) This case is not of general public importance and it is governed by its own unique facts.

Decision

28. The issues have been well aired in the application for leave to appeal, the respondent’s notice, Mr. Guerin’s written submission for the oral hearing, Mr. Shatter’s written submissions for the oral hearing, and in the oral hearing.

29. The Court determines that the application for leave satisfies the criteria established in the Constitution, namely the ground of general public importance. Consequently, the Court grants leave to appeal to Mr. Guerin.

30. The Court grants leave to appeal on the following issues:-

        a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

        b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

        c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

And it is hereby so ordered accordingly.



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