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Determination

Title:
Pepper Finance Corporation (Ireland) Designated Activity Company -v- Cannon
Neutral Citation:
[2019] IESCDET 5
Supreme Court Record Number:
S:AP:IE:2018:000120
High Court Record Number:
2018 No. 81 CA
Date of Determination:
01/24/2019
Composition of Court:
O’Donnell J., Dunne J., Finlay Geoghegan J.
Status:
Approved

___________________________________________________________________________


Supporting Documents:
120-18 AFL.pdf120-18 AFL.pdf120-18 Resp Notice.pdf120-18 Resp Notice.pdf



THE SUPREME COURT

DETERMINATION


      BETWEEN
PEPPER FINANCE CORPORATION (IRELAND) DESIGNATED ACTIVITY COMPANY
PLAINTIFF
AND

BRIAN CANNON AND CHRISTINA CANNON

DEFENDANTS

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The court grants leave to the Defendants / Applicants to appeal to this court directly from the High Court.




ORDER SOUGHT TO BE APPEALED
COURT: High Court

DATE OF JUDGMENT OR RULING: 17th July, 2018

DATE OF ORDER: 17th July, 2018

DATE OF PERFECTION OF ORDER: 17th July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 2nd August, 2018 AND WAS IN TIME.

REASONS GIVEN
General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O’Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. The additional criteria required to be met in order that the so-called leapfrog appeal directly from the High Court to this court can be permitted were addressed by the court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115, (Unreported, Supreme Court, 20 November 2017).

2. The application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law), and it is therefore unnecessary to set out the position of the parties in great detail.

Discussion

3. This application relates to a decision made by the High Court on appeal from the Circuit Court. The appeal to the High Court was from an order of the Circuit Court of 13 February 2018, refusing an extension of time to appeal from an order of the County Registrar made on 19 January 2017, which made an order for possession against the applicants. The applicants were represented at all stages in the proceedings, including the application before the County Registrar which resulted in the order for possession. It is not in dispute that the applicants failed to appeal against that order within time. There was a stay on the execution of the order until 1 August 2017. On 4 October 2017, an application was issued by new solicitors acting for the applicants for an extension of time within which to appeal the order for possession. That was refused by the Circuit Court judge on 13 February 2018, and was then appealed to the High Court. In both the Circuit Court and the High Court, the matter was addressed by the application of established principles of law first laid down in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170 which, while emphasising that the matter is one for the discretion of the court, consider whether a bona fide intention to appeal was formed within the time for lodging of an appeal; whether the failure to appeal was due to mistake or error; and whether an arguable ground of appeal exists. In this case, the High Court judge accepted there were arguable grounds of appeal, but considered in particular that it was clear that the appellants had not formed a bona fide intention to appeal within the time limit for such an appeal. The applicants now contend that this approach was in error, because, it is suggested, the merits of the appeal were strong. The argument advanced on behalf of the applicant is that in a consumer contract a court is obliged by the provisions of Council Directive 93/13/EEC on unfair terms in consumer contracts (as interpreted), to conduct, if necessary of its own motion, a consideration of the fairness of the terms of the contract. It is suggested that the County Registrar did not do so, and had she done so “she would have found that terms essential to the application for possession were unfair”. It should be said that the respondent to this application strongly contests each of these propositions both as a matter of fact and law. It is set out that the obligation to assess the terms of the contract of the court’s own motion was brought to the attention of the County Registrar by the respondent. It is further argued that, in any event, no provision of the contract could be or was identified as unfair.

4. It is argued that the case satisfies the constitutional criteria for leave to appeal to this court because the merits of the appeal are alleged to show that a fundamental procedural protection mandated by EU law to protect fundamental rights has not been complied with, and that the result of the decision not to exercise the discretion in favour of an extension of time is an interference with the applicants’ right to a home as protected by domestic constitutional law and by EU law.

5. The issue of extending time for an appeal is one of domestic law. It applies in the same way to domestic law points as to those derived from EU law and does not per se preclude a person from advancing issues relating to fundamental rights under the Irish Constitution, or derived from EU law. This court does not consider that the issue as formulated by the applicant raises any point of general importance.

6. However, the court notes that in a determination issued on 13 November 2018 in Senior Money Mortgages (Ireland) Ltd. v. Gately [2018] IESCDET 193, this court granted leave to appeal on the basis that the appeal raised a matter of general public importance, namely the question as to what matters the Court of Appeal should take into account in exercising its discretion whether or not to extend time to issue notice of appeal in circumstances where, having regard to the questions identified in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170, an applicant establishes that she has an arguable ground or grounds of appeal, but does not satisfy the court that she formed a bona fide intention to appeal within the time, and there is nothing in the mistake which would justify delay. Accordingly, the court considers that the same issue arises in this case, and that the appeal concerns a matter of general public importance.

7. It is, however, necessary to address the fact that this is an application for leave to appeal from the High Court pursuant to Article 34.5.4° of the Constitution. It is accordingly necessary that the applicant show exceptional circumstances justifying such an appeal. In this regard, the applicant points to the provisions of s. 39 of the Courts of Justice Act 1936 which provides that “the decision of the High Court … on an appeal under this Part of this Act shall be final and conclusive and not appealable”, as establishing an exceptional circumstance warranting a direct appeal pursuant to the provisions of Article 34.5.4°. The Respondent in sharp contrast argues that the existence of a legislative provision limiting the availability of an appeal (against a decision itself already a decision on appeal) cannot amount to exceptional circumstances under Article 34.5.4. This raises an issue which has not yet been definitively addressed by this Court as to the impact of the 33rd amendment on the interpretation application and/ or validity of s39 of the Courts of Justice Act 1936 and the interaction between the statutory and constitutional provisions. In this case, moreover, the fact that the court has granted leave on the same issue arising in a different circumstance means that the issue may be determined, but if the applicant is not permitted to appeal they would be precluded from obtaining the benefit of any favourable decision. Accordingly, the court will grant leave to appeal on the following issues which may be the subject of refinement at case management, namely, first the question of whether an appeal lies to this Court and if so the manner in which s39 is to be interpreted or applied on an application for leave. Second, if it is determined that appeal does lie, and leave should have been granted the issues a court should take into account in exercising its discretion whether or not to extend time to appeal in circumstances where, having regard to the questions identified in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170, an applicant establishes that he or she has an arguable ground of appeal, but does not satisfy the court that he or she has formed a bona fide intention to appeal within the time, and there is nothing in the nature of the mistake which would justify delay.

8. The proceedings in Senior Money Mortgages v. Gately have been the subject of active case management. It is proposed therefore that this matter will be listed for early case management to ensure that it is capable of being heard at the same time as Senior Money Mortgages v. Gately. Accordingly, the court will direct that the appellant deliver written submissions within ten days of the date hereof, and the respondent shall have ten days thereafter to reply. Thereafter, it will be listed for direction at an early date.

AND IT IS HEREBY SO ORDERED ACCORDINGLY



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