THE SUPREME COURT
EWAEN FRED OGIERIAKHI
MINISTER FOR JUSTICE AND EQUALITY, IRELAND, ATTORNEY GENERAL AND AN POST
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.
Result: The Court grants leave to the Applicant, Ewaen Fred Ogieriakhi, to appeal to this Court from the decision of the Court of Appeal of the 26th February, 2016.
1. The applicant seeks leave to appeal the entire judgment of the Court of Appeal delivered on 26th February, 2016, (Ryan P., Peart J., and Irvine J.) ( IECA 46).
2. The applicant’s notice of application for leave to appeal to this Court and the respondent’s notice are displayed on this website, together with this determination. Due to their length, neither they nor the complex history of the proceedings will be summarised here.
3. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
4. 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:
5. 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°.
“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. 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.
7. 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:
8. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
9. 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.
10. 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.
11. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
12. The 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.
13. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having any precedential value in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
14. The Court grants leave to appeal on the following questions (subject to what may transpire in case-management):
And it is hereby so ordered accordingly.
a. Whether an honest and excusable misunderstanding on the part of the State officials as to the requirements of a Directive is a significant factor in considering whether or not the breach of the Directive was serious.
b. Whether a person who has suffered damage as a result of the incorrect transposition of a Directive in this State is entitled to claim damages under domestic law, or is confined to the criteria established by the Court of Justice of the European Union in Francovic and Brasserie du Pecheur.
c. Whether the finding that the failure of the State to implement the Directive correctly did not give rise to damages under the principles set out in Francovic and Brasserie du Pecheur necessarily entailed a finding that the applicant had no right to damages under domestic law, including under the Constitution.
d. Whether the applicant, as a person who was dismissed because of the application to him of regulations which failed to properly implement the Directive, had any remedy under domestic law.
e. Whether the obligation to mitigate loss can require a person in the applicant’s position to accept an unwritten offer of employment.