THE SUPREME COURT
DEPUTY JOHN MCGUINNESS DEPUTY MARY LOU MCDONALD DEPUTY SHANE ROSS DEPUTY ÁINE COLLINS DEPUTY PAUL J. CONNAUGHTON DEPUTY JOHN DEASY DEPUTY ROBERT DOWDS DEPUTY SEÁN FLEMING DEPUTY SIMON HARRIS DEPUTY EOGHAN MURPHY DEPUTY GERALD NASH DEPUTY DEREK NOLAN DEPUTY KIERAN O’DONNELL THE CLERK OF DÁIL ÉIREANN THE CLERK OF THE PUBLIC ACCOUNTS COMMITTEE IRELAND AND THE ATTORNEY GENERAL
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to appeal to the Supreme Court directly from the High Court.
1. This determination relates to decisions of a Divisional Court of the High Court (Kelly P., Noonan, Kennedy JJ.). There are three applications for leave before the Court.
2. This is, therefore, a series of applications for leave to appeal to the Supreme Court directly from the High Court. They are what may be termed “leapfrog” applications.
(i) 71/17 is an application by Angela Kerins, the applicant/appellant, and hereinafter referred to as “the applicant”, from a decision of the Divisional Court of the High Court, delivered on the 31st January, 2017, and order of the 5th April, 2017, was perfected on the 7th April, 2017, which dismissed her claim arising out of proceedings which took place before the Public Accounts Committee of Dáil Éireann.
(ii) 73/17 is an application for leave by the first fifteen respondents, the Public Accounts Committee, hereinafter referred to as “PAC”. This application relates to the order of the 5th April, 2017, perfected on the 7th April, 2017, and is an application in relation to that part of the order as awarded the applicant two thirds of her costs of the High Court proceedings together with 100% of the transcript costs, to be taxed in default of agreement.
(iii) 78/17 is an application by the 16th and 17th respondents, Ireland and the Attorney General, the State, and referred to as “the State”, from that part of the order of the High Court of the 5th April, 2017, which was perfected on the 7th April, 2017, which made no order for costs.
3. The Court considered first the application by the applicant for leave to appeal the decision of the Divisional Court which dismissed her claim for relief.
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:
6. Article 34.4.3° of the Constitution 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 and,
(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 shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
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 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. In order for this Court to grant leave to bring an appeal from the High Court, a leapfrog appeal, it must be the case that the issues raised are such that they would justify granting leave for a second appeal from the Court of Appeal to this Court, had the course of action of an appeal to the Court of Appeal been adopted by the applicant. Therefore, the basic constitutional threshold of public importance or interests of justice, which must be met in respect of an application to bring an ordinary appeal from the Court of Appeal to this Court, must also be met in the context of the leapfrog appeal.
11. In addition, there must be present, in order that leave be granted to appeal from the High Court, in accordance with the words of Article 34.5.4° “that there are exceptional circumstances warranting a direct appeal” to this Court.
12. The decision of the Supreme Court under Article 34.5.6° is, in all cases, “final and conclusive”.
13. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
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 to be granted. 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.
15. This case arises out of certain proceedings that took place before the PAC on the 27th February and 10th April, 2014. Arising from those proceedings the applicant sought injunctive and declaratory reliefs and damages by way of judicial review.
16. On behalf of the applicant the following matters were alleged. The applicant had attended before PAC. She had no legal obligation to do so. She was not accompanied by lawyers, although she had benefit of prior legal advice. She accepted the invitation of PAC to make an opening statement in which she dealt with a number of matters concerning Rehab and her salary. The applicant was before PAC for about seven hours, in which time she had one short break. Inter alia, she was questioned on a wide range of issues, many of which went far beyond those of which she had been notified, i.e. she had no prior knowledge. She complained of the manner in which she was questioned. Her counsel described it as a witch hunt. Much of which was put to her, and said about her, was damaging to her reputation personally and professionally.
Reasons put forward by the applicant as to why the Supreme Court should grant leave to appeal
17. The reasons submitted by the applicant as to why this Court should grant leave to appeal is set out in detail in her application for leave and notice of appeal document, which is available with this determination on the Courts Service website, so there is no need to set it out in detail in this document.
18. In summary, the applicant contends that the case is a matter of general public importance as it raises questions of freedom of speech in Parliament, the separation of powers, and the extent to which this Court may interfere in the affairs of the Legislature. It is submitted that the Divisional Court in its decision, effectively reversed In Re Haughey and Maguire v. Ardagh, holding that Article 15.13 extends to utterances in Committee as well as in the chambers of the Legislature.
19. The applicant submitted that the interests of justice criteria is met as the Divisional Court ruled that, notwithstanding the applicant had been damaged professionally and personally by the actions of the PAC members, that the Court was powerless to intervene, and that there was no legal remedy for the wrongs which had been perpetrated.
20. The applicant submitted that the case is exceptional by reason of the nature and novelty of the issues raised which warrant a direct appeal to the Supreme Court, and that the Divisional Court has the effect of reversing the previous decision of this Court in In Re Haughey and Maguire v. Ardagh.
21. The PAC respondents do not oppose the applicant’s application for leave to appeal directly to this Court.
22. The PAC respondents submit also that the Court should allow their application for leave to appeal the related decision of the Divisional Court of the 5th April, 2017, on the issue of costs, so that the two appeals can be heard and determined simultaneously by the Court.
23. The State respondents do not contest the application for leave to appeal directly to the Court.
24. The State take issue with the assertions by the applicant that the Divisional Court departed from or reversed the decisions of this Court in In Re Haughey and Ardagh v. Maguire.
25. The State respondents submit that the Court should allow their intended appeal against the decision of the Divisional Court where that Court declined to award the State respondents their costs against the applicant and made no order in relation to costs.
26. The fact that a party or parties do not oppose an application for leave to appeal does not affect the jurisdiction of the Court. The Court continues to be required to consider if the application meets the criteria established in the Constitution.
27. However, this case raises issues which the Court is satisfied meet the criteria for an appeal from the High Court directly to this Court.
28. The issues raised include, as a matter of general public importance, the legal safeguards available to witnesses who appear before PAC in a voluntary capacity. The role, if any, which the Court has in protecting such witnesses, in circumstances where there are the important issues of freedom of speech in the Legislature, the separation of powers, and the extent to which the Court may intervene in the affairs of the Legislature. Inter related is the issue as to whether or not the Divisional Court overruled In Re Haughey and Ardagh v. Maguire.
29. The interests of justice are engaged also as the Divisional Court ruled against the applicant, while finding that she had been damaged professionally and personally by the actions of the PAC, but that there was no legal remedy for the wrongs perpetuated.
30. The Constitution guarantees to vindicate the personal rights of citizens, and to protect citizens against unjust attack. In the circumstances, the issue of safeguarding such rights meets the criteria of the interests of justice in this application.
31. It follows that it has been established that this case meets the basic constitutional threshold for leave to appeal. However, this is an application for leapfrog leave and it is also, therefore, necessary that the Court be satisfied that there are exceptional circumstances justifying a direct appeal to this Court. As far back as Fox v. Mahon  IESCDET 2 (which, while it was an Art. 64 application, nonetheless set out certain general principles) the Court has made it clear that the ordinary way in which appeals should progress is to the Court of Appeal with an appeal on to this Court only if necessary. However, the Court has also made clear in Barlow v. Minister for Agriculture, Food and Marine & ors  IESCDET 8, and many cases following, that there may be cases where little additional clarity will be brought to the issues by an intermediate appeal to the Court of Appeal such that the case may be one which is likely to “look the same” whether it comes to this Court directly from the High Court or after an intermediate appeal to the Court of Appeal. As pointed out in Barlow, such factors, together with questions of urgency, are likely to feature strongly in any consideration as to whether exceptional grounds for a direct appeal to this Court have been established.
The Court is satisfied that exceptional circumstances do exist in this case. The issue of general importance which has been identified is, substantially, a net if very important issue of constitutional law. While there may always be some advantage to obtaining the views of the Court of Appeal on such issues, the Court is satisfied that this is one of those cases where the importance of coming to an early resolution of the constitutional issues raised outweigh any advantage which might be obtained by an intermediate appeal to the Court of Appeal. Furthermore, it is unlikely that the issues, in the circumstances of this case, will in any way be narrowed by such an intermediate appeal.
32. Thus, the Court determines that the application of the applicant satisfies the criteria established in the Constitution. Consequently, the Court will grant leave to the applicant to appeal directly to this Court.
33. In all the circumstances, which include the general rule that costs follow the event, which event will now be considered by the Court, it is appropriate that the two applications for leave to appeal in relation to the costs issues, be granted, as a consequence of the decision on the substantive appeal.
34. Therefore, the three applications for leave, the subject of this determination, will be case managed by a judge of the Court, and the hearings sequenced as directed. The issue of priority could be addressed at that time.
AND IT IS HEREBY SO ORDERED ACCORDINGLY.