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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kiely -v- Kerry County Council & ors [2015] IESC 65 (16 July 2015)
URL: http://www.bailii.org/ie/cases/IESC/2015/S65.html
Cite as: [2015] IESC 65
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Judgment
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THE SUPREME COURT [Appeal No: 366/2014] Clarke J. MacMenamin J. Charleton J. In the Matter of the Local Elections (Petitions and Disqualifications) Act 1974
And In the Matter of the Local Elections for Listowel held on the 23rd day of May, 2014
Dan Kiely Petitioner/Appellant and
Kerry County Council Respondent and
John Brassil, Jimmy Moloney, Mike Kennelly, Michael O’Gorman, Robert Beasley, Aoife Thornton, Kate Carmody, Brian Finucane, Tom Walsh, Katie Lucid McCabe, Pat Leahy, Dianne Nolan, Liam Purtill and Tim Buckley Notice Parties Judgment of Mr. Justice Clarke delivered the 16th July, 2015. 1. Introduction 1.2 In any event, Judge Moran dismissed the petition and affirmed the result as declared by the returning officer. Mr. Kiely was anxious to appeal that decision and took certain steps, to which it will be necessary to refer in more detail, to bring the case before this Court. There is no doubt that there are complications, to put it at its mildest, in the regime which is provided by law for such appeals. Those complications arise from the way in which the relevant legislation and rules of court are drafted. For those reasons, Mr. Kiely quite properly brought an application before this Court for the purposes of clarifying whether the procedure he had followed was in order, and further for the purposes of clarifying whether, as he asserts, the appeal remains properly before this Court or whether it can be said to have been transferred to the Court of Appeal. 1.3 On the hearing of the application, it was submitted on behalf of Mr. Kiely that the appeal was properly brought and should be determined by this Court. Counsel for the County Council suggested that there were some technical deficiencies in the way in which the matter was brought to this Court but acknowledged that there is a conflict in the procedural scheme which makes it difficult to say with certainty what the proper procedure should have been. In those circumstances, and very properly, counsel indicated that it was not the view of the County Council that the proceedings should be declared to be in any way inadmissible. Some, but not all, of the notice parties also appeared and did not, in substance, take a view different from that adopted by the County Council. 1.4 Finally, it should be noted that, in the event that the Court were persuaded that the proceedings were in order and remained for determination in this Court, two minor issues concerning transcripts and their cost were also raised and would require to be determined. 1.5 The purpose of this judgment is to deal with the issues raised. In order to understand the central issues, it is necessary to start by considering the relevant provisions of the 1974 Act, of the Circuit Court Rules and the Rules of the Superior Courts, together with certain of the measures adopted to allow for the proper implementation of the establishment of the Court of Appeal as a result of the passage of the 33rd Amendment to the Constitution. I, therefore, turn first to the relevant provisions of these measures. 2. The Legal Measures 2.2 That subsection provides as follows:-
2.3 It is next necessary to turn to the Rules of the Superior Courts. Order 58, r.23 of the Rules of the Superior Courts (which was inserted by substitution by the Rules of the Superior Courts (Elections) 2005, (S.I. No. 294 of 2005) makes provision for appeals to the Supreme Court on questions of law in certain types of case. That rule applies, amongst other things, to appeals from the Circuit Court under the 1974 Act. Order 58, r.23(2) provides that such appeals should be “by notice of appeal in the form, if any, for the time being prescribed in the Circuit Court Rules and otherwise in accordance with rule 1”. 2.4 Unfortunately, there seems to be a conflict between the Rules of the Superior Courts and the provisions of the Circuit Court Rules which deal with local election petition matters under the 1974 Act (also, as it happens, in Order 58 of those rules). Order 58, r.8 of the Circuit Court Rules provides as follows:-
2.5 The first problem stems from the fact that while the 1974 Act and the Rules of the Superior Courts simply refer to an appeal on a question of law, the Circuit Court Rules suggest that the appeal should be “by way of Case Stated”. On the other hand, the format of the appeal document by which that case stated is to be brought (which is found in form 38B) is really a form that would be used in any straightforward appeal in that the relevant form suggests that the operative part of what is described as an appeal by way of case stated should simply set out the grounds of appeal by using the heading “AND TAKE NOTICE that the following are the grounds of Appeal:”. 2.6 It is also important to make reference to O.58, r.10 of the Circuit Court Rules which provides that every appeal by way of case stated, having been prepared by the appellant, must be “settled by the trial judge after consultation with the parties” and must also contain a summary of the relevant facts. 2.7 There is, thus, an internal inconsistency between the provisions of the Circuit Court Rules and the relevant form in the schedule to those rules. The rules seem to suggest that the appeal by way of case stated must be settled by the judge, and ,importantly, must contain a summary of the relevant facts. The form does not appear to contain any provision for a statement of the facts and does not suggest any involvement on the part of the judge in its formulation. 2.8 For completeness it is also of some relevance to note that the 1974 Act does, in s.23, make express provision for a case stated from the Circuit Judge to this Court “on any question of law arising at the trial”. However, s.23(2) makes clear that the Circuit Court should not “determine the petition” until this Court has given its decision. It seems clear that s.23 is concerned with a true case stated where, in the course of the hearing, the trial judge refers a question of law to this Court to enable the views of this Court on that question of law to be applied in the course of the trial. 2.9 The first issue in this application arises out of the somewhat contradictory set of measures concerning the conduct of appeals from local election petitions stemming from the various provisions which I have just mentioned. 2.10 The second issue concerns the question of whether this appeal, assuming it to have been properly brought before this Court, has been transferred to the Court of Appeal. Transitional provisions of the Constitution were brought into effect, in accordance with the terms of the 33rd Amendment to the Constitution, by the appointment by the Government of the 28th October, 2014, as the establishment day of the Court of Appeal. As a result, the Chief Justice became empowered, under Art.64.3.1 of the Constitution, to issue a direction, with the concurrence of the other members of this Court, which had the effect of transferring classes of appeals then before this Court to the Court of Appeal. Such a direction was made on the 29th October, 2014. 2.11 It is unnecessary to deal in detail with many of the provisions of that direction. However, one of the classes of appeals which was thereby transferred to the Court of Appeal related to appeals in respect of which the notice of appeal had been served after the 1st January, 2012, and before the 28th October, 2014, save for a number of specific categories of appeal which were expressly excluded by the terms of the relevant paragraph of the direction. The notice of appeal in this case falls within that date range. However, one of the excluded classes of appeal, which is to be found in sub-para.(i), refers to “any Case Stated from the High Court or Circuit Court”. 2.12 It should also be noted at this stage that the wording of s.7(3) of the 1974 Act, as already cited, is said by Mr. Kiely to have a bearing on whether the direction of the Chief Justice of the 29th October, 2014, applied to these proceedings at all. 2.13 The issue which this Court has to determine is as to whether, in all of the circumstances, it can properly be said that this appeal has been transferred to the Court of Appeal. 2.14 Against the background of those legal measures, I now turn to the precise issues with which this Court is concerned. 3. The Issues 3.2 The second issue concerns the question of whether it can be said that the direction of the Chief Justice made on the 29th October, 2014, has had the effect of transferring this case to the Court of Appeal. In passing, I should deal with one problem which did not emerge at the hearing but which I think should be briefly touched on. There might be a view that this Court might have no jurisdiction to deal with any aspects of this case should it transpire that the case has been properly transferred to the Court of Appeal. However, that view would create a potential catch 22, for it might equally be said that the Court of Appeal could not deal with any of these issues because it might be the case that the appeal had not been transferred to it. No court could countenance that form of litigation black hole. In the circumstances, it seems to me that the fact that the appeal was brought to this Court and the fact that there are legitimate questions as to whether it properly remains in this Court clearly confers on the Court a jurisdiction to consider whether this appeal can properly be said to have been transferred to the Court of Appeal. 3.3 There are two ways in which it is argued that the proceedings cannot be said to have been transferred to the Court of Appeal. On the case made on behalf of Kerry County Council, it is said that it is proper to characterise these proceedings before this Court as a case stated. On that basis, it is said that the provisions of sub-clause (i) of the direction of the Chief Justice has the effect of excluding these proceedings from transfer. There can be no doubt but that if it is proper to characterise these proceedings as a case stated then it follows that this appeal was not included within a class of appeals transferred to the Court of Appeal. Of course, the first issue, which I have already identified, is concerned, amongst other things, with whether it is appropriate to characterise these proceedings as a case stated in the first place. 3.4 On the other hand, counsel for Mr. Kiely, while arguing that these proceedings are not properly characterised as a case stated, suggests, as already noted, that the wording of s.7(3) itself is such as requires that these proceedings remain in this Court and that the appeal should not, therefore, be taken, irrespective of how it is characterised, as having been transferred to the Court of Appeal. 3.5 Finally, in the event that the proceedings remain in this Court, the subsidiary issues concerning the transcript and the costs of its procurement will also have to be dealt with. However, I propose to address the two substantive issues first and, therefore, turn to the issues concerning the appellate process. 4. The Appellate Process 4.2 However, I have a clear view as to where the proper solution lies. The legislation, in the shape of the 1974 Act, confers a right on any party to a local election petition to appeal to this Court “on a question of law”. Other legislation (including s.23 of the 1974 Act itself) often provides expressly for either a consultative form of case stated or an appeal by way of case stated. Furthermore, the term “an appeal on a question of law” is a frequently used form of terminology in legislation which defines the parameters of the sort of issue which can be raised on such an appeal. Legislation, therefore, in many areas, makes a clear distinction between an appeal on a question of law, on the one hand, and a form of case stated, on the other. Indeed, the 1974 Act itself uses those different forms of terminology in, respectively, ss. 7 and 23. It must be assumed that the Oireachtas, in using that different terminology with its well established provenance, intended that there be a different form of process involved between the case stated specified in s.23, which in this case is clearly of a consultative variety, and the appeal on a question of law as specified in section 7(3). 4.3 On that basis, I am satisfied that the legislation confers a right of appeal on any party to a local election petition. It was not, in my view, within the powers of the Circuit Court Rules committee to adopt rules which changed that right of appeal to a form of appeal which required the notice of appeal to be settled by the trial judge and which required the notice of appeal to be in a form which confirmed the findings of fact of the trial judge. The appeal contemplated by s.7(3) is an ordinary appeal on a question of law. The facts are those determined by the Circuit Judge in his or her judgment. Within the limitations which arise in an appeal which is confined to a question of law only, those facts may be reviewed on appeal. In all other respects, the parties are bound by the findings of fact by the trial judge. However, there is no requirement that those findings are set out in the sort of form which would normally be required in a case stated, for that is inconsistent with this being an appeal as of right. It is also inconsistent with the legislation for the rules to require the notice of appeal to be settled by the trial judge having consulted with the other parties. 4.4 In my view, therefore, the requirement in the Circuit Court Rules that an appeal on a question of law under s.7(3) is to be by way of case stated is ultra vires, as is the requirement that the notice of appeal be settled by the trial judge. On the other hand, form 38B of the Circuit Court Rules is entirely consistent with the legislation. Likewise, there is no reason in principle why the rules cannot provide for a preliminary notice of intention. 4.5 Viewed in that way, and in conjunction with the Rules of the Superior Courts, it seems to me that the proper regime for the bringing of an appeal under s.7(3) of the 1974 Act from a decision of a Circuit judge in a local election petition is as follows:-
(b) That must be followed by a notice of appeal, which must be in accordance with or in the form set out in form 38B; (c) Both of these requirements are consistent with the Rules of the Superior Courts, for those rules specify that the form of any notice of appeal must be in accordance with whatever may prescribed in the Circuit Court Rules. However, in accordance with O.58, r.2 of the Rules of the Superior Courts, the actual notice of appeal must be served within 21 days from the date on which the judgment or order appealed from was pronounced in open court and must, in accordance with that rule, be lodged with the registrar of the Supreme Court “forthwith”. 4.7 In those circumstances, I am more than satisfied that the appeal was properly brought before this Court at the time when the relevant documents were filed. I have gone into some detail on the proper regime for two purposes. First, in the circumstances it seems to me that it would be appropriate for the Circuit Court Rules committee to consider whether the rules should be changed to reflect the problems identified in this judgment. Second, it is important to lay down a clear ruling as to what procedure will have to be followed unless and until there is any amendment to those Circuit Court Rules. 4.8 It follows that this appeal was undoubtedly properly before this Court on the establishment day when the Court of Appeal came into existence. That leads to the second issue, which is as to whether the appeal can now properly be said to have been transferred to the Court of Appeal. I turn to that question. 5. Has the Appeal been transferred? 5.2 However, as noted earlier, counsel for Mr. Kiely made a different submission as to why it might be said that the direction of the Chief Justice on the 29th October, 2014, did not have the effect of transferring this appeal to the Court of Appeal. 5.3 Counsel drew attention to the fact that s.7(3) of the 1974 Act ends with the words “the decision shall be final and not appealable”. Counsel then drew attention to the fact that the new provisions of the Constitution which have been in place since the 33rd Amendment came into force do not allow for the exclusion (as opposed to the regulation) by legislation of appeals from the Court of Appeal to this Court. Rather, any party aggrieved with a decision of the Court of Appeal is entitled, in accordance with such legal regulation as may be in place from time to time, to seek leave from this Court to bring a further appeal. On that basis, counsel argued that it is inconsistent with the provisions of s.7(3) for this appeal to be heard in the Court of Appeal given that the new constitutional regime would not render the decision of the Court of Appeal “final and conclusive”, for the Constitution itself would permit any aggrieved party to seek leave to bring a further appeal to this Court. 5.4 I have to confess that, at the time of the hearing of this application, it seemed to me that that argument was well made. However, on reflection, I have come to the view that it is not. Section 7(3) starts by referring to an appeal “against a decision of the court on the petition”. The “decision” being referred to in that phrase is, therefore, the decision of the Circuit Judge who hears the local election petition. When the section goes on to speak of the “decision” being “final and not appealable” it seems to me that it is clearly referring to the same “decision”. In other words, what is said to be final and not appealable is the decision of the Circuit Judge. However, that provision is “subject to the foregoing” meaning that the decision of the Circuit Judge is final and unappealable except that there is an appeal to this Court on a question of law. 5.5 There is also considerable logic in that approach. In the ordinary way, all decisions of the Circuit Court are appealable to the High Court under the provisions of ss.37 and 38 of the Courts of Justice Act 1936. Thus, in the absence of a special provision in the 1974 Act, a decision of a Circuit judge on a local election petition would be open to an ordinary appeal by way of full rehearing before the High Court, for s.38 refers to every judgment in a civil action or matter unless “other provision” is made. The clear intent of s.7(3) was to exclude that type of appeal by making “other provision” but to allow for the more limited appeal provided, being an appeal on a question of law directly to this Court. 5.6 Viewed in that way, there is nothing inconsistent with either s.7(3) now being read as conferring a right to appeal to the Court of Appeal on a question of law (as a result of s.74(1) of the 2014 Act which substitutes “Court of Appeal” for “Supreme Court” in all legislation relating to appeals or cases stated unless the context otherwise requires) nor in the Chief Justice deciding to transfer a pending local election petition appeal from this Court to the Court of Appeal. 5.7 For those reasons, I am satisfied that the direction of the 29th October, 2014, was effective to transfer this case to the Court of Appeal. However, that is not the end of the matter. It is clear that all of the parties who were represented at the application before this Court were anxious that the appeal remain in this Court. Article 64.3.3 of the Constitution entitles any party to an appeal which is transferred to the Court of Appeal under Art.64.3.1 to bring an application seeking to cancel the transfer in respect of the appeal concerned, thus causing the case to remain in this Court. Reasonably, no such application was brought in this case because of the view which the parties took that this appeal had not been transferred to the Court of Appeal in the first place. However, it is clear that the parties would have wished to bring an application under Art.64.3.3 in the event that they believed that the case had been transferred to the Court of Appeal. 5.8 The criteria by reference to which the Court has exercised its jurisdiction to cancel the direction of the 29th October, 2014, in respect of a specific appeal, and to retain such an appeal in this Court, are set out in a series of determinations of this Court, not least that in Fox v. Mahon and ors. [2015] IESCDET 2. As noted in that determination, among the factors which the Court may well take into account is the importance of the issue raised, and whether anything much might be gained in clarifying or refining that issue by an intermediate appeal to the Court of Appeal. Issues of urgency were also referred to. I have no doubt but that this appeal meets those criteria. At least some of the legal issues raised have the potential to affect all elections and require a definitive determination. They are net legal questions which are very clearly and succinctly set out in the document filed before this Court as representing the notice of appeal or case stated. There is also urgency from two different perspectives. 5.9 First, it is important that certainty be brought as quickly as possible to the question of who is entitled to represent the Listowel area on Kerry County Council. If Mr. Kiely has a good case then it is important that he should succeed and be able to take his seat as quickly as possible. Likewise, if he does not have a good case, it is important that the status of the successful candidates is clarified as quickly as possible and any doubt about that status put to rest. 5.10 Second, this issue could arise in any election occurring in the future and it is important that clarity as to the issue raised concerning proper methodology be achieved as quickly as possible. 5.11 I would, therefore, provided that an application in that regard is made, favour making a determination cancelling the direction of the 29th October, 2014, so far as this appeal is concerned and, thus, requiring that the appeal be brought to an early hearing on the merits before this Court. In order to facilitate that course of action, I would, in the special and unusual circumstances of this case, be prepared to dispense with the requirement of making a formal written application under Article 64 of the Constitution, the provisions of the 2014 Act, and the Rules. I adopt this course because of the fact that there has already been a significant delay in relation to the conduct of this appeal which stems not from any fault of the parties but because of the need to resolve the legal issues arising out of the conflicting legal measures to which reference has already been made. That confusion placed the parties in a difficult position and it would be wrong to exacerbate that difficult position by delaying matters further by requiring a formal written application. 5.12 In anticipation that such an application will be made and granted I propose to go on to deal with the transcript issues. 6 The Transcript Issues 6.2 The second issue concerns the costs related to the existing transcript of the evidence. I would not propose that the Court should make any special order. It is a matter for any appellant to place before the Court all of the materials which are required to be lodged for the purposes of an appeal. It is for the appellant to bear the costs associated with procuring and filing those materials. If the appellant succeeds or is otherwise awarded their costs, then any such expense will, of course, be recovered. However, I do not see any legitimate basis for departing from the ordinary practise in this case and it is a matter for Mr. Kiely to deal with those costs and with any other parties or the Courts Service who may have a legitimate involvement. 7 Conclusions 7.2 On the second issue, I have come to the view that this appeal was transferred to the Court of Appeal as a result of the direction given by the Chief Justice, with the concurrence of the other members of this Court, on the 29th October, 2014. However, I have set out earlier in this judgment the reasons why I have come to the view that this case meets the criteria which have been applied by this Court in considering applications under Art. 64.3.3 of the Constitution in which it is sought to cancel that direction so far as the relevant appeal is concerned. Subject to the parties making an oral application in that regard, I would dispense with the need to make a formal written application, in accordance with the Rules, for such a cancellation and would grant the cancellation thus returning this appeal for hearing on the merits before this Court. 7.3 Assuming that happens, I would finally direct that there is no need to file a transcript of the legal argument which took place before the Circuit Court and would make no order in respect of the question of the costs of obtaining a transcript of the evidence. I would also propose hearing counsel on how this appeal can be made ready for hearing as a matter of urgency. | ||||||||||||||||||||||||||||||||||||