AN CHÚIRT UACHTARACH
THE SUPREME COURT
SC Record No. AP:IE:2016:000131
Record No. 2011/895 J.R.
Appeal No. 346/12
Clarke C.J.
O'Donnell J.
MacMenamin J.
Dunne J.
O'Malley J.
MICHAEL ROWAN
APPLICANT/APPELLANT
AND
KERRY COUNTY COUNCIL
RESPONDENT
AND
TIMOTHY MULVIHILL
NOTICE PARTY
Judgment of O’Donnell J delivered on the 30th day of January 2018
1 The facts and procedural background to this matter have been set out in the judgment to be delivered by Ms Justice Dunne. I agree with the orders that she proposes. These proceedings have already occupied too much court time. The 33rd Amendment to the Constitution did not have as its object, and should not be interpreted as permitting the revival of controversies that have long since been determined. In particular, I do not believe that it was within the contemplation of the amending provisions of the new Article 34.5.4 creating a leapfrog appeal, that cases which had been determined should be revived but only those cases which prior to the coming into force of Article 34..5.4, had required a certificate of a trial judge that they involved points of law of exceptional public importance, but where such certificate had been refused, or as here, not even sought within a reasonable period of the decision. Nor do I see any particular benefit in attempting to define the precise point at which this case passed beyond the scope of possible appeal under Article 34.5.4.
2 The somewhat unusual procedural history of this application for leave to appeal to the Supreme Court means that the focus at the oral hearing was upon the question of jurisdiction. Previous panels of this Court had considered in principle the questions of the legal significance of the underlying issue which was sought to be appealed, and the question of extension of time. I see the practicality of this approach and the logic in particular of the extension of time for an application in circumstances where an applicant could simply not have sought leapfrog appeal until the provision existed in law. Looked at in this way, the applicant could not be responsible for the lapse of time between the decision in this case and the coming into force of the 33rd Amendment. However, that is to look at a question exclusively from the applicant’s position. There remains the question whether from the respondent’s position it is appropriate to further agitate on appeal a decision of the High Court that was determined almost six years ago. I do not think that the applicant is entitled to rely on the period during which he sought to appeal the decision, without seeking a certification of the High Court judge. This was contrary to the jurisprudence of this Court, and, as was found, indeed to the jurisdiction of the Supreme Court. It was misconceived at a minimum to launch that appeal without making even a precautionary application to the High Court for a certificate, and the applicant should not now benefit from what was at best his own misplaced presumption in that regard. In any event, there is also a question of whether even if a case is capable of meeting the constitutional threshold, the Court should exercise its jurisdiction. The effect of the 33rd Amendment is to grant the Supreme Court jurisdiction in appeals meeting the constitutional threshold, but there remains a residual question of whether it is appropriate to exercise that jurisdiction in any case. The amendment limits those cases which may be appealed to this Court: it does not compel the Court to exercise the jurisdiction in every case which satisfies the test appeal. A mundane example may arise where in a particular case it is apparent that there may be an important issue of law, but it is neither clearly presented nor precisely identified so as to permit to the Court to have a clear hearing and determination of the issue. In such a case, it may be that the Court would decline to grant leave.
3 I would however be reluctant to offer any bright line rule on a jurisdictional basis, which at its margins, (admittedly at some remove from this case) could give rise to some almost metaphysical issues of analysis. Instead, I would prefer to approach this, and any future case (which in any event must be increasingly rare) on the basis of discretion. In those circumstances I would not be prepared to extend the time to bring this application for leave, and in any event would not consider it appropriate for the Court to exercise its jurisdiction in this case, given the lapse of time and the entitlement of the defendant and relevant notice parties to treat the matter as determined. Accordingly I would refuse this application.
Judgment of Ms. Justice Dunne delivered on the 30th day of January 2018
The applicant in these proceedings (hereinafter referred to as "Mr. Rowan") seeks leave to appeal against a decision of the High Court made herein on the 5th March, 2012. The respondent will be referred to hereinafter as "Kerry County Council" and the notice party to the proceedings will be referred to as "Mr. Mulvihill".
Background
The procedural background to this matter is somewhat complicated and it is necessary to set out the history of the proceedings to some extent in order to understand how an application for leave to appeal to this Court is now made. Mr. Rowan brought proceedings against Kerry County Council by way of judicial review in 2011. The judicial review related to a planning permission obtained by Mr. Mulvihill for a single domestic dwelling. The relief sought by Mr. Rowan was as follows:
"An order of certiorari quashing the decision made by the respondent on or about the 7th day of September 2011 whereby the respondent purported to confirm that the public road (L-4022) to the south of the site at Doolahig, Glenbeigh, County Kerry had been re-aligned to its satisfaction in accordance with Condition 1 of Planning Permission Register Reference 04/654 (Appeal Reference/PL08.218394) [together with ancillary relief]."
Mr. Rowan was unsuccessful in those proceedings (See Rowan v. Kerry County Council (No. 1) [2012] IEHC 65, a judgment delivered by Birmingham J. on the 17th February, 2012). Following the delivery of judgment, an application was made by Kerry County Council and Mr. Mulvihill for costs against Mr. Rowan. Reliance was placed by Mr. Rowan on the provisions of s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and it was argued that the proceedings were brought to secure compliance with a condition attaching to a planning permission and that therefore the provisions of s. 3 of the Act of 2011 applied. In a reserved judgment delivered on the 5th March, 2012, the learned High Court judge rejected the argument that the case was one to which s. 3 of the Act of 2011 applied (see Rowan v. Kerry County Council (No. 2) [2012] IEHC 544).
Mr. Rowan did not request a certificate in accordance with the provisions of s. 50A(7) of the Planning and Development Act 2000 (as amended) in respect of the substantive decision or in respect of the order for costs made against him. Rather he issued a notice of appeal directly to the Supreme Court in relation only to the award of costs against him. Notwithstanding that the Supreme Court decided a similar issue in a case in March 2014 (Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J.)) to the effect that it was necessary to obtain a certificate from the High Court in judicial review proceedings to which s. 50 and s. 50A of the Act of 2000 applied in relation to the question of costs, Mr. Rowan chose to persist with his appeal. The Supreme Court on the 18th December, 2015 ruled that a certificate of leave to appeal under s. 50A(7) of the Act of 2000 was required in relation to an appeal in respect of costs and accordingly it dismissed Mr. Rowan's appeal in circumstances where no such certificate had been obtained (Rowan v. Kerry County Council (No. 3) [2015] IESC 99).
Thereafter, Mr. Rowan filed a notice of motion in the High Court on the 25th April, 2016 seeking inter alia the re-entry of these proceedings and seeking a certificate that the decision of the High Court involved a point of law of exceptional public importance, namely:
"Does the question as to whether proceedings fall within the scope of ss. 3 and 4 of the Environment (Miscellaneous) Provisions Act 2011 ss. 3 and 4 fall to be determined on an objective basis or on a subjective basis by reference to the motivation of the party bringing the proceedings?"
Birmingham J. refused to grant a certificate (see Rowan v. Kerry County Council (No. 4) [2016] IEHC 463). Thereafter, an application for leave to appeal was made to this Court. Notices were filed by Kerry County Council and by Mr. Mulvihill in response to the application for leave. A determination on the application was made on the 27th February, 2017 (see Rowan v. Kerry County Council [2017] IESCDET 24). By that determination this Court declined to grant leave to appeal the decision of the High Court refusing a certificate but directed that there be an oral hearing confined to hearing the submissions of the parties on the question of the proper parameters of the jurisdiction of the Court in a case such as this where an extension of time was sought to appeal an order made before the Thirty Third Amendment to the Constitution together with the issue of whether an extension of time would be appropriate and whether the basic constitutional threshold of issue of general public importance is met. Accordingly, following a hearing before the Court, a further determination was issued in which the Court determined that:
"Subject to a jurisdiction in that regard existing it would be appropriate to extend time and grant leave."
The Court directed a further hearing before an extended panel of the constitutional jurisdictional issue addressed in the determination. As was made clear in that determination, the issue left over to be considered concerns the question of the extent, if any, to which the Thirty Third Amendment to the Constitution may be retrospective in the sense that the new constitutional measures thereby introduced can be held to apply to potential appeals in respect of orders of the High Court which were made prior to the Thirty Third Amendment coming into force. Accordingly, the Court determined that there was an issue of significant constitutional principle concerning whether the proper interpretation of the Thirty Third Amendment is such that it can be held to confer a jurisdiction on this Court to grant leave to appeal directly from the High Court in cases where the High Court order sought to be appealed was made prior to the Amendment coming into effect. As was pointed out in the determination, the jurisdictional issue is of particular importance in cases where, at the time of the relevant High Court order, no appeal was permissible without a certificate. As was further pointed out, the key issue is whether an effect of the Thirty Third Amendment has been to permit at least the possibility of an appeal to this Court in circumstances where no appeal of any sort would have been possible without a certificate at the time when the order sought to be appealed against was made.
Discussion
Following the introduction of a new constitutional amendment such as the Thirty Third Amendment to the Constitution, there will be a period of time when the full effect of the Amendment will require to be clarified and thus it will be necessary over time to tease out the implications and scope of the Amendment in full. The decision in Grace and Sweetman v. An Bord Pleanála [2017] IESC 10 has now clarified one such issue that arose as a result of the Thirty Third Amendment, namely the entitlement to bring a leapfrog appeal from a decision of the High Court in a case in which previously in order to appeal to the Supreme Court a certificate of leave to appeal was necessary. In that case, the joint judgment of Clarke J. and O'Malley J. noted at paragraph 3.4:
"However, the wording of Art. 34.5.4 of the Constitution (which provides for a leapfrog appeal to this Court) makes clear that relevant legislation can only ‘regulate’ but importantly cannot ‘exclude’ an appeal to this Court. That provision must be seen in the light of the fact that, in order to obtain leave to appeal to this Court under the new regime, it is necessary that this Court be satisfied that a general issue of public importance arises or that the interests of justice require an appeal to this Court."
The Court continued at paras. 3.6 and 3.7 as follows:
"In passing it is worth at least noting that the wording of the form of certificate which the High Court was required to consider giving in this case seems to place the bar somewhat higher than that which applies under the Constitution itself. In the case of a certificate under the 2000 Act, the High Court judge is required to be satisfied that a point of law of exceptional public importance arises and that it is desirable in the public interest that an appeal be pursued. In order that the constitutional threshold be met it is necessary that an issue of general public importance arise or that it is in the interest of justice that an appeal be pursued to this Court. It is possible, therefore, to envisage that there might be a case where the High Court quite correctly refused a certificate but this Court, without in any way disagreeing with the High Court, found that the constitutional threshold had been met. The thresholds are not the same and the certificate threshold is undoubtedly somewhat higher.
That being said it remains the case that the new constitutional architecture suggests that the normal and ordinary appellate process following on from a decision of the High Court should be an appeal to the Court of Appeal. However, that route remains subject to a valid restriction imposed by the certification process."
Accordingly, the judgment in the case of Grace and Anor. has resolved one of the issues that arose as to the extent of the jurisdiction of the Supreme Court following the Thirty Third Amendment to the Constitution. The issue raised in these proceedings is the extent, if any, to which the Thirty Third Amendment could have retrospective effect. In other words, could a party to proceedings in the High Court which were concluded and which could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court.
Mr. Rowan in the course of legal submissions referred to a number of cases which have considered the question of retrospectivity in the context of legislation. One of the cases relied on was the recent decision of this Court in Sweetman v. Shell E&P Ireland Limited [2016] 1 IR 742 in which Charleton J. stated as follows at p. 753 and onwards:
"The relevant canons of statutory interpretation operate a clear distinction between legislation which affects existing rights and legislation which merely enables the enforcement of such rights through court action. Bennion on Statutory Interpretation (Butterworths, 1984) (and see also to the same effect the current edition: Jones, Bennion on Statutory Interpretation,(6th ed., 2013, LexisNexis) at p. 738, s.267) at p. 313, s.131 states the general rule in the following form:
'It is the principle of legal policy that, except in relation to procedural matters, changes in the law should not take effect retrospectively. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.'
...
Why rules of procedure, (how cases are presented in court), or evidence, (how cases are proven in court), are an exception to this rule as explained in Bennion, Statutory Interpretation (Butterworths, 1984) at p. 314, s.131:
'Rules of legal procedure are taken to be intended to facilitate the proper settlement of civil or, as the case may be, criminal disputes. Changes in such rules are assumed to be for the better. They are also assumed to be neutral as between the parties, merely holding the ring. Accordingly the presumption against retrospective penalization does not apply to them, since they are supposed not to possess any penal character. Indeed if they have any substantial penal effect they cannot be merely procedural.'
. . .
When the substantive, as opposed to the procedural, law is changed during the currency of litigation, meaning after a case has been commenced and is still ongoing, the entitlements of the parties must be determined according to the law when the case was commenced. The exception is where the legislation shows a clear intention to the contrary. Some authorities support the proposition that the more extensive the variation of existing rights is, the more clearly the intention of the legislature must be made manifest in order to make that change. Alterations to forms of procedure or the admission of evidence, however, do not involve vested rights. Such changes are to enable people to better present their case. It is thus presumed that legislation is passed for the improvement of the law.
. . .
In Halsbury's Laws of England (4th ed. reissue, vol. 44 (1) Butterworths, 1995), it is stated at para.1287, p. 767, as a general rule that legislation regarding procedures is retrospective:
'The general presumption against retrospection does not apply to legislation concerned merely with matters of procedure; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament. For this purpose 'procedure' includes matters relating to remedies, defences, penalties, evidence and restrictions on vexatious litigants. Procedural enactments thus affect proceedings pending at their commencement unless the contrary intention appears, whilst the applicability to pending proceedings of a provision altering the structure of appeals may depend on whether it increases or reduces rights of appeal.'"
The authorities relied on by Mr. Rowan concern cases that were pending at the time of the legislative change. As can be seen from the judgment of Charleton J. referred to above, it is clear that a change in the law during the currency of proceedings is presumed to be prospective, unless the contrary is clear from the legislation itself. If the change is procedural and does not affect vested rights then, as a general rule, the change brought about by new legislation is retrospective. That being so, it is contended by Mr. Rowan that the changes brought about by the Thirty Third Amendment are procedural in nature and do not affect substantive acquired rights of Kerry County Council or Mr. Mulvihill and thus he argues that the Thirty Thirty Third Amendment can be applied retrospectively.
Kerry County Council in the course of its submissions accepts that the appeals procedures provided for in the Thirty Third Amendment to the Constitution would apply in cases which commenced before the Thirty Third Amendment but in respect of which no final decision or order has been made. It is contended that it could not have been the intention of the legislature and the People that a similar position would apply to cases where the litigation had concluded prior to its enactment in all respects, save for an appeal brought to this Court which resulted in a decision that such appeal could not be brought in the absence of a certificate of leave to appeal pursuant to the provisions of s. 50A(7) of the Act of 2000. It is further contended that there were acquired rights on foot of the High Court determination including the right to recover costs on the part of Kerry County Council and Mr. Mulvihill. Whilst there is a presumption against retrospective legislation, nevertheless it was accepted that the Oireachtas can enact retrospective legislation and the view was expressed that there was no logical reason why the position should be any different with amendments to the Constitution. However, the point was emphasised that this litigation commenced and concluded in the High Court prior to the enactment of the Thirty Third Amendment to the Constitution and that the parties to the proceedings had acquired rights including the right to costs and the right to avoid more litigation on the same issue on foot of the concluded litigation and accordingly it was submitted that the current proceedings should be viewed as being outside the ambit of the new constitutional architecture provided for by the Thirty Third Amendment to the Constitution. Kerry County Council contests the argument made by Mr. Rowan to the effect that the Thirty Third Amendment to the Constitution brings about changes which are "essentially procedural in nature". It is pointed out that the Thirty Third Amendment affects a change in the constitutional architecture of the appellate courts and confers a new appellate jurisdiction on the Supreme Court. Reliance is placed on s. 79 of the Court of Appeal Act 2014 which provides:
"The continuity of the administration and enforcement of justice shall not be interrupted by the coming into operation of any provision of this Act."
Accordingly, Kerry County Council submits that once a costs order was made the Council acquired a vested right to costs and an entitlement to enforce the order made in its favour and was likewise entitled to rely on the fact that, barring the issue of a certificate for leave to appeal, the litigation was at an end.
Decision
There is a large measure of agreement between the parties as to the principles applicable to the question as to whether legislation can apply retrospectively. Further, neither party disagrees with the proposition that the same approach should apply to a change brought about by a constitutional amendment. Thus, it is agreed that a statute may have retrospective effect either as a consequence of an express provision to that effect or where the change brought about by the legislation is procedural and does not affect or impair vested rights. However, Mr. Rowan and Kerry County Council part company when it comes to a consideration of whether the changes brought about by the Thirty Third Amendment to the Constitution were procedural only, as contended for by Mr. Rowan, or changes affecting substantive rights such as the benefit of a costs order, as contended for by Kerry County Council. It would not appear to be necessary to give a definitive answer to that question for reasons which will become apparent.
The Thirty Third Amendment to the Constitution was ratified by the People and was signed into law on the 1st November, 2013. The Court of Appeal Act 2014 was enacted on the 20th July, 2014 and it provided for an establishment day for the purposes of the Act. By order of the Government, the establishment day was fixed for the 28th October, 2014. Central to the arguments of Mr. Rowan is the contention that these proceedings were pending at the time when the Thirty Third Amendment to the Constitution came into effect by virtue of the appeal he had lodged to this Court in respect of the costs order and which appeal was determined by the judgment of this Court in December of 2015, referred to above. Kerry County Council made the point that the appeal was not a valid appeal in the absence of a certificate granting leave to appeal and thus, that the proceedings had come to an end in March 2012.
It will be recalled that following the decision of the High Court on Mr. Rowan's unsuccessful application for judicial review, an application was made subsequently by Kerry County Council for an order for costs and consideration was given by the learned High Court judge to that application and a ruling was made on that matter on the 12th March, 2012. It is worth recalling the words of s. 50A(7) of the Act of 2000. It provides as follows:
"The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."
It follows clearly from the provisions of s. 50A of the Act of 2000 that, at that stage, absent a certificate of leave to appeal from the High Court pursuant to the provisions of s. 50A(7) of the Act of 2000, the proceedings were at an end. The fact that Mr. Rowan purported to bring an appeal to the Supreme Court in relation to the issue of costs notwithstanding the provisions of s. 50A of the Act of 2000 and the decision of the Supreme Court in the case of Browne v. Kerry County Council (Unreported, Supreme Court, 24th March, 2014, Murray J.) does not alter the fact that the decision of the High Court made on the 12th March, 2012 was a final decision. Section 50A(7) of the Act of 2000 made it plain that in the absence of a certificate the decision of the High Court was final. Thus, despite the procedures embarked upon by Mr. Rowan in purporting to appeal to the Supreme Court, quite simply the position was that no appeal lay in respect of the decision of the High Court in the absence of a certificate of leave to appeal. Therefore, the proceedings were at an end in March 2012 and could not be characterised as pending by virtue of the impermissible procedure embarked upon by Mr. Rowan.
Mr. Rowan sought to rely on the determination of this Court in the case of Grace and Sweetman v. An Bord Pleanála to argue that he could now appeal to this court (provided he met the Constitutional threshold). The subsequent decision of the Court in that case has clarified the law in relation to a "leap frog" appeal to this Court following the Thirty Third Amendment to the Constitution in circumstances in which the party seeking to appeal does not have a certificate of leave to appeal but nonetheless can meet the Constitutional threshold. However, that case concerned a decision of the High Court and a refusal of a certificate made following the enactment of the Thirty Third Amendment to the Constitution and the establishment of the Court of Appeal. Accordingly, the principle established in that case cannot assist Mr. Rowan.
Given that a final order was made in these proceedings in March of 2012, it is simply not possible to rely on the provisions of the Thirty Third Amendment to the Constitution to mount an appeal in relation to proceedings which were concluded by a final order in 2012. The proceedings were over and could not be resurrected by the happenstance of a Constitutional amendment. That being so, this Court simply has no jurisdiction to embark on an appeal at this stage.
Conclusion
The issue herein is whether a party to proceedings in the High Court which were concluded and could not be appealed to the Supreme Court without leave of the High Court prior to the Thirty Third Amendment to the Constitution coming into force could subsequently rely on that Amendment to initiate a leapfrog appeal to the Supreme Court. A final order was made in these proceedings in March 2012 and the subsequent Amendment to the Constitution did not revive those proceedings despite the fact that there was an uncertified appeal in existence at the time when the Thirty Third Amendment came into force. Thus, for the reasons set out above, there is no jurisdiction to embark on a leapfrog appeal in this matter. I would refuse this application for leave to appeal to the Supreme Court.
