IESC 7 · Supreme Court

THE SUPREME COURT

[Appeal No: 135/16]

Denham C.J.

Clarke J.

MacMenamin J.

Between/

Kevin Tracey

Applicant/Appellant

and

District Court Judge Aeneas McCarthy

Respondent

and

The Director of Public Prosecutions

Notice Party

Judgment of Mr. Justice Clarke delivered the 10th February, 2017.

1. Introduction

1.1 This judgment relates to a most unusual application but the circumstances giving rise to that application are themselves

exceptional. The plaintiff/appellant (“Mr. Tracey”) seeks an order extending time to appeal from a judgment of the High Court

(McGovern J.) given on the 6th March, 2008 where that court declined to quash a finding of the respondent District Court Judge as a

result of which Mr. Tracey was committed for contempt. The application for an extension of time was filed in late November, 2016 and

was heard in January of this year so that it is, in substance, sought to extend time by close to nine years. On any view such a

lengthy extension of time could only be allowed in extremely rare circumstances.

1.2 On the other hand, it will be necessary to address, at least in general terms, the undoubtedly unfortunate circumstances which

led both to an appeal not being brought at the time of the High Court order and to no application for an extension of time being

brought until now. However, before going on to consider the merits of the application itself, it is necessary for the Court to consider

an important but difficult constitutional issue which derives from the fact that the application now before the Court obviously post

dates the 33rd Amendment to the Constitution while the order sought to be appealed was made at a time prior to that amendment

coming into force. The issue which may arise is as to whether it is appropriate to assess this extension of time application under the

constitutional regime which has come into being as a result of the 33rd Amendment. I turn, therefore, first to that question.

2. The Effect of the 33rd Amendment

2.1 Certain aspects of the constitutional regime can be clearly and simply stated. First, as of the time when the order sought to be

appealed was made, the constitutional architecture provided for an appeal in a case such as this as of right and to this Court. It is

equally clear that, were a similar order to be made by the High Court today, the natural and ordinary right of appeal, again as of right,

would lie to the Court of Appeal subject to the entitlement to seek leave to bring a so-called leapfrog appeal to this Court under Art.

34.5.4 of the Constitution.

2.2 Of course, in order that a leapfrog appeal can be permitted, it is first necessary that it be established that the decision sought to

be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that

there be an appeal to this Court. In addition, for a leapfrog appeal, it must also be established that there are grounds justifying an

appeal directly to this Court. In that latter context it must be shown that there are “exceptional circumstances” warranting such a

direct appeal. The fact that there has been such a radical change in the constitutional architecture concerning appeals leads to an

issue in relation to new applications to extend time for appeals where the order sought to be appealed was made prior to the 33rd

Amendment coming into force. On one view any application which would permit an appeal to this Court to be filed after the 33rd

Amendment had come into force (including, as here, a required application for an extension of time) carries with it an obligation to

satisfy this Court that the constitutional threshold for leave to appeal under the 33rd Amendment has been met. On that view it

would always be open to a party in such a case to seek an extension of time to appeal to the Court of Appeal but an entitlement to

seek an extension of time which would allow an appeal to be brought to this Court after the 33rd Amendment had come into effect

would carry with it an obligation to show that the criteria for leave to appeal which now apply are present in the case in question.

2.3 The alternative view is that, given that Mr. Tracey would have had an entitlement to appeal as of right to this Court as of the

time when the order sought to be appealed was made, he has an entitlement to seek an extension of time in the same manner as

would have applied at that time which would not, of course, have required meeting a constitutional threshold which had not come into

force at the time in question. That raises an important question concerning the extent to which it might be said that the 33rd

Amendment operates, at least to some extent, retrospectively. That issue was briefly touched on in a determination made by this

Court in Kennedy v. Cunningham & anor [2017] IESCDET 4. However, for the reasons set out in that determination, the Court did not

find it necessary, on the facts of that case, to reach a definitive conclusion on the issue. The approach of the Court in Kennedy was

that it did not consider it appropriate to address that issue (not least because Mr. Kennedy was unrepresented) unless a decision on

that question proved necessary to decide Mr. Kennedy’s application in that case. I would propose that this Court should, on this

application, adopt a similar course of action. In other words if it did not matter, for the proper resolution of this application, whether

the case was to be considered under the previous constitutional regime or under the appellate architecture in place since the 33rd

Amendment, then the issue which I have raised would not need to be resolved in this case and, given that Mr. Tracey is, like Mr.

Kennedy, unrepresented, it would not be appropriate to deal with it in these proceedings.

2.4 For those reasons I propose, for the moment, to operate on the assumption that Mr. Tracey might be able to satisfy the Court

that the ordinary criteria for the grant of an extension of time for leave to appeal can be met and, on that basis and on that

assumption, to consider whether it would make any difference to the proper result of this application to decide whether the

application should be considered under the previous constitutional regime or under the new constitutional appellate architecture. In

substance that means considering whether Mr. Tracey would meet the criteria set out under the 33rd Amendment for a leapfrog

appeal to this Court. If he would meet those criteria in any event then it does not matter whether his application for an extension of

time is to be considered under the old regime (where he would have had an appeal as of right subject to obtaining an extension of

time) or under the new regime, where he would, in addition to meeting the criteria for an extension of time, also have to establish

that he meets the constitutional threshold. I, therefore, turn to that question.

3. Is the Constitutional Threshold Met?

3.1 The question of compliance with the constitutional threshold for leave to appeal to this Court directly from the High Court (as set

out in Art. 34.5.4), requires, as previously noted, that two criteria are met. First, that the general threshold for leave to appeal to

this Court must be established being that it is shown that an issue of general public importance arises or that it is otherwise in the

interests of justice that an appeal to this Court be permitted. Second, that there are exceptional circumstances justifying a direct

appeal.

3.2 The core issue which Mr. Tracey wishes to pursue on his appeal is as to whether, in all the circumstances which pertained on the

occasion when he was committed for contempt in the face of the Court by the respondent, it was, in the light of the Constitution,

Irish jurisprudence, the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights together

with, potentially, any applicable European Union law, permissible to have made a finding of contempt and imposed the penalty of

imprisonment which followed. It was in an attempt to quash that order of contempt and the penalty of imprisonment imposed as a

result of it that these proceedings were commenced in the High Court. The High Court refused to quash the order.

3.3 However, there is, in my view, an important question of general public importance raised by this case being the precise

circumstances in which it is permissible, in the light of any or all of the legal materials which I have cited, to commit someone for

contempt in the face of the Court. There has been a developing jurisprudence of the European Court of Human Rights and it may well

be argued that this is also an issue which needs to be considered afresh by this Court as a matter of Irish constitutional

jurisprudence. I am, therefore, satisfied that the first leg of the constitutional threshold is clearly met. An appeal would raise an issue

of general public importance.

3.4 As to the second leg, it needs to be recorded that Mr. Tracey has a significant number of appeals already before this Court. Some

of those appeals can, at a minimum, be described as having some connection with the finding of contempt sought to be challenged in

these proceedings.

3.5 In the immediate aftermath of the coming into force of the 33rd Amendment of the Constitution, this Court had to consider a

number of applications under Art. 64 of the Constitution which were designed to disapply the general order made by the Chief Justice,

with the concurrence of the other members of the Court, designed to divide the appeals then pending before this Court between

those which were to remain in the Supreme Court and those which were to be transferred to the Court of Appeal under the

transitional provisions set out in Article 64. One of the issues which frequently arose on such applications was the fact that the same

or similar parties had more than one appeal pending in circumstances where it would not be in the interests of the proper

administration of justice or the legitimate concerns of the parties to require one appeal to be moved to the Court of Appeal but

another to stay in this Court. It seems to me that like considerations apply here. While it might well be that an appeal such as that

which Mr. Tracey now seeks to bring might properly be brought to the Court of Appeal in the ordinary way if the appeal were to arise

today, the very fact that this Court is already managing a significant number of appeals by Mr. Tracey makes it appropriate to

determine that there are exceptional circumstances justifying a direct appeal to this Court in this case if it should prove that Mr.

Tracey is able to establish that it is appropriate to extend time.

3.6 For those reasons I am satisfied that it does not matter, for the purposes of this application, whether it is considered under the

old regime or under the post 33rd Amendment architecture. Mr. Tracey would meet the constitutional criteria for leave to appeal

direct to this Court under the 33rd Amendment. Therefore, irrespective of the regime under which the application is considered, the

sole remaining question would be whether the criteria for an extension of time are made out. If they are then an extension of time

should be granted whether the matter is to be considered under the old or new regimes. If they are not then no extension of time

could, of course, be given. In those circumstances it is unnecessary and, for the reasons which I have already sought to address, in

my view inappropriate, to resolve the difficult question of retrospectivity in this case. Its resolution will not affect the result. On that

basis it is next necessary to turn to the core question of whether Mr. Tracey meets the criteria for an extension of time.

4. Are the extension of time criteria met?

4.1 This Court has recently had occasion to consider the criteria for an extension of time to appeal in Goode Concrete v. CRH plc

[2013] IESC 39, where the Court reviewed the principles which had been adopted in Eire Continental Trading Co Ltd v. Clonmel Foods

Ltd [1955] I.R. 170. The Eire Continental criteria have been long established and are consistently applied by the courts. However, as

pointed out in Goode Concrete, they are not rigid rules but rather criteria by reference to which the Court determines whether the

interests of justice require an extension of time in the particular circumstances of an individual case. Goode Concrete is itself an

example of a case where the Court granted an extension of time even though, strictly speaking, one of the Eire Continental criteria

was not met. The reasoning in Goode Concrete was that the applicant did not know of the grounds on which an appeal might be

brought (in the unusual circumstances of that case) until well after the time for filing an appeal had expired. In those circumstances it

would have been impossible to form the intention to appeal within time. This Court had no difficulty in holding that the relevant aspect

of the Eire Continental jurisprudence, which makes it clear that it is normally necessary for an applicant for an extension of time to

establish that the relevant intention to appeal had been formed within time, did not apply in a case such as the one then before the

Court.

4.2 That being said the Eire Continental principles are long established, have met the test of time, should always represent at least

the initial basis on which the Court examines an application for an extension of time and should, in my view, only be departed from

where there is very good reason in the circumstances of the case in question. It follows that the analysis of this application should

start with a consideration of the three central criteria identified in Eire Continental.

4.3 Those criteria are:-

(a) that an intention to appeal was formed within the time provided for;

(b) that the applicant has satisfied the Court that arguable grounds for appeal exist; and

(c) that there is an adequate explanation to explain why the appeal was not brought in time.

It is also fair to say that the third criteria has been the subject of significant jurisprudence since Eire Continental itself.

4.4 Indeed, on the facts of this case, there really is little doubt but that the first two criteria are met. Counsel for the notice party

(“the D.P.P.”) did not argue otherwise. It will be necessary to turn shortly to the circumstances in which an appeal was not brought

in time. However, the explanation given makes clear that Mr. Tracey was most anxious to appeal and was, indeed, taking active steps

to ascertain when the High Court order was to be perfected so as to ensure that he would bring his appeal in time. Likewise, for the

reasons already analysed in this judgment, I am satisfied that the case raises an important issue which is undoubtedly arguable.

4.5 The question, therefore, really turns on the explanation given for an appeal not being brought in time or, perhaps, more

accurately, why an application for an extension of time has not been brought before now. In passing it is worth noting that Goode

Concrete provides authority for the proposition that a court needs to consider, in the event that it is satisfied that there is a good

explanation for an appeal not being brought in time, whether, nonetheless, the applicant sought to have time extended in a timely

way. The mere fact that one has an acceptable excuse for not appealing within the time provided for by the rules does not mean that

one can sit back and wait indefinitely to bring an application for an extension of time. The very fact that the rules provide a relatively

short period for filing a notice of appeal necessarily implies that a person is under an obligation to move reasonably quickly if finding

themselves in a position where they need to seek an extension of time.

4.6 In fairness to counsel for the D.P.P., she did not dispute that there was a justification, sufficient to meet the test as developed in

the jurisprudence since Eire Continental, for the failure to file a notice of appeal on time. Regrettably it would appear that, for reasons

which have never been made fully clear, the formal court order in this case as perfected by a court registrar had its date of

perfection backdated. While the reason for this has never become absolutely clear, the fact is accepted by the Courts Service. In

that context it is clear that Mr. Tracey was a regular attender at the court office with a view to ascertaining when the order would

be perfected so that he could appeal. It was only well after the event that he was presented with a court order which, on its face,

appeared to have been perfected quite some time previously so that the filing of a notice of appeal in the ordinary way would, on the

face of the order, have been out of time.

4.7 Mr. Tracey raised those issues with senior staff within the Courts Service and was advised, quite properly, to invite the D.P.P., as

respondent, to consent to an extension of time. The D.P.P. declined. It is in those circumstances that counsel for the D.P.P. accepts

that, up to that time, there is a perfectly good explanation for the failure to appeal. In substance, the opposition on behalf of the

D.P.P. to this application stems from a contention that there was nothing to prevent Mr. Tracey, notwithstanding the D.P.P.’s refusal

to consent, from bringing an application for an extension of time before this Court as soon as the problem was identified and that

there is no adequate explanation as to why that was not done at the latest at some time around 2009. That really is the core issue

which the Court has to address. There can be absolutely no doubt but that if Mr. Tracey had brought an application within a

relatively short period of time after the D.P.P. had refused to consent, it would have been clear that an extension of time would have

been granted.

4.8 The application, therefore, turns on what happened after that time. There are a number of features, one might have to say highly

unusual features, of this application which leads me to the view that Mr. Tracey should not be deprived of an extension of time

notwithstanding the fact that, in almost all cases, an attempt to seek an extension of time, many years after it should have been

clear that the application for an extension was required, would clearly fail.

4.9 First, it must be noted that the manner in which Mr. Tracey was deprived of the opportunity of bringing an appeal in time was not

only completely outside of his control but was outside of the control of any person acting on his behalf. This case is unlike the typical

case where there is some problem deriving either from the potential appellant or that appellant’s advisers which is said to provide the

explanation for the appeal not being filed on time.

4.10 Second, it does have to be said that the very unusual circumstances pertaining to the perfection of the order in this case quite

reasonably had an adverse effect on Mr. Tracey’s ability to handle the proceedings and any potential appeal in an appropriate way. It

might be that a party who had the benefit of legal advice might have been assuaged by a suggestion that the circumstances were

highly likely to lead to this Court extending time. However, Mr. Tracey did not have the benefit of legal advice, was undoubtedly

faced with a highly unusual and unfortunate situation which had arisen within the Courts Service and was also faced with a letter

from the D.P.P. indicating that consent was not forthcoming. It is true that there was mention in some of the correspondence at that

time of the fact that Mr. Tracey could, of course, bring an application to the Court. However, in all the circumstances, I do not

consider that it would be just to blame Mr. Tracey for not bringing his application at the time in question.

4.11 Next, it does have to be recorded that the Court is aware, from a number of appeals either brought or in the course of being

brought by Mr. Tracey, that he was suffering from significant ill health during much of the relevant period. His actions, or the lack of

them, need to be viewed against that background.

4.12 Finally, it does not seem to me that there would be any prejudice to the D.P.P. by allowing a late appeal at this stage. I should

emphasise that, in mentioning this point, I do not seek in any way to depart from the well established jurisprudence which makes clear

that it is not necessary for a respondent to establish prejudice in order to be able successfully to resist an application for an

extension of time. Ordinarily appeals should be brought in time and if they are not, without good and sufficient reason, brought within

the time specified then the right to appeal will be lost irrespective of any question of prejudice. However, the presence of prejudice

can, in my view, make it unjust to extend time even in a case where the broad criteria might suggest that an extension should be

granted. The presence of prejudice is not, therefore, a necessary basis for opposing an extension of time. Prejudice may, however,

quite properly be relied on by a party to suggest that an extension of time, which might otherwise be granted, should be refused.

4.13 In the main parties are entitled to assume, once the period for appeal has passed, that the litigation is at an end. They are

entitled to order their affairs accordingly. An extension of time, and particularly an extension of time at a significant remove,

inevitably runs the risk of prejudice. I would suspect that very many respondents, faced with an application for an extension of time

at the remove of the eight years which is present in this case (or even significantly lesser periods), would very easily be able to

persuade a court that it would be fundamentally unfair to allow proceedings which had been allowed lie as if finished for such a period

to be reopened.

4.14 However, the facts which underlay the hearing which led to the contempt finding in this case were well established on affidavit.

The issue for this appeal is an important but relatively net question of law. There is no reason to believe that this Court would be

impaired in any way in coming to a fair and just resolution of an appeal even though it might now be conducted at some remove from

the time when an appeal might ordinarily have been expected to have been heard had a notice of appeal been filed in time or, indeed,

had a much earlier application for an extension of time been brought.

4.15 As noted at the beginning of this judgment the circumstances of this case are exceptional. It would require circumstances which

were very exceptional indeed to warrant an extension of time of the amount sought in this application and also to excuse a failure to

bring an application for an extension of time at a much earlier stage. However, I believe that there are very exceptional

circumstances present which require the interests of justice to be met by granting Mr. Tracey the extension of time which he seeks. I

would, therefore, propose that an order granting an extension of time should be made. However, there are some issues concerning

the form of that order which I now propose to address.

5. The Form of the Order

5.1 First I should state that it seems to me that the only basis on which Mr. Tracey has established arguable grounds for appeal is his

contention that the manner in which a finding of contempt in the face of the Court was made against him breached his rights under

the Irish Constitution, under the European Convention on Human Rights or under European Union law. It is also that ground which

would warrant finding that the constitutional threshold to appeal to this Court under the new constitutional architecture has been

met. In those circumstances I would confine the appeal to that ground. I would come to that view whether the matter was being

considered under the 33rd Amendment or in accordance with the previous regime for I am not satisfied that, even in the context of

the previous regime, any other arguable grounds have been made out.

5.2 Next, it is important to emphasise that it is of the utmost importance that the significant legal issues which arise in this case are

dealt with properly and expeditiously. For that reason, and again irrespective of whether it is appropriate to consider that the case be

dealt with under the 33rd Amendment or the previous regime, I would propose that the practice and procedure put in place for dealing

with new jurisdiction appeals should be followed in this case insofar as is practicable.

5.3 In that context I consider that the order of this Court extending time and permitting an appeal on the grounds just specified

should be treated as a determination granting leave under the new constitutional regime. Again that is so whether the application

necessarily had to be considered under the 33rd Amendment but also, even if it did not, by virtue of the need to ensure that the

appeal is conducted in the manner best designed to ensure a speedy and just resolution. Even if being dealt with under the 33rd

Amendment I would, in the very unusual circumstances of this case, dispense with the need to file the documentation normally

required to consider leave to appeal.

5.4 As it is clear that Mr. Tracey wishes to proceed with this appeal, I would propose that the Court dispenses with the need for the

service of a notice of intention to proceed under the new rules and Statutory Practice Direction. However, I propose that the D.P.P.

should file an adapted respondent’s notice which need not for obvious reasons address the grant of leave but should set out the basis

on which the appeal is to be opposed. I propose that this be done within two weeks. Thereafter, there will be an obligation on Mr.

Tracey to file written submissions and on the D.P.P. to file replying submissions. When these submissions have been filed, in

accordance with the Statutory Practice Direction, the case will be listed for case management and can proceed, thereafter, in

conformity with that practice direction and the rules applicable to a new jurisdiction case. In all the circumstances I would suggest

that Mr. Tracey be given eight weeks from now to file his written submissions but that, subject to such directions as the case

management judge might give, all of the remaining provisions of the Statutory Practice Direction should apply in the ordinary way.

6. Conclusion

6.1 For the reasons set out in this judgment I would, therefore, extend the time for the bringing of an appeal to this Court but confine

that appeal to the grounds mentioned in section 5 of this judgment. I have come to the view that such an order should be made

irrespective of whether it is appropriate to consider this application for an extension of time as being subject to the new appellate

regime which has been in place since the 33rd Amendment of the Constitution came into force or whether it is appropriate to consider

the application under the previous regime. As the result will be the same in either case I do not consider it necessary, or in the

circumstances of this case appropriate, to resolve that difficult constitutional question.

6.2 I would, again irrespective of whether it is appropriate to consider the appeal as being brought under the old or the new regimes,

direct that the appeal proceed as a new jurisdiction appeal subject to some minor variations which are also referred to in section 5 of

this judgment.