Supreme Court dismisses appeal as 33rd Amendment does not revive long-determined cases without prior certification.

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.

BETWEEN/

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.

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