Supreme Court allows appeal beyond certified point, permitting appellant to argue any ground arising from High Court decision.

THE SUPREME COURT

No. 347 & 348/05

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

Between

PAUL CLINTON

Applicant/Appellant

and

AN BORD PLEANALA, DUBLIN CITY COUNCIL

and

By Order THE ATTORNEY GENERAL

Respondents

and

RICHARD QUIRKE, DUBLIN POOL AND JUKE BOX COMPANY LIMITED, BAYCROSS DEVELOPMENTS LIMITED, CARROLLS OF

DUBLIN LIMITED, COLM CARROLL, REGAN DEVELOPMENTS LIMITED, DANIEL TROY AND CHRISTOPHER TROY TRADING AS TROY

BROTHERS, DOYLES STORES LIMITED, F.X. BUCKLEY LIMITED, STEPHEN ROSS TRADING AS INDUSTRIA, SIMON HART LIMITED,

JOHN CORCORAN, JAMES COUSINS LIMITED, MARTINA INVESTMENTS LIMITED and PETER SLATTERY LIMITED

Notice Parties

JUDGMENT of MR JUSTICE FENNELLY delivered on the 1st day of November, 2006.

1. This judgment concerns a preliminary point regarding the scope of the jurisdiction of the Court in this appeal. The question is

whether the Court is limited, in its consideration of the appeal, to the point of law certified by the High Court pursuant to section

50(4)(f) of the Planning and Development Act, 2000 (“the 2000 Act”).

2. The appeal is taken from the judgment of Finnegan P delivered on 15th March 2005. By that judgment, the learned President

dismissed the appellant’s application for an order quashing a Compulsory Purchase Order (“the CPO”) made by the second named

Respondent, Dublin City Council, on the 11th December 2001 in relation to an extensive site at the northern end of O'Connell Street,

Dublin, on its western side extending to the west to Moore Street, to the north to O'Rahilly Parade and to the south to Henry Place.

3. The appellant had challenged the CPO on a number of grounds, principally concerning the adequacy of the reasons stated or

proved for its making and confirmation by the first-named respondent.

4. Following delivery of judgment, the learned President certified the following point as a point of law of exceptional public importance

for the purposes of section 50(4)(f):

“Whether, having regard to section 213 of the Planning and Development Act, 2000 An Bórd Pleanála may lawfully confirm a

compulsory purchase order made for ‘development purposes’ without requiring the acquiring authority to specify the

development it is proposed to carry out on the affected land and/or subjecting the said proposed development to scrutiny, at

an oral hearing or otherwise, in order to ascertain whether or not it has been established that all of the land affected by the

compulsory purchase order is required to carry out the proposed development.”

5. The appellant has filed a notice of appeal containing a number of grounds of appeal in addition to the certified point. These are set

out fully in the judgment of Denham J, who has also explained the procedural history behind the present question. The Court has

invited the parties to address it on the question of its jurisdiction to consider the additional grounds of appeal.

6. Section 50 of the 2000 Act lays down general provisions concerning the circumstances in which the validity of decisions of planning

authorities or of An Bórd Pleanála may be challenged. No question of validity of such decisions may be advanced other than by way of

an application for judicial review under Order 84 of the Rules of the Superior Courts. Thus, judicial review is the exclusive means of

challenge. In addition, the application for leave must be made on notice within eight weeks (subject to extension for good and

sufficient reason) and substantial grounds must be shown for the claimed invalidity.

7. Apart from these restrictions on the general right of access to the remedy of judicial review, the Oireachtas has imposed

restrictions on the right of appeal from any High Court decision determining such an application. The Oireachtas, in enacting section

50(4)(f) of the 2000 Act chose a regime which has a significant legislative and judicial provenance, to which I will shortly refer. The

relevant provision reads:

“(f) (i) The determination of the High Court of an application for leave to apply for judicial review, or of an application for

judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case,

except with the leave of the High Court, which leave shall only be granted where the High 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.

(ii) This paragraph shall not apply to a determination of the High Court, in so far as it involves a question as to the validity of

any law, having regard to the provisions of the Constitution.”

8. That provision replaces the virtually identical provisions of section 19(3) of the Local Government (Planning and Development) Act,

1992. This form of restriction on the right of appeal had, prior to 1992, appeared only in section 29 of the Courts of Justice Act, 1924.

However, since 1992, according to a list furnished by counsel at the hearing, the Oireachtas has resorted to it in at least eight other

statutory contexts, all of them concerning essentially civil matters. These are listed in the judgment of Denham J. All these cases

concern appeals from High Court decisions in cases of judicial review of various categories of administrative decisions.

9. It is appropriate, at this point, to mention section 29 of the Courts of Justice Act, 1924, from which the wording of the provision

under consideration is clearly borrowed. That section concerns the circumstances in which an appeal may be taken to this Court from

the Court of Criminal Appeal. It reads:

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that

the 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, in which case an appeal may be brought to the Supreme Court, the decision of which

shall be final and conclusive.”

10. The Court of Criminal Appeal was newly established under the Constitution by section 3 of the Courts (Establishment and

Constitution) Act, 1961. The Courts (Supplemental Provisions) Act, 1961 transferred the jurisdiction of the former Court of Criminal

Appeal to the newly established court and applied the corpus of earlier enactments, including section 29 of the Act of 1924, which

had applied to the former court. Thus, in practical terms, the Court of Criminal Appeal is very much the same court as was created in

1924. This Court has considered the interpretation of section 29 in two cases.

11. The dictum of Walsh J in People (Attorney General) v Giles [1974] I.R. 422 may, strictly speaking, have been obiter. The other

two members of the Court refrained from expressing a view on the limits of section 29. However, as I will show below, that judgment

has now received definitive approval. Walsh J analysed the language of section 29 as follows, at page 427:

“It is important to note that the wording of s. 29 of the Act of 1924 refers to "the determination by the Court of Criminal

Appeal" and "the decision." It speaks of "the determination" by the Court of Criminal Appeal being final and conclusive unless a

certificate is given which states that an appeal should lie. The appeal lies against the decision of the Court of Criminal Appeal

and there is nothing in the statute which confines it to the point of law certified, if any. The decision "involves" the point of

law but, according to the Act, it is against "the decision" that the appeal lies. The "point of law" is not the decision. The

decision is the order made in respect of the conviction and/or sentence, as the case may be.”

12. Walsh J examined in detail the cases in which appeals had been taken to the Supreme Court from the Court of Criminal Appeal. He

summarised the history of practice regarding appeals under the section at page 428:

“In my experience it has always been the practice when an appeal was brought to this Court, or to its predecessor, pursuant

to a certificate granted under s. 29 of the Act of 1924, to serve a notice of appeal and to set out the grounds of appeal and

these were not confined to the point mentioned in the certificate. Furthermore, there have been many cases in which points

other than the one appearing in the certificate were argued before and considered by the Court. Until the present case, I

have never heard it suggested that the appeal had to be restricted to the point of law specified.”

13. He also cited the decision of the House of Lords in Milne v. Commissioner of Police for the City of London [1940] A.C. 1. to the

effect that the House was not bound on an appeal brought pursuant to a certificate granted under s. 1, sub-s. 6, of the Criminal

Appeal Act, 1907 to limit the appeal to the certified point. Other parts of the judgment concerned the distinction between appeals

against conviction and against sentence, which do not arise in this case. He concluded at page 436:

“Once the appellant has a right of appeal, he is dominus litis in the sense that he controls the scope of the appeal in respect of

the decision from which the appeal is taken.”

14. Ths Court considered section 29 in the case of People (Director of Public Prosecutions) v Gilligan (no.2), where judgment was

delivered on 10th July 2006. In that case, the appellant had appealed to the Court of Criminal Appeal against his conviction by the

Special Criminal Court on a number of counts for drug-related offences. That court certified certain points relating to his conviction

pursuant to section 29. On the hearing of his appeal in this Court, he was permitted to advance all other points which had been

before the Court of Criminal Appeal. Following dismissal of his appeal against conviction, he wished to challenge the severity of his

sentence. The majority of the Court reaffirmed the interpretation of section 29 by Walsh J in Giles. Denham J, delivering the judgment

of the majority stated:

“I would follow this analysis. Section 29 provides that 'the determination' of the Court of Criminal Appeal shall be final. This

concept that the appeal is 'determined' by the Court of Criminal Appeal is reflected also in s. 33 which states that "The appeal

. . . shall be heard and determined by the Court of Criminal Appeal." The section does not permit an appeal unless it is

certified that 'the decision' involves a point of law of exceptional public importance, but it is not so limited.”

15. She pointed out that, although the dicta in Giles were obiter, “they have been applied consistently ever since as being the law.” I

should point out that my dissenting judgment related specifically to the distinction between an appeal against conviction and against

sentence. Apart from the fact that my judgment represented a minority view, the point upon which it differed has no bearing on the

interpretation of the section under consideration on the present appeal.

16. This Court has, in two judgments, referred to the predecessor of section 50(4)(f), namely section 19 of the Local Government

(Planning and Development) Act, 1992.

17. K.S.K. Enterprises Ltd. v An Bórd Pleanála and others [1994] 2 I.R. 128 concerned the two-month time limit for application for

judicial review (replaced by eight weeks in the current section). The question was whether the application for leave should be

considered as having been made when the papers were served or filed or whether the application had to be made in court in order to

comply with the time limit. In the course of his judgment on this issue, Finlay C.J., with whom the four other members of the Court

agreed, said:

“The issue before this Court is strictly confined by virtue of the provisions of the sub-sections as inserted by the Act of 1992

and by virtue of the form of certificate granted by the learned judge of the High Court to the question of the interpretation of

the section and this Court was not involved in any issue though an issue may or may not exist as to whether parties other

than the first respondent were served within the two month time limit.”

18. However, it does not appear that there was any argument on the point mentioned. The Court was not, in fact, invited to consider

any additional grounds of appeal from the High Court and was not referred to the Giles decision. This statement must, therefore, be

regarded as an obiter dictum.

19. A mere eight months later, this Court made further reference to the issue, apparently reaching the opposing conclusion and

expressly referring to Giles. In Scott and others v An Bórd Pleanála and others [1995] 1 I.L.R.M. 424, an application for leave to apply

for judicial review had been refused by Costello J in the High Court. He, nonetheless, certified that the decision involved a point of law

of exceptional public importance and that it was desirable in the public interest that an appeal be taken top this Court. However, the

order of the High Court did not specify any point of law. It was on this point that the Court expressed a view on the scope of the

appeal. Egan J, with whom Hamilton C.J. and Blayney J agreed, said:

“The absence of a precise specification of the point of law certified is not, in my view, of any great importance having regard

to the decision o this Court in People (Attorney General) v Giles [1974] I.R. 422.”

20. Egan J noted that the provisions of section 19 were “strongly analogous” with those of section 29 of the 1924 Act. He cited part

of the passage from the judgment of Walsh J quoted above and continued:

“Having regard to the words use in the relevant portion of s. 19 which compare so closely with the words in s. 29 of the

Courts of Justice Act 1924, I am satisfied that a conclusion similar to that arrived at in the Giles case should apply in the

present case and that this appeal need not be restricted to the consideration of any point of law certified. The appeal is

against the decision.”

21. At the hearing of the preliminary issue, Mr Donal O’Donnell, Senior Counsel, argued, on behalf of the appellant, that he was not

limited, in presenting the appeal, to the certified point. He was supported by Mr John Traynor, Senior Counsel, for the second-named

respondent. Mr Ian Finlay, Senior Counsel, on behalf of the first-named respondent indicated that his clients did not wish to oppose

the right of the appellants in the present case to argue the additional grounds. The section has been amended, with future effect, by

sections 49 and 50 of the Planning and Development (Strategic Infrastructure) Act, 2006. (I agree with the observations of Denham J

regarding that section.) However, Mr Finlay agreed to present arguments to assist the court.

22. Mr O’Donnell presented arguments under the following general headings:

1. The words of the statute do not limit the appeal to the points certified;

2. The section makes a clear distinction between the right to appeal and the scope of the appeal, once an appeal is allowed;

3. This is not, unlike the case of an appeal from the Court of Criminal Appeal, a case of a right of appeal conferred by statute;

it is conferred by the Constitution;

4. No discernible statutory purpose is served by limiting the scope of the appeal;

5. The wording of the section at issue has been the subject of repeated judicial interpretation; this legal history is relevant in

the interpretation of the words; the legislature may be presumed to have intended to use the words in the sense in which they

have been judicially interpreted.

23. Mr Traynor argued that the right to appeal from all decisions of the High Court is conferred by Article 34.4.3 of the Constitution.

He relied on the dictum of Walsh J in People (Attorney General) v Conmey [1975] I.R. 341 to the effect that any limitation on the

right or scope of appeal would have to be “clear and unambiguous.” To the same effect, he referred to the judgments in the case of

A.B. v Minister for Justice Equality and Law Reform [2002] 1 I.R. 296.

24. Mr Finlay submitted that the legislative intention behind the provisions was to reduce the possibility of insubstantial appeals and

generally to restrict access to the appeal process. Section 50(4)(f) enacts a double or cumulative test. The point of law to be

certified must be of exceptional public importance. In addition, it must be in the public interest that the decision of the High Court be

appealed. He pointed out that the consequence of Mr O’Donnell’s argument was that, once a point of law is certified, there is an

unfettered right of appeal. Uncertified points of appeal may be added without limit. The appellant may even abandon the certified

point and argue other uncertified ones. He accepted, however, that the words of the section do not preclude argument of uncertified

points. He accepted that the words were ambiguous and conceded that it was difficult, in those circumstances, to describe them as

“clear and unambiguous.”

Conclusion

25. Article 34, section 4 of the Constitution provides:

"1 The Court of Final Appeal shall be called the Supreme Court.

2 The president of the Supreme Court shall be called the Chief Justice.

3 The Supreme Court shall, 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.

4 No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to

the validity of any law having regard to the provisions of this Constitution . . .

6 The decision of the Supreme Court shall in all cases be final and conclusive."

26. The primary rule is clear. The Supreme Court is to have “appellate jurisdiction from all decisions of the High Court.” (emphasis

added). The Oireachtas has power, however, to make exceptions to this rule or to subject it to regulation. It is notable that no

exception can be created in respect of any High Court decision “which involve questions as to the validity of any law…” This exclusion

applies whether the decision is in favour of or against the validity of a law.

27. In People (Attorney General) v Conmey, appellant had been convicted by a jury in the Central Criminal Court of manslaughter.

Following an unsuccessful appeal to the Court of Criminal Appeal and failure to apply for or obtain a certificate of leave to appeal from

that court, the appellant applied for an extension of time for appeal to the Supreme Court. Walsh J, with whom O’Higgins C.J. and

Doyle J agreed, considered firstly whether an appeal lay to this Court in respect of the conviction and sentence imposed by the

Central Criminal Court, prior to any consideration of the extension of time. Walsh J pointed out that the conviction and sentence had

been imposed in the Central Criminal Court, i.e., the High Court exercising criminal jurisdiction. He continued, at page 360:

“Therefore, it appears to me that an acquittal, or a conviction and/or sentence by the High Court, is a decision of the High

Court which is within the appellate jurisdiction of this Court unless it has been excepted from that appellate jurisdiction by an

Act of the Oireachtas. No express exception has been made by any Act of the Oireachtas in respect of decisions of the High

Court in the exercise of its criminal jurisdiction.”

28. He then referred to the submision of the Attorney General that, while there was no express ststutory exception to the appellate

jurisdiction of the Supreme Court, one must be implied from “from the statutory provisions in relation to the jurisdiction of the Court

of Criminal Appeal.” He then commented:

“Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as

its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court, or any particular

provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and

unambiguous. The appellate jurisdiction of this Court from decisions of the High Court flows directly from the Constitution and

any diminution of that jurisdiction would be a matter of such great importance that it would have to be shown to fall clearly

within the provisions of the Constitution and within the limitations imposed by the Constitution upon any such legislative

action.”

29. The case of A.B. v Minister for Justice Equality and Law Reform concerned the interpretation of section 5(2) of the Illegal

Immigrants Trafficking Act, 2000. For practical purposes, that section is on all fours with that under consideration in the present

case. The right of appeal is subject to the same certification requirements as are imposed by section 50(4)(f) of the 2000 Act. The

appellant wished to appeal against an order refusing an extension of the time-limit (fourteen days in that case).

30. Keane C.J. commented strongly on the apparent incongruity of enacting provisions restricting the right of appeal in respect of the

substantive judicial review decision, while imposing no limits in respect of the decision in respect of an extension of time:

“It would be remarkable if the Oireachtas, in seeking to attain those objectives, had severely circumscribed the right to appeal

to this court from decisions by the High Court on the merits of applications for judicial review, but had allowed an unrestricted

right of appeal where an applicant was, by definition, already out of time. It is all the more surprising when one has regard to

the obvious fact that, given the momentous consequences for the persons concerned, decisions to refuse asylum or refugee

status are decisions quintessentially of a nature calculated to give rise to judicial review proceedings and to an appeal to this

court, almost as a matter of routine, where they are refused by the High Court on the ground that they are out of time. It is

difficult to discern any rational basis for such a legislative choice by the Oireachtas and none was suggested in the course of

argument in this court, other than the unquestionable importance of the conferring of a jurisdiction to extend time, in the

context of the severe limitation on the right of appeal generally.”

31. Nonetheless, he proceeded (see page 303):

“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so

construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the

courts to remedy such a casus omissus , if that is what it is. That would be a weighty consideration in every case: in this

case, there is the additional factor that the right of appeal to this court provided for in Article 34.4.3 may only be removed or

abridged by a statutory provision which is clear and unambiguous…”

32. Geoghegan J, with whom Denham, McGuinness, and Fennelly JJ agreed, reviewed the authorities, including Conmey. At page 316,

he said:

“It would seem to be clear from the authorities, however, that an exclusion or regulation of the right to appeal to the

Supreme Court need not be expressed. It is a matter of construction of the relevant statutory provision in each case, but

there must not be any lack of clarity or ambiguity.”

33. At page 318, he said:

“For the right of appeal against a refusal to extend the fourteen day time limit to be ousted there must, in my view, be clear

words to that effect.”

34. It emerges from the foregoing that any legislative attempt to limit either the right or the scope of the constitutionally conferred

right of litigants to appeal decisions of the High Court must be expressed in clear and unambigouus terms.

35. I turn then from these constitutional considerations to the actual wording of the provision. Section 50(4)(f) of the the 2000 Act

creates an exception to the appellate jurisdiction of the Supreme Court. Such an exception is expressly permitted by Article 34,

section 4 of the Constitution. There can be no appeal without of a certificate. The section also regulates the right of appeal, which is

also permissible. Mr O’Donnell argued powerfully that the Oireachtas had made a distinction between the right to appeal and the

scope of the appeal. It is undoubtedly possible to discern such a distinction in the wording of the provision. It is less easy to divine

any logic in that distinction. An appellant, armed with a certificate may argue any additional ground of appeal which satisfies the

normal requirements. Such an appellant may fail on the certified point (as pointed out in argument, he may even abandon it), but

succeed on one or more uncertified points. A litigant who is denied a certificate is debarred completely, though he may have other

meritorious grounds. Moreover, there is no necessary correspondence between the public and private interests involved. The High

Court must be satisfied not only that the decision “involves a point of law of exceptional public importance” but, in addition, “that it

is desirable in the public interest that an appeal should be taken to the Supreme Court.” Thus the certified appellant is permitted to

avail of the public interest to advance his private interests. That is unobjectionable, insofar as reliance on the certified point is

concerned. The two interests coincide. Where they do not, and there is no public interest in the appeal, the appellant with a

certificate may advance his private interests, whereas a disappointed litigant who fails to secure one may not.

36. These points might carry considerable weight, if the entire matter were res integra, and there was no legislative and judicial

history.

37. At the same time, I am satisfied that the wording actually used does not bar reliance on uncertified points. As Keane C.J. said in

the passage I have quoted from the A.B. case, “it is to the words used by the legislature that we must have regard…” The High

Court certifies that the “decision involves a point of law of exceptional public importance…” No words in the section limit the appeal

to the certified point. The High Court certifies “that it is desirable in the public interest that an appeal should be taken.” It would

have been very easy for the Oireachtas to specify that the appeal was limited to that point. The legislature has chosen not to do so.

38. In addition, there is considerable force in Mr O’Donnell’s submission regarding the effect of the legal and judicial history of the

provision. The legislature chose a wording which had been used, mutatis mutandis, but effectively in identical terms in section 29 of

the Act of 1924. The decision in Giles was in existence since 1974. Even if it could have been considered in itself to have been obiter,

the internal evidence suggests that the interpretation of Walsh J had been accepted for many years. This is apart altogether from the

fact that the House of Lords had authoritatively interpreted the corresponding provision in English law to the same effect.

39. So far as the 1924 Act is concerned, the authority of the Giles interpretation has been put beyond doubt by the decision of this

Court in Gilligan’s case.

40. Even more potently, the Oireachtas chose the 1924 formula when, for the first time, it legislated to place limits on judicial review

and appeals from judicial review decisions in planning matters. Section 19 of the 1992 Act was then interpreted authoritatively in

Scott v An Bórd Pleanála and others. I do not consider that dictum to be obiter. The use of the Giles interpretation was carefully

considered and was relevant to the actual decision. Egan J considered that the absence of the certified point from the High Court

order was not fatal, because, on the authority of Giles, the appellant would have been entitled to argue any point whether or not

certified. I do not believe the K.S.K. decision represents contrary authority. Firstly, it is not absolutely clear that the Court was

addressing the point at all. Secondly, there is no indication that the point actually arose in the case. Thirdly, Giles is nowhere

mentioned.

41. In this legal context, the re-enactment of the relevant provisions of section 19(3) of the 1992 Act in 2000 must be regarded as

indicative of a legislative intention to continue the interpretation which had been generally and consistently followed to date.

42. It was in this context that Mr O’Donnell submitted that the Oireachtas must be presumed to have enacted the legislation in the

knowledge of the legal and judicial history of the wording and with the intention, or al least on the assumption that it would be

accorded the same meaning. The proposition is thus expressed in Bennion, Statutory Interpretation, (Fourth Ed. Butterworths,

London, Dublin and Edinburgh 2002):

“Under the Barras principle, [referring to Barras v Aberdeen Steam Trawling and Fishing Ltd [1933] A.C.] where an Act uses a

form of words with a previous legal history, this may be relevant in interpretation. The question is always whether or not

Parliament intended to use the term in the sense given by this earlier history.”

43. It is true that Henchy J, in his judgment in Inspector of Taxes v Kiernan [1981] I.R. 117 at 123 said that the principle must be

subject to considerable qualification. It does not give automatic blessing to erroneous interpretations. However, in the present

circumstances, there is powerful evidence that the Oireachtas adopted a provision for which there was well-established authoritative

and consistent interpretation.

44. Consequently, I am satisfied that the appellant is not confined to arguing the certified point. He may advance any other ground of

appeal which properly arises from the decision of the High Court.