Supreme Court dismisses motion to join TDs as parties to appeal due to lack of necessity and procedural conflict.

THE SUPREME COURT

[Appeal No: 32/2013]

Fennelly J.

McKechnie J.

MacMenamin J.

Between/

David Hall

Applicant

and

Minister for Finance, Ireland, the Attorney General and the Central Bank of Ireland

Defendants/Respondents

and

The Irish Bank Resolution Corporation and

The Educational Building Society Limited

Notice Parties

Judgment of Mr. Justice Fennelly delivered on the 20th day of February, 2013.

1. The Court has before it a motion brought by five persons, all Teachtaí Dála, who seek to be joined either as appellants or as notice

parties to an appeal pending before the court. The application is made pursuant to Order 15, Rule 1 and/or Rule 13 of the Rules of the

Superior Courts (S.I. No. 15 of 1986).

2. The appeal is taken by the appellant from the judgment of the President of the High Court delivered on 31st January 2013. In that

judgment, the learned President dismissed the appellant’s challenge to the validity of the mechanisms or procedures whereby the

first-named Respondent, the Minister for Finance (hereinafter “the Minister”), provided financial support to three financial institutions

arising from the financial crisis which has engulfed the nation since 2008.

3. The appellant claimed that the Minister did not have the power to issue the so-called promissory notes, in a total sum of €30.6

billion, as consideration for the capital provided by the State to the former Anglo Irish Bank and Irish Nationwide Building Society (later

both subsumed in the Irish Bank Resolution Corporation).

4. The appellant contended before the High Court that provision of financial support pursuant to s. 6(1) the Credit Institutions

(Financial Support) Act 2008 constituted an appropriation of revenue or other public monies within the meaning of Article 17 of the

Constitution, which was unlawful in the absence of a resolution of the Dáil. It was common case that there was no such resolution. In

the alternative, if the Minister had such power, the appellant claimed that the section was unconstitutional.

5. The appellant had instituted the proceedings as a citizen. He is not a member of either House of the Oireachtas. The Minister and

the other defendants pleaded in their defences that the appellant lacked the necessary locus standi to maintain the proceedings. The

submission made on behalf of those defendants was that the appellant did not claim any loss, damage or prejudice over and above

any other citizen: he was seeking to police Oireachtas procedures; his claim was that the rights of Dáil Éireann and its members had

been by-passed by the failure of the Minister to seek a resolution of the Dáil in accordance with the constitutional provisions; such a

claim, they submitted, could be maintained only by a member of the Dáil.

6. The learned President considered the authorities on the issue of the locus standi of persons to challenge government acts or the

constitutionality of acts of the Oireachtas. He held that the appellant was endeavouring to assert a jus tertii, in effect by seeking to

advance a case which should more properly be brought, and which might well yet be brought, by an individual member or members of

Dáil Éireann. He pointed out that there were other suitable plaintiffs and no member of the Dáil was precluded from mounting the very

challenge which had been brought by the appellant.

7. The learned President dismissed the appellant’s claim, on the ground that he lacked standing, and without ruling on the substantive

issues. He did not rule on the validity of his challenge either to the lawfulness of the Minister’s acts or the constitutionality of the

statutory provision on which he relied.

8. The appellant has served notice of appeal against the judgment of the learned President and the consequent order of the High

Court made on 1st February 2013.

9. The scope of the appeal is crucial to the present motion. It has three aspects. In the first instance, the appellant asks this Court

for a declaration that he has the requisite locus standi to pursue his claim. Success on this ground would thus reverse the ground on

which the High Court dismissed his application. Secondly, he asks for an order, “if necessary, should this Court decline to determine

the substantive issues absent a determination at first instance, remitting the matter to the High Court for determination of the

substantive issues in the proceedings.” In this way, the appellant recognises that this Court, by virtue of its exclusively appellate

jurisdiction, will rarely entertain on appeal an issue of law which has not been decided by the High Court.

10. In addition, however, the appellant invites the Court in what he describes as “the special circumstances of this case having

regard both to the urgency and the public interests arising, to make such further or other order as ought to have been made in the

High Court…” Assuming that the Court accepts that invitation, the appellant seeks declarations effectively granting him the relief

which he had sought but which had not been determined in the High Court.

11. The five applicants are all members of Dáil Éireann. In that capacity they are indisputably endowed with the standing which

counsel for the Minister persuaded the learned President was necessary to maintain the present proceedings. Each applicant has

sworn a grounding affidavit from which it is clear that he or she is aggrieved at the fact that Dáil Éireann was not consulted about

and had not approved the making and issuance of the promissory notes. Each applicant is motivated by a wish to see important

issues raised in the proceedings determined and to avoid uncertainty and delay as well as to avoid further expensive litigation in the

event that the substantive issues are not determined by reason of an issue of standing.

12. The appellant does not object to the applicants being joined with him as appellants or notice parties.

13. Counsel for the applicants fully accepted, at the hearing of the application, that, in the event that they are joined to the

proceedings, they will not be permitted to advance any arguments other than those already put forward on behalf of the appellant in

the High Court. More significantly, counsel also stated that the applicants would not seek to argue in this Court at the hearing of the

appeal that the Court should grant the substantive reliefs sought in the High Court. That should not be seen as a concession. It

accords with the apparent acceptance by the appellant that it is only in exceptional circumstances that this Court will entertain

argument on appeal on issues not decided by the High Court.

14. In these circumstances, counsel for the applicants explained their objective, in the event that they are joined as parties to the

appeal.

15. The first objective is that they wish to support the appellant by submitting that he, the applicant, has standing, as a citizen,

without being a member of Dáil Éireann, to maintain the proceedings.

16. The second objective is that, in the event that this Court should dismiss the appellant’s appeal against the High Court finding of

his lack of standing, the applicants will ask the Court to remit the entire matter to the High Court in order to determine the

substantive issues.

17. Counsel submitted that the applicants, being elected members of the national parliament, one of the arms of government under

the Constitution, have the requisite standing to argue in support of rights protected by the Constitution.

18. In considering the application, it should be noted, in the first instance that the application is made pursuant to Order 15 of the

Rules of the Superior Courts. It is accepted, in addition, that the Court has inherent jurisdiction to join parties to an appeal when the

interests of justice require it.

19. Rule 1 of that Order provides that all “persons may be joined in one action as plaintiffs in whom any right to relief in respect of or

arising out of the same transaction or series of transactions is alleged to exist………………” This rule is primarily concerned with the

commencement of proceedings. The more appropriate rule regarding the adding of new parties to existing proceedings is Rule 13,

which provides, in relevant part:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in

every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties

actually before it. The Court may at any stage of the proceedings, either upon or without the application of either

party, and upon such terms as may appear to the Court to be just, order that the names of any parties improperly

joined……be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have

been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and

completely to adjudicate upon and settle all the questions in the cause or matter, be added.”

20. While it is true that Order 125, Rule 1 defines the Court generally to mean the High Court, it is clear that this provision must be

taken as applying, where necessary, to the Supreme Court. The absence of an equivalent power in the Supreme Court to add or

strike out parties would leave an obvious lacuna in the power of this Court. The definitions in Order 125, Rule 1 are subject to the

proviso: “unless there is anything in the subject or context repugnant thereto [i.e., to the Rules]. In addition, Order 58, Rule 8

provides that the “Supreme Court shall have all the powers and duties as to amendment or otherwise of the High Court………”

21. These rules do not directly address the question of joinder as party to an appeal of a person who has not, voluntarily or

otherwise, participated in the hearing of the High Court. It is clear that the Supreme Court has inherent jurisdiction to join a party to

an appeal at any stage where the justice of the case requires it. Adapting the language of Rule 13 to the joining of a party to an

appeal it is clear that the purpose of the Rule is “to enable the Court effectually and completely to adjudicate upon and settle all the

questions in the cause or matter be added.” The “cause or matter” is the appeal.

22. It is clear that it is necessarily only in exceptional circumstances that this Court will permit the joinder of a new party or notice

party to an appeal. The jurisdiction of this Court is exclusively appellate. It has no jurisdiction hear a case at first instance. It follows

that it will not, save in exceptional circumstances , hear arguments or decide issues that were not part of the proceedings in the High

Court. It departs from these rules only in exceptional circumstances and where the justice of the case demands it. There are very

few reported examples. (See Delaney & McGrath, Civil Procedure in the Superior Courts, 3rd Ed., (Dublin, 2012) from 6-33 to 6-41).

23. The best known case is O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39. In that case, a challenge by way of judicial review to a

decision to grant planning permission was brought in the High Court. The beneficiary of the grant of planning permission was not made

a notice party and did not apply to be joined. The High Court made an order quashing the decision. An Bord Pleanála appealed. The

grantee of the permission applied to be joined as notice party to the appeal. The Supreme Court permitted it to be so joined subject

to the strict proviso that it could not advance any argument in addition to those which had been advanced by An Bord Pleanála, the

appellant, in the High Court. In that case, the new party wished to argue in support of the decision of the appellant and in support of

the High Court decision quashing it. If it succeeded, which it did, the decision of An Bord Pleanála would be upheld. No question of

remittal to the High Court arose.

24. In the case of T.D.I. Metro Limited v District Judge Delap and others [2000] 4 I.R. 337, the Attorney General was permitted to

intervene in an appeal by a local authority as notice party against a High Court decision holding that it did not have the power to

bring a prosecution on indictment. But the essential ground for the joinder of the Attorney General was that he had a role in

protecting the public interest in relation to the matter of the prosecution of offences. (see the judgment of Denham J., as she then

was, at pages 344 and 345).

25. It is necessary to consider the present application in the light of the particular reasons advanced in the application and at the

hearing. It is not in question and was not disputed on behalf of the respondents at the hearing of the motion that the applicants have

a genuine and honest interest in the key question at the core of this litigation. That is whether the Minister is lawfully and

constitutionally entitled to undertake liability on behalf of the State pursuant to the promissory notes.

26. At one level, the present application might be presented as a very simple one. The appellant failed in his case in the High Court

essentially because he was not a member of the Dáil. The applicants are members of the Dáil. Their joinder can solve that problem.

The equally simple answer might be that the applicants could have applied but did not apply to be joined as parties in the High Court.

The problem is that the case is now at the appeal stage in this Court.

27. The question for this Court on the present application is whether the Court should exercise its jurisdiction to join as parties to the

appeal persons who were not parties, and did not apply to be made parties, to the proceedings in the High Court. As is apparent from

O’Keeffe v An Bord Pleanála, the Court will, in exceptional circumstances, permit the joinder of a party to an appeal whose own

personal or financial interests are genuinely at stake on the appeal.

28. In this context, it is important to take account of the arguments advanced for the applicants.

29. The first argument on behalf of the applicants is that they wish to support the submission of the appellant that he has, as a

citizen, and, therefore, that he had in the High Court, the locus standi requisite to maintain the proceedings. That is, of course, the

appellant’s own case on appeal. It is a case which he will prosecute through his own counsel. It is a question of law. A legal argument

depends on its merits. Its persuasiveness is unaffected by whether it is advanced by one person or by many. Thus the addition of the

applicants as appellants adds nothing to the strength of the legal argument. On this point, the applicants have no interest over and

above or different from that of the appellant himself. Indeed, insofar as their interest is different, that is precisely because, unlike the

appellant, they have the standing which the learned President held to be necessary to be able to maintain the proceedings. Thus, the

undoubted distinct standing and interest of the applicants as members of Dáil Éireann and as public representatives is irrelevant to

the appellant’s argument on the appeal. It does not give them any standing to become parties to the appeal. Their position is sharply

distinguishable from that of the holder of the grant of planning permission in O’Keeffe v An Bord Pleanála, which had a tangible

economic property interest in the subject-matter of the appeal. Insofar as the first argument is concerned, the applicants are fellow

citizens of the appellant, but no more. Unlike the Attorney General, they do not enjoy any special role or status under the

Constitution or otherwise to protect the public interest in the proper interpretation and application of the law.

30. It should be added that, in the event that the appellant succeeds in his appeal against the finding of lack of standing made by

the High Court, it seems inevitable that the proceedings would be remitted to the High Court to enable the appellant to ask that Court

for a decision on the substantive issues. The problem of the appellant’s standing will have been resolved in the sense that it was not

necessary for him to have been a member of the Dáil. At that stage, nonetheless, it would be open to the High Court, always within

the range of its discretion, to join the applicants or any other appropriate parties to the proceedings. Whether they would be

necessary parties to the proceedings at that stage would be a matter for the High Court.

31. The second argument of the applicants comes into play only in circumstances where the appellant fails in his appeal against the

finding of his own lack of standing. In that event, the applicants, having been joined as parties to the appeal, would, it seems from

counsel’s argument, seek to have the proceedings remitted to the High Court for a decision on the substantive issues. Since they,

unlike the appellant, would have locus standi, they could continue the proceedings in the High Court. In that situation, the applicants

would become substitutes for the appellant who would have failed in his appeal to this Court and would no longer be a party. Their

joinder would not be in support of but in substitution for the appellant and, moreover, they would be substituted not for prosecution

of the appeal in this Court (which would have failed) but for the further prosecution of the substantive proceedings in the High Court.

32. These difficulties are more than procedural. They are fundamental. On the hypothesis where the appeal would have failed, it is

difficult to see that anything remains to be remitted to the High Court. Axiomatically, the appellant himself could not remain as party

to the proceedings. To permit the applicants, in the capacity of added appellants, then to substitute themselves for the original, but

now unsuccessful, appellant, not on the appeal, but to continue a proceeding in the High Court, to which they had never previously

been party would be a proceeding without precedent. It would conflict with the principle that the Supreme Court should join a new

party to an appeal under its inherent jurisdiction only exceptionally and so as to conflict as little as possible with its essentially

appellate jurisdiction. Viewed in that light, the joinder of the applicants would not be, as envisaged by Order 15 Rule 13, be

“necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions in the cause or

matter” before the Supreme Court, namely the appeal, but for the purpose of providing a party with standing to the High Court

proceedings. But those proceedings have already been determined at the present stage. In the future situation envisaged here, the

appeal will have failed. It is impossible to justify an order of joinder of the applicants as parties to the appeal for that essentially

ulterior purpose.

33. Something should, nonetheless, be said about the question of economy and efficiency advanced by counsel for the applicants.

The applicants point to the fact that a hearing has taken place in the High Court at which evidence was presented and argument

heard on the substantive issues. In the event, these issues were not decided simply because the appellant failed for what was held

to be lack of locus standi. It is said, quite plausibly, that it would be a waste of resources both of the courts and of the parties if

there had to be a duplicate or repetition of these procedures. That could happen, it is said, if the case had to be recommenced and

reheard in the High Court following an appeal in which the appellant was unsuccessful. Presumably, so the argument would go, if he

succeeded on his appeal, the case could be remitted for decision without further evidence or argument.

34. These are all cogent but not necessarily conclusive considerations. In the scenario, where the appellant failed in his appeal and

the matter was remitted with the applicants as substitute plaintiffs, there would have to be wide-ranging agreements by new parties

(apart from the defendants) to be bound by procedures to which they had not been parties. Such agreement is not to be excluded. I

am sure the High Court would approach the matter in a constructive spirit.

35. However, I am satisfied that the present application does not come within the purpose of the Rules and is not one which should

be granted. When properly analysed the essential purpose of the joinder sought is not participation in the appeal but in a possible

future procedure, if the matter is remitted to the High Court. On the other hand, it should, in fairness, be said that the applicants

have demonstrated the genuineness of their concerns by the mere act of bringing the application. However, for the reasons given, I

would dismiss the application.