On 7 February, 2018 the Supreme Court issued a Determination in the case of Gearoid Costelloe v Dominic Carney & Niamh Carney  IESCDET 28 (per Clarke CJ, McMenamin J. and O’Malley J.) This Determination has kept open the possibility that an anomaly arising from the 33rd Amendment of the Constitution (setting up the Court of Appeal), which amended Article 34 of the Constitution, may give rise to a second layer of appeal for Circuit Court cases where certain criteria are met. Accordingly, the Determination has left open the possibility that in certain cases a decision of the Circuit Court can be appealed to the High Court and, thereafter, further appealed to the Supreme Court. This obviously gives rise to a possible change to the appellate structure of the Circuit Court for the first time in over 80 years.
The case itself concerned a lay litigant principal over whose company’s assets a Receiver had been appointed in November 2013, and in particular the validity of the subsequent possession taken by the Receiver of a premises in Cork City in March 2014. When the Appellant re-entered the premises by force subsequently, an interim injunction was obtained by the Receiver against him and this interim injunction was confirmed at the interlocutory stage in April 2014. Thereafter, final judgment was obtained against the Appellant in May 2015 but this decision of the Circuit Court was appealed to the High Court. Mr. Justice Noonan then upheld the Circuit Court’s decision at a High Court hearing in March 2017. In the present Appeal the Appellant sought leave from the Supreme Court to bring a full appeal to it in relation to the decision of Mr. Justice Noonan (itself on appeal) with the basis for the further appeal largely relating to whether the Circuit Court had been the correct Court in which to bring the proceedings in the first place (having regard to issues pertaining to the rateable valuation of the premises).
The Supreme Court accordingly had to determine whether it would give leave for a full appeal to be made to it of the Judgement of Mr. Justice Noonan but, in this regard and having considered the matter, concluded that the issue raised in the present matter before it was an issue that had already been determined in a previous case, being Permanent TSB Plc v Langan  IESC 71. In the circumstances the Court found “it is not necessary to consider whether the Constitutional threshold for leave to appeal is met” in this case.
However, the Court did go on to consider whether, if the normal criteria for an appeal to be heard were met, it would indeed be open to the Supreme Court to entertain an appeal of a decision of the High Court where that High Court decision was itself made pursuant to its Appellate jurisdiction.
Considering this issue the Court had regard to Section 39 of the Courts of Justice Act 1936 (“the 1936 Act”) which provides that “the decision of the High Court or of the High Court on Circuit on an Appeal under this Part of this Act shall be final and conclusive and not appealable”. The Court pointed out however that in a previous Determination in the case of Kelly v University College Dublin  IESCDET 30, it had noted that following the 33rd amendment of the Constitution, the jurisdiction of the Supreme Court to hear appeals directly from the High Court is “subject to such regulations as may be prescribed by law”. The Court noted that this appears a departure from the former position as articulated in the 1936 Act and accordingly concluded that “therefore, in the appropriate case, it may be necessary to consider the impact of this new constitutional architecture, and the consequent Appellant jurisdiction of this Court, on provisions such as Section 39 of the 1936 Act”. It went on to reiterate however that as “… the issue which it was said met the Constitutional threshold in this application has been determined by this Court in a previous decision the subsequent question of whether this Court would have jurisdiction to hear the Appeal in circumstances where statute appears to preclude such an Appeal where the Constitutional threshold was otherwise met does not require to be determined here”.
Accordingly, whilst the Court refused leave to appeal in this matter it very much left open the question of whether or not it will in the right case countenance a second appeal of a Circuit Court decision and obviously this could have very significant ramifications for all types of litigation in Ireland. Practitioners will doubtless be very interested in whatever outcome the Supreme Court will ultimately reach when a case deemed appropriate to determine this issue finally comes before it.