Supreme Court refuses leave to appeal in Gorse Hill case

The Supreme Court has refused to grant leave of appeal by retired solicitor Brian O'Donnell in relation to an order to leave his former home at Gorse Hill in Killiney.

Mr O’Donnell and his wife Dr Mary Pat O’Donnell were ordered by the Court of Appeal on April 15th to leave the mansion in south Co Dublin within two weeks.

In a determination on Tuesday afternoon, a three-judge Supreme Court said it did not grant leave to the applicants to appeal to it from the Court of Appeal.

Mr O’Donnell had sought to appeal under the provisions of article 34.5.3 of the constitution, on the basis the decision involves a matter of general public importance or that it is necessary in the interests of justice that there be an appeal to the Supreme Court.

Bank of Ireland, which is owed €71.5 million by the O'Donnells, had earlier opposed the application for a two-week stay on a High Court order that the O'Donnells vacate the property.

Cian Ferriter SC, for the bank, said it could mean they could ultimately remain in the house for an additional six to 10 weeks.

The couple were ordered to pay all costs after they lost their appeal against the High Court order.

The Court of Appeal said they may remain at Gorse Hill until noon on Wednesday, April 29th to allow them see if they can bring an appeal to the Supreme Court on a point of exceptional public importance.

In a determination on Tuesday, the Supreme Court refused to grant leave to appeal to which article 34.5.3 of the Constitution applies.

The Supreme Court court, comprised of Chief Justice Mrs Susan Denham, Miss Justice Mary Laffoy and Mr Justice John MacMenamin, said the applicants had had a full hearing in the High Court where all their issues had been aired.

“This was followed by a full appeal to the Court of Appeal, where the issues were raised, considered and decided. Thus, the applicants have exercised their right of appeal.”

It said that having considered all the issues, it had found there was no basis to grant leave to appeal either on the grounds that the decision involved a matter of general public importance, or that in the interests of justice it was necessary that there be an appeal to the Supreme Court.

The court said the application for leave to appeal was from the decision of the Court of Appeal primarily affirming the granting of an interlocutory injunction by the High Court.

The judges noted the applicants had stated they wished to appeal from the entire decision of the Court of Appeal.

They were required to set out a “concise statement of the facts found by the trial court” upon which they relied.

“However, this has not been done as the applicants set out extensive details of the High Court decision, and refer to other legal proceedings taken by the O’Donnell family concerning the property, Gorse Hill.

“The other proceedings taken by other members of the O’Donnell family are not part of this case and so are not part of this application for leave to appeal. Equally, a previous decision of this court in other proceedings is not part of this application.”

The court also said Bank of Ireland (the respondents) had filed a response on April 24th opposing the application for leave to appeal and asking the court to dismiss it.

The bank considered the decision of the Court of Appeal in the case did not involve matters of general public importance and that it was not, in the interests of justice, necessary that there be an appeal to the Supreme Court.

“The respondents submitted that the decision of the Court of Appeal is not in the category of decisions which the Constitution envisages that the Court would grant leave.”

No “novel legal issue” arises in the Court of Appeal decision, the bank had submitted.

The bank also submitted that the appeal raised issues of public importance because it involved the ability of banks and receivers to gain possession of a family home.

However, the property in question was owned by an Isle of Man company which had mortgaged its interest in the property as security for “substantial commercial borrowings”.

The applicants, in fact, had their permanent home in England and had not been living in the property up until immediately before the proceedings.

They had signed, with the benefit of legal advice, a binding agreement that they would vacate the property in the event that the security over the property was called in.

The respondents also submitted that it cannot be maintained that it was necessary in the interests of justice that there be a further appeal to the Supreme Court.

“The applicants have had two full hearings in relation to the interlocutory injunction application, in the High Court and Court of Appeal.

“Their submissions have been fully and comprehensively aired, addressed and dismissed by two courts,” the respondents argued.

During the costs hearing, Mr O’Donnell asked the court to extend the stay on the injunction to 12 weeks, saying he believed the process of seeking leave to appeal its decision at the Supreme Court could take longer than he initially thought. The court refused, saying that was a matter for the Supreme Court, and maintained the two week stay.

However, Ms Justice Mary Finlay Geoghegan, presiding, said the court had decided to grant the stay, during which time the O'Donnells could consider the ruling and bring any appeal to the Supreme Court.

In dismissing the O’Donnell appeal, the three-judge Court of Appeal court ruled Bank of Ireland had made out its case that the O’Donnells had no right of residence in the house which was use used as security on the couple’s debts.

The court said the bank made a strong case against an Isle of Man company called Vico, which the Supreme Court had previously ruled owns Gorse Hill, and that the bank's receiver Tom Kavanagh was entitled to possession of the property once Vico's entitlement came to an end.

The bank had also made out a strong case that the receiver is now entitled to an order that the O’Donnells vacate the house.