The Supreme Court recently handed down their judgement on 24th February 2015 in the case of Mary Stokes (on Behalf of John Stokes a Minor) and the Christian Brothers High School in Clonmel (Appeal Number 184/2012). The Equality Authority were Amicus Curiae in the proceedings.
Justice Hardiman noted that the case related to the admission policy of the respondent School, the Christian Brothers High School, Clonmel which had been litigated at length.An oral hearing took place before the Equality Tribunal in November 2010 which upheld the complaint on the basis of the “parental rule”, a rule which gave a certain priority to applicants who were the children of past pupils. The School subsequently appealed to the Circuit Court and the appeal was successful and the decision of the Director was set aside. Mrs. Stokes subsequently appealed to the High Court “on a point of law” on behalf of her son. The Equality Authority applied for and was granted leave to appear at the appeal as Amicus Curiae. The decision of the High Court was delivered on the 3rd February, 2012 and the appeal was dismissed.
The school stated no appeal lies to the Supreme court however Mrs Stokes sought to rely firstly on Article 34.4.3 of the Constitution which provides:
“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…”.
Legal provisions affecting the Appeal.
Section 28 of the Equal Status Act 2000 provides to either side a right of appeal from the Director to the Circuit Court. It provides:
“28(1) Not later than forty two days from the date of a decision of the Director under s.25, the complainant or the respondent involved in the claim may appeal against the decision to the Circuit Court by notice in writing specifying the grounds of appeal.
(2) In the determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).
(3) No further appeal lies, other than an appeal to the High Court on a point of law”.
The School was successful in the Circuit Court in setting aside the Order of the Director. The Court noted that an appeal from this decision lies to the High Court “on a point of law” but “No further appeal lies” by virtue of the provisions of subsection (3).
Justice Hardiman noted that “there is no doubt in my mind but that the purported appeal to this Court would be a “further” appeal. It would be “further” to the School’s appeal from the Director to the Circuit Court and to Mrs. Stokes appeal from the Circuit Court to the High Court “on a point of law”. Any appeal after that, in the same matter, is necessarily a “further” appeal. It is a “further” appeal, most fundamentally, because there have already been two previous appeals. But the statute says that “no further appeallies””
He further noted that a statutory restriction of the right to appeal to the Supreme Court must be expressed in clear language and he followed a dictum to that effect of Keane C.J. in
A.B. v. Minister for Justice Equality and Law Reform  1 I.R. 296
where the learned Chief Justice said:
“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…”.
Justice Hardiman observed that “…there is anything which is unclear, or which is ambiguous, in the following very simple form of words:“No further appeal lies…”……” He noted that the only exception to this was the phrase “… other than an appeal to the High Court on a point of law” which had already been exercised by Mrs Stokes and which was unsuccessful. Justice Hardiman noted that in his view “no further appeal” now lay and the single appeal provided by way of exception to the general rule had been exhausted.
He further noted that the terms of section 28 were absolutely neutral as between the parties.He observed that in the interest of the parties and the community as a whole that there must be some limit to litigation and then went on to consider appeals from the Circuit Court in general and noted that in the majority of civil appeals from the Circuit Court to the High Court, there were no further appeals to the Supreme Court. He referred to the general right of appeal from the Circuit Court to the High Court in a Civil case which is regulated by Part III of the Courts of Justice Act, 1936. Section 38(1) provides:
“An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this part of this Act) of the Circuit Court in a Civil action or matter.”
Section 39 further 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”. He noted that this form of words manifestly excluded any appeal to the Supreme Court.
Justice Hardiman noted that a right of further appeal is excluded unless in could be shown that the words “No further appeal shall apply” could be regarded as unclear or ambiguous. He stated that words would be given their ordinary meaning unless the contrary intention appears and this was known as the “literal rule”. He noted there had been considerable changes in the mode of statutory interpretation over the years most notably the Interpretation Act 2005 which was based on the Law Reform Commission’s paper on Statutory Drafting and Interpretation which argued for the retention of the literal rule as the primary rule of statutory interpretation. It does however suggest a more purposive form of interpretation where a statutory provision is ambiguous under Section 5 was not applicable unless it could be shown that Section 28 of the Act of 2000 was obscure or ambiguous.
Justice Hardiman noted that he regarded the phrase ““no further appeal shall lie…” as perfectly clear and definite in meaning, and entirely lacking in ambiguity. He noted that one of his colleagues considered that the language of s.28(3) was not “sufficient to exclude an appeal to this Court” on the basis that “… it might be argued that the phrase ‘no further appeal’ is simply designed to limit the scope of appeal to the High Court rather than to preclude what would otherwise be a constitutionally conferred right of appeal to this Court”. Justice Hardiman however noted that “…It is that appeal, which is (a) to the High Court and (b) on a point of law, which is the sole exception to the main provision of s.28(3)” and that….”I am convinced, the legislature means what it says. If it were simply desired to limit the appeal to the High Court to an appeal on a point of law, it would be quite unnecessary to provide that “no further appeal lies”.
Justice Hardiman observed that there was a sound policy basis for the limitation of litigants to a full hearing, a full appeal by rehearing on the merits and a further appeal “on a point of law” but he did observe that the legislature had not been consistent in this matter and referred to Section 123(3) of the Residential Tenancies Act 2004 and Section 26 of the Data Protection Acts 1988 and 2003.
He noted….”I believe that the right of appeal to this Court, after the three previous hearings, has been barred by clear and unambiguous words“. He noted however that “….in my view the construction of the Statute in question here, in its application to private schools, whether fee-paying or not, will have to be considered in terms not merely of the statutory words but of the applicable constitutional provisions. Article 42 of the Constitution is concerned with Education. Amongst other things the Article acknowledges the Family as “the primary and natural educator of the child”, and refers to “the inalienable right and duty of the parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children”. Article 42.2 provides that parents are free to provide this education “in their homes or in private schools or in schools recognised or established by the State”. Article 42.3.1 says that the State “shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State or to any particular type of school designated by the State”. Article 42.4 provides that the State “shall endeavour to supplement and give reasonable aid to private and corporate educational initiative””.
He referred to the case of
A.B. v. Minister for Justice  I.R. 296
where Justice Keane observed “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”.
Justice Hardiman concluded that he believed these words “must be in the forefront of our deliberation on this point” and “It is, frankly, unclear (at least to me) why an untrammelled right of appeal was excluded in one case and preserved in the other, or preserved in one case and excluded in the other. But that, at least in the absence of a constitutional challenge, is entirely a matter for the legislature. It is not for a court to challenge that body’s policy choices, any more than it is for the legislature to challenge the decision of the Courts in a matter constituting an administration of justice, and of which the Courts are properly seised“.
The appeal does not lie for the reasons set out above.