The Court of Appeal has struck out an appeal by Patrick Clohessy, ruling that section 39 of the Courts of Justice Act 1936 barred it from hearing the case. The preliminary issue was whether an appeal could be brought against a High Court order made in proceedings arising from a Circuit Court case about the estate of the late Peter Clohessy.
The estate proceedings began in Cork Circuit Court in August 2014. Valerie and Fintan Coleman, who say they are joint executors under Peter Clohessy’s will, seek to set aside caveats filed by Ann, Veronica and Patrick Clohessy and to have the will admitted to probate in solemn form. Those proceedings remain pending in the Circuit Court.
In January 2019, the Circuit Court allowed Patrick Clohessy six weeks to deliver a defence, with costs reserved to trial. He appealed that procedural order to the High Court, which struck out his appeal in November 2021. While that appeal was pending, he also sought discovery in the High Court in relation to the Circuit Court proceedings. That application was struck out after a remote hearing he did not attend. He later delivered a “Conditional Defence” in the Circuit Court.
In March 2022, Patrick Clohessy asked the High Court to set aside both earlier orders for alleged irregularity. Phelan J refused to set aside the order striking out the appeal, finding no basis to interfere. She also declined to set aside the discovery order, saying the discovery issue belonged in the Circuit Court in the first instance and was not properly before the High Court. She ordered Patrick Clohessy to pay the costs of the set-aside motion and refused a stay.
The Court of Appeal considered only whether it had jurisdiction to hear an appeal from Phelan J’s order. It held that the earlier orders, and the later refusal to set them aside, arose within the High Court’s statutory appellate jurisdiction under Part IV of the 1936 Act. Section 39 makes decisions within that jurisdiction final and not appealable, the court said. It therefore struck out the appeal.
The judgment also addressed Patrick Clohessy’s arguments that the Courts of Justice Act 1924 had not been commenced and that the statutory limits on the High Court’s Circuit Court appeal jurisdiction were unlawful. The court rejected those arguments, explaining that published copies of the 1924 commencement orders could provide prima facie evidence of their validity, and that constitutional challenges to laws must be brought in separate High Court proceedings. The court’s decision was about its jurisdiction to hear this appeal; it did not decide the merits of the estate proceedings.