The Court of Appeal has refused Kevin Gormley’s appeal over a High Court decision denying him access to the digital audio recording (DAR) of a hearing in his appeal against a possession order.
In a judgment delivered on 12 March 2020, Mr Justice Murray said the Court of Appeal had jurisdiction to hear the challenge. But he dismissed it, concluding that the repeated application for the recording had been refused properly.
The Governor and Company of the Bank of Ireland had sought possession of property at Edenderry, Co Offaly. The Circuit Court granted an order for possession on 16 January 2019. The High Court affirmed that order after hearing Gormley’s appeal on 20 May 2019, while extending a stay on execution for 12 months from that date.
Gormley later sought the recording of the High Court hearing. His first application was refused on 25 June 2019. He made an identical application later that day, and the High Court refused it again on 8 October. His appeal to the Court of Appeal challenged only the October decision.
The Bank argued that section 39 of the Courts of Justice Act 1936 prevented the Court of Appeal from hearing the challenge. That section makes High Court decisions on appeals from the Circuit Court final and not appealable. Murray J distinguished the recording request from orders made to advance or form an integral part of the underlying appeal. The recording application could be made after that appeal had concluded, did not depend on an issue decided by the Circuit Court, and was not necessary to advance either party’s position in that litigation. The court therefore had jurisdiction to consider the appeal.
On the merits, Murray J said access to a DAR is not automatic, even for a party, and must be justified as being in the interests of justice. He found Gormley had not identified a proper basis for access. His stated reason was to help him present his case before an appellate court, but the judgment said no appellate court had jurisdiction to hear such a case. The court also found he had not shown an error in the High Court judge’s exercise of discretion.
Finally, the October application and supporting affidavit were identical to those for the June application, which had not been appealed. Gormley identified no good reason or material change in circumstances to justify repeating it. The Court of Appeal accordingly refused the appeal.