The Supreme Court has refused an application by five members of Dáil Éireann to join David Hall’s appeal over State support provided through promissory notes totalling €30.6 billion.
In a judgment delivered on 20 February 2013, Mr Justice Fennelly said the application did not meet the purpose of the rules governing joinder. The court dismissed the application. It did not decide the appeal or the underlying challenge to the Minister for Finance’s actions.
Hall had appealed a High Court decision delivered on 31 January 2013. The High Court dismissed his challenge on the ground that he lacked standing to bring it, without deciding whether the Minister’s actions were lawful or the relevant statutory provision was constitutional. The High Court’s consequent order was made on 1 February 2013.
Hall’s challenge concerned financial support provided to three financial institutions during the financial crisis. He argued that the Minister lacked power to issue promissory notes as consideration for State capital provided to the former Anglo Irish Bank and Irish Nationwide Building Society, later subsumed into the Irish Bank Resolution Corporation. He submitted that the support amounted to an appropriation of public money requiring a Dáil resolution, and argued in the alternative that the statutory provision relied on was unconstitutional. The judgment records that no such Dáil resolution had been passed.
The five TDs said they were aggrieved that Dáil Éireann had not been consulted or approved the notes. They wanted to support Hall’s argument that a citizen could have standing, and, if his appeal failed, to seek a remittal so the substantive issues could be heard in the High Court. They accepted they would advance no new arguments and would not ask the Supreme Court to grant the substantive relief sought in the High Court.
Fennelly J said the TDs’ support would add nothing to Hall’s legal argument. Their separate standing as parliamentarians did not give them an interest in his appeal beyond his own. He also found that their proposed role after an unsuccessful appeal would amount to substituting themselves in High Court proceedings to which they had not been parties. That was not a sufficient basis to join them to the appeal.
The judge acknowledged the concern that evidence and argument already heard in the High Court might otherwise have to be repeated. But he concluded that the application’s essential purpose was participation in a possible future procedure, not adjudication of the appeal. The judgment leaves the substantive challenge undecided.