The Court of Appeal dismissed Diarmuid MacConville’s appeal against the refusal of his application to replace Ciaran Tracey in proceedings challenging the provisional result of the 2018 referendum on the 36th Amendment.
The appeal concerned the High Court’s 26 June 2018 refusal to substitute MacConville as applicant and intended petitioner, and its refusal to refer a question of law to the Supreme Court. The Court of Appeal held that both applications were misconceived in the circumstances.
Tracey had applied for leave to present a referendum petition concerning the provisional certificate for the referendum held on 25 May 2018. Before the scheduled hearing of his leave application, he agreed with the respondents to withdraw it. The High Court then struck out the proceedings by agreement, with no order as to costs. MacConville applied to be substituted immediately after they were struck out.
The Court of Appeal said there were no proceedings within which MacConville could be substituted once the High Court had struck them out. It also rejected his reliance on section 50 of the Referendum Act 1994. The court interpreted sections 49 and 50 as applying only after a person had obtained leave to present a petition and had lodged that petition with the High Court. Tracey had neither obtained leave nor presented a petition; his application was only for leave to present one.
The statutory deadline also prevented MacConville from making his own application for leave. Under section 42, an application had to be made within seven days of publication of the provisional referendum certificate. The court said MacConville was outside that time limit and there was no provision to extend it.
The court also upheld the refusal to refer a question to the Supreme Court under section 55. That provision applied to a question of law arising during the trial of a referendum petition; no petition was being tried in this case.
The judgment addressed the legal route for substitution and the procedural status of Tracey’s application. It did not determine the merits of any challenge to the referendum result. The court dismissed MacConville’s appeal.