By Ann O'Loughlin
A Co Leitrim man has lost his appeal aimed at allowing him seek permission to challenge the Yes result of the abortion referendum.
A conditional stay applies until August 17 on the referendum result being formally certified to facilitate any further appeal to the Supreme Court by Diarmuid McConville over the three-judge Court of Appeal's decision.
As a condition of the stay remaining in place until August 17, he must lodge by Friday next an application with the Supreme Court for leave to appeal.
Any further stay beyond August 17 will be for the Supreme Court to decide.
Mr McConville, from Dromahair, had appealed against the High Court’s refusal to allow him be substituted for Ciarán Tracey, a retired public servant of Leitrim village, after Mr Tracey last month withdrew his application for leave to bring a petition.
Mr McConville argued the president of the High Court, Mr Justice Peter Kelly, erred in law in refusing to allow him be substituted for Mr Tracey.
He maintained the Referendum Act provided for such substitution and this was a matter "of national importance".
He said he was a supporter of Mr Tracey’s and the latter had withdrawn his petition due to fears about being pursued for legal costs by the State and Referendum Commission if he proceeded with it.
Frank Callanan SC, for the State, and Eoin McCullough SC, for the Referendum Commission, opposed the appeal and insisted there was no legal basis for the substitution sought.
Having heard the sides on Tuesday, the COA ruled Mr McConville’s application to be substituted for Mr Tracey was "misconceived".
Giving the unanimous decision, Ms Justice Mary Irvine, with whom the president of the COA, Mr Justice George Birmingham and Mr Justice Michael Peart agreed, said the Referendum Act distinguishes between a "person" seeking leave to bring a petition and a "petitioner", a person who had secured leave to do so.
She said the High Court had correctly found, because Mr Tracey's proceedings had been struck out, there were no proceedings within which Mr McConville might be substituted as an applicant or intended petitioner.
The High Court also correctly ruled that, under the Referendum Act, the only person who could seek leave to present a referendum petition was someone who had applied to do so seven days after the provisional referendum certificate was published in Iris Oifigiúil.
While Mr Tracey had commenced his proceedings within that time frame, Mr McConville had not and was thus outside time, she said.
While the Referendum Act also provided a person may apply to be substituted as a "petitioner", that only applied to circumstances in which a petition had been presented and leave had been granted by the High Court to pursue it, she said.
Because Mr Tracey never got leave to present his proposed petition, the High Court had correctly found Mr MacConville's application to be substituted as petitioner was misconceived.
Costs were also awarded against Mr MacConville with a stay on the costs order to August 17.
Separately, the Court of Appeal will on August 17 hear an appeal by Joanna Jordan, from Dun Laoghaire, Co Dublin, against the High Court's refusal to permit her bring a petition aimed at overturning the referendum result. A stay preventing the result being formally certified by the Referendum Returning Officer continues pending that appeal hearing.