Agreement allowing UK aircraft into Irish airspace could not be subject of preliminary issue in absence of agreed facts

The Court of Appeal has dismissed an appeal from the High Court, and affirmed the refusal to hear the trial of a preliminary issue regarding an alleged agreement between Ireland and the UK, which purportedly allows UK military aircraft to enter Irish airspace for interception purposes - despite the fact that the preliminary issue had been ordered by another High Court judge. The High Court had previously directed the trial of a preliminary issue to determine if the government's executive power in relation to external security and external relations was justiciable based on the facts as pleaded. However, the High Court ultimately refused to consider the preliminary issue due to the absence of agreed facts and the State's refusal to confirm or deny the existence of such an agreement. The Court of Appeal dismissed the State's appeal, concluding that the State's application was effectively seeking to strike out the proceedings without the necessary agreement on material facts for a preliminary issue trial.