SUPREME COURT APPEALS

“The primary role of the Supreme Court is not to engage in error correction,” said the Irish government’s working group on a Court of Appeal in its 2009 report. “It is primarily to engage in explaining the Constitution to the People. This happens, in the adversarial system, by allowing an open, transparent and reasoned dialogue between advocates and judges and then the publishing of the reasons for the decision. We need to ensure that the process of dialogue which occurs in the Supreme Court is brought to as many of the people as possible and explained as thoroughly as possible.”

All appeals to the Supreme Court are by way of re‐hearing. The procedure governing appeals to the Supreme Court is laid down in Order 58 of the Rules of the Superior Courts. But the first question to be asked is whether an appeal lies at all. Until the advent of the civil Court of Appeal, there was an almost universal right of appeal to the Supreme Court in relation to civil cases which originated in the High Court. But since a referendum in October 2013, Article 34.2 says: “The Courts shall comprise: Courts of First Instance; a Court of Appeal; and a Court of Final Appeal”.

The Constitution continues: “The Court of Appeal shall – save as otherwise provided by this Article, and with such exceptions and subject to such regulations as may be prescribed by law – have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.” (The Court of Appeal was established on 28 October 2014.)

Article 34.3 adds “The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article”, and then clarifies in Article 34.5 “The Court of Final Appeal shall be called the Supreme Court.” A Supreme Court decision is final and conclusive in all cases. However, the Supreme Court has appellate jurisdiction from a decision of the Court of Appeal only if satisfied that—

The Supreme Court also has appellate jurisdiction in all cases involving questions about the constitutional validity of any law.

A High Court decision may sometimes be final (s 12(4) of the Mergers, Take‐overs and Monopolies (Control) Act 1968, s 86(6) of the Central Bank Act 1989 and s 32(1) of the Courts and Court Officers Act 1995). Some statutes require the leave of the High Court to bring an appeal, including s 108(7) Patents Act 1992; s 82(1) Local Government (Planning and Development) Act 1963 (as amended); s 132(6) Electoral Act 1992 and s 57(8) Presidential Elections Act 1993 (apart from a question of law). There was formerly no appeal from a decision of the High Court in the case of an appeal from the Circuit Court (Prendergast v Carlow County Council [1990] 2 IR 482), but the Supreme Court subsequently heard an appeal relating to judicial review (M v Ó Donnabháin and AM (notice party) [2011] IESC 22).

According to s 6(4) of the Roads (Amendment) Act 1998, the decision of the High Court in a judicial review brought under the Roads Acts is final, unless the High Court decides that the decision involves a point of law of exceptional public importance and an appeal is desirable in the public interest. It is not necessary to obtain a certificate to challenge the constitutionality of any provisions of the Roads Acts. But in Jackson Way Properties Ltd v Minister for the Environment [1999] 4 IR 608, Geoghegan J said that a certificate was required to appeal on those grounds which were unrelated to the Constitution, otherwise would‐be appellants would simply add a constitutional challenge to their appeal.

A case may be stated from the Circuit Court where oral evidence is given (ss 37 and 38 Courts of Justice Act 1936). In the case of a consultative case stated from the District Court to the High Court, an appeal may only be brought with the leave of the High Court (s 52 Courts (Supplemental Provisions) Act 1961).

An appeal should not normally be brought until the High Court action has been finally determined. In Superwood Holdings plc v Sun Alliance plc (No 2) [1999] 4 IR 531, Hamilton CJ said appeals should not be made to the Supreme Court against orders or rulings made by a trial judge during an action.

It is not always necessary to involve all parties in the appeal. Sometimes the trial judge grants one of the parties a non‐suit or other form of dismissal. Just because that party may have been involved in the litigation in the High Court does not mean that he need be a party to the appeal. If no relief is sought against him, there is no point in involving him in the appeal.

Order 58, Rule 2 RSC provides that a notice of appeal shall “be prepared for hearing or determination in a manner which is just, expeditious and likely to minimise the costs of the proceedings...” A claim that “the trial judge was wrong in law and in fact in the judgment and order made” is not a ground of appeal. The use of the word “perverse” in relation to any finding of a trial judge or jury should also be avoided, unless the claim can be substantiated.

In Fagan v Wong, Supreme Court, 7 May 1997, Lynch J rejected a claim that a High Court judge had been uneven or unfair. He said: “Judges have a large measure of discretion as to how they conduct their courts and the trials which they hear in them, provided always that all parties are allowed to present their respective cases fully and fairly.”

At the drafting stage, care should be taken to spell out the essential grounds of the appeal. The first question to be asked is: why should the judgment and order of the court of trial be reversed or varied?

In Lopes v Galvin, Supreme Court, 25 November 1996, O’Flaherty J said that the powers of the Court on hearing an appeal were limited where a judge had made findings of fact about the credibility of witnesses or the course of events. He stressed that, in such a case, the Court had no jurisdiction to substitute its views for what the trial judge had “expressly found”. But in the case of Superwood Holdings v Sun Alliance [1995] 3 IR 303, he accepted that an appeal court could substitute its own inference of fact for that of the High Court judge where the inference had been drawn from circumstantial evidence.

In Foran v Cobbe and Kelly, Supreme Court, 13 June 1996, the Court allowed a plaintiff to introduce additional evidence under Order 58, Rule 8 RSC. The Court said the evidence was relevant and of sufficient weight that it might have influenced the decision of the trial judge. But in Blehein v Murphy [2000] 2 IR 231, Denham J reiterated that only in exceptional circumstances would an appellant be allowed to amend a notice of appeal to include a ground not argued in the High Court. While Henchy J stated in Movie News Ltd v Galway County Council (unreported, July 1977) that it would be wrong for the Supreme Court “under the guise of an appeal [to] enter on the trial of a matter as of first instance”, the Supreme Court retains discretion to allow a point not argued at trial to be considered on appeal. (ACC Bank plc v Gerard and Kathleen Lynn, [2015] IESC 100). New evidence is now permitted under Order 58, Rule 30.

Order 58, Rule 30(e) of the RSC says that, if the Court considers that the record of the proceedings in the court below is deficient, it may have regard to evidence, or to “verified notes or other materials”, which the Court considers expedient. On appeal from a final judgment, further evidence may only be admitted “on special grounds” by way of notice of motion. The distinction between final and interlocutory judgments was teased out by Hardiman J in Minister for Agriculture, Food and Forestry v Alte Leipziger [2001] IESC 24.

Final drafting of the grounds of appeal should not be left until the transcript has been trawled for possible grounds (or additional grounds). If the original grounds have to be elaborated for justice to be done, an application should be made as early as practicable for leave to adduce additional grounds. If the parties agree on the matter, the Court will generally allow the additional grounds to be argued.

The notice of appeal and an attested copy of the order of the court below must be lodged within 28 days of perfection of the High Court order. The conditions for allowing an appeal which is out of time were laid down in Eire Continental v Clonmel Foods [1955] 1 IR 170, a decision which has been applied in many cases since. The three conditions are:

The Supreme Court still has discretion to admit a late appeal (Carroll v McManus, Supreme Court, 15 April 1964 and Hughes v O’Rourke [1986] ILRM 538). If, for example, the person is only marginally out of time due to a mistake, the other side should be asked in writing to consent to an extension of time. Such consent should be given without having to apply to the Court. Costs will not be allowed to a party resisting such an application on unmeritorious grounds. (Indeed, costs may be awarded against such a party!)

The circumstances governing the admission of additional evidence on appeal are set out in the case of Fitzpatrick & anor v An Bord Pleanála & ors [2018] IESC 60. Clarke CJ said: “[I]t is clear that the fact that a point was not raised in the courts below is not an absolute barrier to it being maintained on appeal.” However, a notice of motion will be required, seeking leave to produce the new evidence. It is necessary to show that the additional evidence:

A document for use in Supreme Court proceedings may be served by:

Where the registrar is not satisfied that the notice has been properly served, he may direct service by another method. An affidavit of service must include details of the persons served, the method and date of service. Service by an agreed (or directed) means is considered sufficient.

Both sides should agree on the precise exhibits which were produced at the trial of the action, and clear copies should be available for the appeal hearing – including albums of photographs and maps. If a document does not copy well, a fresh and clear copy must be produced. Failure to have identical books of appeal leads to unnecessary confusion, so the appellant must serve a copy of the index of the books on the other side. Both sides should collaborate in advance, so that everyone in Court will be reading from the same books with the same pagination.

The appellant’s solicitor must certify when the documentation (including all exhibits) has been lodged. It is the responsibility of the parties – not the staff of the Supreme Court office – to make sure everything is in order. Practitioners must attend the callover in the Hugh Kennedy Court if their case is listed for the following week to confirm that the listed appeal will be proceeding, and that all written submissions have been filed. Without such confirmation, the appeal will not go ahead.

If papers are not lodged within a reasonable time, the other side may bring a motion to dismiss for want of prosecution. Such a motion should not be brought if there are genuine reasons for the delay, but the party in default runs the risk of having the appeal struck out, or the Court may make what is known as a Conlon v Meade order – that, if the relevant papers are not lodged by a specified date, the appeal will be dismissed. Once the certificate of readiness is issued, the case will appear in the Legal Diary. A number of appeals will be listed during term so the Court can:

In Capital Radio Productions v Radio 2000, unreported, 26 May 1998, the Supreme Court held that it had an obligation to give priority to any matter that required urgent attention, such as family law matters or habeas corpus applications.

Once a date has been allocated for the hearing, the appellant must lodge written submissions not later than three weeks before the hearing. The respondent’s submissions must be lodged in the office within one week of the appellant’s submissions.

In long trials, ‘signposts’ throughout the transcripts are helpful to the Court. Any ‘dead issues’ should be indicated, to save unnecessary reading on issues which are no longer relevant. In some cases, it is unnecessary to lodge any transcripts in relation to spent issues. If, for example, liability is no longer an issue in a personal injuries case, there is no need to copy books of transcripts which relate exclusively to liability.

If possible, the parties should meet before the hearing, so that neither side is taken by surprise at the appeal. If counsel is relying on a point not made at the trial, he should say so as early as possible. The Court will decide whether to permit the new point to be argued.

Before the hearing, the parties should exchange (and submit to the office) a list of authorities to be relied on. If possible, there should be an agreed book of authorities, rather than each party presenting a separate book with many of the same cases. If one party wants to rely on a particular case or authority to which the other party does not refer, the case may be added onto a separate list. The Court will appreciate having clear copies of cases and authorities to be relied on – especially old, rare or unusual references. If, during the appeal, it becomes apparent that further cases or authorities may be helpful or relevant, counsel will be allowed to refer to them.

Counsel for the appellant should assume that the Court will have read the original judgment and the written submission, so it is not necessary to read them out. In general, counsel should get straight to the heart of the matter and the judgment under appeal should occupy a central position in the written and oral presentations. It may be assumed that the Court is aware of decisions such as State (Healy) v Donoghue [1976] IR 325 and Hay v O’Grady [1992] 1 IR 210 – although an occasional, appropriate passage from such judgments may be cited.

The Court sets great store by the oral presentation, and so does not impose time constraints, as in other jurisdictions. But that does not mean the oral presentation may be verbose, repetitive and circumlocutory. It should be concise and precise, and should be a submission in the true sense, rather than a speech. Ideally, the oral submission should complement the written one. The advocate must listen to and possibly answer questions from the members of the Court. If the advocate needs to look up a point – particularly as a result of interventions from the bench – he may seek time to do so.

In reply, it is not necessary to repeat arguments made in the original submission. And – subject to the ruling of the Court – it is not generally permissible to introduce a fresh argument at this stage. The reply (if required at all) should be confined to rebutting the case made by the opposite party, and should be concise and to the point.

This is (largely) based on an extract from the second edition of The High Court, A User’s Guide. But following a referendum in October 2013, a new Court of Appeal was set up to hear most of the appeals formerly heard by the Supreme Court, virtually all appeals from the High Court and appeals from the Court of Criminal Appeal and the Courts‐Martial Appeal Court, which courts were abolished. In general, the decision of the Court of Appeal is final – though, in some cases, there may be a further appeal to the Supreme Court, and there may be some direct ‘leapfrog’ appeals from the High Court if the Supreme Court considers that exceptional circumstances or the interests of justice warrant. The Court of Appeal can also decide whether or not a law is constitutional. See Court of Appeal Act 2014

This article is provided solely as a guide to the topic of former Supreme Court appeals. No responsibility is accepted for any use of this information.


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