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 report in May 2009. “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 and untrammelled right of appeal to the Supreme Court in relation to civil cases which originated in the High Court. But since the 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 Supreme Court.

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.”

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. 6 Courts Act 1964, s. 14(4) of the Mergers, Takeover and Monopolies (Control) Act 1968, s. 31 Courts Act 1981, s. 86(6) of the Central Bank Act 1989 and s. 32(1) Courts and Court Officers Act 1995). There is also 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). 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, Charleton J, December 2015).

Some statutes require the leave of the High Court to bring an appeal, including s. 108(7) Patents Act, 1992; s. 82 Local Government (Planning and Development) Act, 1963 (as amended); s. 132(6) Electoral Act, 1992 and s. 57(8) Presidential Elections Act, 1993.

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 grants a certificate 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 grounds of 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 4 RSC provides that a notice of appeal shall “in every case state the grounds of appeal and the relief sought, or the order (if any) in lieu of the judgment or order appealed from sought by the appellant...” 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 succinctly 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 about the course of events. He stressed that, in such a case, “We have no jurisdiction to substitute our views for what the trial judge has expressly found.”

But in the case of Superwood Holdings v Sun Alliance [1995] 3 IR 303, O’Flaherty J 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 Supreme Court allowed a plaintiff to introduce additional evidence under O.8 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.

O. 58 rule 8 of the RSC says that further evidence may be introduced on questions of fact without special leave on “any appeal from an interlocutory judgment or order”. On appeal from a final judgment, further evidence may only be admitted “on special grounds” by way of notice of motion. The thorny distinction between final and interlocutory judgments was teased out by Hardiman J in Minister for Agriculture, Food and Forestry v Alte Leipziger [2000] IESC 13.

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 must be served within 21 days of the 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] IR 170, a decision which has been applied in many cases since. The three conditions are:

  1. a bona fide intention to appeal, formed within the permitted time,
  2. The existence of something akin to mistake, and
  3. an arguable ground of appeal.

Of course, the Courts still have a full discretion to admit a late appeal (Carroll v McManus, SC, 15/4/64 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 readily 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 Lynagh v Mackin [1970] IR 180. A notice of motion will be required, seeking leave to adduce the new evidence which should initially be set out in an affidavit. Subject to the Court’s overriding discretion, it is necessary to show that the additional evidence:

  1. could not have been obtained with reasonable diligence for use at the trial,
  2. would probably have had an important influence on the result of the case and
  3. was apparently credible.

In the first instance, it is necessary to file the original notice of appeal, endorsed as to service, and an attested copy of the High Court order. Five (or three – rule 2) books of appeal should be lodged “without delay” (O. 58 rule 12 RSC). They must include:

  1. the pleadings,
  2. all relevant affidavits
  3. all relevant interlocutory orders,
  4. the transcript of evidence and
  5. the judgment. (A written judgment should be approved by the trial judge or else the note of the ex tempore judgment should be agreed).

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 delay and 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 appeal court office – to make sure everything is in order.

Practitioners must attend the Friday morning callover in the Hugh Kennedy Court if their case is listed for the following Monday to confirm that listed appeals 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:

  1. check whether the appeal is proceeding,
  2. assess the time realistically required for the hearing,
  3. decide whether written submissions are required and
  4. fix a date for the hearing in a particular term.

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. It said there could be crisis situations which required the Court to drop everything and attend to the matter.

Once a date has been allocated for the hearing, the appellant must lodge written submissions not later than three weeks before the date of 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.

Before the hearing, the parties should exchange among themselves (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 wish to refer, the case may be added onto a separate list.

The Court will appreciate having clear copies of cases and authorities to be relied upon – especially old, rare or unusual reports. 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.

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.

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 verbatim. In general, counsel should get straight to the heart of the appeal 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] 1IR 210 – although an occasional, apposite 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 be in a position to listen to and 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 at 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 strictly confined to rebutting the case made by the opposite party and should be concise and to the point.

This is 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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