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Stairway to heaven

Stairway to heaven

There's a sign on the wall but you want to be sure of the road to Supreme Court



The old joke goes: “How do you get to Carnegie Hall? Practise!” Someday, your practice might take you all the way to the Supreme Court.

How do you get there? The glib answer might be: “Walk through the Round Hall”, but this is something the Supreme Court itself has addressed in a number of recent decisions.

Stairway to heaven

Stairway to heaven

The procedure by which you get to the Supreme Court was fundamentally changed in 2013 by the introduction of the Court of Appeal by the 33rd amendment of the Constitution.

Under this amendment, the Supreme Court has appellate jurisdiction from the Court of Appeal where the decision involves a matter of general public importance or, in the interests of justice, it is necessary that there be an appeal to the Supreme Court. 

It also introduced appeals from the High Court to the Supreme Court, discussed below. The exact test as to when an appeal will be accepted by the Supreme Court has been discussed in a number of decisions. 

Physical graffiti

The principles behind the acceptance of an appeal by the Supreme Court were recently examined in Jordan v Ireland.

This was a challenge to the recent repeal of the Eighth Amendment. The Supreme Court found that the principles behind the grant or refusal of an appeal to that court were fully addressed in BS v Director of Public Prosecutions and the judgment of O’Donnell J in PricewaterhouseCoopers v Quinn Insurance Ltd.

In Jordan, the Supreme Court found that it was not satisfied that there were stateable grounds of appeal that involved issues of principle, and consequently refused leave to appeal, ending the last challenge to the repeal of the Eighth Amendment.

In BS v Director of Public Prosecutions, the DPP sought to appeal an order of the Court of Appeal prohibiting a historical rape case from proceeding.

The DPP submitted that the Court of Appeal had departed from the established jurisprudence on delay. The Supreme Court here refused leave to appeal. 

The Supreme Court began its decision by pointing out that, while decisions on leave to appeal were final and conclusive, they are not findings on the facts or to be relied upon as precedent, except in very rare circumstances. 

Appeals limited

The Supreme Court then pointed out that appeals will be limited to matters of general public importance or otherwise in the interest of justice to be heard by it. 

It expressly said: “It will rarely be necessary in the interest of justice to permit an appeal to this court simply because it is said that the lower court was in error.”

'It will rarely be neccessary in the interest of justice to permit an appeal to this court simply because it is said that the lower court was in error

It then went on to hold: “It can rarely be the case that the applicationof well-established principles to the particular factsof the relevant proceedings can give rise to an issueof generalpublic importance.”

The court discussed how the levels of generality behind the principles at stake in a case can affect a decision to grant leave, before finding that: “Unless it can be said that the case has the potential to influence true matters of principle rather than the applicationof those mattersof principle to the specific factsof the casein question, then the constitutional threshold will not be met.”

PricewaterhouseCoopers, by contrast, was a case where the Supreme Court granted leave to appeal. This application was decided six days after BS.

Parties agreed

Here, O’Donnell J noted that the parties had agreed that it is significant that an appeal was not limited to a point of law, and the appeal needed to be a matter of general public importance rather than exceptional public importance.

Differed on meaning

The parties differed on the meaning of ‘in the interests of justice’. O’Donnell J disagreed with the submission that it was a broad phrase of indeterminate meaning, such as ‘fairness’, ‘reasonableness’, ‘non arbitrariness’, and ‘clean hands’, etc.

He found that the default position should be that cases do not go beyond the Court of Appeal except in exceptional cases.

He then went on to hold that “the fact that a court might make a decision which a further court might consider to be an error, does not itself establish injustice”.

He specifically did not outline all of the categories where an appeal would be granted in the interests of justice, but viewed it as a residual category that will apply if a decision does not involve a matter of general public importance. 

Categories he did mention include:

  • Where one party is successful in an application to the Supreme Court, then a cross appeal will be allowed, 
  • Where a case is not of general public importance, but it is necessary to permit the appellant to argue, “since otherwise determination of the issue of general public importance may not resolve the case”, and 
  • Where something new arose in the Court of Appeal. 

He then went on to say, in deciding whether the appeal involves a matter of general public importance, that the point must first be stateable and, secondly, be able to be applied to other cases. He found that interlocutory applications could be heard by the Supreme Court, but that it would be more difficult to meet the entrance criteria. 

He referred to BS v Director of Public Prosecutions, pointing out that: “Where an appeal seeks to challenge the application of the High Court or Court of Appeal of well-established principles of law which are not themselves the subject of challenge, as this appeal does, it will also be rare that this court could be persuaded to grant leave to appeal.”

In granting leave to appeal, he noted that the High Court and Court of Appeal had come to diametrically opposed results on this issue, that the proper application of the principles relating to the ordering of further particulars is a matter of general public importance, and that the outcome of this case may clarify the distinction between evidence and further required particularisation of proceedings.

In through the out door

A leapfrog appeal is an appeal from the High Court directly to the Supreme Court. Under article 34.5.4, the same requirements for leave to appeal from the Court of Appeal apply to an application for leave from the High Court. The decision must involve a matter of general public importance or, in the interests of justice, it must be necessary that there be an appeal to the Supreme Court.

There is also an additional requirement that the Supreme Court must be satisfied that there are exceptional circumstances warranting a direct appeal to it.

Leapfrog appeals 

The Supreme Court in Jordannoted that the principles in leapfrog appeals are addressed by the decision in Wansboro v Director of Public Prosecutions.

There, the Supreme Court granted leave to appeal directly from the High Court, in a decision that was given a little under a month before BS v Director of Public Prosecutions

Some of the more general parts of the decision in Wansboroare word-for-word identical with the same parts in BS v Director of Public Prosecutions. They both began with the same warning on the precedential value of leave determinations.

In Wansboro, it was also found that “it will rarely be necessary in the interest of justice to permit an appeal to this court simply because it is said that the lower court was in error” – although this finding was then followed up with a finding that the appropriate remedy for an error in the High Court was an appeal to the Court of Appeal.

Suspended sentence reactivated

In Wansboro, the appellant had a suspended sentence reactivated by the Circuit Court. Subsequently, the legislative provisions that governed the activation of suspended sentences were found to be unconstitutional. The appellant took a case to the High Court, claiming that the reactivation of the suspended sentence by the Circuit Court was invalid. This was rejected by the High Court. The case was appealed directly to the Supreme Court.

The Supreme Court was satisfied that the general test for leave to appeal was met. This was because “the precise circumstances in which orders made under impugned legislation can continue to have effect is both a matter of considerable importance, and one whose application to the particular circumstances of a category of case may, in some instances, be debatable”.

Here, the issue was whether it was appropriate to grant leapfrog leave in all the circumstances of this case. In examining ‘exceptional circumstances’, the court began by looking at the advantages of the Court of Appeal dealing with a case rather than the Supreme Court, even if it was a case that might ultimately end up before the Supreme Court. 

Presence

The court found that the recent changes to the constitution mean that the Supreme Court is to focus on important issues. If there is an appeal to the Court of Appeal first, this should filter out the less important issues from the case, leaving the Supreme Court to focus only on the important issues. The Supreme Court noted that these will vary in range, from cases with a large number of issues, to cases with only a few, very important issues that will not be changed by an intermediate appeal to the Court of Appeal.

The Supreme Court then went on to list factors that can be considered when deciding to accept a leapfrog appeal. These factors are: 

  • Costs– the court noted that, where the perceived advantages of an intermediate appeal to the Court of Appeal are not particularly strong, then costs may carry some weight,
  • Speed– if a case is particularly urgent, then this will strengthen the application for a leapfrog appeal,
  • Effect on other cases– if there is a need to resolve an issue quickly, which is affecting other cases, then this will be taken into account,
  • Will the issue still be alive?– sometimes the legal issues in a case might go away, depending on how the factual or other issues are decided. In those cases, the court will favour refusing a leapfrog appeal. 

The court also noted that, in some cases – such as deportation cases – the High Court has to issue a certificate permitting an appeal.

The court expressly did not address whether a leapfrog appeal would be allowed where no such certificate was granted. 

The court held: “That is an issue which the court proposes to address in detail in a subsequent determination, if and when the issue clearly arises.

The court has already indicated, in the application for leave in Grace… that the impossibility of pursuing an appeal to the Court of Appeal in a case where this court was satisfied that the general constitutional threshold had been met may, at least in some cases, provide the appropriate exceptional circumstances justifying a leapfrog appeal.”

In the circumstance of Mr Wansboro’s particular case, the Supreme Court granted leave to appeal. An intermediate appeal was unlikely to be useful, as the Court of Appeal was unlikely to depart from its own jurisprudence. The Supreme Court felt that this issue needed to be addressed and granted leave. 

Coda

From the Court of Appeal: the case must involve a matter of general public importance, or it must be necessary in the interests of justice.

This means that the case must affect principles of law or be a matter of general public importance. It must be a stateable case that can affect other cases. 

From the High Court: it must meet the same test as above, but must also have exceptional circumstances justifying going straight to the Supreme Court.

This includes urgent cases, or ones that affect many other cases, or cases that have important issues that will not be filtered out by the Court of Appeal. 

At a glance

  • Appeals from the Court of Appeal must involve a matter of general public importance, or it must be necessary in the interests of justice;
  • Appeals from the High Court must meet the same test but, in addition, have exceptional circumstances justifying going straight to the Supreme Court