Procedural matters
Procedural matters accounted for 71 applications for leave to appeal while judicial review of immigration cases was the next highest category at 26, though leave was granted in only six of these.
The Court’s nine full-time and two ex-officio judges issued 133 full, written reserved judgments.
A new pilot system for online filing of applications for leave to appeal was also introduced along with updated case management protocols.
Case management “enables a dialogue between the respective parties to an appeal and the Court in respect of purely procedural matters that, whilst technical in nature, have the potential to ensure that the oral hearing of the appeal is conducted with greater efficiency,” the report says.
Disappointing
However, the Chief Justice said the uptake on online filing “has been disappointing”.
Before Christmas, he met representatives of the Law Society to discuss proposed changes to the way in which the system operates.
“These are under active consideration and I would very much hope that, by this time next year, I will be able to report on a radically changed landscape in this regard,” the Chief Justice said.
In November, a new definitive text of the Constitution in both official languages was enrolled in the Office of the Court – the sixth such enrolment, the last one happening some twenty years ago in 1999.
Previous enrolments occurred in 1938 (following the approval by the People of the Constitution in its original form in 1937), 1942, 1980, 1990 and 1999.
Since the last enrolment in 1999, there have been fourteen amendments to the Constitution.
Brexit
In the context of Brexit and Ireland’s increasing importance as a common law jurisdiction, the Chief Justice Frank Clarke said: “It does have to be said that we are a small judiciary and do not have the numbers available to other comparable courts (even those of relatively small countries) so that the burden placed on our judges is correspondingly larger.”
The Chief Justice welcomed the establishment of the Judicial Council but said its proper operation will also place additional burdens on the judiciary.
“Where matters are to be decided which have implications for the judiciary as a whole, it is particularly important that judges of all jurisdictions are involved and that judges based outside Dublin play a full role,” he said.
“But we must be realistic about the demands that places on judges who have busy lists to conduct,” he added.
Turnout
Supreme Court outreach programmes saw excellent response and turnout from the Irish public.
During 2019 the Court sat in Galway and this week, sat in both Waterford and Kilkenny.
The Chief Justice has also expressed his delight with the pilot Comhra programme, which enables secondary school students to ask questions by live video-link to judges of the Supreme Court.
That extended this week to Comhra Live – where the court visited five schools in the southeast and answered students’ questions.
The Chief Justice welcomed twenty-three law students for a one-month internship programme in the Superior Courts last June, the seventh year of this programme.
In June 2020, participants will be assigned to a judge of the Superior Courts and will observe court proceeding, undertake legal research assignments and attend the Hardiman Lecture Series.
Court of Appeal five-year anniversary
28 October 2019 marked the five-year anniversary of the establishment of the Court of Appeal, which the report describes as “a seminal moment which heralded the most significant change to the Irish courts structure in over a century – but also a fundamental recalibration of the jurisdiction of the Supreme Court itself.”
The Court has –through written determinations – sought to lay down ‘way points’, to serve as navigational aids on how the Court would determine applications for leave, the annual report says.
Housing for separated father
A judgment given on 19 December concerned the right of a separated father to be housed with his three children by the relevant Iocal authority.
The appeal in Fagan & ors. was concerned with how a housing authority can lawfully exercise its discretion when it determines whether a group of applicants for housing support constitute a household.
The appellants were a father and his three children aged eleven, five and four who he was co-parenting with his former partner.
The father applied to the Respondent (“the Council”) for housing support. In his application, he sought to include his children as members of his household in the hope that the Council would provide him with housing support which would allow them to live together.
Housing support
However, his former partner had already been allocated housing support on the basis that the children lived with her.
The Council indicated that, amongst other things, the children had already been provided with accommodation and, with the Council’s resources being limited, it was not in a position to offer duplicate support to them.
Consequently, the Council determined that the Appellants did not have a reasonable requirement to live together and that their application was to be progressed on the basis that the father was the only member of the household.
The Appellants brought judicial review proceedings.
In the High Court, the dispute between the parties centred on what kind of considerations the Council may or may not take into account when it determines whether a group of applicants has a “reasonable requirement to live together”.
The High Court held in favour or the Council.
Justice Irvine (with whom the Chief Justice, Justice MacMenamin, Justice Charleton and Justice O'Malley agreed) reversed the decision of the High Court.
She held that in considering resources, the Council acted outside the four corners of s. 20(1) of the Housing (Miscellaneous Provisions) Act 2009.
Requirements
She observed that, although it is the opinion of the housing authority decides whether multiple applicants have a reasonable requirement to live together, the housing authority must form their opinion based upon the applicants’ requirements.
Considerations as to resources do not assist the Council in such deliberations and are therefore outside the discretion afforded to the Council.
However, Ms. Justice Irvine held that the Council is permitted to gather evidence to satisfy itself of the fact that such requirement exists.
She further observed that the decision of the Council to permit only one parent to include the children on their application for housing support means that it operates a de facto policy which inevitably prevents it from forming an opinion on a case-by-case basis.
'Access parents'
Justice Irvine criticised the Council for classifying parents in this position as “access parents”, observing that in many instances both parents want to play a significant role in the upbringing of their children and that such classification and ensuing policy does not allow them to do so.
The judge did however accept that housing stock is limited and that, when prioritising different applications, the fact that the children are already provided for may be taken into account at that stage.