Supreme Court allows additional grounds in appeal, due to ‘transitional phase’ of Court

The Supreme Court has given leave for a respondent in an appeal to rely on additional grounds, despite not including them in the respondent notice, finding that a degree of latitude should be given in light of the Court being in a transitional phase.

The judgment related to one set of issues arising in the context of the new constitutional jurisdiction of the court, following the adoption of the 33rd Amendment to the Constitution.

The case related to a judicial review brought by Sgt Martha McEnery, challenging a decision of the Commissioner of An Garda Síochána to summarily dismiss her from the force. She had succeeded on appeal, and the Commissioner had been given leave to appeal to the Supreme Court.

In the course of a case management hearing, an issue arose as to whether certain grounds put forward on behalf of Sgt McEnery for resisting the appeal could properly be said to be before the Court in the light of the manner in which Sgt McEnery responded to the application for leave filed on behalf of the Commissioner.

The initial proceedings had considered the core issue as being whether the Commissioner was entitled to summarily dismiss Sgt McEnery following her conviction for assault.

Other grounds were also canvassed. However, as the Court of Appeal had found in favour of Sgt McEnery on the basis of the core issue, the Court had not dealt with the other grounds before it.

The Commissioner had then been granted leave to appeal on grounds which were all concerned with the core issue.

It was highlighted as being of particular importance that the relevant rules and para. 6 of the standard respondent’s notice (see O.58, r.18 of the Rules of the Superior Courts and Appendix FF, no. 2 of O.58 of the rules) required any respondent to an application for leave to set out “additional grounds on which decision should be affirmed”. This section of Sgt McEnery’s form was filled in “n/a”.

It was against this background that a complaint was made by the Commissioner that it had been sought to introduce additional grounds in the written submissions filed on behalf of Sgt McEnery. The permissibility or otherwise of these grounds were therefore the issue which the Court had to consider.

First, however, the Court analysed the new regime in respect of appeals to the Supreme Court which arose by virtue of the adoption of the 33rd Amendment to the Constitution providing for the establishment of the Court of Appeal and the further measures put in place to facilitate the new appellate regime thereby created.

Article 34.5.3 now provides that the Supreme Court shall, “subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal” if the Court is satisfied either that the relevant decision of the Court of Appeal involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

Section 7(10) of the Courts (Supplemental Provisions) Act 1961 as inserted by s.44 of the Court of Appeal Act 2014 now allows an application seeking leave to appeal against a decision of the Court of Appeal to be made “otherwise than with an oral hearing”.

Order 58, r.18 of the new Rules of the Superior Courts requires a respondent served with such an application to lodge a respondent’s notice including a concise statement of any additional grounds which the respondent intends to contend would justify the affirmation of the judgment appealed from, which grounds are “other than those set out in the judgment or order of the court below”.

Against this backdrop, the Court considered the meaning of an appeal under Article 34.5.3, finding that the key element was “that the appellant suggests that some or all of the order ultimately made by the court below was wrong and should be reversed or changed.”

It followed that an appeal was against what the court below had done, rather than the reasons which the court had given.

It was noted that where a respondent wished to alter the order appealed against, they would also require separate leave to appeal.

However, this could be distinguished from a case where the respondent simply wished to argue that there were different or further grounds on which the decision of the court below could be affirmed.

In such a case, it did not seem to the Court that the respondent would be considered as raising a separate appeal. Therefore, the respondent would not require separate leave.

However, in order for an issue to be raised before the Supreme Court, it must have been properly before the court of first instance and Court of Appeal.

Finally, the Court noted that courts may not always decide all of the points which were canvassed, which could occasionally lead to a situation where an appellate court has no option but to refer a matter back to a lower court for further consideration precisely because there is no decision from the court below on a question which turns out to be relevant in the light of the views which the appellate court has taken.

However, the Court noted that this did not seem to provide any legitimate basis for suggesting that a party could, as a matter of justice, be deprived of the opportunity of having at least one appeal court decide the merits of what may be an important aspect of their case.

Turning to the facts of the case, the Supreme Court found that at the level of principle, there could have been no barrier to Sgt McEnery seeking to raise any of the grounds which are sought to be addressed in the written submissions.

The points were made before the High Court and the Court of Appeal, and while the Court of Appeal had not considered it necessary to make a finding on the points, it would be manifestly unfair if the alternative grounds were never the subject of a decision of an appellate jurisdiction.

The difficulty, however, stemmed from the fact that the points concerned were not raised in the respondent’s notice. The Court therefore considered that, at least to some extent, the respondent’s notice had failed properly to place those matters before the Court precisely because there was no mention of any of those issues in the appropriate answer on the relevant form.

In assessing the consequences of this, the Court considered that the Court was in a transitional phase, during which all parties were becoming used to new procedures. This required a degree of latitude which might not be afforded in the future, particularly because the present judgment should flag the issue.

Further, it was relevant that the grounds would properly have been before the Court if they were in the notice.

Finally, a failure on the part of a respondent to raise additional grounds in the respondent’s notice could create a fundamental unfairness against an appellant if the Court, in ignorance of the fact that the respondent wanted to rely on such grounds, were to limit the basis of the appellant’s appeal.

As a result of those specific factors, and in particular the transitional phase that the Court was in, the Court allowed the points to be relied on.

  • by Rachel Killean for Irish Legal News
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