Ben Clarke BL explains the developing jurisprudence on leave to appeal to the Supreme Court

113087-Ben-Clarke

Ben Clarke BL

Access to the Supreme Court under the New(ish) Constitutional Architecture

In the November 2015 edition of the The Bar Reviewi I examined some of the first Determinations delivered by the Supreme Court under the new constitutional architecture, which has been in place since the 33rd Amendment. In the article I considered what indications these Determinations provided regarding how both on-going and future appeals would be dealt with. In June 2016 I self-published a brief updateii regarding cross appeals in circumstances where the issues raised would not, on a stand alone basis, meet the constitutional threshold, were that party the appellant. In this article, three years into Ireland’s new appellate regime, I consider two further Determinations and one Judgment which add clarity to the following issues:

  1. What constitutes General Public Importance;

  1. What constitutes the Interests of Justice;

  1. Leave to appeal in the context of interlocutory matters, and;

  1. The relevant and / or applicable criteria when applying for leave for a Leapfrog appeal.

Each of these rulings represents the unanimous decision of a full seven judge Supreme Court. As such, each decision can be regarded as the definitive authority on the discreet procedural issues addressed therein.

General Public Importance

In BS v Director of Public Prosecutionsiii, by way of Determination dated 12th November 2017, the Supreme Court ruled on an application under Article 34.5.3° of the Constitution for leave to appeal to the Supreme Court form a Judgment of the Court of Appeal.

The Respondent, Mr. S, had been charged with a count of rape allegedly committed in 1970. Mr. S applied to the High Court for an order prohibiting his trial on the grounds of delay. This application was heard and refused by McDermott J. and thereafter was appealed by Mr. S. The majority decision of the Court of Appeal was delivered by Sheehan J. and held that Mr. S had established sufficient prejudice so as to give rise to a real risk of an unfair trial which could not be overcome by a delay warning, and that the case came within what he described as the “wholly exceptional circumstances category” identified in S.H. v DPPiv. On that basis the appeal was allowed and the trial was prohibited.

The DPP appealed claiming that the constitutional threshold was met by virtue of what was said to be a departure on the part of the Court of Appeal from the established jurisprudence in respect of delay in the criminal context. It was further claimed that some of the issues on which the Court of Appeal based its Judgment had not been the subject of the grant of leave to appeal. Furthermore, the Supreme Court noted that it was suggested, implicitly, that, having regard to the fact that the DPP is charged by law to bring prosecutions, an issue of general public importance arises where the Courts are called on to determine the circumstances in which the DPP is not to be permitted to proceed with a criminal prosecution.

The Supreme Court’s determination in BS provides valuable insight into when a prospective appeal can truly be said to concern the application of well established principles to the particular facts of the relevant proceedings. This is significant as such circumstances will rarely give rise to an issue of general public importance.

The Court noted that general principles operate at a range of levels. On one level there are matters at the highest level of generality which can be described as the fundamental principles applying to the area of law in question. In contrast, the Court noted, at a lower level there may well be established jurisprudence on the proper approach of a Court to the application of such general principles in particular types of circumstances which are likely to occur on a regular basis. The Court clarified the position, stating that:

The mere fact that, at a high level of generality, it may be said that the general principles are well established does not, in and of itself, mean that the way in which such principles may be properly applied in different types of circumstances may not itself potentially give rise to an issue which would meet the constitutional threshold”.

O’Donnell J. echoed this view in a later Judgment, which is considered in more detail below:

A principle may be generally accepted but stated at such a level of generality that the application of the principle in a particular type of case may itself be a matter of general public importance”v.

However, in BS, the Court clearly stated that this was subject to the general caveat that:

[T]he more the questions which might arise on appeal approach the end of the spectrum where they include the application of any principles which might be described as having any general application to the facts of an individual case, the less it will be possible to say that any issue of general public importance arises”.

The Court stated that the overall approach to leave is clear:

Unless it can be said that the case has the potential to influence true matters of principle rather than the application of those matters of principle to the specific facts of the case in question then the constitutional threshold will not be met”.

Interests of Justice

In Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration)vi, by way of Judgment dated 12th December 2017, the Supreme Court provided significant clarity regarding the application of Article 34.5.3°(ii). The Court’s Judgment was written and delivered by O’Donnell J.

The Judgment was given in the context of an application for leave to appeal from a Judgment of the Court of Appeal made by the Defendants in the proceedings, PWCvii. The Court of Appeal had reversed the decision of the High Court in which Costello J. directed that the plaintiff, Quinn Insurance Limited, provide full and better particulars. Although, when delivered, the decision of the Supreme Court could constitute a significant authority regarding further and better particulars, the background details are not relevant for the purposes of this article.

O’Donnell J. noted that the parties had differed sharply in their interpretation of “the interests of justice” as referred to in Article 34.5.3°(ii). The Judgment goes on to provide a summary of the submissions made on behalf of PWC:

“…[I]t was contended that these were broad words of general application. They were words of indeterminate reference such as those often used in statutes or decisions like “fairness”, “reasonableness”, “non arbitrariness”, “clean hands” etc. It was argued that it was not possible to logically deduce from such terms what they were intended to cover, and it was a matter for the court in the light of their experience to interpret and apply the provisions”.

It was noted that the relatively broad terms of the constitutional amendment were contrasted with other possible limitations… to be found elsewhere. By contrast it was said that the wording of the Irish Constitution was much more permissive. Finally it was submitted on behalf of PWC that:

[I]t was necessary simply for the court to form an initial prima facie view as to the possibility of error in the court below, and that… would satisfy the interests of justice. While this might lead to much greater numbers of appeals than might have been anticipated, it was an inevitable consequence of the broad language employed in the Article”.

The Court roundly rejected the broad interpretation proffered by PWC. O’Donnell J. stated that such an interpretation ignored the fact that under the new constitutional architecture it is clear that the default position is that all appeals will be determined finally by the decision of the Court of Appeal… and that a further appeal to the Supreme Court will be exceptional. Under the broad interpretation argued for by PWC O’ Donnell J. noted that it would be pointless to require the court itself to grant leave for appeal since a court would in reality be limited to a consideration of whether an appeal could be said to be unstatable.

The Judge went on to state:

Furthermore, to afford an interpretation of this breadth to Article 34.5.3 (ii) would have the effect of rendering Article 34.5.3 (i) redundant. The argument also erodes any conceptual distinction between error and injustice. The fact that a court might make a decision which a further court might consider to be an error, does not itself establish injustice. Indeed, if there were no limit to the appeals which could be taken, that in itself might be considered an injustice”.

As with the approach adopted by the Court when defining other elements of the constitutional threshold within the new appellate regime, O’Donnell J. indicated that it was neither necessary nor possible at this stage to outline all the circumstances in which the court might consider that leave should be granted in the interests of justice. The Court did however make some broad observations, which are summarised below:

  1. Article 34.5.3°(ii) is best viewed as a “residual category”. If a decision does not involve a matter of general public importance, it may still be contended that it is in the interests of justice that it is necessary that there be an appeal to the Supreme Court. “[I]t is in the nature of the interests of justice criterion that it is sufficiently flexible to respond to the demands of the individual case”.

  1. Cross-appeals – “a point may be made by way of cross-appeal, which itself cannot amount to a matter of general public importance. Nevertheless it would be unjust to permit one party to appeal to the Supreme Court and restrict another party from cross-appeal because the respondent’s appeal point was not itself of general public importance”viii.

  1. Ancillary points – “a point may be raised in a case which itself may not be of general public importance but which is necessary to permit an appellant to argue, since otherwise determination of the issue of general public importance may not resolve the case”ix.

  1. New issues arising in the Court of Appeal – “A further example may be where the point the applicant seeks to advance relates to something which occurred for the first time in the Court of Appeal. It might be said in such circumstances that the interests of justice would be served by permitting an appeal to the Supreme Court even though the matter itself was not itself of general public importance”.

Leave to appeal in the context of interlocutory matters

In PWC v Quinn O’Donnell J. also made observations regarding applications for leave to appeal in the context of decisions arising in interlocutory matters.

The Court noted that the Constitution does not differentiate between an appeal after a full hearing and an appeal arising out of an interlocutory matter. As such the same test is to be applied in either case.

O’Donnell J. noted that:

Some interlocutory appeals may themselves raise classic issues of general public importance such as the appropriate test for the grant of an interlocutory injunction which will be applicable in every application for such an injunction”.

However, while acknowledging that there may be exceptions, the Court stated that it would normally be the case that it would be more difficult to establish that an interlocutory appeal contains an issue of general public importance or that the interests of justice are otherwise engaged. O’Donnell J. explained the reasoning behind this position:

[I]t is in the nature of interlocutory orders that they rarely set a course irrevocably and dictate the outcome of the case. Appeals in interlocutory matters inevitably delay trial, and accordingly appellate courts are reluctant to interfere with the management of a trial, preferring to see a trial concluded and if necessary appealed, unless it is clear that a distinct and critical issue has arisen that requires to be addressed in advance of the trial. It is to be expected that it will be relatively rare that this Court will consider that the constitutional threshold has been met in an interlocutory appeal”.

Leapfrog leave

In Wansboro v Director of Public Prosecutions and anorx, by way of Determination dated 20th November 2017, the Supreme Court ruled on an application under Article 34.5.4° of the Constitution for leave to appeal directly to the Supreme Court from the High Court Judgment of Faherty J.

At the High Court Mr. Wansboro claimed that by virtue of the Judgment of Moriarty J. in Moore & Ors v DPPxi, which found sections 99(9) and 99(10) of the Criminal Justice Act 2016 to be unconstitutional, a Circuit Court Order requiring him to serve reactivated sentences, or portions thereof, was invalid. In his application Mr. Wansboro claimed that an issue of general public importance arose in circumstances where the statutory provision upon which his sentence was reactivated was subsequently found to be unconstitutional. It was claimed that this gave rise to important questions regarding the extent to which previous orders made pursuant to those provisions could remain in force. Mr. Wansboro further claimed that in circumstances where there were extant two decisions of the Court of Appeal following the same reasoning as that adopted by Faherty J., there would be no useful purpose served by requiring that the default procedure of a first appeal to the Court of Appeal be followed. The State, the respondents in the application, argued that the matter involved the application of settled legal principles.

At the outset the Court reiterated what I have previously referred to as the Barlow Principlesxii:

  1. It is a precondition of Article 34.5.4° that the criteria applicable in an ordinary leave application must be satisfied in a leapfrog application, before any additional factors are considered. Therefore the court must be satisfied that the case involves a matter of general public importance or that there is some other reason requiring that the interests of justice be met by such an appeal, and;

  1. If the basic constitutional threshold of public importance or public interest is satisfied the Court must then consider the additional requirement that, in the words of Article 34.5.4°, there are exceptional circumstances warranting a direct appeal to the Supreme Court.

As with the Barlow Determination the Court stated that it was not possible to provide an exhaustive list of what might be considered exceptional circumstances, and restated the point that even in cases where it is likely that there will ultimately be an appeal to the Supreme Court, there will often be advantages to be gained from the filtering process of an intermediate appeal. Again the Court emphasised that the weight to be attached in this regard would vary depending on where a case fell on the spectrum from broad multi-issue appeals to single-issue appeals involving a legal issue clearly meeting the constitutional threshold.

In Wansboro the Court did however go further than it had in Barlow in providing examples of particular factors which point sufficiently strongly in favour of allowing a direct appeal to counterbalance the presumption in favour and advantages of an appeal to the Court of Appeal. In addition to reiterating the second example flagged in Barlowxiii, that notwithstanding the benefit of an initial appeal to the Court of Appeal, the element of temporal urgency could render a matter one appropriate for a leapfrog appeal, the court flagged two additional potentially exceptional circumstances:

  1. While it could not be a decisive factor in and of itself, in applications where the perceived advantages of an intermediate appeal to the Court of Appeal are not particularly strong in the circumstances of the case in question, then the fact that the hearing of two appeals might place a significant, or perhaps a more significant financial burden on one or both of the parties, may carry some weight.

  1. In addition to the general urgency that might arise when, as it was put in Barlow, a clock in the real world is ticking, the Court indicated that it may in certain circumstances, be appropriate to have regard to the need for a speedy determination of a legal issue which has the potential to affect many other cases and where uncertainty as to the law may be causing difficulties for other Courts.

Against these issues the Court once again stressed that notwithstanding the presence of an issue of general public importance, the filtering process of an intermediate appeal may in some circumstances lead to that issue falling away as a result of decisions reached in other elements of a case by the Court of Appeal.

The determination in Wansboro is also of interest due to the fact that the Court took the opportunity to draw attention to what it described as “certificate cases”, being cases where an appeal from the High Court to the Court of Appeal cannot be pursued unless the High Court has issued a certificate permitting such an appealxiv. It is notable that the Court considered this issue not withstanding the fact that Wansboro was not such a case. The Court referred to its Judgment in Gracexv, wherein the Court addressed the implications of the new constitutional architecture for such cases. As has previously been noted in The Bar Review, under the new constitutional framework the Supreme Court’s jurisdiction can be regulated, but it cannot be excludedxvi.

The question raised by the Court in Wansboro was the extent to which the fact that a party may not be able to appeal to the Court of Appeal by reason of the absence of a relevant certificate may provide the “exceptional” circumstances justifying a leapfrog appeal to… the Supreme Court. While the court expressly stated that this was an issue which it would deal with if and when the issue arises, it stated that its Determination in Grace could be regarded as an indication 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.

The final point which can be derived from Wansboro is that in circumstances whereby previous and recent Court of Appeal decisions could reasonably be taken as suggesting an inevitable outcome for a prospective intermediary appeal, the Supreme Court may take the view that what is ordinarily gained by an intermediate appeal would be much less likely to arise in the circumstances of… such a case.

Conclusion

The decisions discussed above are indicative of the on-going growth of the new procedural jurisprudence that is quickly developing under Ireland’s new(ish) appellate regime.

i Appeals to the Supreme Court and the new Appellate Regime, The Bar Review, November 2015.

ii The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána, https://www.linkedin.com/pulse/new-appellate-regime-brief-update-mcenery-v-garda-ben-clarke/

iii [2017] IESCDET 134.

iv [2006] 3 IR 575.

v Price Waterhouse Cooper (A Firm) v Quinn Insurance Limited (Under Administration) [2017] IESC 73. O’Donnell J. also noted 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… it will…be rare that this Court could be persuaded to grant leave to appeal”.

vi [2017] IESC 73.

vii It would appear to be the case that a Judgment, rather than a Determination, was delivered on the basis that there had been an oral hearing.

viii Also see McEnery -v- Commissioner of An Garda Síochána [2016] IESC 26 and The New Appellate Regime – A brief update, McEnery -v- Commissioner of An Garda Síochána, https://www.linkedin.com/pulse/new-appellate-regime-brief-update-mcenery-v-garda-ben-clarke/

ix This possibility had been flagged in the early Barlow Determination

x [2017] IESCDET 115.

xi [2006] IEHC 434.

xii Barlow & ors v Minister for Agriculture Food and Marine & ors [2015] IESCDET 8.

xiii The first was that the Court indicated that it was prepared to accept, at the level of principle, that there may be cases which solely due to the issues or questions involved would be rendered exceptional.

xiv The Court offered the example of appeals under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.

xv Grace & anor v. An Bord Pleanala & ors [2017] IESC 10, see also the Determination in Grace & anor v. An Bórd Pleanála [2016] IESCDET 29.

xvi Shannon Michael Haynes BL, The impressive reach of a ‘leapfrog’ appeal, The Bar Review, June 2017.

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