LAW IN PRACTICE
Supreme appeal What are the criteria under which leave to appeal to the Supreme Court might be sought or granted?
[2017] IESCDET 13; Price Waterhouse Cooper (a firm) v Quinn Insurance Ltd (under administration) [2017] IESC 73; and, in respect of applications for leave to appeal directly from the High Court, Wansboro v Director of Public Prosecutions [2017] IESCDET 115. The Supreme Court’s application of these principles is also illustrated in its many other determinations, which can be viewed online. The Court’s inaugural annual
Elizabeth Cogan BL
report for the year 2018, published in April 2019, provides a further opportunity for analysis, including statistics indicating the rate at which the Court granted, or refused, leave to appeal, and indicating the nature of the proceedings
In the years since the introduction of its new appellate jurisdiction, the Supreme
concerned. The rate at which leave to appeal was granted in 2018 was just under
Court has stated in numerous determinations that it is no longer a court
37%. Out of 157 applications for leave to appeal determined by the Court in
designed for the correction of error but rather one tasked with the
2018, 58 were granted.
determination of issues of general importance. Provisions inserted into Article
The subject areas that gave rise to the largest number of applications for leave to
34 of the Constitution provide that the Court’s appellate jurisdiction is exercised
appeal were criminal law, immigration law, and cases involving procedural issues.
in limited circumstances and the general appellate jurisdiction previously
However, the highest number of determinations granting leave to appeal in 2018
exercised by it has been transferred to the Court of Appeal. Since 2014, the
arose in immigration law cases arising from judicial review proceedings (24% of
default position is therefore that appeals from the High Court, and certain
the applications granted). The second highest rate applied in cases involving
decisions of other courts prescribed by law, are to be finally determined by the
questions of statutory interpretation. The third highest was in European Union
Court of Appeal, save in limited circumstances.
law cases. In respect of the latter category, the Chief Justice has recently remarked
Any appeals to the Supreme Court should, ordinarily, come from the Court of
on the high percentage of cases heard by the Supreme Court that involve a
Appeal, and it is expected that most cases will have undergone a filtering process,
significant EU law element, including in the context of European Arrest Warrants,
limiting the scope and nature of the issues to be determined. To secure leave to
and immigration and environmental issues.1
appeal to the Supreme Court, it must be established in all cases that the decision sought to be appealed against involves a matter of general public importance or that, in the interests of justice, it is otherwise necessary that there be such an appeal. Where a prospective appellant however seeks leave to appeal directly to the Supreme Court, the Court must also be satisfied that there are “exceptional circumstances” warranting a direct appeal. To understand what these requirements mean in practice, it is helpful to refer to the now well-known guiding principles discussed in: Fox v Mahon [2015] IESCDET 2; Barlow v Minister for Agriculture, Food and the Marine [2015] IESCDET 8; B.S. v Director of Public Prosecutions
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THE BAR REVIEW : Volume 25; Number 1 – February 2020
Any appeals to the Supreme Court should, ordinarily, come from the Court of Appeal, and it is expected that most cases will have undergone a filtering process, limiting the scope and nature of the issues to be determined.