The Supreme Court, in a recent judgment in McEnery v Commissioner of an Garda Siochana, emphasised that if a respondent intends to rely on any additional or alternate grounds in maintaining that a judgment of the Court of Appeal should be upheld that were relied upon by a party before the Court of Appeal but not referred to in the judgment (“additional grounds”), these additional grounds should be clearly stated in the specified location in the respondent’s notice.

Background Facts

The Applicant/Respondent (“Sgt McEnery”) sought judicial review of the decision of the Respondent/Appellant (“the Commissioner”) to summarily dismiss her from An Garda Síochána. Sgt McEnery was unsuccessful in her High Court application but succeeded on appeal to the Court of Appeal. The Commissioner sought and was granted leave to appeal the judgment of the Court of Appeal to the Supreme Court.

Sgt McEnery sought to raise additional grounds upon which the Supreme Court could uphold the judgment of the Court of Appeal in the course of written submissions that had not been set out in Sgt McEnery’s notice, as required by Order 58 Rule 18(1)(d). Following a hearing in respect of this issue, the Supreme Court ultimately permitted Sgt McEnery to raise the additional grounds referred to in the course of submissions in the appeal.

Critical Points

The Court (Clarke J), in granting the application, identified a number of critical points which should be considered by a respondent to an appeal to the Supreme Court:-

  1. In the event that a respondent wishes to rely on additional grounds, these should be set out in the appropriate location in the respondent’s notice.
  2. The additional grounds must have been properly raised in initial submissions and must have been properly put before the High Court and the Court of Appeal in order for them to be relied upon by a respondent before the Supreme Court.
  3. The failure on the part of a respondent to specify additional grounds in support of the affirmation of a decision of the Court of Appeal in the respondent’s notice means that the additional grounds are not properly before the Court and that an application for leave to rely on additional grounds is required if reliance is to be placed on those additional grounds.

Cross-Appeal

As an aside, the Court noted that a respondent is not required to formally lodge a cross-appeal in the event that he/she wishes to rely on additional grounds that would support the affirmation of the decision of the Court of Appeal. A cross-appeal is only required where a variation of the order of the Court of Appeal is sought by the respondent. The additional grounds can be listed in the relevant part of the respondent’s notice without the requirement to cross-appeal.

Warning

In McEnery, the Court permitted the additional grounds to be raised on the basis inter alia that the Court was in a transitional phase and that both practitioners and the Court were adjusting to the Court’s new jurisdiction. In a clear word of warning, the Court stated that it should not be presumed that a similar degree of latitude would continue into the future.

In light of the decision in McEnery, it is vital that legal advisers to parties to an appeal to the Supreme Court properly consider the requirements of the respondent’s notice and ensure that all relevant information, including any additional grounds referred to above, is included in the respondent’s notice. It should not be assumed that an omission, such as the one identified in McEnery, will be necessarily capable of correction.

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