In a recent judgment, the Supreme Court has highlighted important procedural risks in appeals to that court.

McEnery v Commissioner of An Garda Sochna1 involved judicial review of Sgt McEnery's summary dismissal following a conviction for assault. Her principal grounds of complaint were that her employer failed to give adequate reasons for the decision and had discriminated against her by applying the dismissal sanction whereas it had not been applied to other officers convicted of similar offences. Sgt McEnery's claim succeeded in the Court of Appeal, on the basis that the inadequate reasons point decided the case, and the court did not need to address the discrimination argument.

The Commissioner then applied for leave to appeal to the Supreme Court. In her prescribed form of respondent's notice,2 which requires the respondent to specify "additional grounds on which decision should be affirmed", Sgt McEnery merely indicated that the judgment of the Court of Appeal should be upheld. This implied that "it was not intended to put forward ... any additional grounds, beyond those which found favour in the Court of Appeal". However, Sgt McEnery's written submissions also argued that the result in the Court of Appeal should stand because of the discrimination argument. The Commissioner then complained that the written submissions impermissibly sought to introduce additional grounds which either separately required leave or were not properly before the court.

The Supreme Court noted that an appeal "is concerned with an application to an appellate court which seeks to bring about some change in the substance" of the order of the court below. An appellant may argue that this order is entirely wrong, or the appeal may be directed only to part of that order, or solely to an element of damages or of costs.

When a respondent in the Supreme Court also wishes to alter the order made by the court below, that respondent must separately obtain leave to appeal to argue for that alteration. This is because every Supreme Court appeal must meet a constitutional threshold test of admissibility (though, for example, a cross-appeal against refusal of a successful respondent's costs might be admitted "in the interests of justice"). Until 2014, a respondent could always argue for the Supreme Court to alter the order below, by means of a notice to vary, but that procedure has been discontinued.

However, a respondent, such as Sgt McEnery, who does not wish to alter the order below, but only to argue that there are further grounds (beyond those in the judgment below), within the scope of the case as conducted to date, and on which the result in the court below should be affirmed, is not invoking an appellate jurisdiction.

Once the court below has determined a dispositive point, it may address other arguments on an "if I am wrong" basis. This is desirable, to avoid the risk of an appellate court having to refer a case back for further consideration, but it is not mandatory. The fact that a party does not obtain a decision on an alternative point (because the court below considered it unnecessary in light of its conclusions on earlier points) cannot, however, deprive that party of the opportunity to raise the alternative point in an appeal.

The Supreme Court considered the consequences of omitting the alternative grounds from the respondent's notice. It considered factors including (1) the fact that the court is in a transitional phase in applying new procedures (and therefore prepared to give greater latitude than might be appropriate in future); (2) the fact that the additional grounds would properly have been before the court had they been specified in the respondent's notice, and (3) the fact that the grounds concerned were raised in written submissions at an early stage, before the first case management hearing. The fact that the additional grounds did not create any unfairness against the appellant was highly important. The court emphasised that the outcome might well be different if the court, in ignorance of the fact that the respondent wanted to rely on further grounds, had limited the basis of the appellant's appeal.

The court concluded that the respondent to an application for leave to appeal to the Supreme Court does not require separate leave to appeal (and does not need to meet the constitutional threshold test) in order only to argue additional bases for affirming the order of the court below. However, failing to specify such bases clearly in the respondent's notice means that those additional bases are not properly before the Supreme Court and the court's leave is required for their inclusion. Leave to rely on the additional bases was given in this case, but the court warned starkly that similar latitude is unlikely in future.

In light of this judgment, it cannot be assumed that any omission from the prescribed forms in an application for leave to appeal, or a response to such an application, will be capable of correction. If you want the Supreme Court to uphold a judgment on grounds on which the court below could have relied, but did not, you must say so very clearly in the proper form at the earliest opportunity.