On 25 July 2016, the Supreme Court made a determination allowing the applicants in the Persona case to appeal a decision of the High Court directly to the Supreme Court, thereby ‘leapfrogging’ the Court of Appeal.

This determination by Chief Justice Susan Denham and Justices Liam McKechnie and Elizabeth Dunne, has added to the growing body of jurisprudence concerning the basis upon which the Supreme Court will grant an application for a ‘leapfrog’ appeal in accordance with Article 34.5.4 of the Constitution.¹

Background

The High Court proceedings concerned a claim by Persona Digital Telephony Limited and Sigma Wireless Networks Limited (the “Applicants”) of alleged unlawful interference in the competition for the award of the State’s second mobile phone license. Esat Digifone had been granted the licence in 1995.

As a result of being unable to continue the proceedings without third party funding, the Applicants entered into an agreement with a leading litigation funder on 24 March 2015.

The High Court held, on 20 April 2016, that there was a prohibition on an entity funding litigation in which it has no interest for a share of the profits. As a result, the High Court held that the agreement entered into by the Applicants was in breach of the legal doctrines of maintenance and champerty.

The Applicants appealed that decision and applied for leave for a leapfrog appeal to the Supreme Court.

Supreme Court Determination

The Court began by focusing on the changes brought about by the 33rd Amendment to the Constitution, which introduced the Court of Appeal as an intermediate appeal court between the High Court and Supreme Court.

The newly introduced Articles 33.5.3 and 33.5.4 set out the criteria whereby an applicant may be permitted to appeal from the Court of Appeal to the Supreme Court, and secondly when an appeal may be made directly from the High Court to the Supreme Court.

In essence, the basic criteria required for an appeal to the Court of Appeal are that there is:

  1. a matter of general public importance to be decided
  2. some other reason why an appeal would be in the interests of justice

In the case of a leapfrog appeal, the above basic appeal criteria must be met. However, there is also the additional requirement that ‘exceptional circumstances’ exist warranting a direct appeal to the Supreme Court.

Helpfully, the Court proceeded to examine scenarios in which it may or may not be appropriate for the Court to grant an application for a leapfrog appeal. The Court also sought to clarify the circumstances in which the issues involved in a case could be considered exceptional, within the meaning of Article 34.5.4.

Single issue cases v multiple issue cases

In relation to single issue cases, the Court raised the question of whether the added cost to the parties, as well as the use of Court time and resources which would result from having two appeals, could be justified. An appeal to the Court of Appeal followed by a second appeal to the Supreme Court would in all likelihood result in unnecessary repetition of arguments.

In contrast, where there are multiple issues to be decided, it is difficult to see how the determination of such a matter would not be improved by an appeal to the Court of Appeal. So, the further a case gets away from a ‘single issue of law’, the less appropriate it would be for the Court to grant a leapfrog appeal.

Exceptional circumstances

In order to be considered appropriate for a leapfrog appeal, the issues raised would have to be of such “a particular level of importance to warrant describing the circumstances of the appeal as exceptional in the sense in which the term is used in the Constitution”.

Additionally, in cases where ‘a clock in the real world is ticking’ a matter may be considered exceptional where having two appeals would cause an unnecessary delay in ‘achieving an ultimate resolution of urgent proceedings’.

The following points can therefore be taken from the Court’s examination of ‘exceptional circumstances’:

  1. The issue should be of such general public importance or be so vital to the interests of justice to be thus rendered exceptional
  2. In cases of urgency, an appeal may be considered exceptional where any delay which would result from having two appeals, would be disproportionate in the circumstances of the case

Possible disadvantage of a leapfrog appeal

An applicant may raise any arguable grounds of appeal in the Court of Appeal. On the other hand, any appeal to the Supreme Court (whether an ordinary or leapfrog appeal) requires the leave of the Court and, thus, requires a minimum constitutional threshold to be met.

The Court suggested that a possible disadvantage of requiring the leave of the Court may be that an applicant would lose its entitlement to raise certain grounds of appeal, which could otherwise have been raised in the Court of Appeal.

In the context of this perceived disadvantage, the Court drew attention to Section 9 of the Court of Appeal Act 2014², which offers a possible solution. Section 9 permits the Court of Appeal to stay proceedings before it to enable an applicant to apply to the Supreme Court for a leapfrog appeal. Thus, it would seem advisable for an applicant to file a notice of appeal in the Court of Appeal, to have the appeal stayed pending a leapfrog application and then resuming its appeal in the Court of Appeal should the leapfrog application fail.

Decision

The Court granted the application for a leapfrog appeal for the following reasons:

  1. Firstly, the issue in the appeal relates to constitutional principles of access to justice. The Court considered that this issue is of general public importance. The basic appeal criteria were therefore satisfied.
  2. Secondly, in relation to whether there were exceptional circumstances, the Court noted that there was, in essence, a single legal issue of public importance which “transcended the interests of the parties before the Court”, namely the issue of third party litigation funding. The Court was also mindful that the underlying case is one of ‘immense public importance’.
  3. Thirdly, the Court was of the view that the efficient use of court time and resources did not justify two appeals, as a second appeal would likely involve repetition of arguments.

Comment

The Supreme Court’s determination provides useful guidance on the circumstances in which it will consider granting an application for a leapfrog appeal in accordance with Article 34.5.4.

Due to the relatively recent introduction of the Court of Appeal however, the Court was keen to stress that it would be both wrong and dangerous at this early stage to identify an exhaustive list of criteria for a leapfrog appeal. It will be interesting to see how the criteria identified in this determination will be applied in future cases.