On 29 July 2014, the Supreme Court delivered its judgment in Fitzgibbon -v- Law Society of Ireland  IESC 48. Judgments were delivered by Chief Justice Denham, Mr Justice McKechnie and Mr Justice Clarke. The judgment of Mr Justice Clarke addressed the law in relation to statutory appeals and provided much needed guidance in the area.
Although this judgment is over a year old, it seems to have slipped under the radar to some extent and is particularly relevant to statutory bodies. The High Court appeal originated from a decision of the Committee of the Law Society (the Committee”) in respect of a complaint of inadequate services and excessive fees made by two clients of Ms Fitzgibbon under the Solicitors (Amendment) Act, 1994 (the “Act”). The Committee upheld the complaints and Ms Fitzgibbon (the “Appellant”) appealed the decision to the High Court under s 11(1) of the Act.
A preliminary issue arose in the High Court as to the nature of such an appeal. This issue was whether the appeal should take the form of a de novo hearing or whether it should be restricted to a review of the Committee’s decision. Kearns P found that the appeal should take the form of a review of the Committee’s decision and oral evidence should only be heard if necessary. Kearns P’s decision was appealed to the Supreme Court.
The Supreme Court dismissed the Appellant’s appeal.
Judgment of Clarke J
Clarke J highlighted the difficulty the term “appeal” can bring in that it covers many different appeal processes. In circumstances where the rules or statute are silent on the form the appeal should take, Clarke J laid down the general characteristics of four different types of appeal, namely:
- A de novo appeal
- An appeal on the record
- An appeal against error
- An appeal on a point of law.
Taking each in turn –
1. A de novo appeal
A de novo appeal brings with it a requirement that the appellate body come to its own conclusions on the matter before it. It is a completely fresh look at something and the evidence that was before the first instance body is not automatically properly before the appeal body. Clarke J also concluded that with a de novo appeal, the decision by the first instance body must be wholly irrelevant.
Clarke J went on to state that the issues may have been narrowed at first instance. He further stated that evidence given at first instance will not necessarily be irrelevant to the appeal process. In his view, it is for the parties to again present to the appellate body the evidence they felt necessary to their case. Clarke J noted that there are exceptions to this in that it is open to a party to question the credibility of an account being given by reference to evidence presented at first instance.
A de novo appeal, therefore, has a requirement that the appellate body exercise its own judgment on the issues presented before it without any regard to the decision made by the first instance body.
2. An appeal on the record
The appellate body must come to its own conclusions without regard to the decision made by the first instance body. Clarke J submitted that the default position with this type of an appeal is that the body of evidence before the appellate court is the same as that before the first instance body. The appellate body will consider this evidence and will come to its own decision.
Clarke J stated that there may be limitations to this however, as it might not be possible for the appellate body to reach its own independent conclusions without first having regard to the decision of the body at first instance. He also suggested that in certain circumstances and depending on the wording of the particular legislation, a party may be able to make an application to introduce new evidence including oral evidence and crossexamination.
A situation such as this lends itself to difficulties in conducting an appeal on the record and may, as suggested by Clarke J, give rise to a hybrid type of appeal.
3. An appeal against error
An appeal against error can be contrasted starkly with a de novo appeal in that the appellate body does have regard to the decision of the first instance body and considers whether that body’s decision is correct or sustainable on the basis of that record.
Clarke J also found that in an appeal of this nature, the appellate body may accord appropriate weight to any expert determinations of the first instance body. In this regard, he recognised that the courts regularly afford curial deference to statutory bodies where their decision is appealed.
Clarke J went on to state that there may be rules prescribed as to how the appellate body should assess a question of error but in the absence of such rules the default position is that the appellate body should not interfere with findings of fact of the first instance body unless there was no sustainable basis for the finding or where the finding was clearly in error.
4. Appeal on a point of law
Clarke J noted that many statutes provide for an appeal on a point of law. He submitted, however, that there may be two types of appeal on a point of law. First, there may be an error of law in the determination of the first instance body. Second, there may be an error in the way the first instance body reached its conclusions which could give rise to an error in law. This may arise where there was no evidence to support a particular finding or inferences may have been drawn on the facts which no reasonable decision-maker could have drawn.
Clarke J stated that in an appeal of this nature, a higher degree of deference should be accorded to the first instance body than in an appeal against error.
Clarke J helpfully also made some comments on judicial review. He stated that the purpose of judicial review is to determine the legality of the decision challenged, whether it is the way in which the decision was reached or the decision itself. He noted that a greater degree of review is allowed in judicial review in contrast to a statutory appeal. With that in mind, he referred to the concept of an “error within jurisdiction” and he posited that there are errors which do not give rise to judicial review as they do not affect the lawfulness of a decision as opposed to the correctness of the decision.
This judgment clearly expands the ambit of statutory appeals. The judgment appears to dispense with the notion that statutory appeals should not be dealt with as de novo appeals (unless statute specifically provides that any appeal is not to be de novo). This may have an impact on the volume of appeals that will be taken against decisions made by statutory bodies, but to what extent, remains to be seen.