Obtaining a date for the hearing of appeals in the Supreme Court has reached a crisis point. A case certified as ready for appeal today, will not get a hearing date until mid 2017 at the earliest, a delay of over four years. In the words of Chief Justice Denham, the current situation in the Supreme Court is “unsuitable, untenable and cannot be defended”. These are strong words which do not bode well for the highest court in the land. Nor does this bode well for the rule of law and Ireland’s standing both democratically and economically on the international stage.

As the final court of appeal, it is evident, that the Supreme Court no longer has the capacity to process the volume of civil cases appealed to it from the High Court in a timely manner. There are currently in excess of 543 cases certified as ready to be heard on appeal. The most recent appeals that have been given dates were cases which were certified as ready for hearing in 2008.

In recent years, the Supreme Court has operated a priority listing of cases on appeal: these are cases which due to the urgency of the issues involved have been allotted a priority date for hearing ahead of other general appeals. Of the 543 cases ready for hearing, 71 this year have been given priority listing meaning that they will be given a hearing date over the next nine to 12 months. However, the situation is now so grave that the Chief Justice earlier this year declared that the Supreme Court could not give priority to any other cases due to lack of capacity arising from the unprecedented number of appeals in the Supreme Court list.

Such delays in resolving legal disputes has a very damaging effect on individuals, commercial entities, and the ever increasing public and regulatory bodies in this jurisdiction. The maxim of “justice delayed is justice denied” has never rung more true.

Legal certainty is crucial to the smooth running of a democratic State and is essential for the economy. The courts perform an important role in supervising the activities of regulatory bodies established by the Oireachtas: these bodies have responsibility for regulating many areas of social and economic importance such as planning, health, information, energy and communication sectors to name but a few. It is vital that when the decisions of such regulatory bodies are disputed and litigated in court that these disputes are resolved by the courts in an efficient and timely manner. Any delays in the processing of challenges of the decision making processes of these bodies can hinder and impede their regulatory functions and has an economic and administrative impact on them. The speedy resolution of disputes is a necessary prerequisite for a successful economy and has a bearing on whether Ireland is viewed, by investors as a good place to do business. In addition, Ireland is a party to a number of international agreements such as the European Convention on Human Rights and the Hague Convention: delays in processing these cases place Ireland in breach of its international obligations

This lack of capacity to process appeals in the Supreme Court in a prompt manner has arisen as a result of an increase in the volume and complexity of litigation coming before the High Court in recent decades. In 2011, there were 26,378 claims initiated in the High Court. There are currently 36 High Courts to deal with the large volume of cases which in turn means that cases from each of the High Courts can be appealed to the Supreme Court. Last year there was a 21.2% increase in the number of appeals filed to the Supreme Court. The present structure of the courts was not designed to deal with the volume and complexity of litigation coming before it. The Supreme Court comprising of eight judges (which can sit in two divisions), has to hear appeals from each of the 36 High Courts, which has created a bottleneck in the Irish court system.

The solution to the problem long advocated by Chief Justice Denham is the establishment of a Court of Appeal. The Working Group on a Court of Appeal in its 2009 Report recommended the creation of a permanent Court of Appeal which would operate as an intermediate appellate court between the Supreme Court and the High Court. This intermediate Court of Appeal it is envisaged would consist of a permanent panel of judges which would comprise of several divisions both civil and criminal. It would deal with routine appeal cases concerning corrections of error of law and fact. The majority of appeals, that, come before the Supreme Court presently concern error correction. This two tier appeal system would enable the Supreme Court as the final court of appeal to focus on appeal cases which raise constitutional and legal issues of significant importance. To prevent the possibility of cases being appealed routinely from the Court of Appeal to the Supreme Court, a strict filtering system requiring the granting of leave to appeal would be necessary.

The Working Group also recommended for the Court of Appeal to be established on a Constitutional footing which would necessitate an amendment to the Constitution. In this regard, the Government has now decided to hold a referendum in September on the need for a new Court of Appeal. Whilst this is an ambitious time frame it has at last put the issue in the public domain to enable discussion and debate on this a most important of matters affecting each and every citizen in this country.

To understand how this impasse in the Supreme Court has been brought about one must look to the structure of the courts as established by the Constitution, which whilst fitting and adequate for its time is now no longer adequate.

The Court Structure

The structure of the Courts was established under the 1922 Constitution of the Irish Free State and re-established by the 1937 Constitution. Article 34 of the 1937 Constitution sets out the general grand design of the court structure; the details of which are filled in by statute by the Courts (Establishment and Constitution) Act 1961. The court system is divided into courts of local and limited jurisdiction (the District and Circuit Courts known as the lower courts) and the Superior Courts consisting of the High Court, the Court of Criminal Appeal and the Supreme Court.

With regard to the Superior Courts as this is where the bottleneck has arisen, specific provision is made for the High and Supreme Courts in the Constitution. Article 34.3.3 of the Constitution delineates the High Court as the Superior Court of First Instance: it has “full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal”.

The Court of Criminal Appeal is a creature of statute. It was established by section 3 of the Courts (Establishment and Constitution) Act 1961. It is the only intermediate court of appeal for criminal matters. Appeals from decision of the High Court in criminal matters are appealed directly to it. It is not a permanent court as it is composed of one judge of the Supreme Court and two judges of the High Court. As a result it sits on a part time basis as these judges have significant additional obligations elsewhere. It had been anticipated that the Court of Criminal Appeal would be subsumed into the Supreme Court under the Courts and Court Officers Act of 1995. However, this is no longer feasible owing to the constraints on the Supreme Court’s current capacity for dealing with appeals.

The Supreme Court at the apex of the court structure is defined by Article 34.2 of the Constitution as a “Court of Final Appeal”. However, its role is not solely confined to an appellate function. The Supreme Court has four distinct jurisdictions as follows:

  1. To determine the permanent incapacity or otherwise of the President of Ireland under Article 12.3.;
  2. To determine the constitutionality of Bills or provisions of Bills as referred to it by the President of Ireland under Article 26;
  3. To determine appeals under Article 34.4.3 in respect of
    1. all decisions of the High Court and
    2. from such decisions of other courts as may be prescribed by law such as a case stated from the Circuit Court.
  4. To hear appeals from the Court of Criminal Appeal on questions of exceptional public importance.

In reality, the Supreme Court’s appellate jurisdiction is by far its most exercised power and in particular from decisions of the High Court. There is no automatic right of appeal to the Supreme Court from the lower courts. Its power to hear appeals from decisions of other courts has been limited to appeals by way of case stated from the Circuit Court which has been prescribed by section 16 of the Courts of Justice Act 1947 in respect of civil matters. Further, a case which commenced in the Circuit Court and which has been appealed to the High Court is excluded from appeal to the Supreme Court, as provided by section 48 of the Courts (Supplemental Provisions) Act 1961.

In terms of criminal matters, an appeal from the Court of Criminal Appeal to the Supreme Court is restricted to cases where leave to appeal has been granted by the court. This strict filtering system only allows for appeals to the Supreme Court in cases involving “a point of law of exceptional public importance”, where it is “desirable in the public interest”. This is prescribed by section 29 of the Courts of Justice Act 1924, as substituted by section 22 of the Criminal Justice Act 2006. As a consequence, there are relatively few appeals from the Court of Criminal Appeal.

Therefore, the vast majority of the Court’s workload comes from High Court appeals in civil matters. This is due to the fact that there is an automatic right of appeal from cases initiated in the High Court to the Supreme Court: there is no general requirement to seek leave to appeal a decision of the High Court in civil matters.

The court structure as established in 1922 and re-established under the 1937 Constitution was fitting and adequate for its time and the founding fathers of this Constitution were indeed innovative in drafting a living prescient document with its emphasis on fundamental personal rights, particularly when viewed against the backdrop of Europe in the 1930s. However, the drafters of the Constitution could not have foreseen the growth in the volume of litigation, nor its complexity and diversity.

Volume and Nature of Litigation

In 1922, the population was 2.9 million and in 1961 it was 2.8 million. Today the population is 4.59 million. This of itself has had a bearing on the increase in litigation and is reflected in the expansion of the High Court. In 1961, the High Court consisted of 7 judges comprising of the President of the High Court and six ordinary judges. This number has steadily increased over the decades in line with the increase in the volume of cases particularly from the 1970s, as a consequence of Ireland’s economic and social development. The volume of cases has grown exceptionally in the last two decades both during the reign of the Celtic Tiger and its subsequent demise. Today there are 36 High Court judges.

In addition, the nature of litigation itself in the past 90 years has undergone a transformation. Today, there is an increasing wealth of legal areas and specialisation of the law. This has come about due to technological, scientific and social changes which have led to a general increase in specialisation across society such as in the telecommunications and energy sectors. The breadth and depth of law is evident from the various types of lists of cases which now come before the High Court, and specialist areas which include: commercial law, competition law, planning law, environmental law, freedom of information, data protection, banking, judicial review, public procurement, construction law and many more.

In addition, the Oireachtas in recent years has established new statutory or regulatory regimes in areas such as competition, planning and environmental law, which are new jurisdictions for the courts to oversee. Furthermore, specialist expert public bodies have been established by the Oireachtas such as ComReg, the Information Commissioner, the Competition Authority, the Financial Regulator, to which the courts are given a supervisory jurisdiction over these bodies. Such specialisation of the law involves expert evidence which increases the length of court hearings.

Litigation in the Supreme Court and High Courts is now at unprecedented levels of volume and complexity. Whilst the infrastructure of the High Court has developed to meet the growth in litigation, which has seen a six fold increase in the number of judges, no corresponding development has occurred in the Supreme Court. In 1995, the number of judges in the Supreme Court was increased from five to eight, thus enabling the Court to sit in two divisions. This was brought about by the Courts and Court Officers Act 1995.

The High Court has also introduced effective case management to process the volume of cases coming before it. In recognition of the importance of commercial life to the economy of the country a dedicated Commercial Court was established in 2004. It has been very successful in expediting commercial matters in the High Court. However, the achievement of this court is undermined when cases from the Commercial Court are appealed to the Supreme Court and are subject to long delays. Again this is evident when decisions of regulatory bodies which are effectively and efficiently case managed in the High Court are then appealed to the Supreme Court. Delays in processing appeals in this area creates legal uncertainty and impacts on such regulatory bodies in their effective administration.

Whilst, the Supreme Court also operates a case management system, it is receiving all civil appeals from an expanded High Court of 36 judges. It is this situation which has brought about unsustainable delays. To merely increase the number of Supreme Court judges would not effectively solve the problem as it could lead to inconsistency in decisions and would create uncertainty in the law which is detrimental to business and regulatory bodies.

Proposal for an Intermediate Court of Appeal

An effective solution is the establishment of an intermediate Court of Appeal with a permanent panel of judges as recommended by the Working Group on a Court of Appeal in its 2009 Report. This Court of Appeal would combine both criminal and civil jurisdiction and thus the Court of Criminal Appeal would be redundant. It would clear the current backlog of cases on appeal and would ensure the creation of a more effective and efficient flow of cases. Whilst, the Working Group did not provide explicit details as to the composition and operation of the intermediate Court of Appeal, it is clear that they envisaged a panel of judges which would be composed of three judges in any one panel which could hear appeals in divisions both civil and criminal. Within the civil division, it is anticipated that appeals would be dealt with according to particular types of cases such as planning cases, commercial cases, and judicial review.

The Working Group advocated the development of a two tier appeal system whereby cases involving correction of facts or law on appeal (which form the majority of the appellate workload) would be dealt with at the intermediate appeal stage. Only cases of significant importance would be subject to a further appeal from the Court of Appeal to the Supreme Court. However, to effectively, operate as a final court of appeal and to prevent a general flow of cases from the Court of Appeal to the Supreme Court, the introduction of a requirement of leave to appeal to the Supreme Court would be necessary. To do otherwise, would merely serve to create another avenue of appeals and would not solve the bottleneck. In this regard, the establishment of the correct threshold test for a grant of leave to appeal is imperative if the Court of Appeal is to achieve the efficiency intended. Further, it would be for the Supreme Court itself to determine which cases should be granted leave to appeal as the Working Group had found that this is the practice in other common law jurisdictions. The Working Group also recommended a “leapfrog jurisdiction” from the High Court to the Supreme Court concerning appeals in exceptional cases but which could only be decided by the Supreme Court itself.

The result would be that the Supreme Court would hear only those cases which raise questions of general social, constitutional or public importance. It would effectively operate as a Constitutional Court, which the Working Group felt is the primary domain of a Supreme Court, in line with the current trends in developments in comparable common law jurisdictions in England and Wales, Australia, Canada and New Zealand and the US. In fact, the drafters of the 1937 Constitution had considered establishing a Constitutional Court in addition to the High and Supreme Courts but this did not come to pass.

The establishment of the Court of Appeal requires a constitutional amendment to ensure that its jurisdiction would be beyond challenge. This the Working Group felt could be achieved by means of a consolidating amendment to Article 34 of the Constitution which would clearly define the role of the Court of Appeal and its interrelationship with the Supreme Court with the finer details fleshed out in legislation.

It remains to be seen what form of amendment the Government will embark upon in the upcoming referendum and in this regard, consultation with the judiciary would be a vital part of the process. It is important that a full composite amendment along the lines recommended by the Working Group be adopted as to do otherwise, would create uncertainty on the jurisdiction and role of the Court of Appeal. This is an important referendum as an efficient appellate system is essential for the future of this country and its economic success.