THE SUPREME COURT
[Appeal No: 71/2015]
Commissioner of An Garda Síochána
Judgment of Mr. Justice Clarke delivered on the 12th May, 2016.
1.1 The precise and detailed practical consequences for the conduct of appeals in this Court arising from the adoption of the 33rd Amendment to the Constitution, together with the various measures (statutory, rules of court and statutory practice directions) put in to provide for its implementation, have yet to be fully worked out. As has been pointed out in a number of determinations made by this Court in the context of applications for leave to appeal, the Court is necessarily in a transitional phase between its former jurisdiction and the new jurisdiction which will be fully in place when all, or almost all, of the appeals which were already in being prior to the 33rd Amendment coming into force have been disposed of. (See for example – Barlow & ors v. Minister for Agriculture, Food and Marine & ors  IESCDET 8).
1.2 This judgment relates to one set of issues which arise in the context of the new constitutional jurisdiction of this Court. In these proceedings generally the applicant/respondent (“Sgt. McEnery”) seeks judicial review of a decision of the respondent/appellant (“the Commissioner”) to summarily dismiss her from An Garda Síochána. Her proceedings failed before the High Court (McEnery v. Commissioner of An Garda Síochána  IEHC 545 but succeeded before the Court of Appeal (McEnery v. Commissioner of An Garda Síochána  IECA 217). The Commissioner has already been given leave to appeal to this Court on the grounds set out in a determination of 22nd January, 2016 (McEnery v Commissioner of An Garda Síochána  IESCDET 11).
1.3 In the ordinary way, and in accordance with new Rules of Court and the Statutory Practice Direction issued by the Chief Justice, early written submissions were filed by both sides and the matter was listed before me as a single judge for case management. In the course of the case management hearing, an issue arose as to whether certain grounds put forward on behalf of Sgt. McEnery for resisting the appeal could properly be said to be before the Court in the light of the manner in which, in particular, Sgt. McEnery responded to the application for leave filed on behalf of the Commissioner. As the issue raised appeared to me to be one of some importance, arrangements were made to have the issue listed for argument and decision before a panel of the Court (rather than an individual judge dealing with a case management listing). In order properly to understand the issue, it is necessary to say a little about the relevant procedural history.
2. Procedural History
2.1 When Sgt. McEnery’s application for judicial review was before the High Court, a range of grounds was initially relied on. Sgt. McEnery had been the subject of a summary dismissal by the Commissioner under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. That dismissal followed on from the conviction of Sgt. McEnery for assault contrary to s.2 of the Non-Fatal Offences Against the Person Act 1997. A core issue in the proceedings was whether the Commissioner was entitled to summarily dismiss Sgt. McEnery on the basis of that conviction together with what was alleged to be limited or little additional consideration. However, a further ground was canvassed arising from what was said to be the inadequacy of the reasons given by the Commissioner for the decision to summarily dismiss, together with a ground arising from what was argued to be discrimination in the implementation of the summary dismissal provision, given that other gardaí, it was said, who were the subject of similar convictions, were not dismissed. All grounds were rejected by the High Court.
2.2 Each of the issues to which reference has been made were raised on behalf of Sgt. McEnery in her appeal to the Court of Appeal. In delivering the judgment of that Court, Kelly J. noted, at para.30, that the discrimination point had been before the High Court. Likewise, reference is made to the reasons issue being before the High Court at para.31. It is clear from the judgment of Kelly J. that all of those issues were also before the Court of Appeal. However, the Court of Appeal was persuaded to allow the appeal on what I have described as the core issue, being the suggestion that the Commissioner treated the criminal conviction of Sgt. McEnery as being such that little or no further consideration was required in the making of a decision to summarily dismiss. This the Court of Appeal found to be impermissible. On the basis of having found in favour of Sgt. McEnery on that ground, the Court of Appeal did not find it necessary to deal with the other grounds which were before it.
2.3 In that context, the Commissioner sought leave to appeal to this Court. For the reasons set out in the determination to which reference has already been made, this Court granted leave on the grounds set out in Sgt. McEnery’s notice of application. Those grounds, as set out at para.6 of the notice, were all concerned with the core issue. This is hardly surprising in that it was on that core issue that Sgt. McEnery’s appeal had succeeded and the Commissioner had lost.
2.4 It is of particular importance to the questions which fall for decision on this appeal to note that the relevant rules and para. 6 of the standard respondent’s notice (see O.58, r.18 of the Rules of the Superior Courts and Appendix FF, no. 2 of O.58 of the rules) require any respondent to an application for leave to set out “additional grounds on which decision should be affirmed”. That section of Sgt. McEnery’s form in this case is filled in “n/a”. Thus, the clear implication of that form is that it was not intended to put forward on behalf of Sgt. McEnery any additional grounds, beyond those which found favour in the Court of Appeal, as to why Sgt. McEnery should be entitled to succeed in the proceedings generally and to resist the Commissioner’s appeal to this Court.
2.5 It is against that background that complaint is now made on behalf of the Commissioner to the effect that it is said that it has been sought to introduce additional grounds in the written submissions filed on behalf of Sgt. McEnery. The permissibility or otherwise of the inclusion of such grounds is the issue with which this Court is now concerned. In that context, both parties were invited to, and did, file written submissions. An oral hearing followed on the 6th May last. This judgment is directed to that issue. However, before considering that specific issue, it is necessary to analyse the new regime in respect of appeals to this Court which arises by virtue of the adoption of the 33rd Amendment to the Constitution providing for the establishment of the Court of Appeal and the further measures put in place to facilitate the new appellate regime thereby created.
3. The New Constitutional Regime
3.1 Article 34.5.3 now provides that this Court shall, “subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal” if this Court is satisfied either that the relevant decision of the Court of Appeal involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.
3.2 Section 7(10) of the Courts (Supplemental Provisions) Act 1961 as inserted by s.44 of the Court of Appeal Act 2014 now allows an application seeking leave to appeal against a decision of the Court of Appeal to be made “otherwise than with an oral hearing”.
3.3 The new Rules of the Superior Courts adopted to reflect the new constitutional regime provide for the manner in which an application for leave to appeal is to be brought. Order 58, r.18 requires a respondent served with such an application to lodge what is described in that order as a respondent’s notice including, as provided for at O.58, r.18(1)(d), a concise statement of any additional grounds which the respondent intends to contend would justify the affirmation of the judgment appealed from, which grounds are “other than those set out in the judgment or order of the court below”. The relevant forms, as already noted, make provision in that regard.
3.4 Against that background, it is necessary to consider the term “appellate” as used in Art. 34.5.3 and the meaning of an appeal as such in that context. An appeal is concerned with an application to an appellate court which seeks to bring about some change in the substance of the order made by the court from which the appeal is brought (the “court below” as that term is defined in the Rules). It may be said that the order of the court below is wrong in its entirety such that, for example, a plaintiff or applicant’s claim should have been allowed in full while it was dismissed or should have been dismissed when it was allowed in full or in part. Alternatively, the appeal may only be directed to some part of the order ultimately made by the court below. The appeal might, for example, relate solely to some element of damages awarded or to the decision or adjudication of the court below on a question of costs.
3.5 Be that as it may, the key element of an appeal as such is that the appellant suggests that some or all of the order ultimately made by the court below was wrong and should be reversed or changed. While it will, obviously, be required of an appellant to address the judgment or ruling of the court below in order to set out the grounds on which it is said that the order ultimately made is incorrect, it nonetheless follows that the appeal is, in reality, against what the court below did rather than the reasons which the court below gave. It would only be in the most exceptional circumstances, if at all, that an appellate court should entertain an appeal where the appellant was concerned not with the result of the case (over which the appellant was happy to stand) but rather with the reasoning of the Court in deciding how it came to the decision in question.
3.6 It is also important, therefore, to note that where a respondent, who is served with a notice seeking leave to appeal to this Court, wishes to alter the order appealed against, then that respondent also requires separate leave to appeal. The fact that the Court gives leave to an appellant to appeal to this Court on a certain specified basis, which the Court is satisfied meets the constitutional threshold in that regard, does not, of itself, entitle the respondent to seek to change some aspect of the order of the court below with which the respondent is unhappy. A respondent has to make a choice. If the respondent is happy simply to resist the appeal and, if successful, to leave the order of the court below stand, then the respondent does not itself have to seek any leave of this Court. Such a respondent is not itself invoking the “appellate” jurisdiction of this Court in the sense described in the 33rd Amendment. Such a respondent is simply indicating that it is happy with the order of the court below and happy that that order should stand in the event that the appeal is successful. However, if the respondent wants to suggest that the order in the court below should be changed, then it is incumbent on that respondent to itself seek leave to appeal, for an application to change the order of the court below is, in substance, an appeal, even if it is a cross-appeal which might or might not have been raised by the respondent concerned other than as a reaction to the appeal itself.
3.7 A simple example may explain the distinction. In one case, a plaintiff succeeds and is awarded its costs. In a second case, the plaintiff succeeds but, on some basis specified in the ruling of the court below on costs, does not secure the full costs of the case. In both cases, the defendant appeals. In the first case, the plaintiff is entirely happy with the order of the court below. The plaintiff won and got its costs, and if the appeal is successfully seen off, the plaintiff will be happy to retain its victory and its order for costs. However, in the second case, the plaintiff has a question to ask. Does it wish, in the event that it successfully resists the defendant’s appeal, to urge this Court that there should be a change in the order for costs made in the court below by virtue of which only partial costs were found payable? If the plaintiff considers that such is the desired course of action, then the plaintiff will also be an appellant (or, more technically, a cross-appellant) because the plaintiff will wish to persuade this Court to change the order made in the court below (presumably, in those circumstances, from one in which only partial costs were awarded to one in which full costs were awarded). A plaintiff in such circumstances cannot adopt that course of action without itself, separately, seeking leave of this Court to raise that point on appeal.
3.8 While not, strictly speaking, relevant to the issue under consideration, it is worth noting, in passing, that it may well be that some of the points which a respondent might wish to raise in such a context might not, in and of themselves, be points which would meet the first leg of the constitutional threshold for leave to appeal. They may not be points of general public importance. However, there may be circumstances where the second leg of the constitutional threshold, being that it is in the interests of justice that an appeal may be permitted, might persuade this Court to allow such a cross-appeal on the basis that it would be unjust, in all the circumstances, to allow the substantive appeal to be heard without also allowing some or all of the issues sought to be raised on the cross-appeal also to be heard.
3.9 However, those comments are concerned with a case where the respondent actually wishes to change the order in the court below. It seems to me that quite a different position pertains where the respondent simply wishes to argue that there are different or further grounds on which the ultimate substantive decision of the court below might be affirmed. In such a case, it does not seem to me to be correct to describe a relevant respondent as being, properly speaking, a cross-appellant in its own right. The respondent is not saying that the result in the court below was wrong in any respect. The respondent is simply saying that there may be other bases on which it may be permissible to argue that the court below was correct. Obviously if the respondent persuades this Court that the basis on which the court below found in its favour should be upheld, then it would be unnecessary to rely on any other bases. But provided that those other bases can properly be raised on appeal, a point to which I will shortly turn, it does not seem to me that the raising of such points gives rise to a separate or independent appeal.
3.10 Starting at the top of the legal pyramid, it seems to me to be appropriate to indicate that the term appellate, or a cognate term, when used in the Constitution is used in that sense. Appeals, in their constitutional sense, involve a party inviting the appellate court to change what happened in the court below as a matter of substance. A party who is a respondent to such an appeal, who does not wish to change the ultimate order made in the court below, but who wishes to put forward other grounds, if necessary, on which the order of the court below can be supported, is not itself an appellant in that constitutional sense. Such a party does not, in my view, require separate leave of the Court to raise those points.
3.11 While it is, of course, the case that one cannot use rules of court to interpret legislation, let alone the Constitution, it nonetheless seems to me that the rules of court already cited accurately reflect that constitutional distinction. A respondent who simply wishes to put forward additional grounds for upholding the decision of the court below can do so by specifying those grounds at para. 6 of the respondent’s notice. Such a respondent does not need separate leave to appeal. In those circumstances, such a respondent is in a different position to a respondent who actually wishes to alter the decision in the court below, for a respondent in that latter case cannot raise the issue of changing the order in the court below simply by making reference to that fact in the respondent’s notice. Rather, such a respondent is required to make a separate application for leave to appeal.
3.12 However, it is important to emphasise that there is a limitation to the broad approach just outlined. In order for an issue properly to be raised before this Court, it will, in almost all cases, be required that the question was properly before the court of first instance and also, in the normal case where an appeal has already been pursued to the Court of Appeal, has been properly before that Court. Paragraph 6 of the respondent’s notice does not give licence to a respondent to introduce new grounds for supporting the ultimate conclusion of the court below where those grounds were not fully pursued at all relevant times prior to the case coming to this Court. It is unnecessary to engage in this case in any detailed consideration of the precise parameters of that rule. This judgment should not, in any way, be taken as seeking to alter the established jurisprudence in that regard. The only point being made is that it would not be appropriate to seek to raise a point on appeal by its inclusion in para. 6 of the respondent’s notice and thus, as it were, allow the point come into an appeal by the back door, if the point had not been properly raised before. However, provided that the point was properly before the court below, there is no reason why such a point cannot be raised in para. 6 as an additional basis on which this Court may be urged to uphold the ultimate decision of the court below.
3.13 One final point needs to be touched on before turning to the circumstances of this case. Sometimes a court of first instance (or, under the new constitutional model, the Court of Appeal) may not necessarily decide all of the points which were canvassed. A trial court and the Court of Appeal must be given reasonably broad latitude in coming to a view as to whether it is appropriate to decide issues which turn out to be unnecessary to its final decision in the light of the views which the court in question has taken on other issues. For example, a plaintiff who succeeds on one basis may have put forward alternative grounds for success which a court finds it unnecessary to determine precisely because they would not add anything to the plaintiff's win.
3.14 However, courts can and frequently do decide such additional points on a “lest I be wrong” basis. There is merit in that approach in at least many cases because it means that there is a decision on all points which can allow each issue to be properly canvassed on appeal if necessary. Sometimes a failure to deal with all points can lead to a situation where an appellate court has no option but to refer a matter back to a lower court for further consideration precisely because there is no decision from the court below on a question which turns out to be relevant in the light of the views which the appellate court has taken.
3.15 A good example can be found in the sort of case where a first instance court does not address the issues which might arise as to the quantum of damages because a view has been taken that the plaintiff should not succeed on liability. If an appeal is successfully brought by the plaintiff on the liability question, then the appeal court may have no option but to refer the matter back for a trial as to the quantum of damages. On the other hand, if the trial court had determined damages on a “lest I be wrong” basis, then it may well be that the appeal court could address the question of damages as well, thus saving court time and expense to the parties by obviating the necessity for a further hearing in the High Court. On the other hand, there may be cases where, for one reason or another, a court does not think that it is possible, desirable or practicable to decide all points. To continue with the example of damages, the number of hypothetical bases on which damages might need to be calculated in the light of different scenarios in which a plaintiff might, theoretically, succeed on liability, may, in some cases, make it impractical for a court to address damages where a court finds against the plaintiff on the question of liability.
3.16 But those considerations do not seem to me to provide any legitimate basis for suggesting that a party could, as a matter of justice, be deprived of the opportunity of having at least one appeal court decide the merits of what may be an important aspect of their case (unless the right to appeal in question has been circumscribed in some way by legislation). To take a simple example, one might envisage a case where a plaintiff makes a claim based on two points, (a) and (b). The plaintiff wins on point (a) before the High Court, which court finds it unnecessary to decide point (b) because the plaintiff has won anyway and point (b) will not add to the plaintiff’s success. If the defendant were to successfully appeal the finding of the High Court on point (a) and, thus, have that finding reversed, it will be manifestly unfair if the plaintiff were thereby to be deprived of a decision of a court on whether point (b) provided a legitimate alternative basis for success. In many cases, the appeal court might not feel that it is in a position to deal with point (b) because, for example, the necessary facts may not have been found or there may be other reasons why, precisely because the point was not dealt with at first instance, the appeal court may feel unable to deal with it.
3.17 Like considerations apply, in my view, to an appeal under the new regime to this Court. A party which has more than one point live before the Court of Appeal, but which does not obtain a decision on some of those points from that Court precisely because that Court considered it unnecessary to deal with all of the points in the light of the fact that the party concerned won on a single point, should not normally be deprived of the opportunity of raising those additional points before this Court in the event that there is an appeal properly before the Court which meets the constitutional threshold. To suggest otherwise would be to leave open the possibility that a party which wins before the Court of Appeal on one point but loses on that point before this Court might be, thereby, deprived of having an alternative basis for its claim considered on appeal.
4. Application to this Case
4.1 For the reasons which I have sought to analyse, I am satisfied that, at the level of principle, there could have been no barrier to Sgt. McEnery seeking to raise, in para. 6 of the respondent’s notice, any of the grounds which are sought to be addressed in the written submissions. Those points were made both before the High Court and before the Court of Appeal. To the extent that any of those points may be said not to be encompassed within the decision of the Court of Appeal, then those issues were not decided by that Court because it did not find it necessary to decide same in the light of the fact that it was persuaded that Sgt. McEnery should succeed on what I have described as the core or principal ground. But if this Court was ultimately to be persuaded to take a different view on that ground and to reverse the decision of the Court of Appeal in that regard, it would be manifestly, at least at the level of principle, unfair that the alternative grounds which might or might not have found favour in the Court of Appeal would then never be the subject of a decision of an appellate jurisdiction. It should be emphasised that none of the points concerned in this judgment are ones which are outside the scope of the case as it has been conducted to date. Very different considerations might indeed apply if that were not to be the case.
4.2 I am, for those reasons, satisfied that, had the appropriate grounds been referred to in the respondent’s notice, it would not have been necessary for this Court to determine whether those grounds, as stand alone grounds, would have met the constitutional threshold. As such grounds would not represent a separate or independent appeal, but rather would represent further grounds on which it was sought to affirm the decision of the Court of Appeal, they would not require leave or, therefore, to meet that threshold.
4.3 The difficulty, however, stems from the fact that the points concerned were not raised in the respondent’s notice. It must be concluded, therefore, that, at least to some extent, the respondent’s notice has failed properly to place those matters before the Court precisely because there was no mention of any of those issues in the appropriate answer on the relevant form. As already noted, the Rules of the Superior Courts in their amended form require that to be done. The form provides for it. It was not, at least to a material extent, done in this case.
4.4 The issue, therefore, comes down to a consideration of the consequences which should flow from that omission. In assessing that issue, I would take into account the following factors. First, the Court is in a transitional phase and all parties, including the Court itself, are becoming used to new procedures. In those circumstances, it may be appropriate to give some greater degree of latitude than might well be appropriate in the future when that transitional period has come to an end. The views which I express in the circumstances of this case ought not, therefore, to be taken to imply that the same degree of latitude will be afforded in the future, not least because this judgment should, of itself, bring to the attention of the advisers of potential respondents their responsibility to identify, in the respondent’s notice, any additional grounds on which it is sought that the judgment of the court below should be affirmed.
4.5 Next, I would take into account the fact that, for the reasons already outlined, these are grounds which would properly have been before the Court had they been specified in the respondent’s notice. This is not a case where there is any material doubt as to whether the grounds concerned could properly have been raised had they simply been included in the relevant form. Furthermore, the grounds were addressed in the written submissions, and thus were placed before the Court at a very early stage, being before the first case management hearing. The situation might well be different if a party sought, at a late stage, to raise an additional basis for supporting the ultimate conclusion of the Court of Appeal which had not been referred to in the respondent’s notice and was not clearly set out in the respondent’s written submissions.
4.6 It is also important to emphasise that the inclusion of such grounds in a respondent’s notice is more than a mere technical requirement. As already noted in a different context, the constitutional threshold for the grant of leave to appeal to this Court is twofold. As an alternative to persuading this Court than a legal issue of general public importance arises, it is also possible for an appellant to persuade the Court that it should be permitted to appeal because it is in the interests of justice that such should be the case. It is certainly possible to envisage circumstances where, in the light of the fact that it is clear that the Court, on the appeal, will have to consider additional points in support of affirming the decision of the court below, it might also be appropriate to allow the appellant to raise issues which might not otherwise meet the constitutional threshold. The very fact that the respondent has, as it were, placed additional issues on the table may render it in the interests of justice that some greater latitude be given to the appellant. It does not appear that any such consideration applies in the context of this case. However, a failure on the part of a respondent to raise additional grounds in the respondent’s notice could create a fundamental unfairness against an appellant if this Court, in ignorance of the fact that the respondent wanted to rely on such grounds, were to limit the basis of the appellant’s appeal. It is for that reason that I, again, emphasise the importance of the respondent’s notice being properly completed.
5.1 For those reasons I am satisfied as follows:-
5.2 However, it should be made clear that a significant aspect of that balancing analysis stems from the fact that the Court is in a transitional phase. It should not be presumed that similar latitude will continue to be given in the future. In my view, parties and their advisers need to address the completion of the forms required in the context of an application for leave to appeal under the new constitutional regime with considerable care. It cannot be assumed that any omission in that regard will, necessarily, be capable of correction.
(a) It was not necessary for Sgt. McEnery to separately seek leave to appeal or to meet the constitutional threshold in respect of raising additional or alternative bases on which it is said that the judgment of the Court of Appeal in this case ought to be affirmed;
(b) However, the failure to specify such bases in the respondent’s notice filed in accordance with O.58 places Sgt. McEnery in a position where, at present, those matters are not properly before the Court;
(c) It follows that it would require the leave of the Court to allow those issues to now be raised given that they had not properly been raised in the respondent’s notice; and
(d) In the light of the transitional stage at which the Court’s new procedures are being applied, the fact that all of the relevant points were properly before the Court of Appeal, and the fact that the points concerned were raised in a clear fashion in the initial written submissions filed on behalf of Sgt. McEnery, I would give leave, at this stage, to allow those points to be relied on.