SC16 - Conduct of proceedings in Supreme Court
(issued under section 7(7) of the Courts (Supplemental Provisions) Act 1961, inserted by paragraph (a)(iv) of section 44 of the Court of Appeal Act 2014)
(a) In this practice direction:
'case management judge' means the Chief Justice or a Judge of the Supreme Court nominated by the Chief Justice under section 7(6) of the Courts (Supplemental Provisions) Act 1961, as inserted by section 44 of the Court of Appeal Act 2014;
'the rules' means the Rules of the Superior Courts;
'the court' means the Supreme Court;
'the office' is the Office of Registrar of the Supreme Court;
a reference to a form is to the form as numbered in Appendix FF of the rules;
a reference to Order 58 is to Order 58 of the Rules.
(b) This practice direction is issued in respect of appeals and applications for leave to appeal initiated pursuant to the jurisdiction conferred on the court by the amendments of the Constitution comprised in the Thirty-third Amendment of the Constitution, which took effect on the 28th October, 2014.
(c) While specific provisions of the rules are referred to where this is considered to be of assistance, this practice direction should be read in conjunction with the rules generally, and in particular the amendments to Order 58 (Proceedings in the Supreme Court) and to other provisions of the rules available at the Courts Service website at: www.courts.ie.
2. Conduct of proceedings generally
(a) Order 58 rule 2(1) requires all applications, appeals and other matters before the court to be prepared for hearing or determination in a manner which is just, expeditious and likely to minimise the costs of the proceedings.
(b) The parties are under an obligation to ensure that all steps in the proceedings before the court are taken expeditiously and within the time prescribed by the rules and this practice direction.
Applications for Leave to Appeal
3. Applications for Leave to Appeal
(1) Form of application for leave to appeal
(a) Applications for leave to appeal are considered by the court consisting of at least three judges. Applications are normally decided on the papers unless the court otherwise orders and it is essential that the application is in the correct form. Order 58 rule 15 requires that all applications for leave to appeal to the court be brought by the lodgment in the office for issue of a notice in the Form No. 1. The form should be completed on A4 paper, securely bound on the left. This form is available for download from www.courts.ie in electronic format.
(b) As required in section 5 of Form No. 1, the application should set out concisely the reasons in law:
• in the case of an appeal from the Court of Appeal (under Article 34.5.3° of the Constitution), why the decision sought to be appealed involves a matter of general public importance and / or why in the interests of justice it is necessary that there be an appeal to the court and
• in the case of an appeal from the High Court (under Article 34.5.4° of the Constitution), why the decision sought to be appealed involves a matter of general public importance and / or why in the interests of justice it is necessary that there be an appeal to the court and why there are exceptional circumstances warranting a direct appeal to the court.
In particular, the information required by Sections 5 and 6 of Form 1 must be provided but the court anticipates brevity and clarity in this regard.
(c) If an applicant for leave to appeal:
(i) asks the court to depart from one of its own decisions;
(ii) seeks a declaration that a provision is inconsistent with or repugnant to the Constitution and/or incompatible with the European Convention on Human Rights;
(iii) seeks a reference to the Court of Justice of the European Union;
this should be stated clearly in the application and full details must be given (as required in Section 8 of the Form).
(d) The grounds of appeal should not normally exceed 2 pages of A4 size (using font size 12 Times New Roman or similar, with 1.5 line spacing and margins of 2.5 cm at top, bottom, and each side) bearing in mind that the judgment(s) of the court(s) below will be available to the court.
(e) The application for leave to appeal should include the neutral citation of the judgment appealed against and the references including any law report of the decision in the court below (as required in Section 7 of Form No. 1).
(f) An application for leave to appeal must be signed by the applicant’s solicitor or (if the applicant is not legally represented) the applicant.
(g) Order 58, rule 14(1) provides that the Registrar may refuse to issue any notice of appeal or other document which does not comply with the requirements of that Order or the requirements of any statutory practice direction which applies to the application or appeal in question.
This may, for example, arise where: the grounds appear without adequate explanation to be excessive in length; where the application fails to identify the relevant reasons mentioned in paragraph (b) above; the application is not legible or is not produced in the required form.
A party aggrieved by such refusal may apply within 14 days of the refusal by notice of motion to the court to authorise the issue of the notice of appeal or other document (Order 58, rule 14(2)).
(h) Order 58 rule 16(1) requires that the application be filed in the office within 28 days from the perfecting of the order appealed against.
(i) An electronic copy should be transmitted to the court on the day of filing at the following email address: email@example.com.
(j) An attested copy of the order appealed from must be filed with the application (as required by Order 58, rule 16(1)). Where a written judgment has been given, an attested copy of it approved by the court below should be lodged with the notice of appeal or, if not then available, must be lodged promptly after it becomes available (as required by Order 58, rule 16(3)).
(a) A copy of the application mustbe served on all parties directly affected by the application for leave to appeal or appeal within 7 days after the application has been lodged (as required by Order 58 rule 17(1)).
(b) A certificate of service (giving the full name and address of the respondent(s) or the solicitor for the respondent(s)) must be filed with the Additional Papers identified in paragraph 8 below. Thecertificate must be in the following terms "I certify that the _________ was served on ____________on the ___day of___201_ by the following method _____________signed ___________"
(c) In cases of dispute the court may require service to be proved by an affidavit of service conforming to the requirements of Order 58 rule 5(3).
4. Extension of Time
(a) Where an appellant is unable to file application for leave to appeal within the relevant time limit, an application for an extension of time must be made in the appropriate section of Form 1.
(b) The respondent’s views on the extension of time should be sought and, if possible, those views should be communicated with the application for leave.
5. Respondent’s Notice
(a) Each respondent must, within 14 days after service of the application, file in the office and serve the respondent’s notice in Form No. 2 (as required by Order 58, rule 18(1)). The form is available for download from www.courts.ie in electronic format.
(b) As required in Section 4 of Form No. 2, if the application for leave to appeal is being contested, the respondent should set out concisely and as appropriate depending on the applicant’s grounds of application for leave to appeal, the reasons why:
• in the case of an application for leave to appeal from the Court of Appeal (under Article 34.5.3° of the Constitution)-
(i) the decision in respect of which leave to appeal is sought does not involve a matter of general public importance
(ii) it is not, in the interests of justice, necessary that there be an appeal to the court
• in the case of an application for leave to appeal from the High Court (under Article 34.5.4° of the Constitution)-
(i) the decision in respect of which leave to appeal is sought does not involve a matter of general public importance
(ii) it is not, in the interests of justice, necessary that there be an appeal to the court
and there are no exceptional circumstances warranting a direct appeal to the court.
(c) As required in section 2 of Form No. 2, if the respondent is opposing an extension of time sought by the applicant the respondent must set out reasons why the application should be refused.
(d) An electronic copy should be transmitted to the court on the day of filing at the following email address firstname.lastname@example.org.
(e) A certificate of service of the notice (giving the full name and address of the person(s) served) and four copies must be filed within 7 days of the last service. The certificate must be in the form set out in paragraph 3 (2) (b).
(f) As provided for in Order 58, rule 18(4), unless the court otherwise directs, a respondent who does not filenotice under that rule will not receive any further communication from the office concerning the appeal.
6. Anonymity and reporting restrictions
In any application concerning children, the parties, in addition to considering the case title to be used, should also consider whether it would be appropriate for the court to make an order restricting publication or reporting. The parties should always inform the office if such an order has been made by a court below. Any request for such an order to be made by the court and any objections to the making of such an order should be made in writing to the Registrar, as soon as possible after the filing of an application for leave, in each case setting out the legal basis upon which such orders are sought or opposed.
(a) The application for leave and the respondent’s notice will be published on www.courts.ie when the court has determined the application.
(b) The application or notice should not contain any information the publication of which is prohibited by any enactment or rule of law or order of a court.
(c) If the application or notice does contain such information the relevant party must transmit to the office a redacted version of that party’s document in electronic format, from which all such information must have been deleted. This version should be emailed to: email@example.com.
(d) It is the responsibility of the parties to ensure that documentation does not contain scandalous, abusive or vexatious material.
8. Additional papers
(a) The following additional papers must be filed by the applicant for use by the court within 7 days after the filing of the application:
(i) four copies of the application;
(ii) four copies of the respondent’s notice if filed and served;
(iii) four copies of the order appealed against;
(iv) four copies of the approved judgment of the court below;
(v) four copies of the final order(s) of all other courts below;
(vi) four copies of the approved judgment(s) of all other courts below;
(vii) four copies of the certificate of service of the application for leave on all respondents served;
(b) These copies must be easily legible in A4 paper size using font size 12 and one and a half line spacing and properly bound in one or more volumes. The volumes must be numbered 1 to 4, properly labelled and indexed.
(c) No other papers are required and documents other than those listed above will not be accepted unless requested by the court. documents which are not clearly legible or which are not in the required style or form will not be accepted.
(d) Where the required papers are not filed within 8 weeks after the filing of the application and no good reason is given for the delay, the Registrar may refer the application to the court without the required accompanying papers for such directions or orders as appear appropriate to the court.
(a) When the court has considered the documents filed it may then:
(i) direct that written submissions on the application for leave be filed;
(ii) refuse leave;
(iii) grant leave on all or specified grounds;
(iv) direct an oral hearing with or without the filing of written submissions;
(v) invite the parties to file written submissions as to the grant of leave on terms whether as to costs or otherwise.
(b) The court gives brief reasons for refusing leave to appeal (see section 7(15) of the Courts (Supplemental Provisions) Act 1961, as inserted by section 44 of the Court of Appeal Act 2014).
(c) The court’s determinationof the application will be published on www.courts.ie.
10. Leave refused
If the court decides that leave should be refused, the parties are notified that the application is refused and they are sent a copy of the order sealed by the Registrar which certifies the court’s decision.
11. Leave given outright
If the court decides that an appeal should be entertained without further proceedings, it grants leave outright and the parties are sent a copy of the order sealed by the Registrar which certifies the court’s decision.
12. Leave given on terms
If the court is considering granting leave to appeal on terms:
(a) the court proposes the terms and the parties have the right to make submissions on the proposed terms within 14 days of the date of the court’s proposal;
(b) the court will then decide whether to grant leave (unconditionally or on terms);
(c) a prospective appellant who is granted leave to appeal subject to terms that he or she is unwilling to accept may decline to pursue the appeal;
(d) where in an application for leave to appeal from the High Court under Article 34.5.4° of the Constitution, a prospective appellant declines to proceed on the basis of the terms proposed by the court, the appellant may instead pursue an appeal to the Court of Appeal subject to any provisions of law regulating or limiting that party’s entitlement to pursue such an appeal.
13. Application referred for oral hearing
(a) In cases where further argument is required, an application for leave to appeal is referred for an oral hearing.
(b) When an application is referred for an oral hearing, the appellant and all respondents who have filed notice under Order 58, rule 18(1) are notified of the date of the hearing. Parties may be heard before the court by counsel, by solicitor, or in person. If counsel are briefed the solicitors should ensure that the Registrar is notified of their names.
(c) All the parties are sent a copy of the order sealed by the Registrar which records the court’s decision.
14. Interventions in applications for leave to appeal
Any person seeking to intervene in an application for leave may, in the first instance, write to the Registrar outlining the basis for the proposed intervention and this correspondence should be copied to the appellant and any other party to the application. If leave to appeal is granted, a formal application must be made if the intervener wishes to intervene in the appeal. See also Order 58, rules 3(1) and 3(2).
(a) Where an unsuccessful application for leave to appeal is determined without an oral hearing, costs may be awarded by the court on application to be made by letter addressed to the Registrar.
(b) Where an application for leave to appeal is referred for an oral hearing and is dismissed, application for costs must be made by the respondent at the end of the hearing. No order for costs will be made unless a request is made at that time.
(c) Where leave to appeal is granted, costs of the application for leave become costs in the appeal.
(d) The reasonable costs of objecting to an unsuccessful application for leave to appeal will normally be awarded to the respondent, subject to the discretion of the court. If leave to appeal is granted, the costs of the respondent’s notice become costs in the appeal.
16. Interlocutory Applications
As provided for in Order 58 rule 27(5) no application for interlocutory relief (including any relief by way of a stay or security for costs) may be made before the determination of the application for leave.
17. Filing notice of intention to proceed
Where leave to appeal is granted by the court, that partof the notice of appeal containing the grounds on which leave was granted (and excluding any grounds of appeal on which leave to appeal wasrefused) will stand as the notice of appeal and the groundsof appealare limited to those on which leave has been granted. The appellant must, within 28 days of the grant by the court of leave to appeal, file notice that he or she wishes to proceed with the appeal (Form No. 3). Alternatively, the appellant must file written notice of intention to withdraw or abandon the appeal.
(a) In urgent cases including cases involving liberty of the individual, urgent medical intervention or the urgent need to secure the well-being of a child a request for expedition may be made in writing to the Registrar. The parties must inform the Registrar when the proceedings fall under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) or the revised Brussels II Regulation.
(b) In order to achieveexpedition the court may set aside or vary the time limits and practice directions that normally apply to applications and appeals.
(c) Abridged procedures and special rules for the production of documents may be applied to meet the circumstances of each application and appeal.
Conduct of Appeal
19. Lodgment and delivery of written submissions and preparation of Core Book of Appeal
Subject to any directions which may be given at the Directions hearing the following requirements shall apply:
(a) The appellant shall within 2 weeks of lodgement of the Notice of Intention to Proceed lodge his or her written submissions with the court and deliver a copy to every respondent to the appeal. No later than 2 weeks following delivery of the appellant’s written submissions, each respondent shall lodge with the court and deliver to the appellant a copy of his or her written submissions. In addition to written submissions being lodged electronic copies in Word format should be transmitted to the following email address: firstname.lastname@example.org. No later than 1 week following delivery of the respondent’s submissions, the appellant shall submit to the court and any parties to the appeal a book (the 'core book of appeal') containing:
(i) The order appealed against;
(ii) The judgment under appeal;
(iii) The Notice of Appeal, and any Notice of Appeal to the court by any respondent arising from the same judgment or order to which the appeal relates;
(iv) The Application for Leave;
(v) The Respondents notice (if filed);
(vi) The Order granting leave;
(vii) The notice of intention to proceed;
(viii) Submissions of the appellant /moving parties;
(ix) Submissions of the respondent.
(b) Any such book shall leave sufficient space to accommodate any other document directed by the case management Judge to be prepared (for example, a statement of facts, list of issues, etc). Any such documents submitted shall be legible, clearly labelled, and punched for inclusion in the core book.
20. Format and content of written submissions
(a) Written submissions should be logically arranged with appropriate headings, and be a concise summary of thesubmissions to be developed at the oral hearing. They should be free from irrelevant, immaterial or scandalous matter.
(b) All submissions should carry the title and record number of the case, and should clearly indicate on whose behalf they are presented, and should deal with the judgment appealed against, and should address specifically all important and relevant authorities.
(c) The submissions should be presented in the following format:
(i) A4 size page printed on one or both sides;
(ii) Font size 12, Times New Roman or similar;
(iii) 1.5 line spaces;
(iv) Margins of 3.25 cmat each side and 2.5 cmat top and bottom;
(v) No more than 10,000 words in total (the word count to be noted on the submissions document).
(d) Submissions should follow the following template:
(i) Introduction (which should not exceed two pages) setting out the circumstances giving rise to the proceedings and identifying the findings of fact made by the trial judge, or not contested and, where appropriate upheld by the Court of Appeal;
(iii) Judgment appealed from;
(v) Conclusion stating the reasons upon which the appeal is founded, or resisted as the case may be, and the orders sought.
(e) The appellant or moving party should include a chronology whether as part of the introduction, or in a separate appendix (which appendix will not form part of the submissions for the purpose of the word limit set out at paragraph (c)(v) above). The respondent should state if the chronology is agreed. Where it is not agreed, the respondent should produce his or her own chronology identifying clearly the points of difference. Parties are reminded that they are not entitled to revisit findings of fact made by the trial judge and/or upheld by the Court of Appeal, unless permitted to do so by a ground or grounds upon which leave has been granted . In such case parties should address the basis in law upon which such findings are contested.
(f) Each party to an appeal shall, where the written submissions contain any information the publication of which is prohibited by, or would contravene any restriction contained in, any enactment or rule of law or order of a court, transmit to the Office a redacted version of that party’s written submissions in electronic format, from which all such information shall have been deleted. A copy of written submissions lodged in or transmitted to the Office or handed in to the court in relation to, or in the course of, the hearing of any appeal will be made available to any person requesting same, on payment of any fee chargeable for such copy. Submissions will not be made available prior to the commencement of the hearing of the appeal. Any publication by the person who obtains the submissions should respect any prohibition in law or order of the court.
21. A Directions hearing will normally be held 6 weeks after the lodgement of the Notice of Intention to Proceed. At the Directions hearing provided for in Order 58, rule 24, unless they have been already lodged or unless otherwise directed by a case management judge, the appellant shall lodge in the Office not later than four days before the date fixed for the Directions hearing 2 copies of the Core Book of Appeal and any other document in the appeal to which any party proposes to refer at the Directions hearing.
These copies must be easily legible in A4 paper size using font size 12 and one and a half line spacing and properly bound in one or more volumes. The volumes must be numbered 1 to 2, properly labelled and indexed.
Books of Authorities
22. Format and content of books of authorities
(a) Books of Authorities should unless otherwise ordered be presented in the following format and sequence:
(i) Any relevant provisions from the Constitution;
(ii) Any relevant statutory provisions;
(iii) Irish authorities set out in chronological order;
(iv) Any international authorities relied on, organised by jurisdiction, and within such jurisdictions, in chronological order;
(v) Materials including extracts from text books, learned journals, and reports.
(b) Whereacase has been reported in the official reports, such report is the only report of the case which shouldbe included in the book of authorities. No unreported judgment or computer generated copy should be included where a reported judgement is available.
(c) Where the books of authorities are likely to run to more than two books of authorities, a core book of authorities should be prepared and clearly labelled, and contain those authorities and materials considered to be central to the case and likely to be most frequently referred to during the course of argument ("the core authorities"). The remaining materials and authorities should be organised and ordered as set out at paragraph (a) above and contained in files clearly labelled and numbered sequentially.
(d) Practitioners are reminded that it is only necessary to include in the books of authorities materials which will be relied on in the substance of the written submissions, and/or which may be referred to in oral argument. It is not necessary that all authorities which are merely referred to in written submissions should be included in books of authorities. Where it is sought to introduce further authorities in the course of the hearing of an appeal, any reports should comply with this Direction and should be legible, clearly labelled and punched for inclusion in the books of authorities.
23. Agreeing of books of authorities
It is the responsibility of the parties to the appeal to agree books of authorities. No later than the date for delivery of the appellant’s written submissions, the appellant should deliver to the respondents and any other parties to the appeals a list of authorities relied on. No later than the date for the delivery of replying submissions, the respondent and any other party shall deliver to the appellant a list of authorities relied on to be included in the books of authorities.
(a) In any case in which significant reference is to be made to the transcripts of any hearing, a list of transcript references shall be provided together with the parties’ written submissions.
(b) In any case where the hearing of the case under appeal ran to more than four days at hearing, the appellant shall produce a booklet of transcript extracts ("the core transcripts") containing an individual divider for each day of the trial and the relevant extracts from such days hearing relied on by each party, clearly labelled.
(c) Transcript references should be clearly labelled with the day and the name of the witness, and should indicate whether the evidence is in chief, cross-examination (and if so by which party) or re-examination. Any transcript extracts sought to be introduced in the course of the hearing should be clearly labelled and punched to permit inclusion at the appropriate divider.
(d) It shall only be necessary to lodge one full set of transcripts in printed form unless the court otherwise directs.
25. The contents of books of documents should be agreed in the same way and at the same time as the book of authorities. In any case where the books of documents will exceed one book, a book of the documents, and only those documents, which it is essential for the court to consider in order to determine the issues on the appeal (the 'core documents') should be prepared and clearly labelled as such. The remaining documents should be contained in files clearly labelled and indexed. It is the responsibility of the parties to agree the content of the core book of documents and any remaining books of documents.
Pleadings and Affidavits
26. A Book of Pleadings shall be produced with the pleadings arranged sequentially and clearly indexed and labelled. Where evidence was adduced byaffidavit such affidavits and exhibits shall be included in a separate book, where relevant to the issues on the appeal. Where such affidavits and exhibits cannot be contained in one book all affidavits shall be contained in one or more books and exhibits contained in one or more books. In such case the affidavits and exhibits should be clearly indexed and labelled with the name of the deponent and the party on whose behalf the affidavit was sworn. The index should also include a brief description of the document. Notices of motion affidavits and exhibits produced for interlocutory or other similar applications should not be included in the Book of Pleadings unless they are relevant to issues which arose at the hearing giving rise to the order under appeal and are also relevant to the issues arising on the appeal.
27. Content of appeal books
(a) The appeal books shall comprise:
(i) the Core Book of Appeal prepared in accordance with paragraph 19;
(ii) the Book of Pleadings prepared in accordance with paragraph 26;
(iii) a Book or Books of Affidavits prepared in accordance with paragraph 26;
(iv) a Book or Books of Authorities prepared in accordance with paragraphs 22 and 23;
(v) a Book of Transcripts , prepared in accordance with paragraph 24;
(vi) a Book or Books of Documents prepared in accordance with paragraph 25;
provided that where the appeal is on a point of law only, the requirement for preparation of documents or transcripts or pleadings and affidavits may be dispensed with by agreement of the parties and /or by direction of the court or a case management judge.
(b) All documents in the books of appeal must be legible and complete. Care should be taken to ensure that pages are not partially or entirely omitted in the course of copying.
(c) Only documents relevant to the appeal should be included.
(d) Exhibits adduced in evidence at the trial and relevant to the issues on appeal, e.g. medical reports maps and photographs must also be included in the books of appeal.
(e) Exhibits relevant to the appeal referred to in affidavits should be indexed by reference to content and not only by exhibit number or letter.
(f) Books of appeal should be identified on the cover and, where possible, on the spine as to the general content of the book, and where appropriate, the number of the book.
(g) The parties, and in particular counsel or solicitor presenting arguments, must ensure that at the hearing they are using the same books of appeal as those lodged with the court.
(h) Irrelevant or excess material should not be included in any of the books of appeal.
28. Lodgment of appeal books
(a) Subject to any direction of the case management judge the appellant shall lodge with the court the requisite number of copies of the appeal books within 12 weeks of the lodgement of the Notice of Intention to Proceed. Where the appellant fails to do so, and no agreement is made to extend the time, any other party may lodge the requisite number of copies of the appeal books where necessary.
(b) It is the responsibility of the respondent to supply to the appellant a copy of each authority, transcript extract and document which the respondent wishes to have included in the books of appeal. If the respondent fails to do so not less than 2 weeks of the date for lodgement of the books of appeal the appellant may lodge the requisite number of appeal books together with a letter certifying the failure of the other party or parties to comply with the appropriate time limits.
(c) Parties are encouraged however to cooperate in the presentation of appeal books, to agree documents, and to act reasonably in extending time and in cooperating generally to facilitate the efficient hearing of the appeal which is in the interest of all parties.
29. Requisite number of books of appeal
Subject to any direction by the case management judge the requisite number of copies of books of appeal, shall be as follows;
(i) In a case to be heard by a court of three, six;
(ii) In a case to be heard by a court of five, eight;
(iii) In a case to be heard by a court of seven, ten.
30. Certificate of readiness
In accordance with the provisions of Order 58 rule 26(1) the Certificate of Readiness shall be in the form an
nexed to this practice direction.
31. Non-compliance with a requirement of this practice direction may result in any one or more of the following consequences-
(a) Where such non-compliance relates to a failure to comply with the requirements of this practice direction with respect to a document or appeal book, the Registrar may reject the document, or appeal book,
(b) In any case, the Supreme Court or a case management Judge may make such order as the court or that Judge considers appropriate, including:
(i) disregarding, disallowing, or striking out submissions whether in whole or in part;
(ii) taking such non-compliance into account in making any order for costs, including making separate orders for costs in respect of submissions and set-offs as to costs;
(iii) making an order in accordance with section 7(8) of the Courts (Supplemental Provisions) Act 1961 (as inserted by section 44 of the Court of Appeal Act 2014) on a failure to comply, including an order dismissing the appeal or striking out the Notice of Appeal and consequential orders for costs.
Commencement and revocation of previous practice direction
(a) This practice direction will come into operation on the 29th day of October 2014.
(b) The practice direction of the 19th December 2008 will continue to apply to appeals initiated (i.e. where notice of appeal has been served on one or more of the parties directly affected by the appeal) prior to the 28th of October 2014.
(c) Save as so provided, the direction of the 19th December 2008 is hereby revoked.
29th October 2014
Annex to SC16
Statement by Clarke J. in respect of matters arising from the implementation of the new Supreme Court rules and statutory practice direction