Conduct of Proceedings in the Supreme Court (COVID-19)
This practice direction is issued under s.7(7) of the Courts (Supplemental Provisions) Act, 1961 as inserted by para. (a)(iv) of s.44 of the Court of Appeal Act, 2014. This practice direction is intended to apply during the continuance of any special measures or guidance adopted by the government to deal with the COVID-19 pandemic. Save to the extent specifically set out in this practice direction, all of the provisions of the existing practice direction (Practice Direction SC 19) continue in force. This practice direction should, therefore, be read in conjunction with Practice Direction SC19.
Given the likelihood that any government regulation or guidance may be altered from time to time this practice direction contemplates a number of areas where guidance will be issued as to how parties involved in appeals before the Supreme Court will be required to act. That guidance may change from time to time, as circumstances alter. Parties should ensure that they are familiar with the current guidance by consulting the Courts Service website.
In addition, it is the intention that, for the time being, much of the work of the Supreme Court will be conducted remotely. However, the development of appropriate platforms and the gaining of experience both by the Court and by practitioners in the conduct of remote hearings will also be likely to give rise to revised guidance from time to time.
In particular guidance will be issued in respect of the following matters:-
Technical issues concerning the manner in which persons may join a remote hearing;
Guidance concerning the manner in which any documents required to be filed or lodged under Practice Direction SC 19 may be required to be filed or lodged either electronically or in hard copy or both; and
Guidance concerning the conduct of remote hearings.
Applications for Leave to Appeal
The process for applying for leave to appeal as set out in Practice Direction SC 19 will continue. Parties are encouraged to use the system which has been in place since last year for the online filing of applications for leave to appeal and the filing or lodgement of other documents required to be submitted as part of the application for leave to appeal process. The Registrar may require any document or documents to be lodged or filed electronically and in a manner complying with guidance in that regard for the time being in force. Parties who are required to lodge or file documentation under Practice Direction SC 19 or as a result of any directions given by a case management judge should consult and comply with any such guidance.
The Court is mindful of the fact that parties may experience some difficulties in relation to the filing or lodgement of documents and will, as appropriate, have regard to any such difficulties which the Court is satisfied are genuine when dealing with any issues which may arise in respect of the late filing or lodgement of documentation.
In any case of doubt as to the proper course of action to be adopted parties should consult with the Office of the Supreme Court for assistance by email to firstname.lastname@example.org.
A case management judge will continue to be appointed in accordance with Practice Direction SC 19. A date for the first case management hearing will be fixed as heretofore.
However, the parties should consider the matters specified as being items to be considered at the first case management hearing (as specified at para. 19(f) of SC 19) and engage constructively with each other for the purposes of indicating whether agreement can be reached on those, and any other, matters which may require to be addressed.
Not later than 48 hours before the first case management hearing the parties should submit to the Court a joint document setting out any agreement reached on the matters which will require to be addressed at the first case management hearing and further indicating whether there are additional matters on which the parties cannot reach agreement or where intervention or ruling from the Court may otherwise be required.
On receipt of such a document the case management judge may determine that a case management hearing is unnecessary or may direct that a case management hearing proceed remotely. In exceptional circumstances the case management judge may determine that a case management hearing in the courtroom should take place. It should be emphasised that the case management judge will not be bound by any agreement reached between the parties but will have regard to any such agreement in determining what directions should be given and whether a remote hearing is required.
In addition, and as an alternative to a remote hearing, the case management judge may consider it appropriate to deal with any issues arising by inviting the parties to file, within such time as the case management judge may consider appropriate, an electronic submission. Parties should be aware that the case management judge may come to the view that it is necessary to publish on the Courts Service website any ruling made during case management in respect of contested matters which are not administrative in nature. In such an eventuality the case management judge may also conclude that the requirement that justice be administered in public may in turn require that any submissions made would themselves also be published.
Papers for Hearing
Subject to any specific directions given in the course of case management, the parties should consult with any guidance for the time being in force concerning the manner in which the papers for the hearing are to be filed. Such guidance, and any directions from the trial judge, may require papers to be filed electronically, in hard copy or in both and may deal with the manner in which electronic filing is to be conducted both as to the format to be adopted and the manner in which filing is to take place.
The Chief Justice, in consultation with the case management judge and, if the Chief Justice is not a member of the panel assigned to hear a particular appeal, the judge who is to preside over the appeal, may determine that the following additional procedure will apply.
In advance of the hearing a document (hereinafter referred to as the “statement of case”) may be issued by the Court to the parties.
The statement of case will set out the Court’s understanding as to the following matters:-
The relevant facts insofar as they have been determined by the court or courts below or appear to have been accepted at the trial of the action;
The essential elements of the decisions of the courts below insofar as they are material to the issues which arise on the appeal;
The issues which appear to the Court to require determination on the appeal having regard to the determination granting leave to appeal, any refinement of the issues determined by the case management judge and the submissions of the parties; and
The position of the parties on those issues.
In addition, or as an alternative procedure, the Court may issue a second document (“a clarification request”) seeking clarification from the parties in respect of any matters on which the Court considers that additional information would be useful in advance of the hearing in order that the hearing itself can be conducted in the most efficient manner. In particular, clarification concerning matters of fact or the position of the parties on any issues properly arising on the appeal may be the subject of such a request.
It is envisaged that a statement of case and/or a clarification request, if required, will issue to the parties approximately two weeks before the date fixed for the hearing of the appeal but in any event not later than ten days before that date. The parties should reply to any queries raised not less than three days before the date fixed for hearing. In the event that parties consider that there are material elements of the statement of case which they consider to be incorrect or incomplete then parties should also file a document specifying any such matters. It should be strongly emphasised that the facility for filing such a document should not be used for the purposes of engaging in a second round of written submissions. The statement of case is not intended to convey even a preliminary view on the part of the Court on the merits of the appeal but is rather designed to establish such common ground as may appear from the papers. For example, a party may consider that, on its case, certain facts are not relevant. The relevance or otherwise of any facts may be the subject of submissions during the oral hearing but it will be unnecessary, and inappropriate, to file an additional document designed simply to reiterate a party’s position in that regard. It should also be emphasised that parties are strongly discouraged from filing such a document unless there are real issues of substance to be raised concerning the statement of case.
As noted earlier it is intended that a guidance document will be issued from time to time as to the manner in which the remote hearing will be conducted. Parties should refer to that document and comply with its requirements.
The default position will be that written judgments of the court will be delivered by means of a copy of the judgment being sent electronically to the parties and a copy, subject to such redactions as would ordinarily apply, being posted as soon as possible on the Courts Service website. The date and time of delivery to the parties will be notified in the Legal Diary.
Parties are invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.
Dated the 16th April, 2020.
Guidance in respect of documents to be filed for appeal hearings issued pursuant to SC 21.