knowledge 12 September 2018 |

Leapfrog and Tertiary Appeals: When and How?

The 33rd Amendment to the Irish Constitution created a new constitutional architecture for appeals. It facilitated the 2014 establishment of the Court of Appeal as a new appellate jurisdictional tier between the High Court and the Supreme Court.  The Court of Appeal may hear all civil appeals from the High Court which before 2014 would have been heard by the Supreme Court. 

The Supreme Court may grant leave for a "tertiary appeal" from the Court of Appeal or for a "leapfrog appeal" directly from the High Court if it is satisfied:

(a) that the decision involves a matter of general public importance; or 

(b) that in the interests of justice, it is necessary that there be a Supreme Court appeal; and 

(c) additionally in the case of a leapfrog appeal, “exceptional circumstances” justify a direct appeal.  

These changes have made the Supreme Court, like many of its comparators, an “entry by qualification” rather than an “entry by right” court.  

Assuming an appeal is open to them, this means that parties intending to appeal a High Court judgment must consider whether to appeal by right to the Court of Appeal or attempt to bypass it by leapfrog appeal directly to the Supreme Court.  The Supreme Court addressed the general principles on leave to appeal (points (a) and (b) above) in BS v DPP ¹  and PriceWaterhouseCoopers v Quinn Insurance ²  and the additional “exceptional circumstances” requirement (c) for a leapfrog appeal in Wansboro v DPP. ³

BS v DPP 

In BS, the court emphasised that in considering the meaning of a “matter of general public importance”, that the application of well-established principles to the particular facts of relevant proceedings would rarely meet the requisite standard. It recognised nonetheless, that general principles operate at a range of levels and simply because certain principles are well-established, this does not preclude them from meeting the threshold.  However, the court concluded that unless the case had the potential to influence true matters of principle (rather than the application of those matters of principle) then the constitutional threshold would not be met.  The court also held that it would seldom be necessary “in the interests of justice” to permit an appeal to the Supreme Court simply because a lower court was in error (an appeal to the Court of Appeal would suffice).  A party seeking to appeal from the Court of Appeal will also already have been able to put its case both at trial and on appeal, so something further was needed to engage the “interests of justice” criterion.

PWC v Quinn Insurance Ltd 

The court confirmed in PWC that to meet the “general public importance” threshold, the point sought to be argued must be shown to be stateable, and must normally have the capacity to be applicable to other cases.⁴  The court noted that it is possible for the subject-matter of the case alone to make it one of public importance, but added that these considerations were non-exhaustive. 

The appeal in PWC was from an interlocutory decision. These are not excluded from the Supreme Court’s constitutional jurisdiction and prima facie the same qualification test applies. However, it will normally be more difficult to establish that an interlocutory appeal meets the constitutional threshold. O’Donnell J explained that this is “because it is in the nature of interlocutory orders that they rarely set a course irrevocably and dictate the outcome of the case. Appeals in interlocutory matters inevitably delay trial, and accordingly appellate courts are reluctant to interfere with the management of a trial, preferring to see a trial concluded and if necessary appealed.”   The court also concluded that it was neither necessary nor possible to outline exhaustively all of the circumstances in which leave should be granted in the interests of justice, and suggested that this category was best viewed as a residual category. 

Wansboro v DPP 

It was said in Fox v Mahon ⁵  that the Constitution now regards an appeal from the High Court to the Court of Appeal as the norm and therefore requires that there be some special or particular feature of the appeal to warrant departing from the norm and allowing a leapfrog appeal. In Wansboro, the case met the general constitutional threshold, so the court then had to consider whether there were “exceptional circumstances” justifying a direct appeal to the Supreme Court. 

The Supreme Court indicated examples of instances where an intermediate appeal to the Court of Appeal would be more advantageous, though the weight to be attached to the presumption in favour of an intermediate appeal will vary from case to case:

• when the issues raised in the High Court are many and varied and it would be preferable to have the issues come before the Supreme Court on a further appeal from the Court of Appeal;
• when an intermediate appeal would help in dealing with peripheral questions, thus freeing the Supreme Court to focus its efforts on bringing clarity to important legal issues;
• cases which involve only a small number of fundamental issues might still benefit from the increased focus which would arise from the case not only being heard at first instance but also on appeal prior to a final determination.

However, other criteria to be considered may sway matters in favour of leapfrog leave:

• Cost: the burden of financing two appeals instead of one will not be a decisive factor but must be balanced against the perceived advantages of an intermediate appeal;
• Speed: elements of urgency in a particular case may make a leapfrog appeal appropriate; 
• Effect on other cases: there may be a need for speedy determination of a particular legal issue which has the potential to affect other cases or to clear up uncertainty in the law;
• Will the issues still be alive: there may be cases which may or may not involve an issue of general public importance depending on how other issues in the case are determined. 

Conclusion

In most cases, a party intending to appeal a High Court judgment should simply appeal as of right to the Court of Appeal.  While every litigant’s case is important to them, only a tiny proportion of cases will meet the “general public importance” threshold.  A few may qualify because the very subject-matter of the case may have national or international ramifications.  Aside these few, the facts of the case are likely to be irrelevant.  What is important is the legal issue arising: does it genuinely and seriously invite a review of an established legal principle or test?  Even then, is the point a narrow esoteric one or one which may affect many other cases, or develop the general understanding of the law?