knowledge 4 October 2017 |

Supreme Court Leave to Appeal: Some Wiggle Room Available

In the case before the court,¹ the Supreme Court granted leave to appeal against a decision of the Court of Appeal. In due course, the appellant filed written submissions in support of his appeal. The respondents took issue with the contents of these submissions arguing that they went beyond the scope of the appeal permitted by the court when granting leave to appeal.

In addressing the respondents’ objection, the Supreme Court set out some existing general principles to be applied when determining the permissible ambit of an appeal to that court:

• Subject to very limited exceptions, the only questions which are properly addressed by the Supreme Court “are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given”;²
• However, the court should not adopt an “overly technical attitude to the question of whether the relevant issues were raised in precisely the same form in the court or courts below”.³

Building on these principles, the court concluded that it should also not adopt an overly technical approach to the precise boundaries of the issue(s) in respect of which leave to appeal was granted. An application for leave to appeal was necessarily made in a relatively summary form and the Supreme Court did not have access to all of the materials which were before the court below. 

Because of this, the precise boundaries of the arguments which might be properly addressed to the court should not be regarded as written in stone by reference to the exact language used in the determination of the Supreme Court when granting leave. Rather, by analogy with the question of whether an issue sought to be relied on was raised in the court(s) below, the court should consider whether the arguments sought to be put forward could fairly be said to arise within the terms on which leave had been given, recognising that arguments would necessarily be refined or adjusted to some extent as the appellate process progressed.⁴

The appeal before the court concerned the correct interpretation of the Planning and Development (Strategic Infrastructure) Act 2006. In the High Court, the appellant had questioned whether this instrument had properly transposed Directive 2011/92 into Irish law.⁵ Leave had not been sought to pursue this transposition issue so it could not be raised in the appeal. However, where the potential construction of legislation was at issue, the court should not ignore arguments which might impact on the proper objective construction of the measures concerned which derived either from the principle of constitutional construction or from the requirement of conforming interpretation as a matter of European Union law.

As a result, while the issue was not within the express terms of the leave to appeal, the applicant was not precluded from raising arguments under European law as to matters which might legitimately be said to have an impact on the proper construction of the relevant statutory framework.