SC Proceedings I

Conduct of proceedings in Supreme Court [Revised 30^th September, 2021]
(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)

Schedule A Forms
Schedule B Timeline

General

1. Introduction

(a) In this practice direction:

“applications for leave 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, when exercising functions under that sub-section in respect of applications for leave to appeal;
“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, when exercising functions under that sub-section in respect of proceedings in which leave to appeal has been granted;
“the rules” means the Rules of the Superior Courts;
“the Court” means the Supreme Court;
“the Office” means the Office of Registrar of the Supreme Court;
“statutory practice direction” means a practice direction issued under section 7(7) of the Courts (Supplemental Provisions) Act 1961;
“the Supreme Court e-filing system” means the computer system provided by the Courts Service for the Supreme Court for the purpose, inter alia, of filing in the Office and issuing or transmitting from the Office of documents electronically where required or permitted by the rules or a statutory practice direction, and subject to compliance with the requirements for access to that system (including requirements for the purpose of identifying the system user) as may be published from time to time on the Courts Service’s website;
a reference to filing of a document includes a reference to lodgment of that document;
a reference to a form is to the form as numbered in the Schedule to this statutory practice direction;
“Order 58” means Order 58 of the rules;
references in this practice direction to the filing in the Office or with the Court of a document shall include filing or transmission electronically where this is required or permitted by the rules or a statutory practice direction;
references in this practice direction to the filing or transmission of a document electronically mean:

(i) sending that document in electronic form using the computer system known as the Supreme Court e-filing system where that system is being used;
(ii) where the Supreme Court e-filing system is not being used, sending that document by e-mail attachment in the form and /or manner required or permitted by the rules or a statutory practice direction,

and cognate expressions shall be construed accordingly;
references in the practice direction to the issuing or transmission of a document electronically mean:

(i) issuing or transmitting that document in electronic form using the computer system known as the Supreme Court e-filing system where so required;
(ii) where this practice direction or another statutory practice direction does not require use of the Supreme Court e-filing system, issuing or transmitting that document by e-mail attachment in the form and/or manner required or permitted by the rules or a statutory practice direction,

and cognate expressions shall be construed accordingly.

(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 to Order 58 and to other provisions of the rules available at the Courts Service website at: www.courts.ie.

Practitioners acting in, and litigants in person who are parties to applications for leave to appeal and appeals before the Court, are encouraged to familiarise themselves fully with the provisions of Order 58.

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 statutory practice direction.

Applications for Leave to Appeal

3. Applications for Leave

(1) The attention of practitioners and parties is drawn to sub-sections (10) and (11) of section 7 of the Courts (Supplemental Provisions) Act 1961, as inserted by section 44 of the Court of Appeal Act 2014, which provide as follows:

“(10) Subject to subsection (11), the following applications may be determined by the Supreme Court otherwise than with an oral hearing:
(a) an application seeking leave to appeal against a decision of the Court of Appeal or the High Court, as the case may be, (in this section referred to as ‘leave to appeal’);
(b) an application referred to in Article 64.3.3° of the Constitution;
(c) an application referred to in Article 64.4.1° of the Constitution.

(11) Where the Supreme Court considers it appropriate to do, having considered the documents lodged in respect of an application referred to in subsection (10), it may direct that the application, or any matter arising on the application, be determined with an oral hearing.“

(2) 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 documents unless the Court otherwise orders.  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 filing in the Office of a notice of application for leave to appeal, which notice shall be in Form No. 1. The form should be completed in Word format, and save where it is required to be filed electronically, be in A4 paper size securely bound on the left. Where intended to be filed in hard copy, this form is available for download from www.courts.ie in Word format.

(b) The application should:

(i) in the case of an application for leave to appeal from the Court of Appeal (under Article 34.5.3° of the Constitution or the High Court (under Article 34.5.4° of the Constitution) where it is contended that an appeal should be permitted on the basis of matter(s) of general public importance:

set out precisely and concisely, in numbered paragraphs and in no more than 500 words, the matter(s) alleged to be matter(s) of general public importance justifying appeal to the Supreme Court (section 7 of Form No. 1);

and/or

(ii) in the case of an application for leave to appeal from the Court of Appeal (under Article 34.5.3° of the Constitution) or the High Court (under Article 34.5.4° of the Constitution) where it is contended that an appeal should be permitted on the basis of the interests of justice:

set out precisely and concisely, in numbered paragraphs and in no more than 300 words, the matters relied upon (section 8 of Form No. 1);

(iii) in the case of an application for leave to appeal from the High Court (under Article 34.5.4° of the Constitution), set out precisely and concisely, in numbered paragraphs and in no more than 300 words, the exceptional circumstances upon which it is contended that the granting of leave to appeal is necessary (section 9 of Form No. 1).

(c) The grounds of appeal, to be set out in the notice of appeal appended to Form No. 1, should not normally exceed 2 pages of A4 size in Word format (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.

(d) A notice of application for leave to appeal must be signed by the applicant’s solicitor or (if the applicant is not legally represented) the applicant.

(e) (i) An application under Order 58, rule 4 to extend or shorten any time limit (not including an application to extend time to apply for leave to appeal or to file a respondent’s notice) set by the rules or time limit or word limit set by this practice direction and

(ii) any other application not requiring to be made to a panel of the Court
shall,

(I) where it requires to be made prior to an application for leave to appeal being considered by the Court, be made to the applications for leave judge and
(II) where it requires to be made after an application for leave to appeal has been granted, be made to the case management judge.

(f) Where this practice direction set a word limit for text in a document the number of words used should be recorded in the appropriate place on the document.

(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 matters or grounds set out appear without adequate explanation to be excessive in length; where the application fails to identify the matters mentioned in sub-paragraph 2(b) of this paragraph; the application is not legible or is not produced in the required form.

A party aggrieved by such refusal may apply in writing within 14 days of the refusal

(i) where the application for leave to appeal has not yet been determined, to the applications for leave judge

 or

(ii) where the application for leave has been granted, to the case management judge, or

(iii) to the Court,

as the context requires, to authorise the issue of the document

(Order 58, rule 14(2)).

(h) Form No. 1 shall be lodged in the Office in accordance with Order 58 rule 16(1) within 21 days from the perfecting of the order appealed against. If the Supreme Court e-filing system is not being used, a copy in Word format should be sent to the Office electronically on the day of filing at the following email address: supremecourtapps@courts.ie.

(i) An attested copy of the order from which leave to appeal is sought 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 filed with the notice of application for leave to appeal or, if not then available, must be filed promptly after it becomes available (as required by Order 58, rule 16(3)).

(3) Service

(a) A copy of the notice of application for leave to appeal must be served on all parties directly affected by the application for leave to appeal or appeal on the same day on which the application has been filed (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 application for leave booklet mentioned in paragraph 8. The certificate must be in the following terms “I certify that the _________ was served on ____________on the ___day of___20__ 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 applicant 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 section 6 of Form No.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.

(c)   Where an applicant needs to apply for a priority hearing, application must be made, in no more than 100 words, in section 11 of Form No. 1.

5. Respondent’s Notice

(a) Each respondent must, within six weeks from perfecting of the order from which leave to appeal is sought or alternatively within 21 days of the filing of the Application for Leave to Appeal where the Application is not filed within 21 days from perfecting of the order, file in the Office and serve the respondent’s notice in  Form No. 2 . The form is available for downloading from www.courts.ie in Word format.

(b) The respondent’s notice should:

(i) in the case of an application for leave to appeal from the Court of Appeal (under Article 34.5.3° of the Constitution) or the High Court (under Article 34.5.4° of the Constitution) on the basis of matter(s) of general public importance –

(I) where the respondent opposes an application for leave to appeal on the basis of matter(s) of general public importance:
set out precisely and concisely, in numbered paragraphs and in no more than 500 words, the grounds upon which it is contended that the matter does not involve a matter of general public importance;

(II) where the respondent does not oppose an application for leave to appeal on the basis of matter(s) of general public importance: set out precisely and concisely, in numbered paragraphs and in no more than 500 words, the matter(s) alleged to be matter(s) of general public importance justifying appeal to the Supreme Court (section 6 of Form No. 2);

(ii) in the case of an application for leave to appeal from the Court of Appeal (under Article 34.5.3° of the Constitution) or the High Court (under Article 34.5.4° of the Constitution) on the basis of the interests of justice:

(I) where the respondent opposes an application for leave to appeal on the basis of the interests of justice: set out precisely and concisely, in numbered paragraphs and in no more than 300 words, the grounds upon which it is alleged that the interests of justice do not require an appeal;
(II) where the respondent does not oppose an application for leave to appeal on the basis of the interests of justice: set out precisely and concisely, in numbered paragraphs and in no more than 300 words, the grounds upon which it is contended that the interests of justice require an appeal (section 7 of Form No. 2);

(iii) in the case of an application for leave to appeal from the High Court (under Article 34.5.4° of the Constitution) –

(I) where the respondent opposes the applicant’s contention that there are exceptional circumstances justifying the granting of leave to appeal: set out concisely, in numbered paragraphs and in no more than 300 words, the grounds upon which it is contended that there are no exceptional circumstances necessitating an appeal;
(II) where the respondent does not oppose the applicant’s contention that there are exceptional circumstances justifying the granting of leave to appeal: set out concisely, in numbered paragraphs and in no more than 300 words, the grounds upon which it is contended that there are exceptional circumstances necessitating an appeal (section 8 of Form No. 2)

(iv)

(I) If it is intended to make a cross application for leave to appeal set out precisely and concisely, in numbered paragraphs, the matter(s) alleged to be matter(s) of general public importance or the interest of justice justifying a cross appeal to the Supreme Court;

(II) If it is sought to make a cross application for leave to appeal direct from a decision of the High Court, set out precisely and concisely, in numbered paragraphs, the exceptional circumstances upon which it is contended that such a course is necessary (section 10 of Form No. 2);

(v) If it is intended to make an application to vary (i.e. put forward additional grounds on which the decision appealed should be affirmed) set out precisely and concisely, in numbered paragraphs such additional grounds (section 11 of Form No. 2).

(c) Where a respondent is unable to file a respondent’s notice within the relevant time limit, an application for an extension of time may be made in section 3 of Form 2.

(d) If the Supreme Court e-filing system is not being used, a copy in Word format should be sent electronically to the Office on the day of filing at the following email address: supremecourtapps@courts.ie.

(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 seven days of the last service. The certificate must be in the form set out in paragraph 3(3)(b).

(f) Where a respondent’s notice has not been filed within the period mentioned in sub-paragraph (a) of this paragraph, a letter or e-mail will issue from the Office to the parties indicating that –

(i) the documents will be placed before a panel of the Court for consideration immediately after seven days have elapsed from the date of the letter or email and

(ii) the respondent’s notice may be filed within the said extended seven day period and

(iii) the panel concerned may proceed to consider the application if no respondent’s notice has been filed.

(g) As provided for in Order 58, rule 18(5), unless the Court otherwise directs, a respondent who does not file notice 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 or where reporting or publication restrictions otherwise arise by operation of law or order of a court, 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 by letter 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, and a copy of that letter shall at the same time be delivered to any other party.

7. Publication

(a) The application for leave to appeal and the respondent’s notice will be published subject only to any redaction required by law 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 file in the Office within 7 days of filing of the application 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: supremecourtapps@courts.ie.

(d) It is the responsibility of the parties to ensure that documentation does not contain scandalous, abusive or vexatious material.

8. Application for leave booklet

(a) In accordance with Order 58 rule 19, the applicant is required, within seven weeks from the perfecting of the order from which leave to appeal is sought, or such extended time as may have been allowed, to file electronically and if the Supreme Court e-filing system is not being used file in the Office four hard copies of a booklet containing copies of the following:

(i) the notice of application for leave
(ii) the respondent’s notice if filed and served;
(iii) the order from which leave to appeal is sought;
(iv) the approved judgment on foot of which that order was made;
(v) any final order or orders of all other courts at lower instance in the proceedings;
(vi) any approved judgment or judgments of all other courts at lower instance in the proceedings;
(vii) a certificate of service, in the form set out in paragraph 3(3)(b), of the application for leave on all respondents served.

(b) where the order from which leave to appeal is sought was made in criminal proceedings, the booklet shall additionally contain each of the following materials where the item is relevant to any issue raised in the application for leave to appeal:

(i) a copy of the indictment;
(ii) the transcript of the opening speech of counsel for the prosecution;
(iii) where an appeal concerns a particular issue raised in the trial, the transcript of the evidence, submissions and ruling relevant to that issue;
(iv) a copy of any relevant exhibit;
(v) the transcript of the closing speeches of counsel for the prosecution and defence; and
(vi) the transcript of the judge’s charge to the jury insofar as it relates to the issue or, where the duration of the trial was three days or less, the entire transcript.

(c) The hard copies referred to at sub-paragraph (a) must be numbered 1 to 4, properly labelled and indexed.

(d) No other documents 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.

(e) Where the required documents are not filed within the period referred to in sub-paragraph (a), a letter or e-mail will be sent to the applicant indicating that-

(i) in the absence of such a booklet being filed in accordance with such extension of time as may have been granted or consented to within a further seven days from the date of the letter or email, the matter will be placed before a panel of the Court immediately for consideration, and
(ii) that panel may dismiss the application.

9. Consideration

(a) When the Court has considered the documents filed it may then:

(i) direct that written submissions on the application for leave to appeal 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 giving or 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 determination of 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 by the Office a copy of the determination 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 by the Office a copy of the determination 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 a respondent’s 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 notification by the Office following the Court’s determination.

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).

15. Costs

(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, a copy of which shall be sent at the same time to all other relevant parties as soon as may be after notification of the Court’s determination.

(b) If any other party seeks to oppose such an application that party should within 14 days of receipt of such copy letter –

(i) set out concisely in writing by letter addressed to the Registrar any reason why the Court should not exercise its discretion to make an order for costs of the application for leave to appeal in favour of the applicant and
(ii) at the same time deliver a copy of that letter to each other party.

(c) Where an application for leave to appeal is referred for an oral hearing and is dismissed, any 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.

(d) Where leave to appeal is granted, costs of the application for leave to appeal become costs in the appeal.

(e) 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. Form No. 4 is to be used for all interlocutory applications to the Court brought in accordance with Order 58 rule 27(1).

17. Filing notice of intention to proceed

Where leave to appeal is granted by the Court, that part of the notice of appeal containing the grounds on which leave was granted (and excluding any grounds of appeal on which leave to appeal was refused) will stand as the notice of appeal and the grounds of appeal are limited to those on which leave has been granted. The appellant must, within seven days of the grant by the Court of leave to appeal, file notice in Form No. 3 that he or she intends to proceed with the appeal and serve that notice on each of the respondents to the appeal. Alternatively, the appellant must file written notice of intention to withdraw or abandon the appeal.

18. Urgent Applications

(a) The Chief Justice may from time to time by notice, to be annexed to or published with this statutory practice direction, specify categories of applications that are to be subject to an expedited procedure and may specify the time limits and special procedures to be applicable to such categories.

(b) In other urgent cases, including but not limited to 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 such case, an application for leave to appeal shall be accompanied by a letter to the Registrar and a copy of same shall be sent at the same time to the respondent requesting that the application be expedited and indicating the reasons why the request is being made, and a copy of that letter shall be served with the notice of application for leave to appeal. 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.

(c) In order to achieve expedition the Court may set aside or vary the time limits and practice directions that normally apply to applications and appeals.

(d) 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. Case management

(a) Subject to any directions which may be given at the case management hearing referred to in Part VIII of Order 58, the appellant shall within two weeks of filing of the notice of intention to proceed file his or her written submissions with the Court and deliver a copy to every respondent to the appeal. No later than two weeks following delivery of the appellant’s written submissions, each respondent shall file with the Court and deliver to the appellant and all other respondents a copy of his or her written submissions. In addition to written submissions (hereinafter referred to as “submissions”) being filed copies in Word format should be sent electronically to the Office at the following email address: supremecourtsubs@courts.ie.

(b)  The appeal proceedingswill ordinarily be assigned by the Chief Justice to a case management judge within one week of the filing of a notice of intention to proceed,

(c) The parties shall be notified forthwith by the Office of the appointment of the case management judge and the date fixed for the case management hearing.

(d) Not later than 4 days before the case management hearing the parties shall file a joint document setting out any agreement reached on the matters which will require to be addressed at the 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

(e) Unless they have already been filed or unless otherwise directed by the case management judge, the appellant shall file in the Office not later than four days before the date fixed for the first case management hearing three copies of the case management booklet and any other document in the appeal to which any party proposes to refer at that hearing.

(f) The case management booklet, indexed as to its contents, shall contain:

(i) the order appealed against;
(ii) the judgment under appeal;
(iii) all other relevant judgments and orders in the proceedings of the Court or courts at lower instance
(iv) the notice of application for leave;
(v) 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;
(vi) the respondent’s notice(s) (if filed);
(vii) the determination of the Court granting leave;
(viii) the notice of intention to proceed;
(ix) the submissions of the appellant /moving parties;
(x) the submissions of the respondent(s),
(xi) the joint document required to be filed in accordance with paragraph 19 (d)

and shall leave sufficient space to accommodate any additional document directed by the case management judge to be prepared (for example, a statement of facts, list of issues, etc) for inclusion.

(g) At the case management hearing, the case management judge shall:

(i) having heard the parties, determine whether or not the submissions filed fall within the parameters of the appeal permitted by the determination and order of the Court granting leave;
(ii) having heard the parties, and save where the order of the Court granting leave to appeal has already made such provision, amend the grounds of appeal on the basis of which leave to appeal has been granted, provided that any such amendment shall be within the scope of the general issue or issues identified in the determination granting leave as meeting the constitutional threshold;
(iii) having heard the parties direct that the requirements as to the filing of documentation that are set out in this practice direction are to apply or alternatively give such directions as are appropriate to the case including direct whether, and if so to what extent, any or all of the documents required to be provided for the hearing of the appeal in accordance with this Statutory Practice Direction (and subject to any variations determined by the case management judge) should be filed in hard copy or electronically or both and, in the case of documents to be filed electronically, give directions as to the way in which such documents should be prepared.
(iv) having heard the parties consider the likely time which the hearing of the appeal will take and allocate that time between the parties

(h)  The case management judge may direct a second or further case management hearings should same appear to be necessary for the proper preparation of the appeal.  However, any issues of detail arising should initially be canvassed with the case management judge in the joint document to be filed not later than 4 days before the case management hearing.  The case management judge will then determine whether any such issues can be resolved without the necessity for a further case management hearing.

(i) Unless they have been already filed or unless otherwise directed by the case management judge, and subject to sub-paragraph (i), the appellant shall file in the Office within three weeks of the case management hearing three copies of the following, whether in hard copy and / or electronic form in accordance with the case management judge’s directions –

(i) where the appeal is in civil proceedings, a booklet of pleadings, which should contain only those documents which remain potentially relevant to the issues which arise on the appeal. Documents, including e.g. notices of motion, orders made in the proceedings by the courts of lower instance, requests for and replies to particulars and evidential material which are not of continuing relevance to the matters in dispute on the appeal, should not be included,
(ii) a booklet of trial documents, which, subject to sub-paragraph (j), should:

in civil proceedings contain:

(I) where the appeal is against an order made in proceedings heard on oral evidence, only those extracts from the transcript and exhibits relevant to the issues which remain in dispute on the appeal;
(II) where the appeal is against an order made in proceedings heard on affidavit, only those affidavits and exhibits which contain evidence relevant to the issues which remain in dispute on the appeal;

in criminal proceedings contain:

(I) a copy of the indictment;
(II) the transcript of the opening speech of counsel for the prosecution;
(III) where an appeal concerns a particular issue raised in the trial, the transcript of the evidence, submissions and ruling relevant to that issue;
(IV) a copy of any relevant exhibit;
(V) the transcript of the closing speeches of counsel for the prosecution and defence; and
(VI) the transcript of the judge’s charge to the jury insofar as it relates to the issue or, where the duration of the trial was three days or less, the entire transcript, and

(iii) a booklet of authorities.

 

(j) 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 case management judge.

(k) A party may at the case management hearing seek the inclusion in the booklet of trial documents of any other item which that party contends should appropriately be included (e.g. the issue paper provided to a jury or other material which might be relevant).

(l) The case management judge will, ordinarily, within one week of receipt of the books for the hearing indicate to the parties whether any further refinement of the materials is required,

(m) The  hard copy books and, where appropriate, a soft copy of same is to be filed by the appellant within one week of receipt of either confirmation from the case management judge that the materials are in order or directions from the case management judge as to alterations which should be made.  The materials thus filed should comply with any such directions.

(n) The Registrar may refuse to accept books for the hearing which are clearly significantly inconsistent with this statutory practice direction and / or any directions given by the case management judge.

Statement of Case

20.

(a) In advance of the hearing a document (hereinafter referred to as the “statement of case”) may be issued by the Court to the parties.

(b)     The statement of case will set out the Court’s understanding as to the following matters:-

(a)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;
(b)The essential elements of the decisions of the courts below insofar as they are material to the issues which arise on the appeal;
(c)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
(d)The position of the parties on those issues.

(c) 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.

(d) 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.

Submissions, booklets and other documents

21. Submissions

(a) Submissions should be logically arranged with appropriate headings, and be a concise summary of the submissions 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 cm at each side and 2.5 cm at 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;
(ii) Issue(s);
(iii) Judgment appealed from;
(iv) 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 sub-paragraph (c)(v)). 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, file in the Office a redacted version of that party’s written submissions, from which all such information shall have been deleted. A copy of the redacted version in Word format should be sent electronically to the Office at the following email address: supremecourtsubs@courts.ie.  A copy of written submissions filed in 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, and will become accessible by bona fide members of the Press or broadcast media in accordance with the Data Protection Act 2018 (section 159(7)) Rules 2018. 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.

22. Booklets and their contents: general

(a) All documents in the booklets of appeal must be legible and complete, preferably use font size 12 and one and a half line spacing and, save where required to be filed electronically, be in A4 paper size and properly bound in the booklet. The booklets should be capable of being opened with ease and excess documentation should not be forced into booklets.

(b) The booklets should be manageable and not excessively heavy. Where more than one booklet is necessary a core booklet should be prepared which should contain the documents that are central to that element and the issues before the Court. Care should be taken to ensure that pages are not partially or entirely omitted in the course of copying. Copies of documents may be printed on both sides of the paper but subject to the overriding requirement that the copies must be legible and complete and that the booklets are capable of being easily opened and usable with ease.

(c)  Where the volume of evidential material cannot appropriately and conveniently be included in one booklet, a core booklet of evidential material together with a supplementary booklet or booklets should be produced.

(d) A booklet of evidential material containing affidavits and/or exhibits should be clearly indexed and the affidavit or exhibit labelled with the name of the deponent and the party on whose behalf the affidavit was sworn, and indexed by reference to a brief description of the document as well as by exhibit number or letter.

(e) The appellant shall, where the case management judge so directs, amalgamate the case management booklet with the booklet of pleadings and / or the booklet of evidential material where the volume of documents therein is such that it would be appropriate and convenient that they be incorporated in a single booklet.

(f) The parties are required to engage constructively with each other in determining the materials which genuinely require to be included in booklets so as to avoid the inclusion of unnecessary materials and avoid the risk of materials of significance, not included in the booklets, having to be produced to the Court at the appeal hearing.

(g) Booklets should be identified on the cover and, where possible, on the spine as to the general content of the booklet, and where appropriate, the number of the booklet.

(h) Booklets should be paginated sequentially, save in the case of an exhibit or authorities which is/are separately tabbed within the booklets and have their own pagination.

(i) The parties, and in particular counsel or solicitor presenting arguments, must ensure that at the hearing they are using the same booklets of appeal as those filed in the Office.

23. Booklets of Authorities

(a)  Format and content of books of authorities

(i) Where the booklets of authorities cannot conveniently be incorporated in one booklet of authorities, a core booklet of authorities should be prepared and clearly labelled, and should 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 incorporated in supplementary booklets and organised and ordered as set out in the provisions of this paragraph and contained in files clearly labelled and numbered sequentially.

(ii) Booklets 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.

(iii) Where a case has been reported in the official reports, such report is the only report of the case which should be included in the booklet of authorities. No unreported judgment or computer generated copy should be included where a reported judgement is available.

(iv) While the full report of a case should ordinarily be included in the booklet of authorities, where a case report is very lengthy and it is clear that a significant portion of the text contained in an authority is not relevant to the issues arising in the proceedings, an extract of the case report concerned will suffice, provided that the title of the case, the court(s) and date(s) of judgment, the subject headings and reporter’s headnote (if any) should always be included.

(v) While the full text of primary and secondary legislation should ordinarily be included in the booklet of authorities, where the legislation concerned is very lengthy and it is clear that a significant portion of the text is not relevant to the issues arising in the proceedings, the following should be included:

(I) the legislative provisions relevant to the issues arising;
(II) other key provisions of the legislation which may be of assistance in understanding the context of the provision which is relevant to the issues, e.g. the long title, any other subsections contained in the provision of the legislation concerned which are relevant and any other provision in the legislation which defines an expression used in the provision being relied on or would assist in interpreting or putting into context the provision being relied upon.

(vi) Practitioners are reminded that it is only necessary to include in the booklets of authorities materials which are 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 booklets 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 practice direction and should be legible, clearly labelled and punched for inclusion in the booklets of authorities.

(b) Agreeing of booklets of authorities

It is the responsibility of the parties to the appeal to agree booklets 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 should all deliver to the appellant a list of authorities relied on to be included in the booklets of authorities.

24. Transcripts –civil and criminal proceedings

(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 three 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 hearing days 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 file one full set of transcripts in printed form unless the Court otherwise directs.

25. Filing of appeal booklets

(a) Subject to any direction of the case management judge the appellant shall file with the Court the requisite number of copies of:

(i) the case management booklet. Provision should be made to include in the booklet the Statement of Case if it issues and when it becomes available;
(ii) the booklet of pleadings;
(iii) the booklet of trial documents;
(iv) the booklet of authorities,
(v) any other booklet or document directed to be filed by the case management judge,

Where the appellant fails to do so, and no agreement is made to extend the time, any other party may file the requisite number of copies of the appeal booklets 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 booklets of appeal. If the respondent fails to do so not less than two weeks before the date for filing of the booklets of appeal the appellant may file the requisite number of appeal booklets 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 booklets, 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.

(d) A party responsible for the production of a document in breach of the time limit prescribed by sub-paragraph (a) may be subject to sanction by way of a costs order.

26. Requisite number of booklets of appeal

(a) Subject to any direction by the case management judge the requisite number of copies of booklets of appeal, shall be as follows;

(i) In a case to be heard by a Court of three, five;
(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.

(b) No further materials should be filed except with the permission of the case management judge. However, parties may on one occasion, by agreement or with the permission of the case management judge, file in the Office not later than four days prior to the appeal hearing additional documentation], limited strictly to that which is relevant to the issues arising on the appeal, for inclusion in a booklet provided that:

(i) such documentation is appropriately paginated and punched so that it may readily be included in the booklet concerned; and
(ii) a new index of contents containing reference to the additional documentation is also supplied.

(c) The Court may decline to accept such additional documentation if not so filed four days or longer prior to the appeal hearing. The acceptance of such material is subject to such order as the Court may make including as to costs.

27. Appeal Timeline

The timeline set out in Schedule B to this Statutory Practice Direction is indicative of the manner in which it is expected that appeals will progress in cases where no procedural difficulties are encountered.  It should be emphasised that the possibility of a hearing in the period week 13 to week 16 is necessarily dependent on the availability of hearing times and the number and complexity of cases which are likely to be ready for hearing at or around the same time.  The parties will be given an indication by the case management judge of the likely date of hearing as soon as the case management judge is reasonably confident that the appeal will be ready for hearing on that date.  Such a date will be fixed provisionally subject to the case management judge being satisfied that the case has actually been made ready for hearing in accordance with the Statutory Practice Direction and any specific directions given.

28. Appeal Hearing

The default position will be that substantive appeal hearings will be held in person but hearings in respect of procedural matters and hearings in respect of post-judgment orders and costs issues will be held remotely.  The case management judge, in respect of pre-appeal matters, and the presiding judge, in respect of substantive appeals and post-judgment matters will be free to depart from the default position in appropriate cases.  Parties may apply in writing to the case management judge or the presiding judge (as appropriate) to depart from the default position should they be able to put forward a good reason for so doing.

29. Time Limits

(a) With the exception of the time limited for filing of an application for leave to appeal, the time limits stipulated in this Practice Direction will run at all times during the year save during the month of August and during a two week period between December 22nd and January 4th inclusive.

(b) Where time is limited for the filing of case management, appeal booklets or other documents and unless otherwise specifically ordered such booklets and documents must be filed in the Office by 1:00 pm on that day at the latest so that if deficiencies are identified which can be addressed and rectified, the process can commence as soon as possible and thus minimising disruption to the preparations for hearing.

30. Non-compliance
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 statutory practice direction or any variation directed by the case management judge with respect to a document or appeal booklet, the Registrar may reject the document, or appeal booklet,

(b)  In any case, the 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 booklets of appeal, separate orders for such costs against a solicitor for a party, submissions and set-offs as to costs;
(iii) an order on a failure to comply, including an order dismissing the appeal or striking out the notice of appeal and consequential orders for costs.

(c) The Appeal Timeline is expected to be met by the parties. If any party has a difficulty which is likely to jeopardise the timeline including delay in the filing of compliant appeal booklets it should be immediately brought to the attention of the case management judge. Parties should note that any failure in this regard that jeopardises the timeline including time limits set by this statutory practice direction or the case management judge may have costs implications.

31. Applications for leave to depart from the requirements of Order 58 or this statutory practice direction

(a) An application

(i) for an order dispensing with or varying a requirement of Order 58 or this practice direction as to the filing of a document,
(ii) for a direction permitting filing of a document or documents additional to those required by Order 58 or this statutory practice direction, or
(iii) for an extension of a word limit prescribed by this practice direction for a document,

may be granted by

(i) the Court or
(ii) where the application for leave to appeal has not yet been determined, the applications for leave judge sitting alone or
(iii) where the application for leave to appeal has been granted, the case management judge.

(b) An application referred to in Order 58 rule 4 or sub-paragraph (a) –

(i) may be made by letter to the Registrar and a copy of that letter shall be sent at the same time to the other party or parties,
(ii) shall, where a notice of intention to proceed has been filed, be determined by the case management judge.

(c) An application referred to at sub-paragraph (a)(ii) shall be made at the same time as the time at which the applicant is complying with the requirement under Order 58 or this practice direction for filing the document or documents to which the proposed material is additional.

32. Electronic filing and issuing of documents

(a) The Registrar may require any document or documents to be filed electronically and in a manner complying with any guidance in that regard for the time being in force.

(b) Parties are encouraged to use the Supreme Court e-filing system. Its use is not obligatory at present. The system has been introduced on a pilot and phased basis for practitioners acting in applications for leave to appeal with effect from the 4th February 2019..

(b) Filing of the following documents may be done electronically using the Supreme Court e-filing system:

(i) a notice of application for leave to appeal in Form No. 1;
(ii) the documents required to be included in the application for leave booklet referred to in Order 58 rule 19(1);
(iii) any communication explaining the absence of a document from the application for leave booklet, in accordance with Order 58 rule 19(3);
(iv) a respondent’s notice in Form No. 2;
(v) where the Court requires delivery of written submissions by the parties participating in an application for leave, the submissions of each party concerned.

(c) Notwithstanding the time at which a document is shown as sent to or received by the Supreme Court e-filing system or any e-mail application operated by the Office, that document is not deemed to be filed until confirmation of filing has been received from the Office.

(d) A document, or booklet of documents, filed electronically shall-

(i) where the Supreme Court e-filing system is being used, to the extent feasible be in a document format permitted by that system,
(ii) where the Supreme Court e-filing system is not being used in circumstances permitted by this statutory practice direction, be in Word or pdf format,
(iii) be legible and permit insertion of comments and highlighting.

(e) where the original of a document or booklet is in hard copy and requires to be scanned for filing electronically, the scanning should, where feasible, be done employing optical character recognition (OCR) to enable the scanned version to be text searchable and annotatable by the Court.

(f) The Registrar may permit filing in a different or additional format for good reason.

(g) Where feasible, parties are encouraged to employ hypertext links in documents to create links to other documents within a booklet.

(h) where a document requires under the rules or a statutory practice direction to be signed, that document shall, where filed electronically, be deemed for the purposes of that requirement to have been signed where:

(i) the name of the required signatory is entered by that person in a data entry field or box in the Supreme Court e-filing system;
(ii) another type of data entry is made in that system which indicates that the document has been signed electronically; or
(iii) the signature has been printed by computer or other mechanical means.

(i) where a document filed electronically is filed as a copy of an original –

(i) the document as filed electronically shall be identical to the original;
(ii) in filing the copy electronically, the party or person filing it shall be deemed to have certified the copy to be a true copy of the original where that party or person makes a data entry in the Supreme Court e-filing system indicating the document to be certified as a true copy;
(iii) the copy as filed electronically shall, for the purposes of any relevant requirement of the rules and any statutory practice direction, be deemed to be an attested copy of the original, unless the Court directs otherwise.

(j) where a document issued by the Court or the Registrar or from the Office requires under the rules or any statutory practice direction to be signed or sealed:

(i) that document shall, where issued or transmitted electronically, be deemed for the purposes of that requirement to have been signed or (as the case may be) sealed where text or an image representing

(I) the signature of (as appropriate) the judge or judges concerned, the Registrar or appropriate member of staff employed in the Office or
(II) the seal concerned

has been incorporated in the document when created in electronic form by the Registrar or a member of such staff using the Supreme Court e-filing system;

(ii) a printed version of that electronic document containing the text or image representing the signature or (as the case may be) seal shall be deemed for all purposes to be a sealed original of the document.

33. Judgment

(a) 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.(b) 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.

34. Commencement and revocation of previous practice direction

(a) Subject to paragraphs (b) and (c), this revised practice direction will come into operation on the 4th day of  October  2021.
(b) The practice direction of the 29th October 2014 is hereby revoked, but without prejudice to the validity of any act or proceeding done or taken thereunder.
(c) The practice direction of the 16th April 2020 is hereby revoked, but without prejudice to the validity of any act or proceeding done or taken thereunder.

 

Dated 30th September, 2021.
Frank Clarke
Chief Justice

 

Schedule A Forms

Form 1: Application for Leave to Appeal
Form 2: Respondent’s Notice
Form 3: Notice of Intention to Proceed with Appeal
Form 4: Notice of Application

 

Schedule B Timeline

Week 0	Grant of Leave to Appeal
Week 1	Notice of Intention to proceed filed
Week 2	Case Management Judge is appointed and the parties are informed of the identity of that judge
Week 3	Appellant’s written submissions filed
Week 5	Respondent’s submissions filed Case management booklets and joint document filed conforming with the provisions of paragraph 19(f) of this practice direction
Week 6	Case Conference:
Week 9	Appellant to file three sets of the booklets of appeal to be agreed between the parties and to conform with the requirements of this practice direction subject to such variations as may have been directed by the case management judge. Where there is significant non compliance with this Statutory Practice Direction or any variations directed by the case management judge the books may be rejected by the Registrar. Parties should note that there may be costs implications arising from such non compliance as provided for in paragraph 30 of this Statutory Practice Direction
Week 10	The case management judge may give directions, if required, concerning any alterations in respect of the books of appeal.
Week 11	Statement of Case may issue. Appellant to file full number of books of appeal in accordance with this practice direction and any variations directed by   the case management judge.
Week 13 To Week 16	The parties should anticipate that, in the absence of difficulties being encountered, the appeal will be heard during this period   but the precise date will require to be fixed having regard to the other demands for hearing in or around the time in question.  It is anticipated that, in most cases, the parties will be notified of the provisional hearing date which the Court has in contemplation soon after the case management hearing such date being subject to the case management judge’s directions having been complied with.