Friday, March 8, 2019
On 4 March 2019, the Supreme Court of Ireland published its first-ever Annual Report (the “Report”) documenting the work of the Supreme Court this past year and before. As noted by the Chief Justice, Mr Justice Frank Clarke, the aim of the Report is to highlight the work of the Supreme Court both inside and outside of the courtroom in the hope that “the general public can gain a greater understanding of what it is that the Supreme Court actually does and its role in upholding the Constitution and the law”.
Focus on transparency
The Report indicates a change to the Supreme Court, not just in its new found transparency by way of the publication of the Report itself, but also in its active steps towards accessibility and social engagement. The inclusion in the Report of profiles for each member of the Supreme Court (and also profiles for recently retired members of the Supreme Court), together with team photos of the members of the Supreme Court Office, judicial secretaries, judicial assistants and ushers, means that there is a clear objective of modernisation and openness. The Report also provides helpful pictorial diagrams explaining the Irish courts structure and also the journey of a typical Supreme Court appeal.
This change was led by the first ever televising of the Supreme Court proceedings in October 2017. In March 2018 the Supreme Court, for the second time in its history (the first being Cork in 2015), sat outside Dublin in Limerick’s new Mulgrave Street Courthouse. As well as moving outside of Dublin for hearing appeals, the delivery of Supreme Court’s judgment in IRM v Minister for Justice and Equality,  was again televised. This departure from the norm has continued, with the Supreme Court sitting this week in National University of Ireland, Galway (which was the first time that the Supreme Court sat outside of a courthouse since it returned to the Four Courts in 1932) to hear two appeals; one being the long-running and locally relevant case of Fitzpatrick & Anor. v An Bord Pleanála.
Appeal waiting times and statistics
Since 2014, the Supreme Court has become stricter in the enforcement of its own jurisdiction, dealing only with cases that may relate to matters of general public importance or matters that are necessary to be heard for the interests of justice.
The Report highlights a marked drop in the waiting time for a hearing before the Supreme Court since the establishment of the Court of Appeal in October 2014. In the pre-Court of Appeal era, parties could wait 4.5 years for an appeal hearing, with the average waiting time now being just 1 year to be heard before the Supreme Court, and 2 years for the Court of Appeal.
In 2018 the Supreme Court received 193 applications for leave, determining 157 of these, it disposed of 128 appeals, of which 67 were new appeals brought since 2014, and delivered 91 reserved judgments. Of the Supreme Court’s 157 determinations, just 58 were granted leave.
Of those granted leave to appeal, 12 were through the direct appeal process. Commonly referred to as ‘leapfrog’ appeals, these are appeals directly from the High Court to the Supreme Court, which are allowed to be considered in exceptional circumstances, one example being Data Protection Commissioner v Facebook Ireland Limited. The Supreme Court considered 50 leapfrog appeals, allowing just 12, 5 of which had previously been refused leave to appeal to the Court of Appeal by the High Court.
In 2014, upon its establishment, the Court of Appeal was transferred 1,355 cases on appeal, with the Supreme Court retaining 800 ‘legacy appeal’ cases. Having determined all but a handful of its own legacy cases, 2018 has found the Supreme Court in a position to assist the Court of Appeal in its own backlog, sitting with panels of Supreme Court and Court of Appeal judges to determine a further 42 ‘Article 64 return’ cases.
The Supreme Court in 2018 made just 2 preliminary references to the Court of Justice of the European Union (“CJEU”) pursuant to Article 267, down from the 5 referred in the previous year. A third reference for preliminary determination was also made but later withdrawn on the basis that the CJEU had determined a preliminary reference of the High Court dealing with an almost identical matter, leaving the Supreme Court request moot.
The Report also contains a summary of a selection of Supreme Court determinations made throughout 2018, furthering the move towards ease of understanding of Supreme Court decisions. The subject matter of these determinations range from the sick leave regime of An Garda Síochána; to the requirement of An Bord Pleanála to make definitive findings; to a person’s entitlement to legal representation – all matters of general importance in one form or another.
Introduction of e-filing system
In a final leap into the modern era, the Supreme Court has introduced an e-filing system. This was previously piloted and officially launched in February 2019, all applications for leave to the Supreme Court can now be filed electronically through the Courts Service Online. While this is not a mandatory process (but is due to become mandatory after the implementation stage), and by no means usurps the operation of the physical Supreme Court Office, it means that the physical filing and stamping of Supreme Court applications will no longer be necessary and can be done entirely online.
However, while the Supreme Court office will no longer require physical copies of pleadings, the Rules of the Superior Court regarding service still apply and so physical service will still be required unless otherwise agreed. Practice Direction SC19 provides further information regarding the e-filing, and works in conjunction with the revised Order 58 of the Rules of the Superior Court.
The Supreme Court Annual Report 2018 is available here.
 IRM v Minister for Justice and Equality  IESC 14
 Article 34.5.3° of the Constitution
 Data Protection Commissioner & anor v. Facebook Ireland Limited & anor  IESC 38
 Treaty on the Functioning of the European Union (TFEU)
Contact details for our Litigation Team can be found here.
Article written with the assistance of Margaret O’Leary.