ELG (a minor suing by her mother and next friend SG) v Health Service Executive

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Gerard Hogan,Ms. Justice Baker
• Judgment Date: 20 December 2021
• Neutral Citation: [2021] IESC 82
• Docket Number: S:AP:IE:2021:000053 Circuit Court Record No. 2019/5526

ELG (a minor suing by her mother and next friend SG)

Appellants/Applicants

and

Health Service Executive

Respondent/Respondent

[2021] IESC 82

O'Donnell C.J.

Charleton J.

Baker J.

Woulfe J.

Hogan J.

S:AP:IE:2021:000053

Court of Appeal Record No. 2020/155

Circuit Court Record No. 2019/5526

THE SUPREME COURT

Practice & procedure – Supreme Court – Appeal – Jurisdiction to hear appeal from Court of Appeal – Case stated from Circuit Court

Facts: The appellants had sought orders from the Circuit Court under s. 22 of the Disability Act 2005. The Circuit Court judge referred one legal issue to the Court of Appeal by way of case stated. The Court of Appeal delivered judgment in April 2021, but the Circuit Court judge retired before the order was perfected. The matter now came before the Supreme Court, concerning whether the Supreme Court had jurisdiction to hear the appeal in the circumstances.

Held by Ms. Justice Baker, that the Supreme Court had jurisdiction to hear the appeal. Notwithstanding that the answer to the case stated could not be returned to the retired judge, the Court was minded to answer the question posed due to its importance.

Hogan J. also gave a judgment in the matter.

Judgment of Ms. Justice Baker delivered the 20 ^th day of December 2021

1 . A preliminary issue has arisen in this appeal concerning the jurisdiction of this Court to hear an appeal from a decision of the Court of Appeal on a case stated from the Circuit Court when the Circuit Court judge who stated the case has now retired.

Background facts

2 . By originating notice of motion, the appellants sought orders from the Circuit Court pursuant to s. 22 of the Disability Act 2005 (“the Act of 2005”). One legal issue remained to be resolved and the Circuit Court judge, Her Honour Judge Linnane referred that legal issue to the Court of Appeal by way of consultative case stated. The Court of Appeal heard the case stated and delivered judgment on 1 April 2021. Judge Linnane retired shortly thereafter on or about 15 April 2021 before the order was perfected on 10 May 2021. It is not suggested that the difficulty that has arisen as a result of her retirement depends on the date of the perfection of the order, judgment having been pronounced on the legal issue before she retired, but rather on the question of whether this Court may entertain an appeal from the order of the Court of Appeal when the judge making the case stated has retired, and when it can be stated without hesitation that she no longer requires the answer to the question she sought clarification on in order to come to a decision on the point before her.

3 . No argument is made that the Court of Appeal was not competent to hear the case stated as it had been made properly before Judge Linnane retired and the Court of Appeal had heard argument and delivered its judgment. As will appear presently, the authorities suggest that an incomplete case stated may not be sufficient to vest jurisdiction in the court to whom the question is stated.

4 . The obvious practical difficulty that arises as a result of the retirement of Judge Linnane is that the issue before her under s. 22 of the Act of 2005 cannot now be returned to her. If the case was returned to the Circuit Court, it would fall to be considered by another Circuit Court judge, who would presumably have to start the hearing afresh and who might take a different view of the law or the facts, with the result that the answer given to the case stated would be either irrelevant to that judge, or not sufficiently answer his or her legal questions.

The legislative source of the jurisdiction to state a case.

5 . Section 16 of the Courts of Justice Act 1947 (“the Act of 1947”) provides for the making of a consultative case stated by a Circuit Court judge to the Supreme Court. The Circuit Court judge cannot state a case on his or her own motion but only on application made by at least one of the parties to a matter pending before that judge: see the discussion in McKenna v. Deery [1998] 1 I.R. 62 below. Section 16 provides as follows:

“A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a re-hearing, under section 196 of the Income Tax Act, 1918, of any such appeal as is referred to in the said section) pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated.”

6 . This Court in Doyle v. Hearne [1987] I.R. 601 came to the conclusion that the provision for the adjournment of pronouncement of the judgment or order must be construed as mandatory, as any other construction

“would create a total absurdity for it would be giving to the Circuit Court a power to consult the Supreme Court as to the determination of a question of law, but leaving him free to decide the case in which it arose and thus, presumably, the question of law as well, prior to that determination” (Finlay C.J. in his judgment p. 607).

7 . The ability to state a case was described in Doyle v. Hearne by Finlay C.J. as “of fundamental importance to the relationship between [the Supreme Court] and the Circuit Court and to the nature of the assistance which [the Supreme Court] can give to judges of the Circuit Court on questions of law.” (at p. 609).

8 . As is clear from a plain reading of s. 16, a consultative case stated is made by a Circuit Court judge before he or she comes to a decision on a matter to be determined in the Circuit Court and enables the judge to ask the opinion of the Supreme Court as to the correct legal interpretation of a statutory provision or a principle of common law. In McKenna v. Deery the role was described as follows:

“[…] consultative cases stated are primarily for the guidance and assistance of the judge who is asked to state such a case and if the judge is quite clear in his own mind as to the proper decision in the case, prima facie he is entitled to refuse the application and to go ahead and decide the case in accordance with his firm and positive views.” (at p. 75)

9 . Since the establishment of the Court of Appeal, the case stated made by a Circuit Court judge is now made to the Court of Appeal pursuant to s. 74(1) of the Court of Appeal 2014 (“the Act of 2014”):

“References (howsoever expressed) to the Supreme Court, in relation to an appeal, including proceedings taken by way of case stated, which lies (or otherwise) to it in any enactment passed or made before the establishment day, shall be construed as references to the Court of Appeal, unless the context otherwise requires.”

10 . Order 86B of the Rules of the Superior Court, inserted by S.I. 485 of 2014 and effective from 28 October 2014, provides for the procedure for the lodging and transmission of a case stated by a judge of the Circuit Court to the Court of Appeal pursuant to s. 16 of the Act of 1947.

11 . A consultative case stated may also be made by a District Court judge to the High Court under s. 52 of the Courts (Supplemental Provisions) Act 1961 (“the Act of 1961”) and by the High Court, hearing an appeal from the Circuit Court, to the Court of Appeal under s. 38(3) of the Courts of Justice Act 1936 (“the Act of 1936”).

12 . Section 34(1) of the Criminal Procedure Act 1967 provides for a case stated on a question of law in circumstances where a verdict is given in favour of an accused by direction of the trial judge, without prejudice to an acquittal, and could be said to reflect a legislative view of the purpose of the case stated as a vehicle to clarify the law in the interests of justice.

The authorities

13 . The question that arises in this appeal does not concern the jurisdiction of the Court of Appeal to hear the case stated but whether this Court can, and if it can whether it should, give an answer to the question when the answer cannot be returned to the judge who asked for clarification in the first place. The point is not answered in the authorities which is scarcely surprising as the question has arisen in the light of the new jurisdiction of this Court following the 33 ^rd Amendment to the Constitution, and the fact that the legislation as enacted envisaged the case stated from the Circuit Court to the Supreme Court, the court of last resort from which no appeal lay.

14 . There is some analysis in the authorities on the effect and meaning of s. 16 of the Act of 1947, and the earliest case to which the Court was referred to was the tantalisingly short judgment of the Supreme Court in Cork County Council v. Commissioners of Public Works (1943) 77 I.L.T.R. 195. There the High Court judge had stated a decision for the Supreme Court pursuant to s. 38(3) of the Act of 1936, but the High Court judge died before the case stated was heard by the Supreme Court. Neither the headnote nor the short judgment of Sullivan C.J. set out the nature of the underlying proceedings or whether any issue remained unresolved in the lower court, save to show that the appeal concerned a claim for rates in respect of a holding on Haulbowline Island, County Cork. But as is apparent from the report, counsel for both parties advanced the proposition that the hearing of the case stated could proceed as no facts remained in dispute. It was argued in those circumstances that the judge with seisin of the Circuit Court list could dispose of the appeal in the light of the answer given by the Supreme Court so that the ability to give an answer did not depend on whether the person seeking the answers was competent to receive them.

15 . As I said, the judgment of Sullivan C.J. is tantalisingly short but he did note that s. 38(3) of the Act of 1936 “emphasised the individuality...