The New Supreme Court and Court of Appeal: 2014 to 2016 and their Future

• Author: The Hon Ms Justice Mary Finlay Geoghegan
• Position: Later Chief Justice
• Pages: 5-29

 2017 Ms Justice Finlay Geoghegan and Dublin University Law Society

THE NEW SUPREME COURT AND COURT OF

APPEAL:

2014 TO 2016 AND THEIR FUTURE

THE HON MS JUSTICE FINLAY GEOGHEGAN*

My thanks to Her Honour Judge Patricia Ryan, other members of the

Lenihan family and the organiser, Tom Kelly, for the invitation to deliver

this memorial address. Dr Brian Murphy, our chairman tonight, has

spoken eloquently of Brian and his qualities, in particular as a politician.

I knew Brian as a lawyer. We first met when he came in to the Law

Library with Patricia to practice at the Bar in 1984. He came already with

a reputation as a Trinity Scholar. We had an immediate connection as his

father, Brian Senior, had devilled with my father, Tom Finlay,

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after his

call to the Bar in the early 1950s. The connection stemmed, I believe,

from the fact that Dad practised as a junior barrister on the Midland

Circuit which included Athlone. When in Athlone, the Bar then stayed in

the Hudson Bay Hotel, then owned and run by Brian’s grandfather, Pat

Lenihan. Dad and Brian Senior, though with then differing political

allegiances, would have shared a belief in the importance and merit of

public service as did Brian Junior. The legal profession’s loss of him to

life as a politician was the State’s gain. I believe if he had survived, he

would have taken a keen interest in the developments and challenges

about which I propose speaking this evening.

On 4 October 2013, the people approved of the 33rd Amendment of

the Constitution (Court of Appeal) Act 2013 which was then signed into

law by the President on 1 November 2013. It is commonly considered to

be an amendment, the purpose of which was to provide in the

Constitution (Article 34.2) for a new court, namely, a Court of Appeal

which was established on 28 October 2014. That was, of course, one

purpose and an important one, since this was the first new constitutional

institution created since 1937.

However, the same amendment to the Constitution provided in

substance for a new Supreme Court. The Supreme Court was changed

from being a court primarily with a wide and general first appellate

jurisdiction from the High Court to a court with an ordinary or normal

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Later Chief Justice.

Trinity College Law Review [Vol 20

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second appellate jurisdiction from the new Court of Appeal and an

extraordinary first appellate jurisdiction from the High Court. Crucially,

in accordance with the constitutionally prescribed general criteria

contained in the new Articles 34.5.3° and 34.5.4°, the Supreme Court now

decides which appeals it will accept or grant leave to proceed before it.

The need for an intermediate appellate court has been long flagged

and I wish to pay tribute to Chief Justice Denham for her contribution to

achieving the establishment of a Court of Appeal. She chaired the 2009

Working Group whose Report is the genesis of the fundamental changes

made and authorised by the 33rd Amendment to the Constitution. She

continued to explain the need for a Court of Appeal; the unsustainable

position of the Supreme Court and the Court of Criminal Appeal and the

impact of delays in hearing appeals on the due administration of justice

in Ireland. In March 2013, in a speech at a seminar in the Law Society on

the establishment of a Court of Appeal, she set out the reasons for the

then unsustainable position in relation to appeals. These primarily

related to the increase in the number of High Court judges from seven in

1968 to thirty-six in 2013, whilst over the same period the Supreme Court

increased from five to eight (with ability to sit in two divisions of five

and three) and consequent unacceptable delays in hearing appeals. The

Chief Justice said the waiting time for an appeal certified as ready for

hearing in the Supreme Court was approximately four and a half years.

Later in 2013, the Supreme Court was increased to ten judges which

appears to have been envisaged as a temporary measure to assist with

the crisis.

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These increases in judges and of litigation, both in type and

volume had the inevitable consequence of an unsustainable number of

appeals and waiting times not commensurate with due administration of

justice. Increases in the number of circuit judges over the same period

also increased the work load of and waiting times in the Court of

Criminal Appeal (‘CCA’).

What I wish to do this evening is to identify the changes that were

made to the appellate structure in the Superior Courts in 2014; indicate

what has been achieved by the Supreme Court and Court of Appeal

between 28 October 2014 and the end of 2016, and to reflect on certain of

the continuing challenges and issues, particularly for the Court of

Appeal. The initial period since 28 October 2014 to the end 2016 must be

considered as far as each Court is concerned to be a transitional period at

least for the Court of Appeal to continue.

I am conscious that I am speaking to an audience which includes

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Courts and Civil Law (Miscellaneous Provisions) Act 2013, s 22.