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

AuthorThe Hon Ms Justice Mary Finlay Geoghegan
PositionLater Chief Justice
2017 Ms Justice Finlay Geoghegan and Dublin University Law Society
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,
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
Later Chief Justice.
Trinity College Law Review [Vol 20
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.
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
Courts and Civil Law (Miscellaneous Provisions) Act 2013, s 22.

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