Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I move amendment No. 9:

In page 28, to delete lines 24 to 27 and substitute the following:“(i) by the insertion of the following subsection after subsection (3):

“(3A) Without prejudice to the generality of subsection (3), an interlocutory application relating to an appeal before the Supreme Court or, unless the appeal itself is confined to a procedural matter, any procedural application or motion in the matter, may be heard and determined by—

(a) the Chief Justice sitting alone, or

(b) any other judge of the Supreme Court sitting alone as may be nominated for that purpose by the Chief Justice.”,

(ii) in subsection (4), by the insertion of “or subsection (4) of section 1A” after “section 1”,

(iii) in subsection (5), by the insertion of “or subsection (4) of section 1A” after “section 1”,

(iv) by the insertion of the following subsections after subsection (5):“(6) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings—(a) the Chief Justice sitting alone, or

(b) any other judge of the Supreme Court sitting alone as may be nominated for that purpose by the Chief Justice, may, subject to any practice direction issued under subsection (7), make any order, or give any direction he or she thinks appropriate in relation to the conduct of proceedings before the Supreme Court.(7) In the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings and, without prejudice to the generality of Article 64 of the Constitution and the powers of the Supreme Court in that regard, the Chief Justice may issue directions (in this section referred to as ‘practice directions’) in relation to the conduct of appeals or applications made to the Supreme Court.

(8) A practice direction may relate to—(a) civil or criminal proceedings, or both, or

(b) a class or classes of civil or criminal proceedings, or both, and may make provision for such incidental, supplementary and consequential matters, including in respect of a failure to comply with any matter provided for in a practice direction as appear to the Chief Justice to be necessary or expedient for the purposes of the direction.(9) A practice direction under this section shall be published in such manner as the Chief Justice may direct.

(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.

(12) Where the Supreme Court directs under subsection (11) that an application be determined with an oral hearing, the direction shall be published in such manner as the Chief Justice shall direct.

(13) Subject to subsections (14) and (15), the determination of an application referred to in subsection (10) shall be published in such form and manner as the Chief Justice shall direct.

(14) Leave to appeal shall be granted by way of a certificate of the Supreme Court specifying the ground or grounds on which such appeal may be brought.

(15) Where the Supreme Court determines an application referred to in subsection (10), the Court shall state its reasons for the determination and such reasons may be stated briefly and in general terms.

(16) Where, upon application to it in that behalf by any party to an appeal against a decision of the High Court, the Supreme Court grants leave to appeal against the decision of the High Court, such grant of leave to appeal shall operate—(a) where an appeal has also been made to the Court of Appeal, to discontinue the appeal proceedings before the Court of Appeal in respect of the grounds on which the Supreme Court has granted leave to appeal, or

(b) where no appeal has, at the time of the grant of the leave to appeal, been made to the Court of Appeal, to preclude such an appeal being made to the Court of Appeal on those grounds.(17) Subsections (6) to (16) are without prejudice to any powers of the Supreme Court in respect of proceedings before it.

(18) In this section—(a) ‘appeal’ includes a cross-appeal or request to vary an order under appeal, ‘party’ includes a notice party or a party permitted by the Supreme Court to intervene in proceedings,

(b) a reference to an ‘interlocutory application’ includes a reference to an application which may be made under any enactment to the Supreme Court in criminal proceedings concerning the grant of a certificate of entitlement to legal aid.”,”.

There are three elements contained in amendment No. 9, which I should like to highlight for the information of Deputies. The amendment itself concerns proceedings in the Supreme Court. The first element provides a statutory basis for the determination of interlocutory applications, either by the Chief Justice sitting alone or by such other judge of the Supreme Court as may be nominated by the Chief Justice. This is addressed in the new subsection (3A).

The second element deals with case management and practice directions. It mirrors the provisions which I have already detailed in relation to the Court of Appeal. The new subsections (6) to (9) refer.

The third and final element – new subsections (10) to (16) - is an innovation and relates directly to certain provisions which are now set out in the Constitution. Essentially it means that it will be possible to deal with a limited category of applications on the papers, that is, without the need for an oral hearing. This is in keeping with the practice in other common law jurisdictions and should enhance the capacity of the Supreme Court to hear and determine substantive appeals.

The applications in question are the following: applications for leave to appeal to the Supreme Court from a decision of the Court of Appeal or the High Court; applications referred to in Article 64.3.3^oof the Constitution seeking to cancel the effect of a direction that a particular appeal be determinable by the Court of Appeal; and applications referred to in Article 64.4.1^oseeking to have a particular appeal determinable by the Court of Appeal. It is provided that the determination of these applications will be made available publicly by electronic and other means. Leave to appeal will be granted by way of a certificate specifying the grounds on which the appeal may be brought. In an additional transparency measure, it is further provided that the court is to state its reasons for any determination which it makes. However, in an appropriate case it will be possible for the Supreme Court to decide that an oral hearing should take place and, again, any direction in this matter will be published in such manner as the Chief Justice shall direct.

The new provisions also deal with what is to happen when the Supreme Court grants leave to appeal against a decision of the High Court. Essentially this will act to preclude an appeal being made to the Court of Appeal or to discontinue any proceedings which are in being before that court. In both cases this is limited by reference to the grounds on which the Supreme Court has decided to entertain the proceedings.

The remaining amendments Nos. 41 and 42 relate to the Long Title and are consequential upon the proposals which I have just outlined

See this speech in context