Civil Business

This chapter furnishes a detailed evaluation of the Court’s civil business. It opens with a statistical overview of civil appeal types in Northern Ireland before proffering a qualitative analysis of key cases which are discussed in line with the different sources of civil appeals, beginning with appeals from the High Court (including a separate section on appeals in judicial review cases) and ending with appeals by way of case stated or on a point of law.

4.1 Introduction

This chapter opens with a statistical overview of the types of reported civil appeals dealt with by the Court of Appeal during the past 25 years. It then engages in a qualitative analysis of the key types of civil appeals, beginning with appeals from the High Court, where the absence of a general requirement for leave is highlighted. A more specific section follows on appeals from the High Court in judicial review cases. Finally, we touch upon appeals from courts and tribunals by way of case stated or otherwise on points of law only. A preliminary point is that, in civil cases especially (because in criminal cases legal aid will usually cover the costs), the expense involved in bringing an appeal is far from negligible. In 2024, regardless of the nature or size of the sums at issue, the fee payable on the filing of a notice of appeal or case stated is £711. If the respondent wishes to contend on the appeal that the decision of the court below should be varied in any way, or that it was wrong in whole or in part, the fee payable is £533. And if lawyers are instructed, their fees will of course add to the overall cost of pursuing an appeal. As far as we know no empirical research has yet been conducted on what impact the level of fees is having on access to the Court of Appeal.

4.2 Types of civil appeals

As we indicated in Chapter 3, during the period 1999 to 2023 there were almost identical numbers of civil and criminal cases reported: 740 of the former and 723 of the latter. Likewise, the percentage of cases disposed of that were reported was almost identical for both civil and criminal cases (36 per cent and 37 per cent, respectively). But many more sitting days were devoted to civil cases than to criminal cases (58 per cent as opposed to 42 per cent). At the appeal level civil cases simply require more court time than criminal cases.

Civil appeals are also more varied than criminal appeals. The criminal law is a relatively small and discrete area of law while civil law ranges far and wide over all other aspects of societal life. The array of courts and other bodies from which appeals can be brought to the Court of Appeal on civil law issues is therefore much greater than it is on criminal law issues. For present purposes we will divide that array into two categories: (1) the High Court and (2) inferior courts, tribunals, and other bodies. Table 4.1 gives a breakdown of the number of reported cases within each of those categories over the past 25 years.

Table 4.1:

The source of civil appeals, 1999–2023

Source of appeal	Number of reported cases
High Court High Court judges High Court Masters	566 563 3
Inferior courts Magistrates’ courts County courts	20 6 14
Tribunals and other bodies Industrial Tribunal Fair Employment Tribunal Social Security Commissioner Child Support Commissioner Social Security Appeal Tribunal Pensions Ombudsman Upper Tribunal Immigration (and Asylum) Tribunal Lands Tribunal Northern Ireland Valuation Tribunal Enforcement of Judgments Office	154 93 18 16 1 1 3 9 3 8 1 1
Total	740

The lion’s share of civil appeals (76 per cent) clearly derives from the High Court. The fact that High Court judges also commonly sit as judges in the Court of Appeal means that those individuals are, in effect, regularly marking their colleagues’ homework. This is accepted practice and does not seem to cause any difficulties. On the contrary, it helps to make High Court judges more aware of what the Court of Appeal expects from the lower court.

4.3 Appeals from the High Court in general

Appeals can normally be taken to the Court of Appeal from any High Court decision, but legislation specifies three types of decision from which an appeal can be taken only if leave has first been granted by the High Court and a further nine types of situations where an appeal is prohibited altogether.¹ Appeals are in some instances banned under the common law too.² The three situations in which leave is required are where the High Court has made an order with the consent of the parties or as to costs only, where (with some exceptions³) the High Court has issued an interlocutory order or judgment,⁴ and where the High Court has made a decision under the Insolvency (NI) Order 1989.⁵ It is relatively unusual for a Court of Appeal in a common law jurisdiction to have such limited control over its own caseload, although the Court of Appeal in the Republic of Ireland is in the same position.⁶

4.3.1 The leave requirement

In the 2017 Report of the Review Group on Civil Justice, chaired by Gillen LJ, careful consideration was given to the issue of leave in civil appeals. In the end it recommended that leave to appeal should be required in every appeal to the Court of Appeal. Applications for leave should be determined on the papers by one judge, but if leave is refused the party aggrieved should then be able to proceed to an oral hearing, again before a single judge. Thereafter there should be no right of appeal against a grant or refusal of leave.⁷ Underlying this recommendation was the belief that the current system wastes valuable judicial time, as is made clear in the Review’s introductory chapter:

there is an unnecessary premium on an extensive oral process in the appeal system in many cases that are wholly unmeritorious. The result is an unnecessary and disproportionate waste of time and expense. Accordingly, we have recommended alterations to the granting of leave mechanism and the appeal thresholds. In addition, consideration is given to ADR [Alternative Dispute Resolution], unnecessary proliferation of documentation, a re-examination of costs, non-compliance with directions and hearing management in appeal hearings.⁸

The Gillen Review’s recommendation has not to date been implemented and, as Chapter 8 will show, there are conflicting views among current and recently retired judges as to the desirability of introducing a leave stage for all High Court cases.

4.3.2 The test for leave, when required

Closely related to whether leave should be required is the question of what test should be applied by the Court of Appeal if it is required. The current position is reflected in the following quotation from a judgment delivered by Treacy LJ in 2022:

Leave to appeal will be granted if there is a prima facie case of error; or a question of general principle not already decided; or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage. …⁹ In cases not involving a point of general principle or public advantage, the appellant must show ‘an arguable case with a reasonable prospect of success that the trial judge had gone plainly wrong’. …¹⁰ This is the test that must be applied whether leave is being sought from the High Court or on renewal of an application for leave to the Court of Appeal.¹¹

The test mentioned is already a broad one, but on occasions the Court of Appeal has gone even further. In Re McNamee and McDonnell’s Application it accepted that there may be cases where there is a compelling reason to give permission to appeal despite the fact that the usual test is not met.¹² As support for this position Morgan LCJ cited a 1997 Practice Note issued by Lord Woolf MR for England and Wales, where he stated that:

There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.¹³

The example provided by Lord Woolf is perhaps not a helpful one, since what is in the ‘public interest’ is likely to also be to the ‘public advantage’, a criterion already mentioned in the usual test. Indeed, rather than suggesting that the current test is too narrow one might more validly argue that it is too wide – so much so as to be almost meaningless.

That was the prompt behind the Gillen Review’s proposal that the test should be tightened. At one point the Review seems to favour the test that is already applied for appeals from a county court, a family court, or the High Court to the Court of Appeal in England and Wales; namely, that the appeal raises an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear the appeal.¹⁴ But in its list of recommendations the Review states that if this test is not implemented ‘as a universal threshold’ then for all appeals to the Court of Appeal from tribunals, magistrates’ courts, and county courts there should at least be a requirement that they be brought by a notice of appeal that states the questions of law on which the appeal is founded.¹⁵ Moreover, in appeals from the High Court on interlocutory matters as well as in substantive appeals by way of ‘re-hearing’ the threshold for granting leave should be raised to ‘a real prospect of success’ or ‘some other compelling reason’ for the Court of Appeal to hear the appeal.¹⁶ As yet, however, these recommendations remain unimplemented.

If the High Court refuses leave in a case where it is required, the Court of Appeal can itself grant leave only if it has statutory authority to do so. This was made clear in Re McShane’s Application, where a High Court judge refused leave to appeal against a decision by the Northern Ireland Local Government Commissioner for Standards that a local councillor should be suspended for three months.¹⁷

If any person or organisation wishes to intervene in an appeal they have to seek the permission of the Court. Applications to intervene are fairly common in judicial review cases, but the Court of Appeal will expect the intervener to have a special remit or expertise in the subject matter of the case and it will usually not want the intervener to duplicate arguments already being put forward by a party in the case. At times the Court might question whether a statutory organisation has the legal right to intervene. In 2001 the Court of Appeal in Northern Ireland held, by a majority, that the Northern Ireland Human Rights Commission had no right to intervene in an inquest in order to put forward human rights arguments,¹⁸ but the House of Lords overturned that decision.¹⁹

4.3.3 Time limits for appeals

The Court of Appeal adopts quite a strict approach to deadlines relating to civil appeals. This is usually six weeks from the date on which the judgment or order of the court below was filed.²⁰ On numerous occasions in the past 25 years the Court has been asked to extend the time limit. The approach to be applied was clearly set out by Lord Lowry as far back as 1979:

Where a time-limit is imposed by statute it cannot be extended unless that or another statute contains a dispensing power. Where the time is imposed by rules of court which embody a dispensing power … the court must exercise its discretion in each case, and for that purpose the relevant principles are:

(1)whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up,

(2)when the time-limit has expired, the extent to which the party applying is in default,

(3)the effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs,

(4)whether a hearing on the merits has taken place or would be denied by refusing an extension,

(5)whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) to be made which could not otherwise be put forward, and

(6)whether the point is of general, and not merely particular, significance.²¹

In 2017 the Civil Justice Review recommended that applications to appeal out of time should, like applications for leave to appeal, be dealt with by a single judge, with the applicant having the right to an oral hearing before a single judge if the extension of time is refused on the papers alone. But the Review went on to suggest, ‘to ensure the principle of fairness prevails’, that if a single judge does not grant the extension even after an oral hearing the applicant should then be able to have the matter considered by a full Court of Appeal.²² There is merit in such a proposal because it should reduce the amount of judicial time wasted on hopeless applications, but the fact remains that, whatever number of judges considers the application it will always be necessary – bearing in mind the fifth and sixth of Lord Lowry’s relevant principles – for the court to examine in some detail the merits of the points being raised in the proposed appeal. We shall see in the next chapter that the same problem commonly arises in criminal appeals.

4.3.4 The approach to facts and inferences

The Court of Appeal’s general approach to civil appeals has been reaffirmed many times and appears to be identical to that adopted by the Court of Appeal in England and Wales. It was summed up most recently by McCloskey LJ in Kerr v Jamison:²³

Where invited to review findings of primary fact or inferences the appellate court will attribute weight to the consideration that the trial judge was able to hear and see a witness and was thus advantaged in matters such as assessment of demeanour, consistency and credibility. …²⁴ The review of the appellate court is more extensive where findings are made at first instance on the basis of documentary and/or real evidence. However even where the primary facts are disputed the appellate court will not overturn the judge’s findings and conclusions merely because it might have decided differently. …²⁵ The deference of the appellate court will of course be less appropriate where it can be demonstrated that the first instance judge misunderstood or misapplied the facts.²⁶

The UK Supreme Court seems to approve of this approach too, with Lord Kerr’s judgment in DB v Chief Constable of the Police Service of Northern Ireland now commonly cited as the main authority on the matter.²⁷ There Lord Kerr said that in the case before him, which was about whether the police had misunderstood their powers in relation to unauthorised parades, ‘the Court of Appeal should have evinced a greater reluctance in reversing the judge’s findings than they appear to have done’. He added:

Impressions formed by a judge approaching the matter for the first time may be more reliable than a concentration on the inevitable attack on the validity of conclusions that he or she has reached which is a feature of an appeal founded on a challenge to factual findings. The case for reticence on the part of the appellate court, while perhaps not as strong in a case where no oral evidence has been given, remains cogent.²⁸

Fresh evidence is admissible in civil appeals, but there is no test of ‘necessary or expedient in the interests of justice’ as there is in criminal appeals.²⁹ According to rules of court, new evidence is admissible in civil cases if (a) it could not with reasonable diligence have been obtained for the trial, (b) it would probably have had an important influence on the outcome of the trial, and (c) it appears credible.³⁰

A similar approach is adopted when attempts are made to appeal on grounds that were not even considered by the judge at first instance. In Kelly v Prison Service of Northern Ireland Stephens LJ, as he then was, followed the position in England and Wales on this point.³¹ This means that three conditions again need to be satisfied before new issues can be raised at the appellate level: the other party (a) must have had adequate opportunity to deal with the point, (b) must not have acted to his or her detriment on the faith of the earlier omission to raise the point, and (c) must be adequately protected in costs.³²

4.3.5 Criticisms of lawyers and judges

The Court of Appeal recently issued a stern rebuke to lawyers who do not prepare for an appeal in the prescribed way. In Taylor v Department for Communities the appellant was appealing against a High Court ruling that his housing benefit payments should be suspended while he was in prison. The Court of Appeal said that the appeal would be struck out unless the ‘multiple failings’ in the appellant’s case, especially his breach of the duty of candour, were fully rectified within ten days. Not mincing his words, McCloskey LJ characterised the lawyers’ Notice of Appeal thus:

It cannot be said that the Notice of Appeal … is unduly informative or intelligible. Disappointingly, it is precisely the opposite. The grounds of appeal are of the ‘boilerplate’, diffuse and opaque variety so frequently deprecated by this court. There are eight grounds in total. Each of them recites that the judge ‘… erred in law by his conclusion that …’, without accompanying specificity or particularisation. Grounds of appeal couched in terms of this kind are simply meaningless.³³

Even more worryingly, the judge added a note observing that ‘[i]n a very recent exercise of judicial scrutiny of all live civil appeals in the Court of Appeal system, around 40 cases in total, the diagnosis was that the Notice of Appeal was defective in every case. Not one passed muster.’³⁴

The Civil Justice Review highlighted the problems of lawyers burdening the Court of Appeal with unnecessary or late documents and not complying with judicial directions.³⁵ It consequently made recommendations that in such instances solicitors and even legally aided litigants should be penalised as regards costs.³⁶ It also observed that when leave is required for an appeal the parties should be reminded that they have the option of seeking a mediated solution to their dispute, as occurred when the Bar Council brought a judicial review application against the Department of Justice relating to rises in legal aid rates.³⁷

There are also examples of cases where the judge in the lower court made mistakes. In one case a judge was said to have given inaccurate advice to a litigant on his appeal rights³⁸ while in another a judge was criticised for asking lawyers to develop submissions based on ECHR case law but then not dealing with those arguments in his judgment.³⁹ A coroner has also been rebuked for giving the impression that he was biased in favour of a particular outcome while conducting an inquest.⁴⁰ All three of those cases were decided as recently as 2022.

4.4 Appeals from the High Court in judicial review cases

Of the 566 reported appeals from the High Court between 1999 and 2023, 300 (53 per cent) were in cases involving applications for judicial review.⁴¹ A significant distinguishing feature of such applications is that they can proceed to a full hearing only if leave to bring the application has first been obtained. If leave is refused, there can either be an appeal against that refusal to the Court of Appeal or a fresh application can be made to the Court of Appeal: there is no significant difference in the two modes of proceeding.⁴² The test that the Court of Appeal applies when deciding whether to grant leave is the same as that applied by the High Court; namely, that there must be an arguable case which either has a reasonable prospect of success⁴³ or is fit for further investigation by the Court.⁴⁴ When the Court of Appeal is considering whether to grant leave and does so, it often proceeds to deal with the merits of the appeal in what is called a ‘rolled-up’ hearing. Having granted leave it can also order that the case should proceed as if it had been commenced by a writ for a civil claim, because proceeding by way of judicial review is deemed inappropriate.⁴⁵

Judicial review applications are designated as civil cases even though they involve issues connected with the criminal justice system. Confusingly, however, judicial review applications which are specifically ‘in a criminal cause or matter’ are not within the jurisdiction of the Court of Appeal: they must first be dealt with by a Divisional Court of the Queen’s Bench Division of the High Court, which will comprise at least two High Court judges or Lords/Ladies Justices.⁴⁶ The only avenue of appeal from the Divisional Court is directly to the UK Supreme Court.⁴⁷ Crucially, however, this avenue is available to ‘the defendant or the prosecutor’ in the Divisional Court case, but not to the applicant.⁴⁸

The boundary line around what qualifies as ‘a criminal cause or matter’ is not always easy to discern. It was closely examined by the Supreme Court in a case from Northern Ireland in 2020, Re McGuinness’s Application, where the issue was how to calculate the expiry date of a tariff imposed on a sentenced prisoner.⁴⁹ The Supreme Court ruled that it had no jurisdiction to deal with the case because it had come directly from the Divisional Court in Northern Ireland when it ought to have been heard by the Court of Appeal. It therefore remitted the case to the Court of Appeal.⁵⁰ Two years later two further cases relating to release dates were heard by that Court.⁵¹ In that same year it heard an appeal against a High Court judge’s refusal to grant leave for judicial review of the police’s failure to provide information about the progress it was making with an investigation into the death of the appellant’s brother: this was because there was not yet ‘a criminal cause or matter’ involved.⁵²

The question needs to be asked whether it continues to be justifiable to treat judicial review applications in a criminal cause or matter differently from applications in any other cause or matter. Applicants in criminal causes benefit from having at least two judges consider their applications at first instance but they cannot appeal. Applicants in civil causes benefit from being able to appeal at two levels, subject to leave being granted for the second appeal to the Supreme Court. If cases are urgent they can be expedited, whether they are criminal or civil in nature. The leapfrog appeal procedure can also be used.⁵³

The current situation exists even though a 1970 report by a committee chaired by Lord MacDermott, which preceded the Judicature (NI) Act 1978, recommended that Divisional Courts should be abolished and that the Court of Appeal should have jurisdiction to hear and determine appeals ‘from any judgment or order of the High Court’.⁵⁴ Noting this, McCloskey J, as he then was, ventured to say in Re JR 27’s Application that ‘[t]here may well be a case for reinstating this proposal now and, as regards this issue, there is unanimity of opinion amongst the members of this present chamber of judges’.⁵⁵ He was supported on that point by both Morgan LCJ and Weatherup LJ in the same case.⁵⁶

The Review of Civil Justice in Northern Ireland adopted the same stance in 2017:

There is no reason to retain this distinction, which is complex and now anachronistic, and it should be abolished. This could be achieved by a relatively straightforward statutory amendment to the Judicature (Northern Ireland) Act 1978.⁵⁷ … In this jurisdiction, there is no reason to believe that the provision of a right of appeal to the Court of Appeal in [criminal] cases would significantly increase the workload of the court. The requirement to appeal directly to the UKSC now seems anomalous and has been the subject of adverse judicial comment.⁵⁸

The latest judicial affirmation of this position comes from Scoffield J,⁵⁹ who is also the current Chair of the Northern Ireland Law Commission, a body which is conducting further research in this field. We touch upon this issue again in Chapter 8, where the views of our judicial interviewees are summarised.

It is also clear that in Northern Ireland there cannot be a judicial review of a ruling by the Crown Court, which tries serious criminal offences. This is because the Crown Court and the High Court are of equal standing. In England and Wales, however, legislation allows the High Court to entertain applications for judicial review of decisions by the Crown Court provided they relate to matters other than a trial on indictment.⁶⁰ Both the Divisional Court and the Court of Appeal in that jurisdiction have held, for example, that a Crown Court order removing reporting restrictions is not a matter relating to trial on indictment and so it can be judicially reviewed by the High Court.⁶¹ When such a case came before the Court of Appeal in Northern Ireland it had to hold that it had no jurisdiction to process it.⁶² The Court then proceeded, remarkably, to write words into existing legislation; namely, section 159(1)(c) of the Criminal Justice Act 1988, which applies in England and Wales too, so that it now reads:

a person aggrieved may appeal to the Court of Appeal, if that court grants leave, against … (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings or any discharge of such order or refusal by the Court to make such order; and the decision of the Court of Appeal shall be final.⁶³

4.5 Appeals by way of case stated or otherwise on a point of law

Besides the Magistrates’ Courts (NI) Order 1981 and the County Courts (NI) Order 1980,⁶⁴ various other statutes allow for appeals to the Court of Appeal by way of case stated or on points of law.⁶⁵ In the 25 years under review, as is evident from Table 4.1, there were 174 reported appeals in this category (24 per cent of all reported civil appeals), by far the largest sub-categories being appeals from industrial tribunals and the Fair Employment Tribunal (15 per cent of all reported civil appeals).

It is even possible for a High Court judge to state a case for the opinion of the Court of Appeal if the High Court has heard an appeal in a civil case from a county court.⁶⁶ This happened just twice during the period under review.⁶⁷ In A Father v A Mother the Court confirmed that it has no jurisdiction to hear an appeal against a High Court order in an appeal from a Family Care Centre (a version of a county court) except by way of case stated,⁶⁸ but in Registrar of Companies v JP Murphy Ltd it held that it had no jurisdiction at all to hear an appeal against the refusal of a High Court judge to state a case.⁶⁹

In 2009 the case stated procedure in Northern Ireland attracted trenchant criticism from the House of Lords, just before it transitioned into the Supreme Court. This was in SCA Packaging Ltd v Boyle, where a company challenged the claim by an employee that she was disabled and the Court of Appeal, in holding that she was, applied a different test from that used in England and Wales.⁷⁰ The case took a long time to reach the Court of Appeal, partly because of the case stated procedure. Legislation allowed a party to industrial tribunal proceedings to either appeal to the Court of Appeal or to require the tribunal to state a case for the Court of Appeal’s opinion – but only in accordance with rules of court.⁷¹ Unfortunately, those rules provided solely for the latter option.⁷² This meant that, even though a tribunal had already provided a thorough judgment on a dispute, it was then required to specify exactly what questions should be sent to the Court of Appeal for its opinion. In Boyle that process (admittedly partly due to the chairperson’s illness) took almost a year to complete. Lord Hope called for the rules of court in Northern Ireland to be reformed, as they had been in Scotland, so that the questions for case stated are settled early on and a timetable is then set for the draft case to be commented upon by the parties. He added that: ‘Properly used, the stated case procedure can provide a very useful vehicle for bringing issues of law before the court. But it must not be allowed to act as a brake on their prompt determination, as has unfortunately happened in this case.’⁷³ Lady Hale was equally critical of the procedure:

It is suitable for appeals on points of law from courts or tribunals which do not routinely explain their decisions. But aside from the duplication of effort and delay, it can give rise to unseemly debates between the tribunal and the parties as to the issues upon which a case should be stated. It is the appeal court, rather than the tribunal under appeal, which should decide which issues are worthy of its attention.⁷⁴

Lord Brown added that the case stated procedure, as opposed to a straightforward appeal by leave, ‘has nothing whatever to commend it – and much by way of needless delay, expense and general aggravation in its disfavour’. He called for this ‘absurdity’ to be eradicated.⁷⁵

Less than three months after the House of Lords’ remarks, the Court of Appeal in Northern Ireland endorsed them in Rogan v South Eastern Health and Social Care Trust.⁷⁶ Morgan LCJ directed that his judgment should be sent to the joint secretaries of the Court of Judicature Rules Committee so that work could begin as a matter of urgency to enable appeals from industrial tribunals to proceed by way of appeal on a point of law rather than by case stated.⁷⁷ A new rule of court was duly drafted and came into effect on 1 April 2010.⁷⁸

The Rogan case also illustrates how the Court of Appeal serves as a supervisory body of tribunals and lower courts. Morgan LCJ quoted from an earlier judgment by Girvan LJ where he urged industrial tribunals to avoid becoming increasingly costly by better controlling the length of their proceedings.⁷⁹ They should do so by constantly bearing in mind the ‘overriding objective’ of the regulations governing industrial tribunals; namely, to enable tribunals to deal with cases justly, which means, so far as practicable, ensuring that parties are on an equal footing, that cases are dealt with in ways which are proportionate to the complexity or importance of the issues, that the proceedings are expeditious and fair, and that expense is saved.

4.6 Conclusion

This chapter has sought to explain and critique the civil jurisdiction of the Court of Appeal. It confirms that that jurisdiction is wide-ranging and that there are several aspects of it which are ripe for reform. A recommendation of the Civil Justice Review that responsibility for overall management of the Court’s civil work should be allocated to a particular Lord or Lady Justice has so far not been implemented. A Shadow Civil Justice Council has been established, meeting at least twice a year, but it has not yet considered any issue specifically related to the Court of Appeal.⁸⁰ We hope that this chapter will be a stimulus for further debate and reform.

1

Judicature (NI) Act 1978, s 35(2). Procedures to be followed in appeals from the High Court are laid down in Order 59 of the Rules of the Court of Judicature (NI) 1980 (hereafter ‘RCJ (NI) 1980’).

2

See the list of eight common law prohibitions in the Review Group’s Report on Civil Justice (2017), available at www.judiciaryni.uk/publications/review-groups-report-civil-justice, App 7. For an example of leave to appeal being refused because the issue at question was ‘academic’, see Re Bryson’s Application [2022] NICA 38.

3

For example, where the liberty of the subject or contact with minors is involved.

4

This is the case whether the High Court order or judgment was a first instance decision or in an appeal from a Master: Rodgers v Rodgers [2022] NICA 26.

5

Judicature (NI) Act, s 35(2)(f), (g), and (j).

6

Courts (Supplemental Provisions) Act 1961 (Ireland), s 7A, inserted by the Court of Appeal Act 2014 (Ireland), s 8.

7

n 2, paras 15.29–15.33 and Recommendations CJ114 to CJ 117 (p 225).

8

Ibid, 5, para 1.19.

9

Here the judge cited Supreme Court Practice (1999), at 59/14/18. This is the so-called ‘White Book’; that is, the ‘bible’ of civil procedure in England and Wales.

10

Here the judge cited Flynn v Chief Constable of the PSNI [2018] NICA 3, [2020] NI 293.

11

Department of Finance, Land and Property Services v Foster [2022] NICA 19, [9]. See too Moffatt v Moffatt [2015] NICA 61, per Gillen LJ.

12

[2011] NICA 40. This wider approach seems to have been re-approved, although not applied on the facts of the case, in JP Murphy Ltd v Downey [2022] NICA 25.

13

Smith v Cosworth Casting Processes Ltd (Practice Note) [1997] 1 WLR 1538.

14

n 2, para 15.35. The test in England and Wales is provided for by the Access to Justice Act 1999, s 55(1). It is also the test already used for appeals from the Upper Tribunal to either the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland: see the Appeals from the Upper Tribunal to the Court of Appeal Order 2008, art 2.

15

Ibid, para 15.40 and Recommendation CJ 119 (p 225).

16

Ibid, para 15.41 and Recommendation CJ120 (p 225).

17

[2009] NICA 69. The long-standing precedent for this approach is Lane v Esdaile [1891] AC 210.

18

Re Northern Ireland Human Rights Commission’s Application for Judicial Review [2001] NICA 17, [2001] NI 271 (Kerr J dissenting).

19

In re Northern Ireland Human Rights Commission [2002] UKHL 25, [2002] NI 236 (Lord Hobhouse dissenting).

20

RCJ (NI) 1980, Order 59, r 4. If the appeal is from an interlocutory order the time limit is 21 days.

21

Davis v Northern Ireland Carriers [1979] NI 19. For a typical example of this precedent being applied, see Walsh v Office of the Industrial Tribunals [2021] NICA 26.

22

n 2, paras 15.43–15.44 and Recommendations CJ121 and CJ122 (pp 225–6).

23

[2019] NICA 48, [35]. This case was itself cited with approval by Humphreys J in Holchem Laboratories Ltd v Henry [2021] NICA 35, [25]. See too Morgan LCJ in Heaney v McEvoy [2018] NICA 4, [17]–[19], which McCloskey J endorsed in Herron v Bank of Scotland plc [2018] NICA 11, [24].

24

Here the judge cited Kitson v Black [1976] 1 NIJB, 5–7.

25

Here the judge cited White v Department of the Environment [1988] 5 NIJB 1.

26

Here the judge cited Northern Ireland Railways v Tweed [1982] 15 NIJB, [10]–[11].

27

[2017] UKSC 7, [2017] NI 301. But see too Lord Reed in Henderson v Foxworth Investment Ltd [2014] UKSC 41, [2014] 1 WLR 2600, [67], cited by Lord Hodge in Carlyle v Royal Bank of Scotland [2015] UKSC 13, 2015 SC (UKSC) 93, [21]–[22], who in turn was cited by Gillen LJ in H v H [2015] NICA 77, [25]: ‘It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider the relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.’

28

Ibid, [80].

29

See Chapter 5.

30

RCJ (NI) 1980, Order 59, r 10(2). These are the criteria set out by the Court of Appeal in England and Wales in Ladd v Marshall [1954] 1 WLR 1489.

31

[2019] NICA 25.

32

These conditions were laid down by Nourse LJ in Pittalis v Grant [1989] QB 605 and approved by the Court of Appeal in England and Wales in R (Humphreys) v Parking and Traffic [2017] RTR 22.

33

[2022] NICA 8, [13].

34

Ibid.

35

n 2, paras 5.49–5.52.

36

Ibid, Recommendations CJ127 to CJ131 (p 226).

37

Ibid, para 15.47 and Recommendation CJ126 (p 226). See ‘Long-running legal aid dispute resolved’ (The Belfast Telegraph, 11 February 2016), www.belfasttelegraph.co.uk/news/northern-ireland/long-running-legal-aid-dispute-resolved/34445432.html.

38

Department of Finance, Land and Property Services v Foster [2022] NICA 19.

39

A Health and Social Care Trust v A Mother [2022] NICA 63.

40

Re Downey’s Application [2022] NICA 67.

41

See, generally, Judicature (NI) Act 1978, ss 18–21 and RCJ (NI) 1980, Order 53.

42

Re OV’s (A Minor) Application [2021] NICA 58, citing the Privy Council’s decision in Kemper Reinsurance Co v Minister of Finance of Bermuda [2000] 1 AC 1. There, Lord Hoffmann said that leave to apply for judicial review is different from leave to appeal, and so the rule in Lane v Esdaile, n 17, does not apply.

43

Re Burns’ Application [2022] NICA 20, [28], per Keegan LCJ, citing Re Omagh District Council’s Application [2004] NICA 10.

44

Beatty v Director of Public Prosecutions [2022] NICA 13, [39], per McCloskey LJ; Re Ní Chuinneagain’s Application [2022] NICA 56, [34]-[44]. For more on this test, see Gordon Anthony, Judicial Review in Northern Ireland (3rd edn, Hart Publishing 2024) 70–1.

45

Leszkiewicz v Secretary of State for the Home Department [2022] NICA 24: rather than proceed by way of judicial review the applicant should have sued for false imprisonment.

46

RCJ (NI) 1980, Order 53, r 2.

47

Judicature (NI) Act 1978, s 41(1)(a). See too s 35(2)(a). The position is similar in England and Wales: see the Administration of Justice Act 1960, s 1(1)(a).

48

Ibid, s 41(6)(a) spells out what ‘defendant’ means in s 41.

49

[2020] UKSC 6, [2021] AC 392.

50

Re McGuinness’s Application (No 1) [2020] NICA 54, where the Court of Appeal allowed the Department’s appeal against the Divisional Court’s decision.

51

Re Conway’s Application [2022] NICA 18. See too Leszkiewicz v Secretary of State for the Home Department, n 45, where the applicant complained that he was being kept in custody beyond his release date just because the Home Office had not yet completed the paperwork on his deportation.

52

Frizzell v The Police Service of Northern Ireland [2022] NICA 14. See too Beatty v Director of Public Prosecutions, n 44, seeking an order that the DPP had a discretionary power to direct the Chief Constable to accelerate the police investigation into the death of the applicant’s brother.

53

This is where an appeal can go straight from the High Court to the Supreme Court because, for example, there would be little point in the Court of Appeal considering the case as it too would be bound by a precedent which was binding on the High Court. See the Administration of Justice Act 1969, ss 12–16.

54

Report of the Committee on the Supreme Court of Judicature of Northern Ireland (Cmnd 4292, 1970), para 231.

55

[2010] NIQB 12, [16].

56

Ibid, [50]–[51].

57

Here the Review cites Re Barry Morgan [2015] NIQB 60, [9], per Morgan LCJ. See Review Group’s Report on Civil Justice, n 2, para 20.20. The Review immediately adds, however, that in any judicial review case the rules of court should still permit a Divisional Court to be assembled where a judge considers it to be necessary.

58

Ibid, Review Group’s Report on Civil Justice, n 2, para 20.3. A footnote in this paragraph is inaccurate: it should actually refer to Re JR 27’s Application [2010] NIQB 12.

59

Re Diver’s and Corrigan’s Applications [2021] NIQB 84, [18]: ‘I would add my voice to those before me who have expressed the view that the distinction is now anachronistic and serves no useful purpose – or at least no purpose outweighing the disadvantages of the distinction being maintained.’

60

Senior Courts Act 1981, s 29(3).

61

R v Leicester Crown Court, ex parte S (a Minor) (Note) [1993] 1 WLR 111 (Div Ct); R v Lee [1993] 2 All ER 170 (CA).

62

R v McGreechan [2014] NICA 5, [2015] NI 44.

63

Ibid, [24], per Morgan LCJ. The italicised words are those written in by the Court.

64

Procedures in such cases are governed by Order 59, r 61 of the RCJ (NI) 1980.

65

For example, the Lands Tribunal and Compensation Act (NI) 1964, s 8(6); Rates (NI) Order 1977, arts 30B(5)(c), 30C(11)(b), 30D(9)(b), and 31A(12C); Judgments Enforcement (NI) Order 1981, art 140(3); Social Security Administration (NI) Act 1992, s 22; Industrial Tribunals (NI) Order 1996, art 22; Fair Employment and Treatment (NI) Order 1998, art 90; Tribunals, Courts and Enforcement Act 2007, s 13(12) (concerning appeals from the Upper Tribunal).

66

County Courts (NI) Order 1980, art 62. Any decision by the Court of Appeal in such a case is ‘final’, but see Lee v Ashers Baking Co Ltd [2018] UKSC 49, [2019] 1 All ER 1.

67

Cunningham v Police Service of Northern Ireland [2016] NICA 58, [2019] NI 52; DMcA v A Health and Social Services Trust [2017] NICA 3, [2019] NI 219.

68

[2022] NICA 52.

69

[2021] NICA 62.

70

[2009] UKHL 37, [2009] 4 All ER 1181. The CA decision is at [2008] NI 48, [2009] NIJB 285.

71

Industrial Tribunals (NI) Order 1996, art 22(1).

72

RCJ (NI) 1980, Order 61, r 1.

73

See n 70, [17]. At [82] Lord Neuberger agreed that in this case ‘the [case stated] procedure has proved itself to be worse than unsatisfactory’ and at [45] Lord Rodger associated himself with the remarks by both Lord Hope and Lord Neuberger.

74

Ibid, [75].

75

Ibid, [79].

76

[2009] NICA 47, per Morgan LCJ and Girvan LJ.

77

Ibid, [30].

78

Order 60B, added by the Rules of the Court of Judicature (NI) (Amendment) 2010.

79

Ibid, [20], citing Peifer v Castlederg High School and Western Education and Library Board [2008] NICA 49, [2]–[4].