7.1 Introduction

While judges in intermediate appeal courts must be constantly conscious of the fact that they are, in effect, judging the judges who work below them in the court hierarchy, they must be thinking from time to time that their own judgments might soon be closely scrutinised by judges above them in that hierarchy. This chapter surveys the frequency, and success rate, of appeals from rulings of the Court of Appeal to the House of Lords and (since October 2009) the Supreme Court. It begins by clarifying the circumstances in which appeals (or references) might reach the top court, then looks at the number, outcomes, and subject matter of appeals and finally analyses how the judgments of the various Chief Justices of Northern Ireland have fared when they have been considered in London.¹

7.2 The appeal routes

Prior to the formation of the United Kingdom of Great Britain and Ireland in 1801, appeals from courts in Ireland had sometimes gone to the English House of Lords in London and sometimes to the Irish House of Lords in Dublin, but the Act of Union 1800 made it clear that thereafter all appeals would be heard only by the former of those institutions. In 1876, Lords of Appeal in Ordinary were specially appointed to hear all appeals in the House of Lords. Although a High Court of Appeal in Ireland was in place for almost a year in 1921–22, serving as an intermediate court between the two Courts of Appeal in Northern Ireland and Southern Ireland and the House of Lords,² the latter continued as the apex court in the Northern Ireland legal system until it was superseded by the Supreme Court in October 2009.³ Only in 1962 did it become necessary in nearly every case for leave to appeal to the House of Lords to be granted prior to the lodging of an appeal.⁴

Today an appeal from a decision of the Court of Appeal relating to a criminal case heard by the Crown Court can be taken by either the defendant or the prosecutor to the Supreme Court,⁵ but no such appeal is possible unless the Court of Appeal first certifies that a point of law of general public importance is involved and the Court of Appeal or the Supreme Court then grants leave on the basis that the point is one which ought to be considered by the Supreme Court.⁶ There is also a right of appeal from a decision of the Court of Appeal in a criminal cause or matter upon a case stated by a county court or a magistrates’ court, subject to the same preconditions.⁷

An appeal from a decision of the Court of Appeal in a civil case also requires either the Court of Appeal or the Supreme Court to grant permission for the appeal, but there is no requirement for the Court of Appeal to certify that a point of law of general public importance is involved.⁸ However in a case where by statute it is expressly provided that the Court of Appeal’s order or judgment is to be final, no appeal is possible unless it involves a decision as to the validity of any provision made by or under an Act of the Parliament of Northern Ireland or a Measure of the Northern Ireland Assembly.⁹

In both criminal and civil cases it is now very rare for the Court of Appeal to grant leave to appeal since it is accepted that the Supreme Court prefers to have the final say over which appeals it hears.¹⁰ An example of the Court of Appeal granting leave in a civil case occurred in 2019 when it gave leave to the unsuccessful applicants in a judicial review of the Ireland/Northern Ireland Protocol to the EU–UK Withdrawal Agreement.¹¹

It is also possible for cases from Northern Ireland to reach the Supreme Court without first having been heard by the Court of Appeal, most notably when the Divisional Court of the High Court has made a decision in a judicial review involving a criminal cause or matter.¹² Both in Northern Ireland and in England and Wales there is also the possibility of a ‘leapfrog appeal’ from the High Court directly to the House of Lords or Supreme Court. It can occur if all parties to the case consent to it and if the appeal raises a question of law of general public importance involving either the interpretation of a piece of legislation or an issue on which the High Court is bound by a previous decision of a higher court.¹³ Finally, issues can reach the Supreme Court if they are ‘referred’ to that Court. The Court of Appeal in Northern Ireland can itself refer to the Supreme Court any devolution issue which arises in proceedings before it¹⁴ and the Attorney General and the Advocate General for Northern Ireland can do so too – even without first giving the Court of Appeal an opportunity to look at the matter – when there is a question whether a provision in a Bill would be within the legislative competence of the Northern Ireland Assembly.¹⁵

7.3 Applications for leave to appeal

Thanks to the assistance of the Court of Appeal Office, we have had access to previously unpublished statistics concerning applications for leave to appeal from the Court of Appeal. They are set out in Table 7.1.

It can be seen that on the civil side the figures tend to differ significantly from year to year and that overall there were four times as many applications in civil cases as in criminal cases. Unfortunately, the Court of Appeal Office was not able to say how many applications resulted in leave being granted, or how many applications in criminal cases resulted at least in the identification of a question of law of general public importance. We also do not know how many unsuccessful applications were resubmitted to the Supreme Court and whether they were successful there. The Supreme Court’s Annual Reports no longer specify from which jurisdiction in the UK applications for permission to appeal derive, but from analysing the ‘PTA’ decisions listed on the Court’s website up to the end of 2023 we calculate that since the Supreme Court’s establishment in 2009 there have been 168 applications from Northern Ireland, 40 of which were granted (24 per cent). Of those, 33 related to appeals from the Court of Appeal and seven to appeals from the Divisional Court. Since 2009, therefore, there have been on average two or three successful applications per year in respect of decisions taken by the Court of Appeal.

Currently all applications to the Court of Appeal for leave to appeal to the Supreme Court are dealt with at an oral hearing. The Report of the Civil Justice Review in 2017 pointed out that this was time-consuming and generated costs¹⁶ and it therefore recommended that in future all such applications should be made in writing and decided by the issue of an Order, with an oral hearing taking place only when considered necessary.¹⁷ The same Report observed that the test applied by the Court of Appeal for granting leave was out of step with the Supreme Court’s test. The Court of Appeal grants leave if there is a conflict of authority at the domestic level or with European authority, whereas the Supreme Court grants leave if the application raises ‘an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal’.¹⁸ The Report recommended that the Court of Appeal should change its practice accordingly.¹⁹

It appears that these recommendations by the Civil Justice Review have not yet been formally implemented. The Practice Direction governing procedures in the Court of Appeal makes no mention of how to apply to the Supreme Court,²⁰ but in our interviews with several judges who have sat on the Court of Appeal,²¹ we discovered that most of them believe the Court of Appeal should grant leave to the Supreme Court ‘sparingly’.²² We heard that this approach was justified because ‘the Supreme Court should be in charge of its own docket’.²³ Interestingly, it was also emphasised to us that, when leave is refused, the Court is not necessarily saying the Supreme Court should not hear a particular case. Rather, the Court of Appeal’s function in this context was said to be the identification of ‘that very rare case where … this jurisdiction needs a result from the Supreme Court pretty quickly’.²⁴ In other words, by granting leave the Court of Appeal ‘is sending a clear message to the final court that the matter is one that needs their urgent attention’.²⁵ It does not mean ‘the final court is more likely to uphold such appeals than those in which permission is granted by the final court itself’.²⁶

7.4 The number and outcome of appeals

Between the foundation of Northern Ireland on 6 May 1921 and the end of December 2023 there were at least 130 cases from that jurisdiction in which the House of Lords or Supreme Court issued judgments.²⁷ The vast majority of these cases (113, or 87 per cent) were appeals from the Court of Appeal. A further five were from the Court of Criminal Appeal,²⁸ although the first of those did not occur until 1961.²⁹ There were also two appeals to the House of Lords and seven appeals to the Supreme Court from the Divisional Court in Northern Ireland³⁰ and three references to the Supreme Court by the Attorney General for Northern Ireland.³¹ The 118 cases emanating from the Court of Appeal and Court of Criminal Appeal actually involved 131 appeals (including cross-appeals). In the 25-year period from 1999 to 2023 there were 59 cases involving 69 appeals, representing exactly one-half of all appealed cases since 1921.³² Table 7.2 indicates how many cases were concluded in each decade since the 1920s and how many appeals were allowed (in whole or in part).

As regards the results of the appeals, the overall success rate (43 per cent) is on a par with that for appeals emanating from England and Wales. While the three most recent annual reports of the Supreme Court do not provide detailed figures enabling the success rate of appeals to be calculated with precision, in the previous six financial years (April 2014 to March 2020) the overall success rate was 45 per cent. It is noticeable that in the period 2011 to 2020 the success rate for appeals from Northern Ireland rose to 59 per cent but, given the relatively small numbers of appeals involved and the 30 per cent success rate since 2020, it seems as if the 2010s were an accidental blip and not the harbinger of a trend. Overall, the evidence suggests that the Court of Appeal in Northern Ireland is not operating at an inferior level to that of England and Wales. This assessment contrasts starkly with that made by Blom-Cooper and Drewry in 1972, when they concluded, at least in relation to civil appeals, that

not only the Northern Irish jurisdiction of the House of Lords is small in size, but also (with a few notable exceptions) trivial in subject-matter. … It may be that the judicial process in [a small] country particularly requires the guidance of a senior tribunal, even if this means a few trifling appeals are thereby allowed to reach the House of Lords. Certainly the large percentage of Northern Irish appeals that are successful in the Lords seems to bear this out.³³

Blom-Cooper and Drewry do not substantiate this conclusion by citing precise figures for the success rate of appeals, but statistics do appear to bear it out. The success rate for appeals from England and Wales in 1952–68 was 35 per cent,³⁴ while for appeals from Northern Ireland it was 59 per cent. However, since 1968 the success rates for appeals from the two jurisdictions, apart from during the 2010s, have come closer together. It is perhaps the case that in a small jurisdiction there is a greater tendency for judicial ‘group-think’ and for judges to be more conservative in their approach to novel arguments, but we certainly cannot deduce from that that there is any greater likelihood of professional incompetence.

7.5 The subject matter of appeals

Three of the relatively early appeals from Northern Ireland helped to clarify important aspects of the House of Lords’ jurisdiction. First, that it can hear appeals even if they are only about costs;³⁵ second, that it can deal with any point arising in an appeal even if it is not one on which leave to appeal was granted;³⁶ and third, that if there is an even split of opinion among the Lords of Appeal (perhaps because one of the five selected to hear the appeal has died between the hearing and the delivery of judgments) the appeal must be dismissed.³⁷ By definition these were matters which had not been considered at the Court of Appeal stage in each case. There is nothing to suggest that the current Supreme Court wishes to move away from any of those practices it has inherited from the House of Lords.

More than two fifths of the 118 cases (51, or 43 per cent) involved criminal law, criminal procedure, the powers of the police, or questions concerning inquests. The particular issues dealt with included the defences of drunkenness and automatism,³⁸ the directions that should be given to a jury when the main evidence against an accused is identificatory or circumstantial,³⁹ the liability of the army or police for a death,⁴⁰ the admissibility of fresh evidence in an appeal,⁴¹ the definition of a miscarriage of justice,⁴² and police powers to stop a protest or parade.⁴³ As many as 41 cases (35 per cent) were in some way connected with the troubles in Northern Ireland.⁴⁴ Altogether, 14 cases involved the police, although the first instance of this was not until 1984.

A further 28 cases (24 per cent) were about other aspects of public law. Eight of these were about rating or taxation issues, but only one has occurred since 1969.⁴⁵ On two occasions the legislative powers of the old Northern Ireland Parliament were scrutinised⁴⁶ and in recent times the powers of the Northern Ireland Human Rights Commission have twice been examined, including in a case which had significant ramifications for reform of the law on abortion in Northern Ireland.⁴⁷ Perhaps the public law case with the highest profile is the House of Lords’ decision in 2002 (by three votes to two), upholding the majority view in the Court of Appeal, that the election of a First Minister and deputy First Minister outside the six-week period specified in the Northern Ireland Act 1998 was nevertheless valid.⁴⁸ In recent times there has been an increase in appeals in judicial review cases (11 between 2014 and 2023).

Finally, another one third of the Northern Ireland cases (39 or 33 per cent) involved private law claims. These were the dominant category of appeals during the first half of the Court of Appeal’s existence: 22 of the 35 cases decided before 1970 were private law claims (63 per cent). In the second half they were comparatively rare: 17 out of 83 cases (20 per cent). About a dozen cases have concerned contractual or employment issues,⁴⁹ the latter frequently taking the form of claims for injuries at work in the early years and claims for discrimination in the later years.⁵⁰ There have been just a handful of cases relating to family law or child law⁵¹ and only two on welfare law.⁵² Possibly the most significant of the few cases on property or commercial law is a recent one in which the Supreme Court applied the House of Lords’ Practice Statement of 1966 and departed from a prominent precedent relating to the doctrine of restraint of trade.⁵³ The Court of Appeal, of course, had felt bound by that precedent.⁵⁴

7.6 Appeals against judgments of Chief Justices

It is interesting to consider the record of the ten Chief Justices of Northern Ireland – who are ex officio Presidents of the Court of Appeal – regarding appeals taken against their judgments in the Court of Appeal to the House of Lords or the Supreme Court. Table 7.3 summarises the figures.

A recurring feature in the appeals heard in the 1950s and 1960s was the deference paid by the Law Lords to the judgments of Lord MacDermott CJ in cases from Northern Ireland. In two cases his view as the trial judge was preferred to that of the Court of Appeal,⁵⁵ in one case his concurring judgment in the Court of Appeal was upheld⁵⁶ and in three cases his dissenting judgments in the Court of Appeal were approved.⁵⁷ On the other hand, on five occasions his views as a Court of Appeal judge were not wholly endorsed.⁵⁸ Lord MacDermott’s expertise was well known to the House because in 1947, having served for just three years as a High Court judge in Northern Ireland, he was whisked to London to serve as a Lord of Appeal. His more senior colleagues in Belfast who were overlooked for the role included the then Lord Chief Justice, Sir James Andrews.⁵⁹ On the death of Sir James in 1951 Lord MacDermott returned to Northern Ireland to take up the position of Lord Chief Justice, a role he retained for the following 20 years. During that time he sat as an ad hoc Law Lord on more than 25 occasions,⁶⁰ although never in an appeal from Northern Ireland.

Lord MacDermott’s successor as Lord Chief Justice was Sir Robert Lowry. He too never sat in a Northern Irish appeal in the House of Lords, either as an ad hoc judge before 1988 or as a full-time Lord of Appeal from 1988 to 1994. Sir Brian Hutton succeeded Lord Lowry as Lord Chief Justice of Northern Ireland in 1988 and then as a Lord of Appeal in 1997. It was only in 2001 that he became the first former judge from Northern Ireland to hear an appeal from the Court of Appeal in that jurisdiction⁶¹ and he went on to hear a further five. Lord Hutton’s successor both as Lord Chief Justice and as Lord of Appeal, Lord Carswell, heard 11 cases from Northern Ireland and in turn Lord Kerr, who followed Lord Carswell in the same two roles, heard no fewer than 22.⁶² Since Lord Kerr’s replacement by Lord Stephens as a Supreme Court Justice the latter has heard four appeals from Northern Ireland while the retired Lord Chief Justice, Sir Declan Morgan, has heard one such appeal as an ad hoc judge and his successor, Lady Chief Justice Keegan, has heard two.⁶³ In our interviews with a range of Court of Appeal judges, we learned that one felt it was prudent for a Lord or Lady Chief Justice, whether retired or in office, to sit on the Supreme Court from time to time in order to avoid the ‘danger’ of over-reliance on the influential views of the permanent Supreme Court judge from Northern Ireland.⁶⁴ However, it was acknowledged that such opportunities would be limited, given that the Chief Justice is normally involved in the high-profile cases that are decided by the Court of Appeal.⁶⁵

We should not read too much into the ‘reversal rate’ for Chief Justices’ judgments in the Court of Appeal that are appealed to a higher court. So much depends on whether the Chief Justice felt bound by a precedent, whether the arguments put in the Court of Appeal were different from those put in the House of Lords or Supreme Court and whether the case was one which required a novel solution that it was more appropriate for a final appeal court to adopt than an intermediate one. It is, however, clear that during the past 25 years there has been a marked increase in the success rate for appeals taken against judgments of the Chief Justices. This may betoken a failure on the part of counsel to put their arguments across in a convincing enough manner in the Court of Appeal or perhaps a relative timidity on the part of the Chief Justices to accept their arguments. We cannot point to any common feature in recent appeals that suggests that Chief Justices are in any way falling down on the job. A likely explanation for the rise in the success rate of appeals is the growing complexity of the law and the correlative scope that exists for reasonable disagreements to emerge over finer points. As one of our judicial interviewees put it, ‘there is not really a right answer in the sense that a court at different times could decide either way in most cases, or decide differently in most cases depending on the composition of the court’.⁶⁶ It also seems that both Lord Carswell and Lord Kerr became more ‘activist’ judges once they moved from being the head of a small devolved jurisdiction to serving as one of a group of judges at the apex of the national court system.

7.7 Conclusion

In our interviews with the judges, one said: ‘When you are sitting in the Court of Appeal, you are conscious of the fact that you could go to the Supreme Court. … You do not just have the freedom to do whatever you like. You have got to justify it.’⁶⁷

Similar sentiments have been captured by previous research involving members of the Court of Appeal in England and Wales, with one of them having said ‘you are writing defensively to a certain extent to armour plate yourself against appeal’.⁶⁸ This much confirms, unsurprisingly, that members of both courts are alive to the possibility of being held judicially accountable for the rigour of their judgments.

This chapter has also confirmed that judgments by top judges in Northern Ireland are not always endorsed by their ‘superiors’ in London, but that their record in that respect is no worse than that of judges sitting in the Court of Appeal in England and Wales. In most cases in which London-based judges have disagreed with Belfast-based ones, it is not because the latter have been deemed to have made mistakes in their application of the law but rather because the former have decided to clarify the law in ways that could not have been confidently predicted by the lower court. While the Supreme Court is keen to avoid undesirable differences arising between how similar laws are applied in various jurisdictions within the UK,⁶⁹ it also appears to recognise the value of entering into a written ‘dialogue’ with senior judges in the intermediate appeal courts below it.⁷⁰