Supreme Court rejects case stated form, requiring clear facts and contentions within the document itself.

[2001] IESC 49

THE SUPREME COURT

No. 200/00

Denham J.

Murray J.

Hardiman J.

Geoghegan J.

Fennelly J.

IN THE MATTER OF A CASE STATED, PURSUANT TO s. 16 OF THE COURTS OF JUSTICE ACT 1947

BETWEEN

SIMON McGINLEY

APPELLANT

and

THE DECIDING OFFICER CRIMINAL ASSETS BUREAU

RESPONDENT

Judgment of Mrs. Justice Denham delivered on the 30th day of May, 2001.

1. I agree with the judgment of Fennelly J. as to the issues raised in this case. I would like to add a note of concern as to the form of

the case stated.

2. This matter came before the Supreme Court by way of case stated. A Circuit Court judge may state a case for the Supreme Court

pursuant to s. 16 of the Courts of Justice Act, 1947, referring a question of law. Section 16 states:-

“A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a re-hearing, under

section 196 of the Income Tax Act, 1918, of any such appeal as is referred to in the said section) pending before him,

refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme

Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his

judgment or order in the matter pending the determination of such case stated.”

3. The case stated is quoted in full by Fennelly J. in his judgment. It is most unusual to append to a case stated the transcript of the

evidence as was done in this case. The transcript, covering several days of court proceedings, runs to a total of 299 pages.

4. Decisions relating to the form of cases stated to the High Court are helpful in considering the form of case stated to the Supreme

Court. In Emerson v. Hearty and Morgan [1946] N.I. 35 Murphy L.J. described the required form at pp. 36-7 of the report:

“We have thought that this may be a convenient opportunity to call attention to the principles which ought to be

observed in drafting Cases Stated.

The Case should be stated in consecutively numbered paragraphs, each paragraph being confined, as far as possible, to a

separate portion of the subject matter. After the paragraphs setting out the facts of the Case there should follow

separate paragraphs setting out the contentions of the parties and the findings of the Judge.

The Case should set out clearly the Judge’s findings of fact, and should also set out any inferences or conclusions of fact

which he drew from those findings.

What is required in the Case Stated is a finding by the Judge of the facts, and not a recital of the evidence. Except for

the purpose of elucidating the findings of fact it will rarely be necessary to set out any evidence in the Case Stated save

in the one type of case where the question of law intended to be submitted is whether there was evidence before the

Judge which would justify him in deciding as he did.

The point of law upon which this Court’s decision is sought should of course be set out clearly in the Case. But we think

the Judge is certainly entitled to expect the party applying for the Case Stated to indicate the precise point of law upon

which he wishes to have the decision of the appellate Court. It would be convenient practice that this should ordinarily be

done in the written application for the Case Stated.”

5. This decision was applied by Blayney J. in Mitchelstown Co-Operative Society v. Commissioner for Valuation [1989] I.R. 210 and in

Department of the Environment v. Fair Employment Agency [1989] N.I. 149.

6. In Mitchelstown Co-Operative Society v. Commissioner for Valuation [1989] I.R. 210 at pp. 212-3 Blayney J., agreeing with and

adopting the principles set out by Murphy L.J. in Emerson v. Hearty & Morgan [1946] N.I. 35, stated:

“I am in complete agreement with, and I respectfully adopt, this statement of the principles to be observed, but an

examination of the case stated by the Tribunal shows that it has not been drafted in accordance with those principles.

The case does not contain any clear statement of the facts found by the Tribunal.

The entire transcript of the evidence is annexed to the case and it is stated in the case that ‘the Tribunal accepted the

uncontradicted evidence adduced on behalf of the appellants in these appeals as regards the descriptions given of the

various installations’. This is the only part of the case which could constitute a finding of primary facts, but in my opinion

it is clearly not such a finding. Evidence remains evidence even where it has been accepted. There must still be a finding

of fact based on such evidence. There is no such finding in the case. Furthermore it is in the case that the facts must be

found and stated. This court should not be required to go outside the case stated to some other document in order to

discover them.

The same principle applies to the contentions of the parties; the inferences to be drawn from the primary facts, and the

Tribunal’s determination. All these must be found within the case, not in documents annexed. In the same way, the fact

that the judgment of the Tribunal is annexed to the case does not dispense the Tribunal from setting out its

determination in the case. This is a specific requirement of s. 5 of the Act of 1988.

It may be objected that the observance of these principles will lead to the case stated being excessively long. That may

be so, but it will result in this court being able to deal with the matter much more expeditiously. Furthermore, it seems to

me that it would be a dangerous precedent to permit any divergence from the principles to be observed in the drafting of

cases stated which were set out by Murphy L.J. in his judgment in Emerson v. Hearty and Morgan [1946] N.I. 35. In my

opinion it is of great importance that these principles should continue to be observed.

For all the foregoing reasons I am satisfied that I must return the case to the Tribunal for amendment and, if necessary,

for re-statement.”

7. I am satisfied that these are correct principles to be applied to the stating of cases under s. 16 of the Courts of Justice Act, 1947.

They describe the correct form for a case stated. I adopt and apply them subject to the observation that in a case stated from the

Circuit Court an application in writing for the case stated may not arise. However, in all the circumstances, I am satisfied that it

would not be appropriate to return this matter to the learned Circuit Court judge for re-statement.