Supreme Court clarifies that Respondents need not serve notice to vary when upholding High Court judgments for different reasons.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

208/03

BETWEEN

AFTAB AHMED

APPLICANT

AND

THE MEDICAL COUNCIL

RESPONDENT

AND

THE ATTORNEY GENERAL

NOTICE PARTY

JUDGMENT delivered the 19th day of December 2003 by Keane C.J.

I have read the judgment which will be delivered by Hardiman J. I agree with it and with the order he proposes. There are some

observations, however, which I would wish to add as to the course these proceedings have taken.

The primary relief claimed by the Applicant by way of judicial review was an order prohibiting the Respondent from holding an inquiry

pursuant to Part V of the Medical Practitioners Act, 1978. The other reliefs sought, and the grounds upon which they were sought,

make it clear that the case essentially being made by the Applicant was that the Respondent’s failure to provide legal aid to the

Applicant to enable him to be legally represented at the proposed inquiry constituted a failure on the part of the Respondent to

vindicate the Applicant’s right to his good name and his right to earn his livelihood. The application for leave to issue such proceedings

having been refused in the High Court, this court allowed an appeal from that refusal on the 22nd February, 2002 and granted the

Applicant leave to seek the relief in question on those grounds. Thereafter, the Applicant was given leave in the High Court to amend

his statement of grounds by seeking declarations that s. 56 of the 1978 Act permitted the Respondent to provide such legal

representation or sufficient means to enable the Applicant to procure that representation and, in the alternative, a declaration that,

to the extent that Part V of the 1978 Act did not so permit the Respondent to provide legal representation or the means to procure

it, it was invalid having regard to the provisions of the Constitution. The Attorney General was thereupon joined as a Notice Party in

these proceedings.

In his Statement of Opposition, the Respondent, in addition to denying that the Applicant was entitled to any of the reliefs sought,

gave notice that the Respondent would contend at the hearing that the court should exercise its discretion against granting the relief

sought on the grounds

(a) that the application had been brought outside the time limit prescribed by O. 84 r. 21 of the Rules of the Superior Courts

and that the Applicant was also guilty of gross, inordinate and inexcusable delay in bringing the proceedings and

(b) that the Applicant was precluded by reason of his failure to raise the issue of legal aid and / or legal representation in earlier

judicial review proceedings from maintaining these proceedings and that his conduct in instituting them amounted to an abuse

of the process of the court.

It is clear from the judgment of the learned trial judge that the Respondent, in the course of the hearing in the High Court, relied upon

those grounds, in addition to contending that the 1978 Act could not be construed so as to empower the Respondent to ensure that

the Applicant had legal representation at the inquiry and that Part V of the 1978 Act, in not so empowering the Respondent, was not

invalid having regard to the provisions of the Constitution.

The learned trial judge, having considered the submissions on behalf of the parties, concluded that the Applicant had failed to

establish that the 1978 Act should be read as empowering the Respondent to make provision for legal aid and that Part V of the Act

was not invalid having regard to the provisions of the Constitution. He added:

“While the Respondent has relied upon the discretionary nature of the remedy sought by the Applicant and the failure of the

Applicant to move promptly to this court as a basis upon which I should in any event refuse the Applicant the relief sought, I

am satisfied that it is not necessary in the circumstances to determine this application on any such discretionary basis.”

On the hearing of the appeal in this court, Mr. Cush on behalf of the Applicant objected to the Respondent relying on the grounds of

opposition relating to the discretionary nature of the remedy sought because they had not been the subject of any adjudication in

the High Court and argued that for this court to embark on a consideration of them would amount to a denial of the Applicant’s

constitutional right of appeal from a decision of the High Court. In addition, he submitted that the Respondent, having failed to serve

a notice to vary the judgment or order appealed from pursuant to O. 58 r. 10 of the Rules of the Superior Courts, should not be

permitted to argue the issue relating to the discretionary nature of the relief granted.

This court is a court of appeal only and cannot exercise any jurisdiction other than an appellate jurisdiction, save under Articles 26

and 12.3 of the Constitution and when it is exercising the Case Stated jurisdiction vested in it pursuant to s. 38 of the Courts of

Justice Act, 1936 and s. 16 of the Courts of Justice Act, 1947. For that reason, this court has consistently declined to consider an

issue of constitutional law which, though arising in a case not yet determined by it, has not been fully argued and decided in the High

Court, save in the most exceptional circumstances: see The Attorney General –v- Open Door Counselling Ltd (No. 2) [1994] 2 IR 333;

Blehein –v- Murphy [2000] 2 IR 231, 239 and Dunnes Stores Ireland Company –v- Ryan; unreported; judgments delivered 8th

February, 2000.

Consistently with that principle, the court has declined to allow a party to raise an issue for the first time which has never been

raised in the High Court. In K.D. (otherwise C.) –v- M.C. [1985] IR 697, the appellant sought to raise in nullity proceedings an issue

which had never been raised in the High Court, relying in particular on the fact that the effect of a decree of nullity would determine

the legal status of a child born to the union between the Respondent and the petitioner, thereby rendering it an exceptional case.

Finlay C.J., with whom the other members of the court agreed, said

“It is a fundamental principle, arising from the exclusively appellate jurisdiction of this court in cases such as this, that, save in

the most exceptional circumstances, the court should not hear and determine an issue which has not been tried and decided

in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the

interest of justice. This case cannot, in my view, however, provide such an exception.”

The present case is manifestly distinguishable from that case in one critical respect. Not merely did the Statement of Opposition

expressly rely on the discretionary nature of the relief sought in the proceedings and the circumstances which, as the Respondent

urged, should preclude its being granted in this case: the matter was fully argued by counsel when the case came on for hearing. The

learned trial judge, having decided that the Applicant had not established that he was entitled to any of the reliefs claimed,

concluded that it was not necessary for him to express any view on whether, in any event, the Applicant should also have been

refused the reliefs sought in exercise of the court’s discretion.

I am satisfied that, in such a case, this court is not deprived of its jurisdiction to consider whether the Applicant should be refused

the reliefs sought on discretionary grounds because the High Court has not adjudicated on that issue. It would seem to me unjust

that, where a particular ground has been raised and fully argued in the High Court, a party should be precluded from obtaining a

decision on that ground in this court through no fault of his own. In the present case, it would mean that the case would have to be

remitted to the High Court with an almost inevitable further appeal to this court, resulting in the incurring by a party not in default of

significant costs and delay in having the appeal resolved. That does not seem to me to be a just and convenient way of dealing with

the appeal.

It is also to be remembered that, under O. 58 r. 1, all appeals to this court are to be “by way of rehearing”. As noted by Henchy J. in

Northern Bank Finance –v- Charleton [1979] IR 149, so far as oral evidence is concerned, the court must rely on the transcript of

that evidence in the High Court rather than conduct a rehearing in the manner appropriate to an appeal from the Circuit Court to the

High Court. Subject to that major qualification, the court has jurisdiction to consider all the issues defined by the pleadings which

were the subject of evidence or submissions in the High Court and the court is not automatically precluded in every case from

considering such an issue simply because it has not been subject of a determination by the High Court judge. Whether a party is to

be precluded from advancing again arguments which were relevant to an issue in the case and on which he relied in the High Court

must, in the interests of justice, be determined according to the circumstances of the particular appeal before this court.

It is conceded on behalf of the Respondent that no notice to vary was served in this case. Order 58 r. 10 provides that

“It shall not, under any circumstances, be necessary for a person served with notice of appeal to give notice by way of cross

appeal, but if such person intends, upon the hearing of the appeal, to contend that the judgment or order appealed from

should be varied, he shall within four days of such service upon him or within such extended time as may be allowed by the

Supreme Court give notice of such intention to any parties who may be affected by such contention. Every such notice shall

be a four day notice and the appeal shall not be listed before the expiration thereof. The omission to give such notice shall not

diminish the powers conferred by statute or these rules upon the Supreme Court, but may, in the discretion of the Supreme

Court, be ground for an adjournment of the appeal or for a special order as to costs.”

The effect of this rule is reasonably clear. An appellant must, in every case, serve a notice of appeal stating the grounds of the

appeal and the relief sought or the order (if any) in lieu of the judgment or order appealed from sought by the appellant. Rule 10

makes it plain that there is no analogous or corresponding obligation on the Respondent. The only circumstance in which he is under

any obligation to serve a notice of any sort is where he intends to contend that the judgment or order appealed from should be

“varied”. Thus, to take a relatively straightforward example, the plaintiff in a personal injuries action whose damages have been

reduced because he was found guilty of contributory negligence, if he wishes to contest that part of the order, must serve a notice

to vary. It seems to have been thought, however, that a Respondent is also obliged to give notice to the appellant under this rule if

he intends to contend that the judgment or order should be upheld for reasons other than those given by the High Court judge.

I can find no warrant for that construction of the rule, least of all in the use of the expression “judgment or order”. Those words are

used virtually interchangeably throughout the rules and I see no basis for treating the word “judgment” in this rule as referring to the

reasons, whether in written or ex-tempore form, given by the High Court judge for his or her judgment or order. The members of this

court are incapable of “varying” the reasons given by the High Court judge. They may consider any of the reasons erroneous in point

of law or may uphold any of them as being correct in point of law. They may also adopt reasons of their own for arriving at the same

conclusion or a different conclusion. Whatever course they may adopt, the reasons for the judgment or order actually made by the

High Court judge will remain as he or she expressed them.

It should also be noted that, even where a party who is obliged to serve a notice to vary omits to do so, this does not preclude the

court from varying the judgment or order of the High Court where justice so requires, although, it may in such circumstances adjourn

the hearing in order to enable the appellant to deal with a case of which he had no notice and has a discretion to make a special

order as to costs.

Some difficulty may have been caused in the past by an ex-tempore preliminary ruling to a different effect given by the court in a

case of William Hanratty –v- Drogheda Web Offset Printers Ltd & Anor (2nd June, 1994). I am satisfied that the ruling of the court of

three in that case, which proceeds on the assumption that a notice to vary must be served in cases where the Respondent seeks to

uphold, rather than have varied, a judgment or order of the High Court for reasons other than those which found favour with the High

Court judge, was wrongly decided and should not be followed.