Supreme Court clarifies appellate deference on facts versus law in points of law only appeals under Solicitors Act.

THE SUPREME COURT

[Appeal No: 518/2012]

Denham C.J.

McKechnie J.

Clarke J.

In the Matter of the Solicitors Act, 1954-2002

Anne Fitzgibbon

Applicant/Appellant

and

Law Society of Ireland

Respondent

Judgment of Mr. Justice Clarke delivered the 29th July, 2014.

1. Introduction

1.1 I am in complete agreement with Denham C.J., both as to the determination of the issues in this case which she proposes and as

to the reasons which she gives in her judgment for reaching those conclusions. My sole purpose for adding a concurring judgment is

to offer some observations on what I perceive to be a general problem which arises both in the public and private law spheres.

1.2 That problem stems from the use of terminology in the context of appeals which can be open to legitimate debate as to its proper

meaning and which can, therefore, lead to significant uncertainty as to the precise form of appeal permitted. The background to that

difficulty is that the term "appeal" covers a wide range of possible forms of process. These comments are offered in the hope that

they may be taken on board by those who are charged, whether in the public or private spheres, with drafting rules or legislation

(whether primary or secondary) which provide for the possibility of an appeal. I propose to start with some general observations.

2. Some General Observations

2.1 As noted earlier, many adjudicative schemes in both the private and the public sphere make provision for an appeal of one sort or

another. The private rules of sporting organisations or professional bodies frequently allow for an appeal against many of the decisions

which can be made which can have an effect on their members' rights and obligations. Many forms of statutory body are governed by

a regime where the relevant legislation provides expressly for an appeal either to an appellate body within the statutory structure

itself or, in some cases, to the courts. The courts themselves, of course, also have their own appellate structure.

2.2 Within that broad spectrum of appeals, there are, in reality, very many differences both at the broad level of principle and in

relation to detail between the types of appeal which may be contemplated. In the vast majority of cases, there is no overarching

legal reason why any particular form of appeal may be required. The form of appeal allowed will, in most cases, therefore, be a

question of the proper interpretation of the relevant legal measures whether private or public. If those legal measures are sufficiently

clear, then it is unlikely that any difficulty will arise. Any court called on to review the actions of relevant bodies or to consider the

scope of a right of appeal to or within the courts system itself will simply consider what the rules or statute concerned actually says.

However, regrettably, it is all too frequently the case that such rules or statutes are far from clear and often leave any court charged

either with reviewing the decisions of outside bodies or considering the scope of its own jurisdiction with a difficult task of

interpretation.

2.3 It is all too frequently the case that the early stages of the operation of any new form of appeal are caught up with detailed and

often complex litigation concerning the precise type of appeal which is actually permitted. Such a situation could readily be avoided

by greater clarity. The first item on the agenda does not have to be a series of cases in which the scope and ground rules of any

appellate structure are worked out rather than the conduct of appeals themselves. It is with a view to, hopefully, assisting in bringing

some clarity to these matters that the following comments are offered. I turn first to a broad characterisation of the types of appeal

which may typically arise.

3. A Characterisation of Appeals

3.1 First, it should be emphasised that there are, perhaps, many ways in which one might seek to characterise the different types of

appeals which may be available. However, some terminology has become sufficiently commonplace that it can be said to carry with it

an acknowledged body of principles. I am mindful of the fact that the law in relation to the scope of appeals is, at the level of

principle, just as applicable to the rules of a members' club as it is to a statutory appeal (whether to the courts or otherwise) from a

statutory regulator in respect of a major economic sector. However, any terminology should be capable of applying across that

spectrum, and it is, therefore, important that there be a common understanding of what certain terms mean.

3.2 Second, it must be emphasised that, within any broad category, there may be precise rules which limit or define the exact way in

which an appeal may legitimately progress. It is, therefore, important not only that an appeal is expressly stated to fall within some

broad category, however described, but also that any variations within that category are specifically identified. Default positions also

need to be identified and defined.

3.3 Subject to those caveats, it seems to me that one convenient way of categorising appeals is the following:-

(a) A de novo appeal;

(b) An appeal on the record;

(c) An appeal against error, and

(d) An appeal on a point of law.

3.4 I propose to briefly consider each in turn.

4. A de novo Appeal

4.1 Whatever may be the merits of the continuing use of Latin phrases, I am not sure that there is an exact translation of the term

"de novo" which conveys the precise type of appeal with which I am now concerned. That term has a sufficient usage so as to make

it convenient to continue to rely on it. While the phrase "full re-hearing" may convey the extent of such appeals the term "re-hearing"

can have different meanings.

4.2 It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance

body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own

conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first

instance body are not automatically properly before the appeal body. It seems to me that, by defining an appeal as a de novo appeal,

any legally effective instrument necessarily carries with it those two requirements.

4.3 However, the matter does not end there. It is sometimes argued that, by providing for a de novo appeal, what happened at first

instance becomes entirely irrelevant and, indeed, inadmissible. That is not necessarily the case. First, it is important to recognise that

the process at first instance may narrow the issues which truly remain alive in whatever adjudicative proceedings are under

consideration. To take a simple example from the appellate structure of the courts, there is available what is in substance a de novo

appeal to the High Court from almost all civil decisions of the Circuit Court. The High Court judge considers the case afresh on the

basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However,

what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were

exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of

leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the

decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be

brought only against the quantum of an award of damages made by a Circuit judge and not against that judge's finding on liability.

4.4 Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily,

be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the

contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever

evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be

inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body.

4.5 However, there are obvious exceptions to that position even in the absence of specific rules. First, it is always open to a party to

question the credibility of an account being given or a position being taken on an appeal by reference to evidence given or a position

taken at first instance. Just as a previous inconsistent account can always be put to a witness in court proceedings, so also can a

previous inconsistent account given at first instance be put to a witness at a de novo appeal hearing for the purposes of testing the

credibility of any new account given. It will, of course, be a matter for the appellate body to form its own judgment on the credibility

of the new account in the light of the extent to which any difference may be established between the account given to that

appellate body and the account given to the first instance body and also having regard to any explanation given for any change of

position.

4.6 Likewise, it is always possible to place before any adjudicative body evidence of previous admissions made by any party against

whom an adverse finding on appeal might be made. In the law of evidence as applied in the courts, previous admissions amount to a

well recognised exception to the hearsay rule. It seems to me that the default position, in the absence to any rule to the contrary,

must be that an admission, made by a party at a first instance hearing or otherwise made during the first instance process, can be

the subject of evidence at a de novo appeal. It is not that the party concerned is, necessarily, bound by an admission previously

made. It is, on a de novo appeal, a matter for the appellate body to make its own mind up based on the evidence and materials

before it. However, just as an admission made by a party against its own interest outside the context of hearings altogether can be

the subject of evidence, so also can a similar admission made at first instance be the subject of evidence. The weight to be attached

to that evidence in the overall assessment of the issues before the appeal body will, of course, be a matter for it.

4.7 In summary, therefore, it seems to me that the use of the term "de novo appeal" or similar terminology, carries with it a

requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the

first instance body against whom the appeal lies.

4.8 In addition, and in the absence of any specific rules to the contrary, the default position will be that it will be necessary that all

materials on which the appellate body is to reach its adjudication are properly re-presented to that body in whatever form may be

appropriate to the type of proceedings concerned. Where the proceedings involve oral evidence, then witnesses will have to be called

again. Where the proceedings involve enquiries by the decision maker then those enquiries will have to be made afresh.

4.9 However, even in the absence of specific rules, that latter proposition is subject to some qualification. The process at first

instance may have reduced the scope of issues which are properly before the appeal body. Likewise, that scope may be influenced by

the terms of any appeal brought. Furthermore, there may be circumstances, such as those which I have identified, where statements

made, evidence given or positions adopted at the first instance hearing may, in themselves, be properly admissible as part of the

appellate process.

4.10 It is next necessary to turn to an analysis of an appeal on the record.

5. Appeal on the Record

5.1 While the term "de novo appeal" has a certain broad currency, the term "appeal on the record" is less widely used. However, it

seems to me to be an appropriate term to describe a recognised form of appeal which shares one, but not both, of the fundamental

characteristics of a de novo appeal which are identified in the preceding section of this judgment. In an appeal on the record, the

appellate body must come to its own conclusions as to the proper result of the issues before it without regard to the decision made

by the first instance body. However, and in contrast to a de novo appeal, the default position in respect of an appeal on the record is

that the evidence and materials which are properly relied on by the appellate body are the same as those which were before the first

instance body.

5.2 It is for that reason that it seems to me that the term "on the record" is appropriate. The appellate body considers the record of

the evidence and materials which were before the first instance body but comes to its own independent conclusion as to the proper

answer to the issues which are before it.

5.3 It should, however, be noted that there may be some limitations on the proper availability, at least in its pure form, of an appeal

on the record. Those limitations stem from the possibility that, in respect of certain types of issues, it may not be legitimate for an

appeal body to reach an independent conclusion in relation to such issues solely by considering the first instance record and without

having regard to the findings of the first instance body.

5.4 The rules of constitutional justice require that, where a decision on contested facts is necessary to enable a decision maker to

adjudicate on the rights and obligations which require to be determined, a party potentially affected by a finding of fact on such

contested matters, is, amongst other things, entitled to test (both by cross-examination and by the presentation of competing

evidence) the evidence which might lead to such an adverse finding.

5.5 It is important to emphasise that not every situation, by any manner of means, gives rise to such an entitlement. Relevant

procedural rules of whatever level of formality and whatever their legal provenance may be, can, if they so provide, legitimately

require that a party wishing to exercise the right to test the validity of evidence must first establish that there truly is a relevant

issue of fact which requires to be determined and which can only fairly be decided on the basis of the relevant evidence being tested

and the decision maker having the opportunity to form a judgment on the credibility of that evidence and that, indeed, of any

contrary evidence. But there will clearly be cases where fair procedures mandate that such a process, involving an oral hearing with

cross-examination, must take place before a sustainable decision can be taken. In such cases, there may be a difficulty in conducting

an appeal purely on the record. The record will simply record the evidence given (including any competing evidence) together with the

response of witnesses to questioning. The appellate body will not have the benefit of having seen and heard the witnesses give

evidence and will not, therefore, be in a position to come to an entirely independent judgment as to where the truth of the matter

lies.

5.6 Thus, an appeal purely on the record may just not be available, as a matter of law, in those types of cases where oral evidence

and cross-examination was required at first instance in order that fair procedure rules be observed. It should be emphasised that the

word "required" is an important part of the last sentence. There may be cases where, for convenience, an oral hearing occurs but

which do not involve a determination of contested facts which could only be decided as a result of an oral hearing. The mere fact

that there was an oral hearing does not, of itself, therefore, necessarily mean that there cannot be an appeal on the record.

5.7 Further, it should be noted that there may be cases where, by reason of the fact that an appellant does not place all issues in

contest on an appeal, an appeal on the record may be available even though an oral hearing was "required" at first instance. If those

aspects of the decision at first instance which were made as a result of required oral evidence are not the subject of an appeal, then

there is, of course, no reason why an appeal against such other aspects of the first instance decision as are appealed against cannot

proceed purely on the record.

5.8 Finally, there may be something of a hybrid between the categories of appeal. I will touch on such hybrid categories in the next

section of this judgment to which I will now turn.

6. Appeal Against Error

6.1 The critical distinction between an appeal against error and either a de novo appeal or an appeal on the record is that the

appellate body does have regard to the determination of the first instance body and must, in order for the appeal to be allowed, be

satisfied that the first instance body was in some way in error.

6.2 The default position is, therefore, that the appellate body considers the record of the proceedings at first instance (and in the

absence of any rules permitting further evidence or materials to be produced only that record) and considers whether the first

instance body came to a correct or sustainable decision on the basis of that record. So far as facts involving an assessment of the

credibility of witnesses are concerned, then the role of the appellate body is to decide whether there was a sufficient basis disclosed

on the record for such findings of fact. The appellate body cannot, of course, reassess questions of pure credibility for it will not,

ordinarily, have had the opportunity to assess evidence given by witnesses.

6.3 In addition, and depending on the level of expertise in the area concerned which is brought to bear by the first instance body

(and indeed having regard to the extent to which the appellate body may itself have expertise), the appellate body may accord

appropriate weight to any expert determinations of the first instance body. For example, in that context, courts have frequently

indicated that, in statutory appeals from expert bodies, significant weight should be given to the expertise of the body concerned. In

Henry Denny & Sons (Ireland) Ltd. v Minister for Social Welfare [1998] 1 I.R. 34, Hamilton C.J. observed at p. 37-38:

“I believe it would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere

with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an

unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that

tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with

a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them

it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”

6.4 In M. & J. Gleeson & Co. v. Competition Authority [1999] 1 I.L.R.M. 401, Kearns J. stated at p. 410 that:-

“It seems to me clear that the concept of curial deference of necessity takes the court to this further position, namely

that the greater the level of expertise and specialised knowledge which a particular tribunal has, the greater the

reluctance there should be on the part of the court to substitute its own view for that of the authority.”

Similar sentiments were expressed by Keane C.J. in Orange Communications Ltd v. Director of Telecommunications Regulation [2000] 4

I.R. 136, when considering the standard of review to be applied to the decision of an administrative body. He stated at p. 185:-

“In arriving at a conclusion on [whether a decision is vitiated by a serious and significant error], the High Court will

necessarily have regard to the degree of expertise and specialised knowledge available to the first defendant.”

6.5 Relevant rules may also provide for the precise basis on which the appellate body is to assess the question of error. However, in

the absence of any specific rules, the default position will be that an appeal body should not interfere with findings of fact at first

instance unless there was no sustainable basis for the finding in question or where the finding was clearly in error. Likewise, in the

absence of a specific rule defining the nature of the appeal, an appellate body should be free to exercise its own judgment as to

whether other findings of the first instance body are in error. In the absence of express rules qualifying the extent to which the

appellate body should come to its own independent view on such matters, there may well be cases where a limitation can properly be

implied because of the nature of the issues to be determined and the expertise of the respective first instance and appellate bodies.

6.6 Finally, under this heading, it is appropriate to turn to the hybrid mentioned earlier. There is no reason in principle, although it

would be preferable if rules made express reference to this, why there might not be a hybrid appeal where, in substance, the appeal is

against error or on the record but where the appellate body is expressly or by necessary implication allowed to conduct an oral

hearing limited to hearing evidence which the appellate body would need to hear itself in order to be able to come to an independent

judgment on questions of contested fact. At the level of principle, either the appellate body must be bound by any sustainable finding

of fact at first instance or the appellate body must have the facility to hear evidence itself. Finally, it is necessary to turn to the

question of an appeal on a point of law.

7. Appeal on a Point of Law

7.1 Many statutes make provision for an appeal on a point of law either from statutory bodies or decision makers to the courts or

within the courts system. Examples in the former category include s. 123(3) of the Residential Tenancies Act 2004, which provides for

an appeal on a point of law to the High Court by any of the parties in respect of a determination of a Tribunal of the Private

Residential Tenancies Board; and s. 42(1) of the Freedom of Information Act 1997 which provides for an appeal on a point of law to

the High Court by a person affected by a decision of the Information Commissioner following a review under s. 34 of the 1997 Act.

Appeals within the courts system to the High Court on a point of law are, for example, provided for in s. 26(3)(b) of the Data

Protection Act 1988 in relation to a decision of a Circuit Court on a requirement or a prohibition in a notice or certain actions of the

Data Protection Commissioner; and in s. 169(4) of the Personal Insolvency Act 2012, in relation to a decision of the Circuit Court on

appeal from the Insolvency Service.

7.2 There is an established jurisprudence as to what the term "appeal on a point of law" means. Much of the jurisprudence on the

scope of such an appeal overlaps with the concept of case stated. In Mara v Hummingbird [1982] I.L.R.M. 421, Kenny J., delivering

the judgment of this Court, explained, at p. 426, the approach a court should take when examining the determination of an expert

body, in that case, the Appeal Commissioners:-

“A case stated consists in part of findings on questions of primary fact, …. These findings on primary facts should not be

set aside by the courts unless there was no evidence whatever to support them. The commissioner then goes on in the

case stated to give his conclusions or inferences from these primary facts. These are mixed questions of fact and law

and the court should approach these in a different way. If they are based on the interpretation of documents, the court

should reverse them if they are incorrect for it is in as good a position to determine the meaning of documents as is the

commissioner. If the conclusions from the primary facts are ones which no reasonable commissioner could draw, the

court should set aside his findings on the ground that he must be assumed to have misdirected himself as to the law or

made a mistake in reasoning. Finally, if his conclusions show that he has adopted a wrong view of the law, they should

be set aside. If however they are not based on a mistaken view of the law or a wrong interpretation of documents, they

should not be set aside unless the inferences which he made from the primary facts were ones that no reasonable

commissioner could draw.”

This passage was quoted and the principles therein were applied by Keane C.J. in Henry Denny & Sons (Ireland) Ltd. v Minister for

Social Welfare [1998] 1 I.R. 34, which concerned an appeal on a point of law from a decision of the Chief Appeals Officer under the

then applicable social welfare statutory provisions (s.300(4) of the Social Welfare (Consolidation) Act 1981).

7.3 The applicable principles were helpfully summarised by McKechnie J. in John Deely v. The Information Commissioner [2001] 3 I.R.

439 at p. 452, which concerned an appeal under s. 42 of the Freedom of Information Act, 1997, as follows:-

“There is no doubt but that when a court is considering only a point of law, whether by way of a restricted appeal or via

a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to

its remit, in the manner following:-

(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no

reasonable decision making body could draw;

(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and

should do so if incorrect; and finally;

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that

also is a ground for setting aside the resulting decision…”

This passage was later cited in the Supreme Court judgments of both Fennelly and Kearns JJ. in Sheedy v Information Commissioner

[2005] 2 I.R. 272.

7.4 In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law

alone. First, there may be an error of law in the determination of the first instance body. Second, it may be the case that the way in

which the first instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There

may have been no evidence to support a finding or inferences may have been drawn on the facts which no reasonable decision-maker

could have drawn. It follows that a higher degree of deference, so far as the facts are concerned, is paid by the appellate body to

the decision of the first instance body in an appeal on a point of law only, as opposed to an appeal against error. In the latter case

the Court is entitled to form its own view on the proper inferences to be drawn (although not on primary facts).

8. A Final Observation

8.1 I would wish to make one final observation. Any public law decision having an effect on legal rights and obligations is, of course,

amenable to judicial review. The purpose of judicial review is to determine the legality (whether procedural or substantive) of the

decision challenged. While this judgment is not the place to engage in the difficult but important task of defining the precise

boundaries of a judicial review (there is more than ample jurisprudence in this area), nonetheless it is, in my view, worthy of comment

to note that, at the level of principle, there must be some difference between even the most restrictive form of appeal (being an

appeal on a point of law only) and a judicial review.

8.2 Given that judicial review lies in respect of all public law decisions affecting rights and obligations, it must be assumed that, by

conferring a right of appeal, the Oireachtas intended that some greater degree of review is permitted than that which would have

applied, in the context of judicial review, in any event. It is in that context that the concept of an "error within jurisdiction" may well

be relevant. Without seeking to define the parameters of that concept, there clearly are errors which do not give rise to judicial

review for they do not affect the lawfulness as opposed to the correctness of the decision taken. The precise extent of the type of

error which may not give rise to a finding that a decision is unlawful as opposed to merely incorrect is not a matter on which I touch

in this judgment.