Supreme Court allows appeal on election petition by clarifying statutory appeal procedure overrides conflicting circuit court rules.

THE SUPREME COURT

[Appeal No: 366/2014]

Clarke J.

MacMenamin J.

Charleton J.

In the Matter of the Local Elections (Petitions and Disqualifications) Act 1974

And In the Matter of the Local Elections for Listowel held on the 23rd day of May, 2014

Between/

Dan Kiely

Petitioner/Appellant

and

Kerry County Council

Respondent

and

John Brassil, Jimmy Moloney, Mike Kennelly, Michael O’Gorman, Robert Beasley, Aoife Thornton, Kate Carmody, Brian

Finucane, Tom Walsh, Katie Lucid McCabe, Pat Leahy, Dianne Nolan, Liam Purtill and Tim Buckley

Notice Parties

Judgment of Mr. Justice Clarke delivered the 16th July, 2015.

1. Introduction

1.1 Arising out of a local election which took place for the Listowel area on the 23rd May, 2014, an election petition was brought, in

accordance with the Local Elections (Petitions and Disqualifications) Act 1974 (“the 1974 Act”) to the Circuit Court. In those

proceedings, the petitioner/appellant (“Mr. Kiely”) challenged certain aspects of the way in which the count for those local elections

was conducted. The respondent (“the County Council”) was responsible for the returning officer who conducted that count and is,

therefore, the principal party required to stand over the count methodology in these proceedings. The various notice parties were the

other candidates, some successful, some not successful, in the election concerned. Some of those parties actively participated in the

hearing of the petition before the Circuit Court but others did not. Nothing currently turns on that matter.

1.2 In any event, Judge Moran dismissed the petition and affirmed the result as declared by the returning officer. Mr. Kiely was

anxious to appeal that decision and took certain steps, to which it will be necessary to refer in more detail, to bring the case before

this Court. There is no doubt that there are complications, to put it at its mildest, in the regime which is provided by law for such

appeals. Those complications arise from the way in which the relevant legislation and rules of court are drafted. For those reasons,

Mr. Kiely quite properly brought an application before this Court for the purposes of clarifying whether the procedure he had followed

was in order, and further for the purposes of clarifying whether, as he asserts, the appeal remains properly before this Court or

whether it can be said to have been transferred to the Court of Appeal.

1.3 On the hearing of the application, it was submitted on behalf of Mr. Kiely that the appeal was properly brought and should be

determined by this Court. Counsel for the County Council suggested that there were some technical deficiencies in the way in which

the matter was brought to this Court but acknowledged that there is a conflict in the procedural scheme which makes it difficult to

say with certainty what the proper procedure should have been. In those circumstances, and very properly, counsel indicated that it

was not the view of the County Council that the proceedings should be declared to be in any way inadmissible. Some, but not all, of

the notice parties also appeared and did not, in substance, take a view different from that adopted by the County Council.

1.4 Finally, it should be noted that, in the event that the Court were persuaded that the proceedings were in order and remained for

determination in this Court, two minor issues concerning transcripts and their cost were also raised and would require to be

determined.

1.5 The purpose of this judgment is to deal with the issues raised. In order to understand the central issues, it is necessary to start

by considering the relevant provisions of the 1974 Act, of the Circuit Court Rules and the Rules of the Superior Courts, together with

certain of the measures adopted to allow for the proper implementation of the establishment of the Court of Appeal as a result of the

passage of the 33rd Amendment to the Constitution. I, therefore, turn first to the relevant provisions of these measures.

2. The Legal Measures

2.1 I should start with the 1974 Act. Section 7 of that Act sets out various provisions concerning the conduct of the trial of a local

election petition by a judge of the Circuit Court. However, subs.(3) is the basis on which an appeal may be brought from a decision of

a Circuit Judge hearing such a local election petition.

2.2 That subsection provides as follows:-

“(3) Any party to a petition may appeal on a question of law to the Supreme Court against a decision of the court

on the petition and subject to the foregoing the decision shall be final and not appealable.”

I will return to the question of how that section may require to be read in the light of the establishment of the Court of Appeal and

the provisions of the Court of Appeal Act 2014 (“the 2014 Act”) in due course.

2.3 It is next necessary to turn to the Rules of the Superior Courts. Order 58, r.23 of the Rules of the Superior Courts (which was

inserted by substitution by the Rules of the Superior Courts (Elections) 2005, (S.I. No. 294 of 2005) makes provision for appeals to

the Supreme Court on questions of law in certain types of case. That rule applies, amongst other things, to appeals from the Circuit

Court under the 1974 Act. Order 58, r.23(2) provides that such appeals should be “by notice of appeal in the form, if any, for the time

being prescribed in the Circuit Court Rules and otherwise in accordance with rule 1”.

2.4 Unfortunately, there seems to be a conflict between the Rules of the Superior Courts and the provisions of the Circuit Court Rules

which deal with local election petition matters under the 1974 Act (also, as it happens, in Order 58 of those rules). Order 58, r.8 of

the Circuit Court Rules provides as follows:-

“Every appeal on a question of law to the Supreme Court by virtue of the provisions of Subsection 3 of Section 7 of the

Act shall be by way of Case Stated. A party desiring to appeal to the Supreme Court must lodge a Notice of Intention to

appeal with the County Registrar within fourteen days of the date of the order appealed against.”

There is then provision that the notice of intention should be in accordance with form 38A of the schedule to the rules. Likewise,

O.58, r.9 provides that the form of the appeal by way of case stated itself should be in accordance with form 38B of that schedule.

2.5 The first problem stems from the fact that while the 1974 Act and the Rules of the Superior Courts simply refer to an appeal on a

question of law, the Circuit Court Rules suggest that the appeal should be “by way of Case Stated”. On the other hand, the format of

the appeal document by which that case stated is to be brought (which is found in form 38B) is really a form that would be used in

any straightforward appeal in that the relevant form suggests that the operative part of what is described as an appeal by way of

case stated should simply set out the grounds of appeal by using the heading “AND TAKE NOTICE that the following are the grounds

of Appeal:”.

2.6 It is also important to make reference to O.58, r.10 of the Circuit Court Rules which provides that every appeal by way of case

stated, having been prepared by the appellant, must be “settled by the trial judge after consultation with the parties” and must also

contain a summary of the relevant facts.

2.7 There is, thus, an internal inconsistency between the provisions of the Circuit Court Rules and the relevant form in the schedule

to those rules. The rules seem to suggest that the appeal by way of case stated must be settled by the judge, and ,importantly,

must contain a summary of the relevant facts. The form does not appear to contain any provision for a statement of the facts and

does not suggest any involvement on the part of the judge in its formulation.

2.8 For completeness it is also of some relevance to note that the 1974 Act does, in s.23, make express provision for a case stated

from the Circuit Judge to this Court “on any question of law arising at the trial”. However, s.23(2) makes clear that the Circuit Court

should not “determine the petition” until this Court has given its decision. It seems clear that s.23 is concerned with a true case

stated where, in the course of the hearing, the trial judge refers a question of law to this Court to enable the views of this Court on

that question of law to be applied in the course of the trial.

2.9 The first issue in this application arises out of the somewhat contradictory set of measures concerning the conduct of appeals

from local election petitions stemming from the various provisions which I have just mentioned.

2.10 The second issue concerns the question of whether this appeal, assuming it to have been properly brought before this Court,

has been transferred to the Court of Appeal. Transitional provisions of the Constitution were brought into effect, in accordance with

the terms of the 33rd Amendment to the Constitution, by the appointment by the Government of the 28th October, 2014, as the

establishment day of the Court of Appeal. As a result, the Chief Justice became empowered, under Art.64.3.1 of the Constitution, to

issue a direction, with the concurrence of the other members of this Court, which had the effect of transferring classes of appeals

then before this Court to the Court of Appeal. Such a direction was made on the 29th October, 2014.

2.11 It is unnecessary to deal in detail with many of the provisions of that direction. However, one of the classes of appeals which

was thereby transferred to the Court of Appeal related to appeals in respect of which the notice of appeal had been served after the

1st January, 2012, and before the 28th October, 2014, save for a number of specific categories of appeal which were expressly

excluded by the terms of the relevant paragraph of the direction. The notice of appeal in this case falls within that date range.

However, one of the excluded classes of appeal, which is to be found in sub-para.(i), refers to “any Case Stated from the High Court

or Circuit Court”.

2.12 It should also be noted at this stage that the wording of s.7(3) of the 1974 Act, as already cited, is said by Mr. Kiely to have a

bearing on whether the direction of the Chief Justice of the 29th October, 2014, applied to these proceedings at all.

2.13 The issue which this Court has to determine is as to whether, in all of the circumstances, it can properly be said that this appeal

has been transferred to the Court of Appeal.

2.14 Against the background of those legal measures, I now turn to the precise issues with which this Court is concerned.

3. The Issues

3.1 The first issue concerns the problem about the form of process by which a challenge to a decision of a circuit judge on a local

election petition should progress. What in fact occurred in this case is that a document was prepared and filed in this Court on behalf

of Mr. Kiely which resembled, in its drafting, the form of case stated which might normally be expected to be settled by a judge in a

consultative case stated procedure. However, the document was not, it is accepted, referred to the trial judge in this case. Against

that backdrop, it is necessary to attempt in some way to reconcile the apparently conflicting provisions of the Circuit Court Rules and

the other measures to which reference has been made for the purposes of determining the proper characterisation of the appellate

process which arises in cases such as this. It is also necessary to determine the current status of this appeal in the light of the way

in which it has in fact been progressed, and in the context of the proper interpretation of the legal measures which I have identified.

3.2 The second issue concerns the question of whether it can be said that the direction of the Chief Justice made on the 29th

October, 2014, has had the effect of transferring this case to the Court of Appeal. In passing, I should deal with one problem which

did not emerge at the hearing but which I think should be briefly touched on. There might be a view that this Court might have no

jurisdiction to deal with any aspects of this case should it transpire that the case has been properly transferred to the Court of

Appeal. However, that view would create a potential catch 22, for it might equally be said that the Court of Appeal could not deal

with any of these issues because it might be the case that the appeal had not been transferred to it. No court could countenance

that form of litigation black hole. In the circumstances, it seems to me that the fact that the appeal was brought to this Court and

the fact that there are legitimate questions as to whether it properly remains in this Court clearly confers on the Court a jurisdiction

to consider whether this appeal can properly be said to have been transferred to the Court of Appeal.

3.3 There are two ways in which it is argued that the proceedings cannot be said to have been transferred to the Court of Appeal.

On the case made on behalf of Kerry County Council, it is said that it is proper to characterise these proceedings before this Court as

a case stated. On that basis, it is said that the provisions of sub-clause (i) of the direction of the Chief Justice has the effect of

excluding these proceedings from transfer. There can be no doubt but that if it is proper to characterise these proceedings as a case

stated then it follows that this appeal was not included within a class of appeals transferred to the Court of Appeal. Of course, the

first issue, which I have already identified, is concerned, amongst other things, with whether it is appropriate to characterise these

proceedings as a case stated in the first place.

3.4 On the other hand, counsel for Mr. Kiely, while arguing that these proceedings are not properly characterised as a case stated,

suggests, as already noted, that the wording of s.7(3) itself is such as requires that these proceedings remain in this Court and that

the appeal should not, therefore, be taken, irrespective of how it is characterised, as having been transferred to the Court of Appeal.

3.5 Finally, in the event that the proceedings remain in this Court, the subsidiary issues concerning the transcript and the costs of its

procurement will also have to be dealt with. However, I propose to address the two substantive issues first and, therefore, turn to

the issues concerning the appellate process.

4. The Appellate Process

4.1 I do have to say that it is unfortunate that there appears to have been such little coordination between the rule-making

authorities for, respectively, the Superior Courts and the Circuit Court, so as to lead to the confusion which arises in this case.

4.2 However, I have a clear view as to where the proper solution lies. The legislation, in the shape of the 1974 Act, confers a right on

any party to a local election petition to appeal to this Court “on a question of law”. Other legislation (including s.23 of the 1974 Act

itself) often provides expressly for either a consultative form of case stated or an appeal by way of case stated. Furthermore, the

term “an appeal on a question of law” is a frequently used form of terminology in legislation which defines the parameters of the sort

of issue which can be raised on such an appeal. Legislation, therefore, in many areas, makes a clear distinction between an appeal on

a question of law, on the one hand, and a form of case stated, on the other. Indeed, the 1974 Act itself uses those different forms of

terminology in, respectively, ss. 7 and 23. It must be assumed that the Oireachtas, in using that different terminology with its well

established provenance, intended that there be a different form of process involved between the case stated specified in s.23, which

in this case is clearly of a consultative variety, and the appeal on a question of law as specified in section 7(3).

4.3 On that basis, I am satisfied that the legislation confers a right of appeal on any party to a local election petition. It was not, in

my view, within the powers of the Circuit Court Rules committee to adopt rules which changed that right of appeal to a form of appeal

which required the notice of appeal to be settled by the trial judge and which required the notice of appeal to be in a form which

confirmed the findings of fact of the trial judge. The appeal contemplated by s.7(3) is an ordinary appeal on a question of law. The

facts are those determined by the Circuit Judge in his or her judgment. Within the limitations which arise in an appeal which is

confined to a question of law only, those facts may be reviewed on appeal. In all other respects, the parties are bound by the

findings of fact by the trial judge. However, there is no requirement that those findings are set out in the sort of form which would

normally be required in a case stated, for that is inconsistent with this being an appeal as of right. It is also inconsistent with the

legislation for the rules to require the notice of appeal to be settled by the trial judge having consulted with the other parties.

4.4 In my view, therefore, the requirement in the Circuit Court Rules that an appeal on a question of law under s.7(3) is to be by way

of case stated is ultra vires, as is the requirement that the notice of appeal be settled by the trial judge. On the other hand, form

38B of the Circuit Court Rules is entirely consistent with the legislation. Likewise, there is no reason in principle why the rules cannot

provide for a preliminary notice of intention.

4.5 Viewed in that way, and in conjunction with the Rules of the Superior Courts, it seems to me that the proper regime for the

bringing of an appeal under s.7(3) of the 1974 Act from a decision of a Circuit judge in a local election petition is as follows:-

(a) The appellant is required to give notice of intention in accordance with O.58, r.8 of the rules of the Circuit

Court;

(b) That must be followed by a notice of appeal, which must be in accordance with or in the form set out in form

38B;

(c) Both of these requirements are consistent with the Rules of the Superior Courts, for those rules specify that the

form of any notice of appeal must be in accordance with whatever may prescribed in the Circuit Court Rules.

However, in accordance with O.58, r.2 of the Rules of the Superior Courts, the actual notice of appeal must be

served within 21 days from the date on which the judgment or order appealed from was pronounced in open court

and must, in accordance with that rule, be lodged with the registrar of the Supreme Court “forthwith”.

4.6 In the light of that determination as to the correct legal position, it seems to me to be appropriate to hold that the initiating

document lodged in this appeal should not be regarded as being deficient. The proper procedures were complied with. While the

document contained, in an attempt to reflect the fact that the Circuit Court Rules required it to be in the form of a case stated, a lot

more detail than might have been required, it seems to me that that is a defect of form rather than of substance, and one which the

Court has a clear jurisdiction to overlook. In the light of the difficult position in which Mr. Kiely’s advisors were placed because of the

conflicting provisions of the rules to which I have referred, they cannot in any way be criticised for adopting the belt and braces

approach which they did. It is commendable that neither the County Council nor any of the notice parties who appeared before this

Court sought to raise any technical points on this issue.

4.7 In those circumstances, I am more than satisfied that the appeal was properly brought before this Court at the time when the

relevant documents were filed. I have gone into some detail on the proper regime for two purposes. First, in the circumstances it

seems to me that it would be appropriate for the Circuit Court Rules committee to consider whether the rules should be changed to

reflect the problems identified in this judgment. Second, it is important to lay down a clear ruling as to what procedure will have to be

followed unless and until there is any amendment to those Circuit Court Rules.

4.8 It follows that this appeal was undoubtedly properly before this Court on the establishment day when the Court of Appeal came

into existence. That leads to the second issue, which is as to whether the appeal can now properly be said to have been transferred

to the Court of Appeal. I turn to that question.

5. Has the Appeal been transferred?

5.1 For the reasons which I have already addressed in relation to the first issue, I am satisfied that it is not appropriate to

characterise the appeal in this case as being a “case stated”. As I have already indicated, in my view the Circuit Court Rules

committee did not have the power to turn what the 1974 Act describes as an appeal on a question of law into a case stated. It

follows that one possible basis on which it might have been suggested that this appeal had not been transferred to the Court of

Appeal cannot be relied on. I have already noted the provisions for the exclusion of a “case stated” from the class of appeal to be

transferred to the Court of Appeal where the notice of appeal was served between the 1st January, 2012, and the 28th October,

2014. As this appeal is not, properly speaking, a case stated, it does not seem to me that that exclusion can apply.

5.2 However, as noted earlier, counsel for Mr. Kiely made a different submission as to why it might be said that the direction of the

Chief Justice on the 29th October, 2014, did not have the effect of transferring this appeal to the Court of Appeal.

5.3 Counsel drew attention to the fact that s.7(3) of the 1974 Act ends with the words “the decision shall be final and not

appealable”. Counsel then drew attention to the fact that the new provisions of the Constitution which have been in place since the

33rd Amendment came into force do not allow for the exclusion (as opposed to the regulation) by legislation of appeals from the Court

of Appeal to this Court. Rather, any party aggrieved with a decision of the Court of Appeal is entitled, in accordance with such legal

regulation as may be in place from time to time, to seek leave from this Court to bring a further appeal. On that basis, counsel argued

that it is inconsistent with the provisions of s.7(3) for this appeal to be heard in the Court of Appeal given that the new constitutional

regime would not render the decision of the Court of Appeal “final and conclusive”, for the Constitution itself would permit any

aggrieved party to seek leave to bring a further appeal to this Court.

5.4 I have to confess that, at the time of the hearing of this application, it seemed to me that that argument was well made.

However, on reflection, I have come to the view that it is not. Section 7(3) starts by referring to an appeal “against a decision of the

court on the petition”. The “decision” being referred to in that phrase is, therefore, the decision of the Circuit Judge who hears the

local election petition. When the section goes on to speak of the “decision” being “final and not appealable” it seems to me that it is

clearly referring to the same “decision”. In other words, what is said to be final and not appealable is the decision of the Circuit

Judge. However, that provision is “subject to the foregoing” meaning that the decision of the Circuit Judge is final and unappealable

except that there is an appeal to this Court on a question of law.

5.5 There is also considerable logic in that approach. In the ordinary way, all decisions of the Circuit Court are appealable to the High

Court under the provisions of ss.37 and 38 of the Courts of Justice Act 1936. Thus, in the absence of a special provision in the 1974

Act, a decision of a Circuit judge on a local election petition would be open to an ordinary appeal by way of full rehearing before the

High Court, for s.38 refers to every judgment in a civil action or matter unless “other provision” is made. The clear intent of s.7(3)

was to exclude that type of appeal by making “other provision” but to allow for the more limited appeal provided, being an appeal on a

question of law directly to this Court.

5.6 Viewed in that way, there is nothing inconsistent with either s.7(3) now being read as conferring a right to appeal to the Court of

Appeal on a question of law (as a result of s.74(1) of the 2014 Act which substitutes “Court of Appeal” for “Supreme Court” in all

legislation relating to appeals or cases stated unless the context otherwise requires) nor in the Chief Justice deciding to transfer a

pending local election petition appeal from this Court to the Court of Appeal.

5.7 For those reasons, I am satisfied that the direction of the 29th October, 2014, was effective to transfer this case to the Court of

Appeal. However, that is not the end of the matter. It is clear that all of the parties who were represented at the application before

this Court were anxious that the appeal remain in this Court. Article 64.3.3 of the Constitution entitles any party to an appeal which is

transferred to the Court of Appeal under Art.64.3.1 to bring an application seeking to cancel the transfer in respect of the appeal

concerned, thus causing the case to remain in this Court. Reasonably, no such application was brought in this case because of the

view which the parties took that this appeal had not been transferred to the Court of Appeal in the first place. However, it is clear

that the parties would have wished to bring an application under Art.64.3.3 in the event that they believed that the case had been

transferred to the Court of Appeal.

5.8 The criteria by reference to which the Court has exercised its jurisdiction to cancel the direction of the 29th October, 2014, in

respect of a specific appeal, and to retain such an appeal in this Court, are set out in a series of determinations of this Court, not

least that in Fox v. Mahon and ors. [2015] IESCDET 2. As noted in that determination, among the factors which the Court may well

take into account is the importance of the issue raised, and whether anything much might be gained in clarifying or refining that issue

by an intermediate appeal to the Court of Appeal. Issues of urgency were also referred to. I have no doubt but that this appeal meets

those criteria. At least some of the legal issues raised have the potential to affect all elections and require a definitive determination.

They are net legal questions which are very clearly and succinctly set out in the document filed before this Court as representing the

notice of appeal or case stated. There is also urgency from two different perspectives.

5.9 First, it is important that certainty be brought as quickly as possible to the question of who is entitled to represent the Listowel

area on Kerry County Council. If Mr. Kiely has a good case then it is important that he should succeed and be able to take his seat as

quickly as possible. Likewise, if he does not have a good case, it is important that the status of the successful candidates is clarified

as quickly as possible and any doubt about that status put to rest.

5.10 Second, this issue could arise in any election occurring in the future and it is important that clarity as to the issue raised

concerning proper methodology be achieved as quickly as possible.

5.11 I would, therefore, provided that an application in that regard is made, favour making a determination cancelling the direction of

the 29th October, 2014, so far as this appeal is concerned and, thus, requiring that the appeal be brought to an early hearing on the

merits before this Court. In order to facilitate that course of action, I would, in the special and unusual circumstances of this case, be

prepared to dispense with the requirement of making a formal written application under Article 64 of the Constitution, the provisions of

the 2014 Act, and the Rules. I adopt this course because of the fact that there has already been a significant delay in relation to the

conduct of this appeal which stems not from any fault of the parties but because of the need to resolve the legal issues arising out of

the conflicting legal measures to which reference has already been made. That confusion placed the parties in a difficult position and

it would be wrong to exacerbate that difficult position by delaying matters further by requiring a formal written application.

5.12 In anticipation that such an application will be made and granted I propose to go on to deal with the transcript issues.

6 The Transcript Issues

6.1 In reality two issues arise. The first is whether it is necessary to file a transcript of the legal argument made before the trial

judge. In my view that would add unnecessary expense to this appeal. The merits of this appeal will be determined on the basis of the

evidence which was before the Circuit Court, the judgment of Judge Moran and the legal arguments which are put forward by all

interested parties before this Court. In my view nothing of substance would be added to the conduct of the appeal by having a

transcript of the legal arguments which were put forward in the Circuit Court. I have come to that view on the basis of the

statements of counsel that no issue on this appeal turns on whether a point was or was not raised in the Circuit Court. If, on

reflection, there is a change in the views of counsel on that point, the matter should be notified to the Court as quickly as possible.

6.2 The second issue concerns the costs related to the existing transcript of the evidence. I would not propose that the Court should

make any special order. It is a matter for any appellant to place before the Court all of the materials which are required to be lodged

for the purposes of an appeal. It is for the appellant to bear the costs associated with procuring and filing those materials. If the

appellant succeeds or is otherwise awarded their costs, then any such expense will, of course, be recovered. However, I do not see

any legitimate basis for departing from the ordinary practise in this case and it is a matter for Mr. Kiely to deal with those costs and

with any other parties or the Courts Service who may have a legitimate involvement.

7 Conclusions

7.1 For the reasons addressed in this judgment, I am satisfied that this appeal was properly initiated before this Court. There is no

doubt but that significant confusion has been created by inconsistencies between the Circuit Court Rules, on the one hand, and the

1974 Act and the Rules of the Superior Courts, on the other hand. However, I am satisfied that a proper interpretation of the legal

position, taken as a whole, leads to the conclusion that an appeal to this Court on a question of law under s.7(3) of the 1974 Act is

properly characterised as an appeal rather than as a case stated as is suggested in the Circuit Court Rules. To the extent that the

Circuit Court Rules seek to import procedures appropriate to a case stated I have come to the view that those rules are, to that

extent, ultra vires. On the first issue I would, therefore, direct that this appeal is an appeal properly so called and was regularly

initiated before this Court.

7.2 On the second issue, I have come to the view that this appeal was transferred to the Court of Appeal as a result of the direction

given by the Chief Justice, with the concurrence of the other members of this Court, on the 29th October, 2014. However, I have set

out earlier in this judgment the reasons why I have come to the view that this case meets the criteria which have been applied by

this Court in considering applications under Art. 64.3.3 of the Constitution in which it is sought to cancel that direction so far as the

relevant appeal is concerned. Subject to the parties making an oral application in that regard, I would dispense with the need to make

a formal written application, in accordance with the Rules, for such a cancellation and would grant the cancellation thus returning this

appeal for hearing on the merits before this Court.

7.3 Assuming that happens, I would finally direct that there is no need to file a transcript of the legal argument which took place

before the Circuit Court and would make no order in respect of the question of the costs of obtaining a transcript of the evidence. I

would also propose hearing counsel on how this appeal can be made ready for hearing as a matter of urgency.