This week's Term of the Week explains the process by which lower courts may seek the opinion of a higher court on a contentious point of law.
A statement of the facts in a case submitted for the opinion of a higher court, clearly identifying the point of law upon which opinion is sought. It is consultative in that the lower court seeks the assistance of the higher court. The procedure normally contemplates that the case will return to the same judge, as the case stated arises from a particular view which that judge has taken of the law. Consequently, a District Court judge cannot sign a case stated after his promotion as a judge of the Circuit Court: DPP v Galvin [1999 HC] 2 ILRM 277; [1999 HC] 4 IR 18.
A Circuit Court judge may refer any question of law to the Supreme Court by way of case stated and may adjourn the pronouncement of his judgment or order pending the determination of such case stated: Courts of Justice Act 1947 s.16; Doyle v Hearne  ILRM 318. For the rules of court governing a case stated from the Circuit to the Supreme Court, including special rules governing a Revenue case stated, see Circuit Court Rules 2001 O.62. See also Irish Refining plc v Commissioner of Valuations  1 IR 568.
A case may be stated on a question of law by the High Court to the Supreme Court: Courts of Justice Act 1936. A High Court judge hearing a circuit appeal had an entitlement to state a case to the Supreme Court if satisfied that it was an appropriate case in which to exercise that power. The Courts of Justice Act 1936 s.38 did not prevent the case stated procedure from being available in respect of cases originally heard in the Circuit Court without oral evidence: Irish Life and Permanent Plc v Dunne and Irish Life and Permanent Plc v Dunphy  IESC 46; [2015 SC] 2 ILRM 192.
A case may be stated on a question of law from the District Court to the High Court, before or after the determination of the proceedings in the District Court: Courts (Supplemental Provisions) Act 1961 ss.51-52; Summary Jurisdiction Act 1857; DPP (Whelan) v Delaney [1996 HC] 1 ILRM 70. The Summary Jurisdiction Act 1857 has been amended by Criminal Justice (Miscellaneous Provisions) Act 2009 ss.45-46.
It has been held that a step-by-step procedure for an appeal by way of case stated from the District Court to the High Court was set out under legislation and the DCR, and the observance of this sequence was of events was a condition precedent to the exercise by the High Curt of its jurisdiction: Coonan v Coughlan  IEHC 582; [2011 HC] 1 IR 537.
No appeal is allowed to the Supreme Court except by leave of the High Court: ibid s.52(2) and Minister for Justice v Wang Zhu Jie [1991 SC] ILRM 823. An exception, is that a case may be stated from the District Court to the Supreme Court in relation to the Malicious Injuries Act 1981 (ibid s.18). See DCR 1997 O.102 rr.1-6.
A District Court judge is not entitled to state a case to the High Court on a question concerning the validity of a statutory provision having regard to the constitution: 1937 Constitution art.34(3)(2); DPP v Dougan [1997 HC] 1 ILRM 550.
A judge of the District Court must not refuse to state a case where the application is made to him by or under the direction of a Minister, the Director of Public Prosecutions, or the Revenue Commissioners; the only ground for refusing in other cases is where he is of opinion that the application is frivolous: Summary Jurisdiction Act 1857 s.4; Sport Arena Ltd v O’Reilly [1987 HC] IR 185. Section 4 of the 1857 Act is not unconstitutional: Fitzgerald v DPP [2003 SC] FL 7966; [2003 SC] 2 ILRM 537. However, the District Court cannot refer a consultative case stated in relation to an indictable offence which is not being dealt with summarily by the District Court: The People (DPP) v Delaney [1995 HC] 2 IR 511. Also the jurisdiction to entertain a case stated by way of appeal against acquittal must be strictly construed, given that an otherwise acquitted person is exposed to potentially serious adverse consequences (ibid Fitzgerald case). S. 4 does no more than empower a District Court Judge to decline to allow an appeal to proceed by way of case stated where he was of the view that the request was frivolous: Fitzgerald v DPP [2004 SC] 3 IR 247.
Service in relation to a case stated on the solicitor who acted for a party in the District Court may be sufficient: Crowley v McVeigh  IR 73. Also, the court has jurisdiction to enlarge the time limit fixed for transmission of a case stated to the High Court but only in appropriate circumstances: DPP v Regan [1993 HC] ILRM 335. See DPP v Brennan [1998 SC] 2 ILRM 129; Eastern Health Board v Ballagh [1999 HC] 1 ILRM 544; DPP (Gannon) v Conlon [2001 HC] 4 IR 376. This discretion as to whether to state a case outside of the time period has been reflected in statute, see: Summary Jurisdiction Act 1857 s.2 as amended by Criminal Justice (Miscellaneous Provisions) Act 2009 s.45.
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