The Supreme Court has ruled that it can proceed with an appeal concerning the interpretation of the Disability Act 2005, although the Circuit Court judge who referred the legal question has retired.
In a judgment delivered on 20 December 2021, Ms Justice Baker said the Court’s jurisdiction came from the Constitution and its decision to grant leave to appeal from the Court of Appeal. It did not depend on the continued availability of the judge who had sought legal guidance.
The underlying proceedings were brought by ELG, a minor suing through her mother and next friend SG, against the Health Service Executive. The applicants had sought orders under section 22 of the 2005 Act. The Circuit Court referred a remaining legal issue to the Court of Appeal by way of a consultative case stated.
The Court of Appeal delivered judgment on 1 April 2021. The Circuit Court judge, Judge Linnane, retired about two weeks later, before the Court of Appeal’s order was perfected on 10 May. The parties did not dispute the Court of Appeal’s authority to hear the case stated while she remained in office.
The Supreme Court considered whether it could hear an appeal when the answer could no longer be returned to the referring judge. Baker J distinguished a consultative case stated, which asks a higher court for guidance before the lower court decides a matter, from an appeal by way of case stated, which asks whether a decision already made was legally correct.
The Court concluded that retirement did not remove its jurisdiction. It also considered whether answering the appeal would be futile or would address only a moot issue. The parties jointly submitted that the interpretation of section 22 had practical consequences beyond this litigation, including for other children who might be affected by the provision. They also agreed that no facts remained in dispute and that a decision on the statutory question could resolve the issue between them.
Baker J concluded that the point had wider practical and systemic importance and that it would not be futile for the Supreme Court to consider the appeal. The Court decided it should proceed to hear it. This judgment addresses the Court’s jurisdiction and whether it should entertain the appeal; it does not decide the substantive interpretation of section 22 or determine the underlying application.