The Supreme Court granted Sgt. Martha McEnery leave to rely on alternative grounds in a pending appeal, although those grounds had not been included in her respondent’s notice. The Court said its decision took account of the transitional phase of new appeal procedures and should not be taken to promise similar latitude in future cases.
The ruling, delivered by Mr Justice Clarke on 12 May 2016, dealt only with whether the alternative grounds could be raised. It did not decide the Commissioner’s appeal against the Court of Appeal’s judgment, or determine the underlying judicial review.
McEnery had sought judicial review of the Commissioner of An Garda Síochána’s decision to summarily dismiss her under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. The dismissal followed her conviction for assault under section 2 of the Non-Fatal Offences Against the Person Act 1997. The High Court rejected her challenge. The Court of Appeal allowed it, finding that the Commissioner could not treat the conviction as requiring little or no further consideration before dismissal. It did not need to decide other grounds, including arguments about reasons for the decision and alleged discrimination in applying the dismissal provision.
The Commissioner received leave to appeal to the Supreme Court on the central issue. McEnery’s respondent’s notice listed no additional grounds for affirming the Court of Appeal’s decision, but her written submissions raised the other grounds. The Commissioner objected that those matters had not been properly brought before the Court.
Mr Justice Clarke said a respondent who seeks only to uphold the lower court’s order may raise alternative grounds without separate leave to appeal, provided those grounds were properly pursued in the courts below. He said McEnery’s grounds had been raised in both the High Court and Court of Appeal, but their omission from the respondent’s notice meant they were not properly before the Supreme Court at that stage.
The Court granted leave to raise them, taking account of the new procedures, the fact that the grounds had been before the lower courts, and their clear inclusion in early written submissions. The judgment said the omission was more than a technical matter because it could affect the fairness of an appellant’s case. It urged parties and advisers to complete respondent’s notices carefully and cautioned that future omissions might not be allowed to be corrected.