A Supreme Court judge used a concurring judgment in a solicitor disciplinary appeal to explain four forms of appeal and the different limits each places on a reviewing body.
Justice Michael Clarke delivered his judgment on 29 July 2014 in Anne Fitzgibbon’s appeal against the Law Society of Ireland, under the Solicitors Act 1954–2002. He said he agreed with Chief Justice Susan Denham’s proposed determination and reasoning. His separate judgment offered general observations about uncertainty caused by unclear rules defining appeal rights.
Clarke identified four broad categories: a de novo appeal, an appeal on the record, an appeal against error, and an appeal on a point of law. He said rules should state which category applies and specify any variations or default procedures.
In a de novo appeal, the appeal body must reach its own conclusions without relying on the first-instance decision. Unless rules provide otherwise, the parties must present again the evidence and materials on which they want the appeal body to decide. Clarke noted that first-instance evidence may still be relevant, including to test a witness’s credibility or establish a prior admission.
An appeal on the record also requires an independent conclusion, but ordinarily relies on the evidence and materials that were before the original decision-maker. Clarke cautioned that this approach may not be lawful where fair procedures require contested evidence to be tested through oral evidence and cross-examination. In some cases, he said, an appeal limited to issues that did not depend on such evidence could still proceed on the record.
For an appeal against error, the appeal body considers whether the first-instance decision was wrong or unsustainable. The body generally reviews the record and, absent a rule allowing more material, does not receive further evidence. Clarke said factual findings should not ordinarily be disturbed unless there was no sustainable basis for them or they were clearly wrong; the expertise of the original decision-maker may also matter.
An appeal on a point of law is narrower. Clarke summarised established principles: primary factual findings generally stand if supported by evidence, while an inference may be set aside if no reasonable decision-maker could draw it. A legal error, or an incorrect interpretation of documents, may also justify setting aside a decision.
Clarke also observed that an appeal right should permit some review beyond judicial review, which addresses the legality of a public-law decision. The supplied judgment ends during this discussion and does not include the rest of the court’s determination or any operative order.