ELG & Anor v Health Service Executive (Approved) [2021] IESC 82_2 (13 December 2021)

ELG & Anor v Health Service Executive (Approved) [2021] IESC 82_2 (13 December 2021)

The Supreme Court generally lacks jurisdiction to answer a consultative case stated if the referring judge no longer holds judicial office before the higher court delivers judgment. However, where the Court of Appeal has already delivered a binding judgment while the referring judge was still in office, and the...

Source-derived case information.

Citation
[2021] IESC 82_2
Parties
Applicant/appellant: ELG (A minor suing by her mother and next friend SG); Respondent: Health Service Executive
Jurisdiction
Ireland
Judgment Date
13 December 2021
Procedural Posture
Appeal (consultative Case Stated) / Supreme Court Judgment on Preliminary Jurisdictional Issue
Outcome
Supreme Court holds it has jurisdiction to hear and determine the consultative case stated in these special circumstances.
Legal Topics
Consultative Case Stated, Judicial Retirement and Jurisdiction, Article 34.5.3 of the Constitution, Disability Act 2005, Jurisdiction of Appellate Courts
Constitutional Law Administrative Law Civil Procedure Consultative Case Stated Judicial Retirement and Jurisdiction Article 34.5.3 of the Constitution Disability Act 2005 Jurisdiction of Appellate Courts

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Parties

ELG (A minor suing by her mother and next friend SG)

Applicant/appellant

Health Service Executive

Respondent

Procedural Posture

Appeal (consultative Case Stated) / Supreme Court Judgment on Preliminary Jurisdictional Issue

Legal Issues

  1. 1 Does the retirement of a judge who stated a consultative case stated deprive the higher court of jurisdiction to answer it?
  2. 2 Does Article 34.5.3 of the Constitution create an exception to the general rule regarding jurisdiction in such cases?

Ratio Decidendi

The Supreme Court generally lacks jurisdiction to answer a consultative case stated if the referring judge no longer holds judicial office before the higher court delivers judgment. However, where the Court of Appeal has already delivered a binding judgment while the referring judge was still in office, and the Supreme Court has granted leave under Article 34.5.3, the Supreme Court retains jurisdiction to determine the correctness of the Court of Appeal's decision, notwithstanding the subsequent retirement of the referring judge.

Court Disposition

Supreme Court holds it has jurisdiction to hear and determine the consultative case stated in these special circumstances.

Orders

  • Supreme Court will proceed to determine the substantive issue in the consultative case stated.