Case stated: NI Court of Appeal restates guidance for lower courts/tribunals

In James P Corey Transport Ltd & anr v Belfast Harbour Commissioners [2021] NICA, the Court of Appeal (McCloskey and Maguire LJJ and McFarland J) has given (or perhaps more accurately, restated) as to how lower courts/tribunals are to formulate cases stated for the opinion of a higher court.

In this case, the Lands Tribunal for Northern Ireland (“the LT”) had dealt with tenancy applications by the appellants which required the determination of a preliminary issue as to whether the appellants were tenants or licensees of commercial sites on the respondents’ Belfast harbour estate. ?The LT found both appellants to be licensees, and dismissed their tenancy applications accordingly.

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The appellants asked the LT to state a case for the opinion of the Court of Appeal.?In essence, the LT’s response was to recite the order which it had made, the request for the stating of of a case, and then the two questions for the determination of the Court of Appeal, namely (a) had the LT been right to find that the relevant sites had been occupied on foot of specified written agreements and (b) whether the LT had been correct in finding that the appellants occupied the sites as licensees and not tenants.

The Court of Appeal ruled that this first case stated was not properly formulated, and exercised its power of remittal under section 38(1)(f) of the Judicature (NI) Act 1978.?The LT accordingly sent a reformulated case stated in each of the appeals, in virtually identical terms.?In essence, each case stated set out the background and determined facts in six brief paragraphs, and concluded with a recital of the decision reached on whether or not the appellants had been tenants. It posed the same two questions for the opinion of the Court of Appeal as had the original, defective, case stated, and added a third, namely whether the LT had reached a decision overall that no reasonable Lands Tribunal could have reached in deciding that the appellants were licensees rather than tenants.

McCloskey LJ observed that the?form and content?(his emphasis) of every case stated were a matter of crucial importance. Typically, they were not regulated by either primary or subordinate legislation.?Rather it was necessary?in every case?(again, his emphasis) for the court or tribunal concerned to have recourse to the guidance contained in a series of decisions of Court of Appeal in Northern Ireland.?There was simply no substitute for this exercise in the Northern Ireland legal system.?This would remain so unless and until the case stated appellate mechanism was abolished or replaced.?The formulation of every case stated must be preceded by a decision in which?clear, concise and material findings of fact?is a matter of paramount importance.?Irrespective of whether the decision of the court or tribunal was given in writing or orally or perhaps a combination of both, every judicial authority, upon receipt of a requisition to state a case, must focus intensely on the following question: what were my findings of fact??The importance of this exercise could not be over?emphasised.

McCloskey LJ went on to set out detailed guidance, by reference to the case law to which he had referred, as to how a lower court/tribunal must approach the task of formulating a case stated.?He concluded by reminding practitioners of the detailed guidance on the form and content of a case stated provided by the Court of Appeal itself nearly 80 years ago in?Emerson v Hearty?[1946] NI 35.

Testing the reformulated case stated in these proceedings against this guidance, the Court of Appeal was obliged, reluctantly, to conclude that that it was not properly equipped to determine the appeals substantively.? Accordingly, the Court of Appeal (under s.38(1)(b) of the Judicature (NI) Act 1978) remitted the appeal in its entirety for?de novo?consideration and determination by the LT, reconstituted so as to consist of the President and the appointed member, having regard to the history of the appeals and the complexity of the issues of law which they entailed.?As to costs, the Court of Appeal considered that there was no winner or loser, and no judicially determined “event”. ?In the exercise of the Court’s discretion, it made no order as to costs?inter partes.