Two of the judges who ruled yesterday on O’Hagan v. Grogan will be retiring before the end of the month. Usually, a Supreme Court judge’s retirement is planned well in advance. Her judicial career can then wind down in an orderly fashion, so that any outstanding cases she has heard can be resolved before she leaves the Court. I really have no idea how long Judges Macken and Finnegan have been planning to retire, but it appears that there are several outstanding appeals that were heard by the retiring judges.

Maybe we will see a raft of judgments next week with Judge Macken and/or Judge Finnegan on the panel. But what if the Court doesn’t manage to resolve cases heard by one or both in time? The statute that governs panel composition in the Supreme Court may present an administrative headache for the Court:

(4) Subject to subsection (5) of this section, the Chief Justice … may determine that an appeal to or other matter cognisable by the Supreme Court may be heard and determined by a division of five or three judges …

(5) An appeal to or other matter cognisable by the Supreme Court under Article 12 or Article 26 of the Constitution or a question of the validity of any law having regard to the provisions of the Constitution shall be heard and determined by not less than five judges …

(Courts (Supplemental Provisions) Act, 1961, section 7, as amended by the Court and Court Officers Act, 1995, section 7). The problem is that the statute seems to require cases to be “heard and determined” by three or five judges (depending on the case). Presumably, the statute doesn’t envisage that a case might be heard by one set of judges then determined by another set. So a literal reading (perhaps too literal?) would require a new hearing in every case that Judge Macken or Finnegan heard but the Court has not determined before the relevant judge retires.

The appellate court I once worked on, the United States Court of Appeals for the Second Circuit, has a rule to deal with this problem. The Court typically sits in three-judge panels, but has a procedure in the reasonably frequent event of a judge dropping out:

After a matter has been assigned to a three-judge panel, if for any reason a panel judge ceases to participate in consideration of the matter, the two remaining judges may – if they agree – decide the matter, or may request the clerk to designate a third judge by random selection. If a third judge is designated, the clerk will advise the parties. Additional briefs and argument are not permitted unless the court orders otherwise.

This rules allows the Second Circuit to do two things seemingly precluded by the Irish statute in the event of a judge retiring, dying, or recusing after argument. First, if the two remaining judges agree on the result, they can simply rule that way without consulting the parties. Second, if the two remaining judges are deadlocked, or prefer on other grounds to have a third judge, they can draft another judge in to rule on the matter without the need for new oral argument.  (A judge ruling without hearing argument may sound unusual to Irish lawyers, but makes a great deal of sense in an American federal court where paper submissions are much more significant than oral argument.)

My understanding is that one option in Ireland is for the parties to consent to a decision by two judges (in a case that started with three) or four judges (in a case that was required to begin with five). One obvious prior example of an unplanned end to a Supreme Court judicial career is Judge O’Flaherty’s resignation in 1999 over his role in the Philip Sheedy affair. I went and took a look at cases on Bailii from the period and found a few examples of decisions made by an even number of judges: O’Doherty v. West Limerick Resources Ltd. [1999] IESC 39 (two judges); Gael Linn v. Attorney General [1999] IESC 42 (four judges); DPP v. O’Connor [1999] IESC 77 (four judges). Presumably, each was initially heard by Judge O’Flaherty before he was forced from the bench. Conceivably, the parties might similarly agree to a new judge deciding the matter “on the papers”; I have no idea whether that has ever happened.

But what if the parties don’t agree to proceed without a new hearing? The other option is a rehearing with a substitute judge. At least in a case where the surviving judges agree anyway, such a rehearing would be an unfortunate waste of time and effort in an already backlogged court.