Allied Irish Banks, Plc v Fitzgerald

• Jurisdiction: Ireland
• Judge: Barniville P.,Faherty J.,Ní Raifeartaigh J.
• Judgment Date: 25 September 2023
• Neutral Citation: [2023] IECA 228
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 2021/126

Between:

Allied Irish Banks, P.L.C.

Plaintiff/Respondent

and

Richard Finbar Fitzgerald

Defendant

and

Eileen Daly

Notice Party/Appellant

[2023] IECA 228

Barniville P.

Faherty J.

Ní Raifeartaigh J.

Court of Appeal Record No. 2021/126

Record No. 2019/232SP

THE COURT OF APPEAL

UNAPPROVED

NO REDACTION NEEDED

Judgment of the Court delivered on the 25 September 2023 in relation to Costs

1 The Court delivered judgment on the substantive appeal on the 22 December 2022 and invited written submission on the issue of costs, having expressed a preliminary view (as it usually does) that the costs should be awarded to the successful party. In response, the parties provided written submissions. Those of the appellant focus primarily on criticizing the Court's judgment and appear to invite the Court to re-open the case, although there was no formal motion issued to that effect. The submissions say that the appellant requires the Court to “ review its Order, under the principles enunciated in Wright and Bailey, considering the adverse, and unfounded, and somewhat inadequate reasoning the Court has chosen” and that “ the Court misunderstood, or possibly forgot, the grounds upon which the Applicant soughtto advance in her appeal”.

2 As noted, the appellant did not bring any motion seeking to re-open the case, nor did she refer to the extensive jurisprudence setting out the parameters governing such applications (other than the fleeting reference to Wright and Bailey above, without citations). There is considerable caselaw in this area, including the key Supreme Court decision in Greendale Developments Limited (No. 3)[2000] 2 IR 514. Recent decisions of this Court where the caselaw is summarized include Kirwan v. Connors[2023] IECA 120, Dowling and Others v. Minister for Finance[2022] IECA 285 and Bailey v. Commissioner of An Garda Síochána[2018] IECA 63. The high threshold for re-opening a case in which judgment has been delivered was described in 2021 by Clarke CJ in Student Transport Scheme Limited v. The Minister for Education and Skills and Bus Éireann[2021] IESC 35 where he said that a party seeking a Greendale order must establish to the very high threshold identified in the case law that there has been a ‘ clear and significant breach of the fundamental constitutional rights of a party, going to the very root of fair and constitutional administration of justice, in the manner in which the process leading to the determination in question was conducted’. The appellant does not engage with the principles enunciated in those cases at all.

3 The appellant simply maintains that the Court misunderstood the points she was making on appeal and dealt with a point that she did not make. For example, she complains that the Court erred in dealing with a point upon which she says she did not pursue on appeal, namely the effect of the Residential Tenancies Act 2004 upon her position. In fact, as appears from the grounds of appeal (set out in the substantive judgment on the appeal), her grounds of appeal included that the High Court judge erred in failing to interpret the Residential Tenancies Act 2004 correctly which would have protected her property rights. In any event, the fact that a court may address an argument unnecessarily does not in any way affect the remainder of a court's judgment; at worst, that part of the judgment is surplusage.

4 The appellant also complains as to how the Court dealt with the grounds of appeal which had raised new issues on appeal which had not been raised at first instance. As was its entitlement, the respondent objected to those being dealt with. The Court in its judgment made it clear that it would not deal with those arguments; see paragraphs 46–48 of the substantive judgment. The appellant in her submissions refers to, and is critical of, paragraph 34 of the Court's judgment but this is merely a setting out...