O'Connor v Legal Aid Board and Others

• Jurisdiction: Ireland
• Judge: Whelan J.,Allen J.,Meenan J.
• Judgment Date: 22 July 2025
• Neutral Citation: [2025] IECA 147
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2024 143

Between/

John O'Connor

Plaintiff/Appellant

and

Legal Aid Board, The Minister for Justice and Equality, Ireland and The Attorney General

Defendants/Respondents

[2025] IECA 147

Whelan J.

Allen J.

Meenan J.

Appeal Number: 2024 143

THE COURT OF APPEAL

CIVIL

Defamation – Malicious falsehood – Damages – Appellant seeking to vary or rescind the final judgment and order of the Court of Appeal – Whether the judgment failed to adequately consider non-defamation claims

Facts: The Court of Appeal, by order made on 16 May 2025 - for the reasons given in a written judgment delivered on 20 February 2025 on the substance of the appeal ([2025] IECA 39) and a written ruling delivered on 6 May 2025 on the question of costs ([2025] IECA 94) - dismissed, with costs, the appeal of the appellant, Mr O’Connor, against the judgment and order of the High Court (Stack J) whereby his action against the first respondent, the Legal Aid Board, for damages for defamation and malicious falsehood was dismissed on the ground that the statement on which the action was brought was not reasonably capable of being found to have a defamatory meaning. Mr O’Connor applied to vary or rescind the final judgment and order of the Court. The grounds on which he would argue that the judgment of the Court should be reviewed were as follows: (1) the judgment failed to adequately consider the non-defamation claims pleaded in 2019 No. 5432P; (2) the judgment mischaracterised what was described as the expert evidence of senior counsel said to have been obtained by the Legal Aid Board; and (3) “the evidence does not support the conclusion in the [2025] IECA 39 judgment that ‘anything in the letter was untrue’.”

Held by the Court that: (1) Mr O’Connor in his statement of claim had obliquely sought to introduce issues as to the entitlement of the Legal Aid Board to have terminated the certificates but those had all been cut out of the proceedings by the consolidation order - the judgment of the Court focussed on the only issue that was properly before the Court, and the core issue that had been before the High Court, which was the meaning of the letter of 27th July 2018; (2) this was plainly and simply an attempt to re-open the finding of the Court that a supportive opinion from senior counsel is entirely different from a supportive report from an independent expert - the fact of the matter was that the professional negligence actions against the solicitors were instituted by Mr O’Connor without a supporting report from an independent expert and the action against his wife’s solicitors survived an application to dismiss on the ground that the view expressed by Mr O’Connor’s solicitors in a letter which they wrote to him in the family law proceedings, was deemed to be sufficient “reasonable grounds” to have justified the commencement of professional negligence proceedings; and (3) the finding was that there was nothing in the letter that was untrue but, on any view, Mr O’Connor was simply trying to re-open an argument which he had already made and lost.

The Court held that, in accordance with para. 6 of Court of Appeal Practice Direction CA14, the panel refused leave to make the application.

Application refused.

NO REDACTION NEEDED

RULING OF THE COURT delivered on the 22 ^nd day of July, 2025

Introduction

1 . This is an application made by an unsuccessful appellant to vary or rescind a final judgment and order of the Court. In accordance with Court of Appeal Practice Direction CA14 it has been considered by the panel of judges who heard the appeal. In his affidavit grounding the application Mr. O'Connor has asked that the panel members should recuse themselves but there is no basis on which they should do so. Contrary to Mr. O'Connor's apprehension, the Court has considered the papers with an entirely open mind.

The judgment the subject of the application

2 . By order made on 16 ^th May, 2025 – for the reasons given in a written judgment delivered on 20 ^th February, 2025 on the substance of the appeal [2025] IECA 39) and a written ruling delivered on 6 ^th May, 2025 on the question of costs ( [2025] IECA 94) – the Court dismissed, with costs, Mr. O'Connor's appeal against the judgment and order of the High Court (Stack J.) whereby his action against the Legal Aid Board for damages for defamation and malicious falsehood was dismissed on the ground that the statement on which the action was brought was not reasonably capable of being found to have a defamatory meaning.

3 . Mr. O'Connor – understandably, since he had lost – was dissatisfied with the judgments.

The application to review

4 . On 14 ^th May, 2025 Mr. O'Connor issued and possibly served a notice of motion by which he sought inter alia an order pursuant to O. 28, r. 11 of the Rules of the Superior Courts. Order 28, r. 11 is concerned with clerical mistakes in judgments or orders or errors arising from accidental slips or omissions. The substance of the application, however, was that the substantive judgment contained both minor and major errors and “error(s), mistake(s), and material error(s) for the findings and determinations made in [the] judgment including untrue statements in relation to” Mr. O'Connor which – he contended – if left uncorrected would lead to an injustice.

5 . Mr. O'Connor's motion was not, in truth, an application pursuant to O. 28, r. 11 but an application to vary or rescind a final judgment of the Court of Appeal. The motion was de-listed and Mr. O'Connor was directed to make any application he wished in accordance with Court of Appeal Practice Direction CA14.

6 . On 25 ^th June, 2025 Mr. O'Connor filed a “CA14 SHORT SUBMISSION” in which he first protested that the practice direction is unconstitutional and then set out his complaints in relation to [2025] IECA 39.

Court of Appeal Practice Direction CA14

7 . Practice Direction CA14 was issued by the President of the Court of Appeal on 5 ^th December, 2024 pursuant to the provisions of s. 7C(2) of the Courts (Supplemental Provisions) Act, 1961, inserted by s. 10 of the Court of Appeal Act, 2014. It governs “Applications to vary or rescind a final Judgment or Order made by the Court of Appeal (‘Review Applications’), or to correct a Judgment or Order (‘Correction Applications’)”. It spells out, in Part B, that it does not apply to applications for the correction of clerical mistakes or errors arising from accidental slip or omission or applications to set aside a judgment or order on the grounds that it was obtained by fraud. The Court of Appeal practice direction reflects mutatis mutandis Supreme Court Practice Direction SC17, issued by the Chief Justice on 27 ^th November, 2024.

8 . The practice direction commences by reciting Article 34.4.3 of Bunreacht na hÉireann, which provides that:-

“The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.”

And by noting that the Supreme Court has appellate jurisdiction from a decision of the Court of Appeal if satisfied that the decision involves a matter of general public importance, or that in the interests of justice it is necessary that there be an appeal to the Supreme Court.

9 . It then sets out the principle – following the case law of the Supreme Court, starting with Greendale Developments Ltd.[2000] 2 I.R. 514 and citing the previous decisions of this Court – that review applications will be considered by the Court only in the most exceptional circumstances, where, through no fault on the applicant's part, the judgment or order operates both to deny the applicant justice and to clearly breach the applicant's constitutional rights. Recitals d and e emphasise – in accordance with the decided cases – that an intending applicant bears a very heavy onus of establishing that such circumstances exist, and must show cogent and substantive grounds which are objectively sufficient to enable the Court to determine that a hearing of a review application on the merits is justified.

10 . The power conferred on the President of the Court of Appeal by s. 7C(2) of the Act of 1961 (as inserted) is a power, in the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the costs of proceedings, to issue practice directions in relation to the conduct of appeals or applications made to the Court of Appeal. Practice Direction CA14 recites, at para. g, that the President was satisfied that it was in the interests of the administration justice and the determination of a review application in a manner which is just, expeditious and likely to minimise the costs that she should issue that...