Doyle v Commissioner of an Garda Siochana and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Dignam |
| Judgment Date | 13 June 2023 |
| Neutral Citation | [2023] IEHC 313 |
| Court | High Court |
| Docket Number | [Record No. 2003/182P] |
[2023] IEHC 313
[Record No. 2003/182P]
THE HIGH COURT
Judgment of Mr. Justice Dignam delivered on the 13 th day of June 2023
This judgment deals with a discrete issue as to whether the plaintiff should be given leave to adduce additional evidence on a motion after the hearing has concluded but before judgment has been delivered.
After the Court heard the defendant's application for an Order dismissing the plaintiff's claim by virtue of inordinate and inexcusable delay in the commencement and/or prosecution of the proceedings on the basis of prejudice to the defendants and in the interests of the timely and effective administration of justice but before judgment was delivered, counsel for the plaintiff indicated that evidence which it was maintained was significant to the court's consideration of that motion had recently come into the plaintiff's legal representatives' possession and they sought leave to adduce that evidence. The defendant maintained that this evidence was not relevant. The Court granted the plaintiff liberty to issue a motion seeking leave to adduce additional evidence and this judgment deals with that motion.
I was referred to the following cases: Re McInerney Homes Limited [2011] IEHC 25; Hinde v Pentire Property Finance [2018] IEHC 575; Fanning v Trailfinders Ireland Limited & anor [2021] IEHC 247; Cave Projects Limited v Gilhooley & Ors [2022] IECA 245; The Governor and Company of Bank of Ireland v Ward [2023] IECA 25; Murphy v The Minister for Defence [1991] 2 IR 161; and Fitzgerald v Kenny [1994] 2 IR 383. Cave Projects Limited is more relevant to the assessment of the underlying motion and I therefore do not consider it necessary to refer to it in any great detail at this stage (though I do refer to a specific point below).
In Murphy v The Minister for Defence [1991] 2 IR 161 Finlay CJ considered an application under Order 58 Rule 8 of the Rules of the Superior Courts to adduce further evidence before the Supreme Court in a pending appeal. He identified the principles as being:
“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;
2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;
3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”
The Supreme Court also considered the exercise of its discretion in Fitzgerald v Kenny [1994] 2 IR 383 and held:
“That the discretion should be exercised in accordance with the following, non-exhaustive, guidelines:-
(a) …;
(b) that fresh evidence might be admitted if some basic assumptions, common to both sides, had clearly been falsified by subsequent events, particularly if this had happened by the act of the defendant;
(c) that the primary consideration was that it might be expected that fresh evidence would be permitted when to refuse it would affront common sense or a sense of justice;
(d) …”
More recently, in Re McInerney Homes Ltd [2011] IEHC 25 Clarke J had to consider whether to permit additional evidence to be adduced in respect of an examinership petition after he had delivered judgment but before the final Order had been made. At paragraph 3.1 of his judgment he noted the need for an extremely high test for reopening a case when it has come to its natural conclusion, i.e. after the case had been concluded and a final ruling delivered “ whether in a court of first instance or, in the event of an appeal, as a result of a determination of the court which has the final appellate role in the circumstances of the case”. He went on to state that “ the necessity to bring finality to proceedings outweighs any possible injustice that might be caused in an individual case. It is important to note that, if it were possible to reopen proceedings on a significantly less stringent test, then the finality of every case would be called into question with a significant collective injustice to all parties to all litigation. It is that consideration that outweighs any possible injustice on the facts of an individual case.” He went on to distinguish this from the principles applying to the admission of new evidence or new arguments “ when the proceedings are still alive in the sense that a valid appeal remains before an appellate court and has not yet been finally determined” and said at paragraphs 3.2 and 3.3:
“ 3.2 However, the situation is not quite the same when the proceedings are still alive in the sense that a valid appeal remains before an appellate court and has not yet been finally determined. In those circumstances the courts have recognised a jurisdiction to admit additional or new evidence subject to stringent conditions which have been the subject of definitive judicial ruling…
3.3 In that context it must be remembered that, at the stage when an application to admit such new evidence or make new argument is made, the proceedings are not over in the full sense of the word. There is an appeal pending before an appellate court of competent jurisdiction and there remains the real possibility that that appellate court may take a different view on any material issue than the view taken by the court of first instance. While giving a generous jurisdiction to the courts to allow new evidence or argument at such a stage would be a recipe for litigation chaos, it nonetheless remains the case that, provided the relevant stringent tests are met, the balance of justice is found to favour allowing the additional evidence or argument to be heard principally, it would appear, because the weight to be attached to the finality of proceedings is somewhat less when there is still a live appeal extant in relation to those proceedings than would be the case if the appeal had been finally determined.”
He then went on to consider the position at an even earlier stage of the process, i.e., after the court which is being asked to reopen the matter has delivered its reasoned decision but before the court Order has been made, and said that “[O]ne of the issues which it will be necessary to address is as to whether the circumstances which would justify the court in revisiting its own judgment prior to the making up of a final order (on the basis of the availability of new evidence or argument) are any wider in those circumstances when compared with an application to an Appeal Court to admit new evidence or argument.” He considered the judgment of the Court of Appeal of England and Wales in Paulin v Paulin & Anor [2010] 1 WLR 1057 in which Wilson J reviewed the history of the jurisprudence in this area in England and Wales. Clarke J accepted that the passage from Wilson LJ's judgment represents the law in this jurisdiction and stated that “ [I]n those circumstances, it seems to me that, in order for the court to exercise its jurisdiction to revisit a question after the delivery of either an order or written judgment, it is necessary that there be “strong reasons” for so doing.” (This was a formula which had been suggested by Rix LJ in Cie Noga D'Importation et D'Exportation SA). Clarke J then concluded at paragraph 3.12 that:
“…where the basis for seeking that the court revisit its judgment is to be found in the proposed presentation of additional evidence or materials, then it seems to me that it would be inappropriate for the court to go down that road without applying, at least in general terms, a test similar to that which an appellate court would apply in deciding whether to admit new evidence at an appeal. In those circumstances it seems to me that the new materials must be such that same would probably have an important influence on the result of the case, even if not decisive, and be credible. In addition, such new evidence will not ordinarily be permitted to be relied on if the relevant evidence could, with reasonable diligence, have been put before the court at the trial.”
Of course, what was being considered by Clarke J was the jurisdiction of the Court to admit further evidence or argument after judgment has been delivered but before a final Order is made. In this case we are at an even earlier stage: the hearing has concluded but the Court has not yet delivered its decision. That was also the situation in Hinde v Pentire Property Finance Designated Activity Company & Kavanagh [2018] IEHC 575.
In that case Costello J had to consider an application for leave to adduce further evidence between the conclusion of the hearing of a motion and the delivery of the judgment. She was referred to Re McInerney Homes and she set out paragraphs 3.11 and 3.12 of Clarke J's judgment and noted that Clarke J had established a dual test which had to be satisfied before a court should admit new materials in circumstances where the court has concluded the hearing of the case and has delivered a reasoned judgment. She said that the elements of the test are:
“(1) that the new materials would probably have an important influence on the result of the case, and be credible.
(2) Such new evidence will not ordinarily be permitted to be relied on if it could, with reasonable diligence, have been put before the court as the trial.”
The parties do not appear to have suggested to Costello J that any different approach should be taken when the application was being made in advance of judgment being delivered and therefore Costello J did not have to consider this.
In Fanning v Trailfinders Ireland Ltd [2021]...
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