Friends First Managed Pension Funds Ltd v Smithwick

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 16 July 2019
• Neutral Citation: [2019] IECA 197
• Date: 16 July 2019
• Docket Number: Neutral Citation Number: [2019] IECA 197

BETWEEN/

FRIENDS FIRST MANAGED PENSION FUNDS LIMITED

PLAINTIFF/APPELLANT

- AND -

PAUL SMITHWICK

DEFENDANT/RESPONDENT

- AND -

A.T. UNIFORMS LIMITED

AND

THOMAS KENNEDY

THIRD PARTIES

[2019] IECA 197

Whelan J.

Whelan J.

Costello J.

Kennedy J.

Neutral Citation Number: [2019] IECA 197

Record Number: 2017/236

THE COURT OF APPEAL

Constitutional want of fairness – Breach of fair procedure – Special circumstances – Respondent seeking the Court of Appeal’s reconsideration of its judgment – Whether the judgment contained a number of material errors as to fact and as to law

Facts: On the 20th March, 2019, judgment was delivered by the Court of Appeal (Whelan J) on the appeal of the plaintiff/appellant, Friends First Managed Pension Funds Ltd, from the decision of Mac Eochaidh J on 6th April, 2016. The appeal was allowed reversing the determination of the High Court. On the return date for submissions on the form of the order, the defendant/respondent, Mr Smithwick, applied under the exceptional jurisdiction of the Court that the Court reconsider its judgment citing a number of alleged errors including that: (i) the Court failed to properly address and rule on the central basis for the determination of Mac Eochaidh J in the High Court; and (ii) the judgment contained a number of material errors as to fact and as to law.

Held by Whelan J that the Court could not simply “vacate” a judgment in the absence of a constitutional basis for adopting such a course of action; no constitutional want of fairness had been identified. Whelan J held that there was no defect in procedure established by the applicant. Whelan J was satisfied that there had been no breach of fair procedure in the manner in which the appeal was heard or in the determination by the Court of the issues raised; neither were there any special or unusual circumstances in this case which would justify the Court in granting to Mr Smithwick the relief sought.

Whelan J held that the application for a reconsideration by the Court of its judgment on the appeal delivered in draft form on the 20th March 2019, and which was to be circulated in its final form, would be refused.

Application refused.

RULING of Ms. Justice Máire Whelan delivered on the 16th day of July 2019

1 On the 20th March, 2019 judgment was delivered (Whelan J., (Costello and Kennedy JJ. concurring)) on the appeal of the plaintiff from the decision of Mac Eochaidh J. on 6th April, 2016. The appeal was allowed reversing the determination of the High Court.

2 On the return date for submissions on the form of the order, Mr. Smithwick applied under the exceptional jurisdiction of the Court that the Court reconsider its judgment citing a number of alleged errors including that: -

(i) the Court failed to properly address and rule on the central basis for the determination of Mr. Justice Mac Eochaidh in the High Court, and

(ii) the judgment contains a number of material errors as to fact and as to law.

There is no affidavit sworn in support of the application.

3 Accordingly, it appears the first issue for determination is whether the respondent has met the relatively high threshold of establishing:

(i) that there was material error and

(ii) that it is of such a nature that the interests of justice dictate that this Court should allow the application to reopen the entire decision and judgment.

4 In the event that this Court determines that issues arise requiring further consideration, Mr. Smithwick contends that any remittal for consideration should be to a differently constituted panel of this Court by reason of bias shown by this Court in its judgment. The latter point and arguments advanced in support of same only fall to be considered if he succeeds in his application for a reconsideration in the first place.

5 Both parties to the appeal are in agreement that this Court does have an exceptional jurisdiction to revisit an issue determined in a written judgment provided the matter is raised prior to the order of the court being drawn up and perfected.

The Slip Rule

6 The submission on behalf of Mr. Smithwick identifies some factual errors in the draft judgment which fall within O. 28 r. 11. I have incorporated requisite corrections and a few amendments to ensure clarity into the final draft of the judgment. I am satisfied that none materially impacts on the ultimate determination and outcome of the case.

Potential jurisdiction of the Court to revisit its own judgment

7 As was noted by Finlay Geoghegan J. in this Court in Bailey v. The Commissioner of An Garda Síochána & Ors. [2018] IECA 63, the relevant principles and their correct application were comprehensively summarised by O'Donnell J. in Nash v. DPP [2017] IESC 51. This Court adopts the approach advocated in Bailey where Finlay Geoghegan J. stated at para. 31: -

‘…this Court should follow closely the approach taken by the Supreme Court in those judgments allowing for the different factual contexts and nature of the errors identified.’

8 As was observed by Finlay Geoghegan J. in Bailey at para. 35: -

‘Applying the above to the different constitutional position of the Court of Appeal means that there is, notwithstanding Article 34.4.3 an exceptional jurisdiction to revisit a judgment of this Court which is otherwise entitled to finality where it is considered necessary to do so to comply with the constitutional imperative to administer justice. Whether that threshold is met will depend upon the relevant facts.’

9 O'Donnell J. In Nash noted that the jurisdiction was aptly described as a ‘potential jurisdiction’. At para. 14 he observes: -

‘It may be, however, that an error identified is not considered either central to the reasoning in the case, or capable of establishing such a fundamental departure from the administration of justice as would justify the application of the Greendale jurisdiction. Nevertheless, the error, if it be such, may be considered of some significance either because of its impact on an individual, the potential for confusion and worse in relation to

separate matters, or perhaps, for the sake of simple accuracy. There is and can be no objection either in principle or in constitutional law to the correction of such matters which do not affect the decision of the court captured by Art. 34.4.6.’

I respectfully adopt the principles set out in both the Bailey and Nash decisions.

Capacity of the Court to entertain the application

10 In the instant case there is no final order and the judgment is in draft form and subject to amendment, amplification and/or correction. Whenever a judgment has been pronounced the court retains control over it and the case until the order giving effect to the judgment has been passed and perfected.

The standard to be established – exceptional circumstances

11 Finlay Geoghegan J. in this Court noted in the Bailey decision ( ante) at para. 34 that O'Donnell J. in Nash had, in turn, considered the earlier guidance given by Murray C.J. in his judgment in The People at the Suit of the DPP v. McKevitt [2009] IESC 29: -

‘There are two particularly important factors to be addressed when considering whether this Court has, in the circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly, the application must patently and substantively concern an issue of constitutional justice other than merits of the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning a denial of justice in the proceedings in question...