Gerard Dowling, Padraig Mcmanus, Piotr Skoczylas, Scotchstone Capital Fund Ltd, John Paul McGann, George Haug, Tibor Neugebauer, and J. Frank Keohane v The Minister for Finance

JudgeHaughton J.,Binchy J.,Pilkington J.
Judgment Date13 December 2022
Neutral Citation[2022] IECA 285
CourtCourt of Appeal (Ireland)
Docket NumberRecord Numbers: [C.A. Nos. 871, 872, 873 and 874 of 2014]


Gerard Dowling, Padraig Mcmanus, Piotr Skoczylas, Scotchstone Capital Fund Limited, John Paul McGann, George Haug, Tibor Neugebauer, and J. Frank Keohane
The Minister for Finance


Permanent TSB Plc (Formerly Irish Life and Permanent Plc)
Notice Party

[2022] IECA 285

Haughton J.

Binchy J.

Pilkington J.

Record Numbers: [C.A. Nos. 871, 872, 873 and 874 of 2014]

High Court Record Number: [2012 No. 116 MCA]




Practice & procedure – Judgment – Locus standi of appellants under Credit Institutions (Stabilisation) Act 2010 – Application to revise judgment

Facts: The Court in an earlier ruling had dismissed the appeal from a decision of the High Court that the appellants did not have locus standi under the Credit Institutions (Stabilisation) Act 2010, and that the substantive arguments before it did not require determination. A number of appellants now applied for the Court to review and revise its earlier judgment.

Held by the Court, that it would consider the application on a preliminary basis on the papers, and only give further consideration if it held a further hearing was required on the merits. Having done so, the Court was not persuaded that any of the submissions put forward met the high threshold for review and revision of the earlier judgment. The application would therefore be refused.

RULING OF THE COURT delivered electronically on the 13th day of December, 2022


The Court heard this appeal over two days on 10 and 11 November 2020, and judgment was delivered electronically on 8 November 2022 (Haughton J., nem. diss.) (“the Judgment”) dismissing the appeal. All questions of costs (in the High Court, and in this Court) remain to be addressed, and for that reason no order has yet been drawn or perfected. This ruling is not part of the Judgment, but should be read with it, and nomenclature and abbreviations used in the judgment are adopted here.


In the Judgment at para.209 the Court affirmed the decision of the trial judge (Peart J.) that the appellants do not have locus standi under s.11(1) of the Credit Institutions (Stabilisation) Act, 2010 (as amended) to apply to the High Court to set aside the March Direction Order, which was an order directing the sale by ILP of its life assurance business Irish Life to the Minister for €1.3 million, such sale to be completed on or before 30 June 2012. The Court did not therefore consider it necessary or appropriate to consider or determine the substantive arguments. Haughton J. concludes “…I would dismiss the appeals”, and Binchy and Pilkington JJ. concurred with that order.


By notice of motion issued on 24 November 2022 by three of the appellants namely Piotr Skoczylas, Tibor Neugebauer and John Paul McGann (“the applicants”), the following three reliefs are now sought:

“1. An Order to vary or set aside/rescind the judgment of this Court delivered on 8 November 2022 and any order reflecting that judgment, pursuant to the jurisdiction identified in Re Greendale Developments Ltd (No.3) [2000] 2 I.R. 514 and reflected in other judgments; and

2. Without prejudice to the foregoing, an order to correct material and decisive errors in said judgment, pursuant to jurisdiction referred to in in, inter alia, Nash v. DPP [2017] IESC 51 and Bailey v Commissioner of An Garda Síochána [2018] IECA 63; or

3. In the alternative to the above, and without prejudice to any of the foregoing, an order to stay these proceedings and to stay any order in this case, pending the conclusion of the ongoing cases rec. no. 2013/2708P and 2013/2709P (the “constitutional proceedings”) in respect of the inconsistency of the Credit Institutions (Stabilisation) Act 2010 (the “2010 Act”) with the Constitution and the incompatibility of the 2010 Act with EU law and the ECHR;…”

The first two reliefs will be referred to for convenience as “the review application”. The motion is grounded on an affidavit sworn by Piotr Skoczylas on 24 November 2022, and the exhibits to that affidavit.


The jurisprudence set out later in this ruling demonstrates that the jurisdiction of a court to review its own decision is an exceptional one. It also indicates that a court asked to review its own decision may consider the papers and make a preliminary ruling on such an application. In Nash v. D.P.P. [2017] IESC 51 O'Donnell J., referring to the decision of the Supreme Court in D.P.P. v McKevitt [2009] IESC 29, stated:

“12. Important guidance as to the exercise of this jurisdiction was given by this Court in DPP v McKevitt [2009] IESC 29. There, Murray CJ (Denham, Hardiman, Geoghegan and Fennelly JJ concurring) delivered a ruling on an application to set aside the decision of the Court which had dismissed an appeal pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) on the grounds of an alleged error of fact in the judgment. The ruling referred to the explicit provisions of Art. 34.4.6, observing that when a party seeks to set aside a final decision of this Court a preliminary question always arises as to whether the court has jurisdiction even to entertain such an application. Two important factors had to be addressed in considering whether to re-open a decision which had been delivered:

“Firstly the application must patently and substantively concern an issue of constitutional justice other than the 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 consistent with the onus of proof on an applicant.”

13. The jurisdiction therefore was aptly described as a “potential jurisdiction” (emphasis in original) to be exercised only in exceptional circumstances and an applicant was obliged to show cogent and substantive grounds which are objectively sufficient to enable the court to enter upon the exercise of wholly exceptional jurisdiction. In the circumstances of that case, the Court considered the error complained of, which had originated in the submissions made on behalf of the DPP but had not been identified or brought to the attention of the Court on behalf of the applicant, was in any event not central to, or indeed, necessary for the determination of the particular issue in the case. Accordingly, the Court did not consider it necessary to hear submissions from either party and refused the application. This decision illustrates, therefore, that the existence of the Greendale jurisdiction, exceptional as it is, does not subtract from the constitutional importance of Art. 34.4.6, and if a court concludes at any stage that the case is one captured by that Article, then it must dismiss the application since to proceed further would arguably involve a separate breach of the provisions of the Article. The basic rule established by the Constitution is that justice itself requires that there be an end point to all disputes.”


The preliminary question that therefore arises on applications such as the present one is whether it should be entertained or should be dismissed on the basis of the finality of the order/decision. Practice Direction SC17 governs the procedure to be followed in all review applications before the Supreme Court, and provides that an intending applicant must lodge a notice of motion, grounded on affidavit, and provides (para.2) that the papers will then be considered either by a single judge or a panel of three whose function is to decide whether a hearing on the merits is justified (para.3). If satisfied that such a hearing is justified, service of the papers and other directions may follow; if not so satisfied the application is refused.


Although there is no applicable rule or practice direction in this Court, the practice has been for the same panel of judges that heard an appeal and delivered judgment(s) to consider applications for review ‘on the papers’, whether those papers are a simple written request for review or a more elaborate motion. Although this has not been the invariable practice of the Court, it is the appropriate one to adopt in the present application.


Accordingly having regard to the foregoing, and to the principle of finality of judgments, and the jurisprudence on review of judgments referred to later in this ruling, the Court has decided to follow a similar procedure in this instance. Procedurally the Court has decided that it should give preliminary consideration to the application ‘on the papers’ and in its own terms, and determine whether it meets the threshold for review, and whether a hearing on the merits is justified. Only if it does meet that threshold will the Court issue directions as to further affidavits and legal submissions.


In taking this approach the Court has also taken into account an email sent by Mr. Skoczylas to the Court of Appeal Office on 8 December 2022 in which he objected to the Court addressing the motion without giving the parties an opportunity to make submissions, and holding an oral hearing, which he submitted would be a denial of constitutional justice. He suggested that the Court's approach “is untethered from the fundamental principles of an adversarial hearing and a fair trial”, and contrary to the right to a fair trial protected by Article 6.1 of the European Convention on Human Rights, and contrary to the practice of this Court in other applications for review. The Court was advised by Costello J. that this request and submission was repeated by Mr. Skoczylas when this motion was...

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2 cases
  • Kirwan v Marguerite Connors and Others
    • Ireland
    • Court of Appeal (Ireland)
    • 18 May 2023
    ...of Appeal 22 . The case law outlined above has been reviewed, in detail, by this Court in Dowling and Others v. Minister for Finance [2022] IECA 285 (‘ Dowling’). As noted above (at para. 11), this Court, when exercising a Greendale type jurisdiction, applies the same principles as those ap......
  • Allied Irish Banks, Plc v Fitzgerald
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    • Court of Appeal (Ireland)
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    ...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 w......

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