Greenwich Project Holdings Ltd v Con Cronin

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 03 March 2021
• Neutral Citation: [2021] IEHC 145
• Docket Number: RECORD NUMBER: 2014/7709P
• Court: High Court
• Date: 03 March 2021

Between

Greenwich Project Holdings Limited

Plaintiff

and

Con Cronin

Defendant

[2021] IEHC 145

RECORD NUMBER: 2014/7709P

THE HIGH COURT

Application to re-open proceedings – Costs – Stay – Plaintiff seeking to re-open proceedings – Whether the proceedings should be struck out

Facts: The plaintiff, Greenwich Project Holdings Ltd, applied to the High Court asking Hyland J to revisit her judgment ([2021] IEHC 33), having regard to correspondence that was not opened to her at the hearing but was exhibited to a motion brought on 7 September 2018 by the defendant, Mr Cronin, to vacate the lis pendens the plaintiff had registered on the property the subject of the proceedings. On 26 November 2018, Cross J granted the relief sought and vacated the lis pendens.

Held by Hyland J that, having applied Re McInerney Homes Ltd [2011] IEHC 25, she would refuse the application to re-open the proceedings because that correspondence simply confirmed a factual position that she had already averted to in the judgment; therefore, its introduction would simply confirm existing findings and could have no influence on the result of the case.

Hyland J held that the proceedings were to be struck out. Given the defendant had been wholly successful in its motion to strike out the proceedings, Hyland J held that the defendant was entitled to an order that the plaintiff bear the costs of the proceedings, to include reserved costs, the costs of the motion to strike out, and the costs of the application to re-open, to be adjudicated upon in default of agreement. Hyland J placed a stay on the entirety of the order for four weeks from the date of perfection of the order, to allow the plaintiff an opportunity to bring any appeal and apply to the Court of Appeal to extend the stay pending a determination of the appeal.

Application refused. Costs awarded to defendant.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 3 March 2021

Application that judgment of 20 January 2021 be revisited

1 The applicant asks me to revisit my judgment ( Greenwich Project Holdings Ltd. v. Cronin [2021] IEHC 33), having regard to correspondence that was not opened to me at the hearing but was exhibited to a motion brought on 7 September 2018 by the defendant to vacate the lis pendens the plaintiff had registered on the property the subject of these proceedings. On 26 November 2018, Cross J. granted the relief sought and vacated the lis pendens.

2 I refuse the application because that correspondence simply confirms a factual position that I had already averted to in the judgment. Therefore, its introduction would simply confirm existing findings and could have no influence on the result of the case.

McInerney Homes

3 In support of its application that I revisit my judgment, the plaintiff relies upon the decision in Re McInerney Homes Ltd. [2011] IEHC 25 where Clarke J. agreed to revisit a decision he had made refusing to confirm a scheme of arrangement in circumstances where, after the written judgment but before the Order had been made, a very significant change occurred, whereby the interest of two members of the banking syndicate in the loans advanced to McInerney were to be transferred to NAMA. This would have had the result that the long-term receivership model put forward by the banking syndicate, who had objected to the scheme of arrangement in favour of the receivership, would not in fact be put in place.

4 Clarke J. identified that, when such an application is made, the court must decide if there are strong reasons for so doing. He said it would be a recipe for procedural chaos if a party were entitled to seek to introduce new evidence or arguments simply because the relevant matters were not advanced during the hearing. Where such material was sought to be advanced the court must consider whether the new materials were such as would probably have an important influence on the result of the case, even if not decisive, and were credible. In addition, such new evidence would not ordinarily be permitted to be relied upon if the relevant evidence could with reasonable diligence have been put before the court at the trial.

5 On the facts of the case, Clarke J. identified that the new material, had it been put before the court, would potentially have been a highly material factor in the court's consideration. He concluded that both McInerney and the banking syndicate bore some responsibility for the fact that the material was not before the court. He concluded that in all the circumstances the balance of justice required that the matter be reopened.

Application of McInerney principles

6 In this case, it is said that the findings at paragraphs 26–31 of the judgment that the plaintiff only raised the issue of planning permission/special condition 5 and its connection to the proceedings in 2020 is incorrect, given that those matters were raised in 2014 by the plaintiff, in particular the obligation to close an opening in the adjoining property set out in special condition 5 and the planning permission position in respect thereof.

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