Kehoe and Another v Promontoria (Aran) Ltd and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Butler
• Judgment Date: 12 May 2023
• Neutral Citation: [2023] IECA 116
• Docket Number: Appeal Number: 2021/181 & 2022/7
• Court: Court of Appeal (Ireland)

Between/

Declan Kehoe and Una Kehoe

Plaintiffs/Appellants

and

Promontoria (Aran) Limited and Ken Fennell

Defendants/Respondents

[2023] IECA 116

Costello J.

Faherty J.

Butler J.

Appeal Number: 2021/181 & 2022/7

High Court Record Number: 2018/2431P

THE COURT OF APPEAL

Practice & procedure – Practice Direction 14 – Leave for motion to rescind or vary judgment – Art 34 Constitution

Facts: The Court had given judgment in this matter in an earlier hearing [2023] IECA 72, refusing hearing. The appellants now applied under Practice Direction 14 for leave to issue for motion to rescind or vary that earlier judgment.

Held by the Court, that the application would be refused. Having considered Article 34 of the Constitution and the provisions of Practice Direction 14, the Court was not persuaded that a hearing on the merits of the application was justified.

UNAPPROVED

RULING of Ms. Justice Butler delivered on the 12th day of May, 2023

Introduction

1 . The Court gave judgment in this appeal on 30 March 2023 [2023] IECA 72 refusing the appeal. The Order dismissing the appeal was perfected on 9 May 2023.

2 . By a notice of motion dated 24 April 2023 the appellants applied pursuant to Practice Direction 14 (“PD 14”) for leave to issue a motion for an order to rescind or vary the judgment of the Court.

The Jurisdiction

3 . Article 34.4. 3 of the Constitution provides

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

4 . The Article provides for appeals to the Supreme Court in limited circumstances. In a case which does not satisfy the threshold requirements for leave to appeal to the Supreme Court, the decision of the Court of Appeal is final and conclusive.

5 . There is a truly exceptional jurisdiction for the Court to review its final and conclusive decision. The intending applicant bears a very heavy onus of establishing that the order or judgment made operates to deny the applicant justice and clearly breaches the intending applicant's constitutional rights ( In the Matter of Greendale Developments Ltd. (in Liquidation) [2000] 2 IR 514)

6 . “ In summary, the jurisdiction:-

• (i) is wholly exceptional;

• (ii) it must engage an issue of constitutional justice;

• (iii) requires the applicant to discharge a very heavy onus;

• (iv) is not for the purpose of revisiting the merits of the decision;

• (v) alleged errors which have no consequence for the result do not meet the required threshold;

• (vi) cannot be invoked on the basis of the discovery of new evidence;

• (vii) requires the applicant objectively to demonstrate that there is a fundamental issue concerning a denial of justice, by which is meant some error which is so fundamental as to have an effect on result;

• (viii) cannot be used as a species of appeal where a party seeks to address, critically or otherwise, the judgment;

• (ix) is to be distinguished from the application of the Slip Rule in respect of errors of fact which have no bearing on the outcome.

( Launceston Property Finance DAC v Wright [2020] IECA 146 para. 7)

7 . In accordance with the provisions of PD 14 the panel of judges who heard the appeal and delivered judgment have considered the...