Kennedy v Harrahill, [2013] IESC 26 (2013)

Docket Number:029/2011
Judge:Denham C.J.
 
FREE EXCERPT

THE SUPREME COURT

Appeal No. 29/2011

Denham C.J.

Fennelly J.

O’Donnell J.

Between/

Thomas KennedyPlaintiff/Appellant

and

Owen HarrahillDefendant/Respondent

Judgment of Denham C.J. delivered on the 12th day of June, 2013

  1. Thomas Kennedy, the plaintiff/appellant, referred to as “the appellant”, brought an appeal from the judgment and order of the High Court (McKechnie J.) given on the 11th June, 2010, made on the 10th December, 2010, and perfected on the 5th January, 2011, whereby the learned trial judge dismissed the appellant’s claim that he was the owner of specified lands.

    Motion on 18th May, 2012

  2. On the 18th May, 2012, Owen Harrahill, the defendant/respondent, referred to as “the respondent”, moved a motion to strike out the notice of appeal of the appellant on the basis of the absence of any grounds to the appeal, and/or the appeal being an abuse of process, disclosing no reasonable cause of action, being frivolous and/or vexatious, and/or without any lawful cause or excuse. In addition, a ground was advanced that the books of appeal had not been filed without delay.

    Supreme Court Order on 18th May, 2012

  3. On the 18th May, 2012, the Supreme Court (Hardiman, Clarke, MacMenamin JJ.), having heard the appellant in person and counsel for the respondent, granted the respondent’s motion that the appellant’s appeal be struck out as it disclosed no stateable cause of action, affirmed the order of the High Court, and ordered that the appellant pay to the respondent his costs.

    Motion to set aside Supreme Court Order

  4. The appellant has brought a notice of motion seeking an order pursuant to the inherent jurisdiction of the Supreme Court to set aside a final order of the Court, being the order recited above of the 18th May, 2012. It is claimed that this was being done:-

    “[S]o as to protect my constitutional rights and justice and to allow the appeal to proceed so that the real issues of the case can be argued when the books of appeal are lodged in the Supreme Court Office”.

  5. In an affidavit deposed on the 16th July, 2012, the appellant set out the events before the Supreme Court on the 18th May, 2012; and his reasons why he should be allowed to proceed with his appeal.

  6. The appellant described the hearing before the Supreme Court. When this matter came before the Supreme Court on the 18th May, 2012, the respondent argued that the notice of appeal contained no grounds for an appeal. The Court asked the appellant to point to grounds of appeal. The appellant sought liberty to amend the notice of appeal, and the Court indicated that it would grant leave to amend the notice of appeal but with the condition that the appellant articulate the grounds to the Court. The appellant did not provide grounds. A son of the appellant, who was assisting the appellant, accepted that there were no grounds of appeal. The appellant then sought time to obtain legal advice, and he asked for an adjournment. The Court said it was late to be seeking legal advice on the motion. Some time was granted, but the appellant failed to provide any grounds for appeal. The Court rose to consider the matter and then struck out the appellant’s notice of appeal.

    Motion on 11th April, 2013

  7. On the 11th April, 2013, this Court heard the appellant on his motion to set aside the final order of the Supreme Court made on the 18th May, 2012. The Court also heard counsel on behalf of the respondent, who opposed the motion.

    Setting Aside an Order of the Supreme Court

  8. The issue in this case is whether the order of the Supreme Court of the 18th May, 2012, should be set aside; and whether the circumstances of the case meet the established criteria for such an order.

  9. This Court has considered the issue of setting aside one of its orders in several cases including Greendale...

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