Kirwan v Marguerite Connors and Others
| Jurisdiction | Ireland |
| Judge | Woulfe J.,Power J.,Binchy J. |
| Judgment Date | 18 May 2023 |
| Neutral Citation | [2023] IECA 120 |
| Docket Number | Record Number: 2019/486 Record Number: 2020/14 High Court No. 2013/5514P Record Number: 2019/485 High Court No. 2012/2995S |
| Court | Court of Appeal (Ireland) |
[2023] IECA 120
Woulfe J.
Power J.
Binchy J.
Record Number: 2019/486
High Court No. 2013/5514P
Record Number: 2020/14
High Court No. 2013/5514P
Record Number: 2019/485
High Court No. 2012/2995S
THE COURT OF APPEAL
CIVIL
Delivered on the 18 th day of May 2023
. Three appeals in the above matters were heard before this Court on 1 July 2021. The appellant (hereinafter ‘Mr Kirwan’) was represented in each appeal by a firm of solicitors (no longer on record) and by counsel. The first or ‘core’ appeal (2019/486) was in respect of an order made by the High Court on 23 October 2019 striking out proceedings on the grounds of inordinate and inexcusable delay. Those proceedings, instituted in 2013, concerned a disputed property agreement between Mr Kirwan and Mr Buttle which dated back to 2006. In that action, Mr Kirwan sued several persons, including, Mr Buttle, and the firm of solicitors that had been on record for both parties to the agreement. The second appeal concerned amendments made to a High Court order under the ‘slip rule’ and the third appeal was in respect of a consequential order made by the High Court striking out a separate set of proceedings which Mr Kirwan instituted in 2012 on the grounds of being frivolous or vexatious and/or bound to fail.
. On 26 October 2022, this Court delivered judgment in respect of the appeals (hereinafter ‘the Judgment’). All three appeals were dismissed. This Court held that the High Court (Meenan J.) had not erred in its judgment of 2 September 2019 wherein it struck out the 2013 proceedings on the grounds of inordinate and inexcusable delay. It was also satisfied that the High Court had not erred in permitting amendments to be made under the ‘slip rule’ to orders made on foot of its ruling so as to reflect, more accurately, the decision handed down by the court below. This Court was further satisfied that the High Court had not erred in making a consequential order striking out a separate set of proceedings instituted by Mr Kirwan in 2012 in the light of the judgment delivered in respect of the 2013 proceedings.
. It was noted in the Judgment that Mr Buttle had assigned his rights under the disputed property agreement to Filbeck Limited (‘Filbeck’). That company had secured judgment against Mr Kirwan in proceedings it had instituted in 2011 (‘the 2011 creditor action’). Mr Kirwan sought to set aside that judgment and his motion in this regard was adjourned, generally, to the hearing of the 2013 proceedings. Following the High Court's judgment in the 2013 proceedings, Meenan J. directed that Filbeck be at liberty to re-enter Mr Kirwan's motion to set aside the judgment in the 2011 creditor action. That motion was then refused, and an order was made on 23 October 2019 granting liberty to Filbeck to execute the judgment it had obtained. That order was not appealed by Mr Kirwan (see paras. 12 to 16 and para. 257 of the Judgment).
. After Judgment was delivered in these appeals, a hearing on costs was held before this Court on 13 December 2022. Having considered the parties' written and oral submissions, the provisional view of the Court (as indicated at para. 259 of its Judgment), that an order for costs in favour of the respondents should be made, was affirmed.
. Final orders made by this Court in respect of the above appeals were perfected on 23 December 2022.
. Meanwhile, and following delivery of the Judgment in these appeals, Mr Kirwan had issued a Notice of Motion on 7 December 2022 seeking an order setting aside that Judgment or, in the alternative, an order correcting the alleged errors and omissions contained therein, errors which, in Mr Kirwan's view, are based upon this Court's acceptance of the ‘ false narrative’ of the Buttle respondents. The application, which, essentially, asks this Court to review its own Judgment and to grant several reliefs on foot of such review, is grounded upon an affidavit of 7 December 2022 sworn not by the appellant but by his son, Mr Barry Kirwan.
. At the outset, the Court observes that Mr Barry Kirwan has neither sought nor obtained the permission of the Court to swear the grounding affidavit on his father's behalf in this application for review. Although the deponent describes himself as the ‘ Guardian and Next Friend’ of the appellant, no such status has ever been granted to him and there is no evidence whatsoever of any legal incapacity on the part of the appellant, himself. Barry Kirwan was permitted by the trial judge in the High Court only to speak on his father's behalf because of the appellant's dyslexia. No reason has been put before this Court as to why Barry Kirwan's testimony in respect of events in 2006 in which his father was involved, should be accepted by this Court in place of the appellant's own sworn testimony. Nor is there any reason offered as to why the content of the grounding affidavit could not have been dictated by the appellant, Brendan Kirwan, and his signature thereto then witnessed in the usual manner. The appellant's failure to swear the affidavit grounding his application for review is a serious deficiency therein. Nevertheless, with that obvious defect noted, the Court will proceed to consider the application.
. In his application for review, Mr Kirwan contends that his constitutional rights have been breached and that his allegations of fraud, forgery and perjury arising from and/or in connection with the disputed property transaction and the litigation that followed, have not been addressed by this Court. He claims that several motions that he filed in the High Court and the Court of Appeal have not been heard. In his view, ‘ [t]he only logical conclusion’ as to why this occurred, is that some of the respondents interfered with booklets that he filed in the Court of Appeal Office and/or have succeeded in removing certain documents from the said booklets. He says that ‘ proof’ of the fraudulent matters of which he complains was contained in those booklets. He claims that this ‘ interference’ with the files was addressed by him in what he contends was a ‘ filed but unheard motion of 18th May 2021’.
. The principle of finality of decisions is an important constitutional guarantee. That guarantee is set out in Article 34.5.6° of the Constitution 1 which provides that:
‘ The decision of the Supreme Court shall in all cases be final and conclusive.’
The public interest in the finality of proceedings at appellate level has been described as one of ‘ fundamental importance to the certainty of the administration of law’ ( per Hamilton C.J. in Re Greendale Developments Limited (No. 3) [2000] 2 IR 514 (‘ Greendale’) (at p. 528)).
. With the coming into effect of the Thirty-Third Amendment of the Constitution ( Court of Appeal) Act, 2013, decisions of the Court of Appeal also enjoy finality, subject only to the right of appeal to the Supreme Court. In this regard, Article 34.4.3° of the Constitution provides that:
‘ The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.’
The ‘saver’ in question refers to Article 34.5.3°, which provides that the Supreme Court, ‘ subject to such regulations as may be prescribed by law’, has appellate jurisdiction from decisions of this Court if it is satisfied that the decision ‘ involves a matter of general public importance’ or that such an appeal is necessary ‘ in the interests of justice’. This means, in effect, that, unless a case meets the specified constitutional threshold, the reality is that a decision of this Court ‘ may be final and conclusive’ on disputes and litigation between parties (see Bailey v. Commissioner of An Garda Síochána [2018] IECA 63, at para. 30).
. Since 15 February 2023, there is now in force in the Court of Appeal, a Practice Direction in respect of applications for review, namely, CA14. It specifically provides that applications to set aside a judgment on the grounds that it was obtained by fraud, should be brought by way of plenary proceedings. 2 Whilst, of necessity, CA14 differs from the Supreme Court's Practice Direction in this area (SC17), it is, nevertheless, inspired by the same principles and a similar practice. Practice Direction CA14 sets out the approach of this Court to applications such as the one now brought by Mr Kirwan. Paragraph 1 of section A directs applicants to lodge papers. Paragraph 2 provides that, unless the President of the Court directs otherwise, the application will be considered by the panel which heard the appeal. Paragraph 3, in the relevant part, states that:
“ The panel of judges referred to in paragraph 2 shall determine on the papers referred to in paragraph 1 … whether or not, having regard to the principles referred to in the relevant case-law including the case-law referred to in the recitals to this practice direction, the application intended to be made is one in respect of which a...
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Allied Irish Banks, Plc v Fitzgerald
...Developments Limited (No. 3) [2000] 2 IR 514. Recent decisions 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 thresho......