Launceston Property Finance Dac v Wright

• Jurisdiction: Ireland
• Judge: Irvine J.,McCarthy J.,Costello J.
• Judgment Date: 03 June 2020
• Neutral Citation: [2020] IECA 146
• Date: 03 June 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2017/480 [2017 101 Com]

BETWEEN/

LAUNCESTON PROPERTY FINANCE

DESIGNATED ACTIVITY COMPANY

PLAINTIFF/RESPONDENT

-AND-

DAVID WRIGHT

DEFENDANT/APPELLANT

[2020] IECA 146

Irvine J.

McCarthy J.

Costello J.

Record Number: 2017/480

High Court Record No. 2017/494S

[2017 101 Com]

THE COURT OF APPEAL

CIVIL

JUDGMENT of the Court delivered on the 3 ^rd day of June 2020

Introduction

1 On the 18 ^th of December, 2019, Mr. Justice McCarthy gave judgment on the appellant's (Mr. Wright) appeal against the judgment of Kelly P. of the 5 ^th October, 2017 with which Irvine and Costello JJ. agreed. The Court affirmed the judgment of the High Court which granted the respondent summary judgment in the sum of €1,742,842.27 and remitted the balance of the claim to plenary hearing. This supplemental judgment must be read with that of the 18 ^th December, 2019 (“the substantive judgment”). By motion of the 20 ^th January, 2020, Mr. Wright has sought to “review” the substantive judgment and this judgment deals with that motion

The Jurisdiction to Review a Judgment of the Court

2 The jurisdiction to review or set aside a judgment now invoked is an exceptional one. Judgments are otherwise final (subject, in the case of this court, to the acceptance by the Supreme Court of an application for leave to appeal to it).

3 This jurisdiction to revisit an earlier decision was first recognised by Denham J. in the decision of the Supreme Court in Greendale Developments Limited (No. 3) [2000] 2 I.R. 514, where, at p. 44 she said:-

“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”

4 Subsequently, in DPP v. McKevitt [2009] IESC 29, the Supreme Court held that:-

“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.” (emphasis added).

5 This Court also addressed the scope of the jurisdiction in Friends First Managed Pension Funds Limited v. Paul Smithwick [2019] IECA 197 whereby Whelan J. said:-

“15. The court retains a power to vary or reverse its decision at any time until the order consequential upon its judgment has been perfected. The power to review is to be exercised in accordance with the overriding objectives of the Constitution. It is incumbent on the parties to assist the court in ensuring that the matter is dealt with justly and at a proportionate cost.

16. Implicit in the jurisprudence is the importance of proportionality and finality. The exceptional jurisdiction is not an invitation to litigants who are dissatisfied with the outcome of an appeal hearing to apply to the court to review its determination so that a variation or a revocation of the judgment can take effect. In particular, the jurisdiction cannot appropriately be used as a vehicle to present further other or new arguments after judgment on material that was before the court which could have been deployed or availed of at the original appeal hearing for the proposition later advanced.” (emphasis added).

6 In Bailey v. The Commissioner of An Garda Síochána [2018] IECA 63, the Court of Appeal emphasised that only a fundamental error which has a significance or a consequence for the result could amount to a denial of justice within the meaning of the case law on this issue (emphasis added). Further, the Supreme Court in Tassan Din v. Banco Ambrossiano S.P.A [1991]1 I.R. 569, held that the discovery of new evidence, even if it would have affected the result if available at the time of the original hearing, is not a basis for setting aside a final order or judgment. This statement of principle was reaffirmed as being undoubtedly the law in Kenny v. Trinity College Dublin [2008] 2 I.R. 40 by Fennelly J. speaking for the Supreme Court.

7 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.

The Jurisdiction to Grant Summary Judgment in Respect of Part of the Sum Claimed

8 In The recent decision of the Supreme Court Bank of Ireland Mortgage Bank v. O'Malley [2019] IESC 84, the Chief Justice addressed the common practice of entering summary judgment in respect of part of the sum claimed while adjourning the balance of the proceedings to plenary hearing. The court does so where it is satisfied that the defendant has established an arguable defence to part only of the claim and therefore adjourns to plenary hearing that portion of the claim in respect of which the defendant has raised an issue for trial The Chief Justice held (at para. 6.10) that:-

“… Where there is prima facie evidence of the precise amount said to be due but where the defendant puts forward an arguable case which could only go so far as providing a defence to a portion of the claim … it is common practice for a court to award judgment for a lesser sum than that claimed, reflecting the outer extent of any possible defence. The analysis which leads to such a result does not depend on any failure of the plaintiff to have put forward prima facie evidence of an entitlement to a specific sum but rather stems from the possibility that a defence might successfully be mounted, although the extent of that defence may not be absolutely clear.” (emphasis added).

The Issues Raised by Mr. Wright

9 The following issues were raised by Mr. Wright which he said engaged this wholly exceptional jurisdiction of the Court to review a final judgment:-

(i) He submits that certain “additional” legal submissions were not dealt with in the substantive judgment, consisting of criticisms of the manner in which the trial judge conducted the hearing, the calculation of interest, a supposed failure to “deal adequately with the material presented” and that he acted outside jurisdiction;

(ii) He complains that the court did not abide by an assurance by the members of the court that, if he did not address a point in his oral submissions, that all of his written submissions would be considered by the court, as all of his points were not expressly addressed in the substantive judgment;

(iii) He says the court breached the principle of audi alteram partem;

(iv) He submits that the court ought to have applied the standard of proof applicable in criminal proceedings rather than which applies in civil claims;

(v) He submits that the court erred in determining that certain documents (referred to in paragraphs 9 and 10 of the substantive judgment) had been furnished by or on behalf of Launceston when, according to Mr. Wright, they were not;

(vi) He refers to a report of an Oireachtas Committee to support his argument that the judgment sum is incorrect and that his appeal ought to have been allowed;

(vii) He says that the trial judge was incorrect...