Lyons v Delaney

JurisdictionIreland
Judgethe President
Judgment Date15 December 2016
Neutral Citation[2016] IECA 393
Date15 December 2016
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2016] IECA 393 [2015 No. 589]

[2016] IECA 393

THE COURT OF APPEAL

Ryan P.

The President

Peart J.

Mahon J.

Neutral Citation Number: [2016] IECA 393

[2015 No. 589]

BETWEEN
MARGARET LYONS
PLAINTIFF
AND
JOHN DELANEY, ANTHONY LOCKE, PATRICK THORPE

AND

DELANEY LOCKE

AND

THORPE (A FIRM)
DEFENDANTS/APPELLANTS
AND
CATHAL O'SULLIVAN

AND

PARAIC O'KENNEDY PRACTISING UNDER THE STYLE AND TITLE OF O'SULLIVAN & ASSOCIATES
THIRD PARTIES

Third party notice – Interlocutory judgment – Fresh evidence – Appellant seeking to adduce fresh evidence – Whether appellant was entitled to adduce fresh evidence

Facts: The plaintiff, Ms Lyons, issued proceedings against the defendants/appellants, Delaney Locke and Thorpe, a firm of accountants, arising out of a dispute concerning an investment property. The appellants joined Mr O'Sullivan and Mr O'Kennedy, partners in O'Sullivan & Associates Solicitors as third parties in order to claim contribution or indemnity from them in the event of the plaintiff succeeding in her claim against the defendants. The respondent (the second named third party, Mr O'Kennedy) applied to the High Court to set aside the third party notice issued against him. Binchy J set aside the third party notice because of a 5-month delay by the appellants in delivering their files to their solicitors. The defendants issued a notice of expedited appeal to the Court of Appeal but the respondent contended that the appeal ought to have been brought as an ordinary appeal. The third party submitted that the decision under appeal was a final judgment or order, not an interlocutory one, and that special leave is needed for any new evidence. The parties were agreed that the most relevant authority was the decision of the Supreme Court in Minister for Agriculture v Alte Leipzinger [2000] 4 IR 32. The defendants/appellants submitted that Minister for Agriculture v Alte Leipziger was supportive of their case. The appellants argued that the third party issue in this case was quite different from the determination of a jurisdictional issue in the sphere of conflict of laws, which was the case in Minister for Agriculture v Alte Leipziger.

Held by Ryan P that the issue for the Court was whether the order made by Binchy J was an interlocutory judgment or order within the meaning of the rule such that the appellants/defendants were entitled to adduce fresh evidence on the appeal without getting special leave from the court. Ryan P held that the principle enunciated by the majority in Minister for Agriculture v Alte Leipziger was applicable to this case, even though the motions were different. It also seemed to Ryan P that this position was in accordance with procedural justice, a view that was reinforced by the approach adopted by Finlay CJ in what he acknowledged was an interlocutory appeal.

Ryan P held that the appellant was not entitled to adduce fresh evidence on the appeal but could only do so with special leave of the court.

Preliminary issue.

JUDGMENT of the President delivered on 15th December 2016
Introduction
1

The plaintiff, Margaret Lyons, issued proceedings against the defendants/appellants, a firm of accountants, arising out of a dispute concerning an investment property. The appellants joined Cathal O'Sullivan and Paraic O'Kennedy, partners in O'Sullivan & Associates Solicitors as third parties in order to claim contribution or indemnity from them in the event of the plaintiff succeeding in her claim against the defendants. The respondent (the second named third party, Mr. O'Kennedy) applied to the High Court to set aside the third party notice issued against him. As appears from the judgment, Binchy J. set aside the third party notice because of a 5-month delay by the appellants in delivering their files to their solicitors. The defendants issued a notice of expedited appeal but the respondent contended that the appeal ought to have been brought as an ordinary appeal. The necessity for adjudication of this issue arises because the appellants wish to adduce evidence on the appeal, further clarifying the activity which occurred during the 5-month period.

2

The appeal requires consideration of the meaning and effect of O. 86A, r. 4(b) of the Rules of the Superior Courts which is as follows.

'4. Subject to the provisions of the Constitution and of statute—

(b) further evidence may be given without special leave on any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

3

If the order made by Binchy J. comes within this rule, the defendants do not need leave to give further evidence. The order in question is the decision of Binchy J. in the High Court to strike out the third party notice served by the defendants. The third party submits that the decision under appeal is a final judgment or order, not an interlocutory one, and that special leave is needed for any new evidence. There is not a precedent directly in point, but the parties are agreed that the most relevant authority is the decision of the Supreme Court in Minister for Agriculture v. Alte Leipzinger [2000] 4 I.R. 32. The issue for the court is whether the order made by Binchy J. was an interlocutory judgment or order within the meaning of the rule such that the appellants/defendants are entitled to adduce fresh evidence on the appeal without getting special leave from the court.

Submissions
4

The defendants/appellants submit that the Supreme Court decision in Minister for Agriculture v. Alte Leipziger is supportive of their case. They rely particularly on the following passages from the judgment of Barron J. at p. 44 of the judgment:

'In my view, an interlocutory application is one which is purely procedural in nature and an interlocutory order is an order made on foot of an interlocutory application, whereas a final order would normally dispose of the action of proceedings. The order in the instant case does not readily fall into either category.

It is an order which disposes finally, subject to appeal, of a substantive right collateral to the main issue in the proceedings. On the other hand a final order determines the rights of the parties in relation to the subject matter of the proceedings, while an interlocutory order determines the rights of the parties in the context of the proceedings as a whole. In the case of a motion to dismiss for failure to plead a cause of action or for want of prosecution, no rights are being finally determined. The order either determines that there is nothing to be litigated or that the right to have a matter litigated has been forfeited.

In the present instance, the right which has been affected by the order is the right of the defendant to object to the jurisdiction of the Court. It is not an order which deals with the merits of the cause of action, but neither is it an order made in the context of that cause of action. An interlocutory order is an order made on an application which in effect prepares the way for the final hearing which I believe to be the view of the English Court of Appeal in White v. Brunton [1984] QB 570. The present order has no such effect. It is much more of the nature of a final order than of an interlocutory one.'

The defendants submit on the basis of this passage that in the instant case no rights were finally determined but the High Court instead decided that the right to have the matter litigated was forfeited by reason of the 5-month delay. It follows on this argument that the order is interlocutory in nature.

5

Barron J. provided two examples of motions which were interlocutory in nature, one of which was a motion to dismiss for want of prosecution which the defendants submit is a species of application to dismiss for delay. This is what Barron J. was referring to when he said that the order on such a motion determined that the right to have the matter litigated had been forfeited.

6

All of the judgments in Minister for Agriculture v. Alte Leipziger refer to the Supreme Court case of Toal v. Duignan (No. 2) [1991] ILRM 140, which was an appeal against a refusal to dismiss for want of prosecution in a medical negligence action. Finlay C.J. held that the order in that case was interlocutory in nature. The defendants submit that it is...

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    ...that that the test is not determined by whether or not the order made will finally dispose of the case. 11 In Lyons v. Delaney & Ors. [2016] IECA 393 Ryan P. delivered the judgment of this Court in which a detailed analysis was made of the Alte Leipziger case and the distinction between in......

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