Nash v DPP

JudgeMr. Justice Clarke,O'Donnell J,Mr Justice Charleton
Judgment Date13 July 2017
Neutral Citation[2017] IESC 51
Date13 July 2017
CourtSupreme Court
Docket NumberRecord number: 2010/35JR Cross appeal number: 24/2013
Mark Nash
The Director of Public Prosecutions

[2017] IESC 51

Charleton J.

Denham CJ

O'Donnell Donal J

Clarke J

Dunne J

Charleton J

Record number: 2010/35JR

Appeal number: 22/2013

Cross appeal number: 24/2013

An Chuirt Uachtarach

The Supreme Court

Prohibition – Damages – Constitutional law – Appellant seeking to revisit a previous judgment of the Supreme Court – Whether the judgment needed to be corrected

Facts: On January 29, 2015, the Supreme Court gave an initial judgment on an appeal against that part of the order of the High Court which declined to prohibit a then pending criminal trial in which the appellant, Mr Nash, was the accused. The Court dismissed that aspect of the appeal (the prohibition decision). A second leg of the appeal which had been before the Court concerned the dismissal by the High Court of a claim by Mr Nash for damages for an alleged breach of his entitlement to a timely trial under either or both of the provisions of the Constitution or the European Convention on Human Rights. After Mr Nash's criminal trial had gone ahead (and he had been convicted), that second aspect of the appeal came to be heard. The Court also dismissed that part of Mr Nash's appeal (the damages judgment). The appellant applied to the Supreme Court to revisit the previous judgment of the Court.

Held by the Court that it would correct the damages judgment in the following manner: (a) By deleting the second and third sentences in para. 3.11 and replacing them with the following:- "Since the time of the initial investigation into the Grangegorman murders, a button and thread had been retained by the forensic science laboratory but the jacket from which that button and thread had been obtained (being Mr Nash's jacket) had been separately retained by An Garda Síochána. In the context of a case review, the jacket was returned to the forensic science laboratory and tests involving new technology were applied both to the retained button and thread and to other aspects of the jacket."; (b) By amending the second sentence of para. 4.11 by deleting all of the words after "2005" and replacing them with "in Dublin". Furthermore, an additional sentence should be added at that point stating as follows "That technology was available in certain other jurisdictions for approximately four years before that time"; (c) By amending para. 4.15 in the last sentence by changing "two or three years" to "three or four years" and by adding after the word earlier "or, indeed, at an even earlier time if the materials had been sent outside the jurisdiction for investigation".

The Court held that no order should be made other than to identify the corrections previously mentioned.

Court treats application as one to set aside judgment and dismisses that application.

Judgment of Mr. Justice Clarke delivered the 13th July, 2017.
1. Introduction

This judgment is concerned with an application to revisit a previous judgment of this Court. On January 29, 2015, this Court gave an initial judgment on an appeal against that part of the order of the High Court in these proceedings which declined to prohibit a then pending criminal trial in which the appellant ('Mr. Nash') was the accused. This Court dismissed that aspect of the appeal ( Nash v. Director of Public Prosecutions [2015] IESC 32 ('the prohibition decision').


However, a second leg of the appeal which had been before this Court concerned the dismissal by the High Court of a claim by Mr. Nash for damages for an alleged breach of his entitlement to a timely trial under either or both of the provisions of the Constitution or the European Convention on Human Rights. After Mr. Nash's criminal trial had gone ahead (and he had been convicted), that second aspect of the appeal came to be heard. The Court also dismissed that part of Mr. Nash's appeal. (See Nash v. Director of Public Prosecutions, unreported, Supreme Court, Clarke J., 24th October 2016) ('the damages judgment' or 'the judgment'). For reasons connected with the issues considered in this judgment, that damages judgment has not yet been published on the website of the Courts Service.


In passing it should be noted that Mr. Nash has appealed against his criminal conviction to the Court of Appeal and in that context it is particularly important that nothing is said in the course of this judgment which might potentially impact on that appeal. However, that being said, shortly after this Court had delivered the damages judgment, correspondence was received from solicitors acting on behalf of Mr. Nash which took issue with some of the facts appearing in that judgment. Thereafter a motion was brought which sought to have certain facts corrected and suggested that the Court might like to reconsider its order in the light of what was said to be the correct facts. Against that background it is necessary first to touch on the proper approach of the Court to an application such as that with which this judgment is concerned. In that regard, I agree with the judgment of O'Donnell J. on the legal framework within which applications of this type can and should be considered. I also agree with the observations of O'Donnell J. on the requirement that there be clarity on the question of whether it is contended by an applicant that the high constitutional threshold, which is required to be met if the result of a final decision of this Court is to be altered, is met. In that context I propose first to deal with the proper approach to the correction of errors.

2. The Proper Approach

As it happens a not entirely dissimilar issue has already arisen in this case. When the appeal came back before this Court for the purposes of considering the question of damages and costs, counsel on behalf of the Director of Public Prosecutions indicated that there was concern that some of the facts set out in the judgment of the late Hardiman J., given on the earlier issue of prohibition of Mr. Nash's criminal trial, were not fully correct.


In a statement subsequently made by the Chief Justice on behalf of the Court on the 24th October, 2016 (at the same time as the damages judgment was delivered), the Court indicated that it was not satisfied that it was open to it to amend the judgment of Hardiman J. given that, tragically, Hardiman J. had died in the intervening period. However, the Court did point out that it was, of course, the case that a judge is free to correct any typographical or similar errors identified in an unapproved judgment handed out to the parties on the day when judgment is given. It was further noted that judges have always been willing in that context to consider correcting any errors of fact which are brought to their attention.


In the particular and unfortunate circumstances which then prevailed, the best which the Court felt it could do was to indicate that it was sure that Hardiman J. would have been happy to correct the relevant errors. The Court also directed that there should be published a document for inclusion alongside the judgment of Hardiman J. on the website of the Courts Service noting the relevant facts.


It seems to me that this is clearly the correct approach. If there truly are errors of fact in a judgment then a judge should, of course, be willing to correct them so that the record can be set straight. However, it does need to be said that this undoubted jurisdiction should only be exercised where the error is of some materiality, either to the case, or to the legitimate interests of any person who may either be a party to the case or whose actions may be described in the judgment. On the occasion just mentioned the reason why counsel for the D.P.P. expressed concern was that a senior garda felt that what were said to be factual errors reflected badly on him. The senior garda concerned was not, of course, a party to the proceedings and was not subject, therefore, to any potentially adverse order arising from the result of the case. On the other hand, the Court was cognisant of the fact that the senior garda concerned had a legitimate interest in ensuring that his involvement in the events surrounding the investigation into Mr. Nash's potential culpability for the Grangegorman murders were accurately described.


It seems to me that this approach remains the appropriate approach to be adopted on this application. Insofar as any material error of fact can be established then it should be corrected if for no other reason than to ensure that the record is correct. That jurisdiction should only be exercised, however, where there is some reasonable materiality to the potential correction.


There is, of course, then a second question as to whether even if there be an error of fact same could be said to have any consequence for the case. That is a separate matter which needs to be considered but only after it has been determined whether there are any errors of fact.


Finally, it does need to be emphasised that what are described as 'errors of fact' in this judgment are statements of fact which, on the basis either of uncontested or unchallenged evidence before the court of trial or undisturbed findings of the trial judge as to the facts, can be shown to be incorrect. Many cases involve disputed facts which are required to be resolved either by a judge sitting alone or, in appropriate cases, by a jury. The fact that one or other party may not like the facts as found by the decider of fact and may assert that the facts are as per evidence given by or on behalf of the party concerned, does not mean that it can be said that there is an error of fact simply because the appeal court holds that the findings of fact of the trial judge or jury cannot be disturbed on appeal and describes the facts accordingly.


It follows that the errors of facts asserted in...

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    ...which evidence was not rebutted. There is, of course, jurisdiction to set aside a judgment obtained by fraud. This was not such a case. Nash v. DPP 115 The principles involved in an application such as this were recently considered by this Court in Nash v. DPP [2017] IESC 51. Judgments w......
  • Friends First Managed Pension Funds Ltd v Smithwick
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    ...Ors. [2018] IECA 63, the relevant principles and their correct application were comprehensively summarised by O'Donnell J. in Nash v. DPP [2017] IESC 51. This Court adopts the approach advocated in Bailey where Finlay Geoghegan J. stated at para. 31: - ‘…this Court should follow closely the......
  • McDonagh v Sunday Newspapers Ltd
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    ...produced the substantial ruling in Murphy v. AG [1982] I.R. 241. See more generally the recent decision of this Court in Nash v. DPP [2017] I.E.S.C. 51. The decision on the grant of leave is not itself a final decision in a case. If leave is granted on the basis that it involves a point o......
  • AIB Mortgage Bank v Thompson No.2
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    ...the explanation as to why those matters were not put before the court in an earlier hearing. 19 As O'Donnell J. said in Nash v. DPP [2017] IESC 51 the ‘exceptional jurisdiction to revisit a judgment’ is justified by the fundamental constitutional obligation of the administration of justice......
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1 books & journal articles
  • The ECHR Act 2003: Ireland and The Post War Human Rights Project
    • Ireland
    • Irish Judicial Studies Journal No. 2-22, July 2022
    • 1 July 2022
    ...Law Society of Ireland Conference, 16 October 2004). 33 [2014] IESC 17, [2014] 2 I.R. 591. 34 [2019] IESC 81, [2020] 1 I.L.R.M. 81. 35 [2017] IESC 51, [2017] I.R. 320. 36 [2021] IESC 73 (Unreported, Supreme Court, Clarke C.J., O’Donnell, MacMenamin, Dunne and Baker JJ., 30th September, 2021......

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