Roberts v Roberts and Another

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 05 November 2024
• Neutral Citation: [2024] IECA 262
• Docket Number: Record Number: 2024 No 18

Between/

Robert Alan Roberts

Plaintiff/Respondent

and

David Ian Roberts and Janice Roberts

Defendants/Appellants

[2024] IECA 262

Binchy J.

Pilkington J.

O'Moore J.

Record Number: 2024 No 18

High Court Record Number: 2022 No 16SP

THE COURT OF APPEAL

Review – Factual inaccuracies – Strike out – Appellants seeking a review of an earlier judgment of the Court of Appeal – Whether the proceedings should have been struck out by the Court of Appeal

Facts: The High Court (Nolan J), on the 12th December, 2023, made an order in favour of the plaintiff/respondent, Mr R Roberts, against the defendants/appellants, Mr D Roberts and Ms Roberts. The operative part of the High Court order read: “AND THE COURT DOTH DECLARE that the principal monies secured by the said Judgment Mortgage created by the registration as aforesaid of a copy of a Judgment Mortgage Affidavit the interest thereon the costs of such registration and the costs herein after awarded stand well charged on the First Named Defendants interest in the said lands and premises described in the Second Schedule hereto...” The judgment referred to in the order of the High Court was a judgment in favour of Mr R Roberts against Mr D Roberts, and obtained by Mr R Roberts on the 5th March, 2010 in proceedings before the Chancery Division of the High Court of England and Wales. Mr D Roberts and Ms Roberts appealed the judgment and order of the High Court. By judgment of the Court of Appeal dated the 22nd July, 2024 ([2024] IECA 193), that appeal was allowed. The order of the High Court was set aside. The matter was sent back to the High Court. Subsequent to the hearing on the 30th July, 2024, at which Mr D Roberts was awarded his expenses in respect of the appeal and the hearing of the original application before the High Court, he sought to bring an application to “appeal” against the judgment of the Court of Appeal, which was in his favour. It was plain from the papers in their entirety that what Mr D Roberts actually wanted was a review of the earlier judgment of the Court of Appeal. Mr D Roberts averred that para. 1 of the principal judgment was factually incorrect and that the proceedings should have been struck out by the Court.

Held by O’Moore J that the summary of the background to the English order (and the separate summary of the claim made by Mr R Roberts in the English proceedings) contained in the principal judgment had not been shown by Mr D Roberts to be inaccurate in any material way. In any event, as this was an interlocutory hearing dealing with the sole issue as to whether or not the application for a well charging order should go to a plenary hearing, the Court had not even purported to make findings of fact which could bind any trial judge in the future. Therefore, O’Moore J held that Mr D Roberts was incorrect in suggesting that there was any error in para. 1 of the principal judgment of the Court; it followed that the consequences which he claimed to flow from such an error simply did not arise. O’Moore J found that nowhere in his affidavit or his submissions did Mr D Roberts meaningfully engage with the finding of the Court that the Notice of Appeal of Ms Roberts and Mr D Roberts did not seek a striking out of the proceedings. In those circumstances, O’Moore J held that it could not be said that justice required a review of the Court’s judgment in order to provide Mr D Roberts and Ms Roberts with an order which they did not even seek in their Notice of Appeal.

O’Moore J held that the application did not, in any real way, attempt to satisfy the criteria which must be met if a court is to revisit its judgment.

Application refused.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 5 ^th day of November, 2024

1 . On the 12 ^th December, 2023 the High Court (Nolan J.) made an order in favour of Robert Alan Roberts (“Robert Roberts”) against David Ian Roberts and Janice Roberts (“David Roberts and Janice Roberts”). The operative part of the High Court order read:-

“AND THE COURT DOTH DECLARE that the principal monies secured by the said Judgment Mortgage created by the registration as aforesaid of a copy of a Judgment Mortgage Affidavit the interest thereon the costs of such registration and the costs herein after awarded stand well charged on the First Named Defendants interest in the said lands and premises described in the Second Schedule hereto…”

2 . The judgment referred to in the order of the High Court is a judgment in favour of Robert Roberts against David Roberts, and obtained by Robert Roberts on the 5 ^th March, 2010 in proceedings before the Chancery Division of the High Court of England and Wales.

3 . David and Janice Roberts appealed the judgment and order of the High Court. By judgment of this court dated the 22 ^nd July, 2024, and bearing the neutral reference [2024] IECA 193, this appeal was allowed. The order of the High Court was set aside. The matter was sent back to the High Court. As is set out in paragraph 21 of the judgment of this court:-

“The Notice of Appeal does not seek an order striking out the Special Summons proceedings.”

This important fact is not disputed in the current application made by David Roberts on his behalf and on behalf of his wife, Janice.

4 . In sending the matter back to the High Court, the judgment of this court noted (at para. 22):-

“The parties should reflect on whether these proceedings serve any useful purpose.”

This observation was made given certain concessions made by counsel for Robert Roberts during the course of the hearing of the appeal.

5 . The appeal was listed for the 30th of July, 2024 to deal with any outstanding issues, including the question of costs. Between the delivery of the judgment and 30th of July, David Roberts provided to the Court of Appeal Office a number of documents taking issue with the judgment, notwithstanding the fact that the judgment was in his favour. These were unsolicited by the court, and did not form the basis of any formal application to the court either prior to or at the hearing on the 30th of July, 2024. While the contents of these memoranda are misconceived, perhaps the most obviously baseless set of observations is to be found in a document headed:-

“Legal Error in item 4.”

6 . This document begins:-

“Judge O'Moore stated, 'I do not accept that [David] in some way assigned the monies to his wife to pay for the failure of [Robert] to purchase shares. That seems to me to be a far fetched notion.”

7 . Quite plainly, this wording ascribes to this court the rejection of a contention put forward by David Roberts. In fact, the quote supposedly from the judgment of this court is actually a quote from the judgment of the High Court judge. Paragraph 4 of the judgment of this court refers to “two paragraphs of the ex tempore judgment of the High Court Judge”. The quoted section of the judgment of the High Court is introduced by the following statement:-

“A summary of his conclusions is helpfully to be found at page 6 of the Transcript… of his ex tempore judgment…”

8 . There can be no doubt that anybody reading paragraph 4 of the judgment of this court would understand that the quote to which David Roberts takes exception is actually a quote from the judgment of the trial judge.

9 . Notwithstanding this, and on the erroneous basis that the relevant wording is part of the judgment of this court, David Roberts proceeds (in the...