Smyth v Hugh Tunney Crofter Properties Ltd

• Jurisdiction: Ireland
• Judge: McCarthy J.
• Judgment Date: 26 June 1992
• Neutral Citation: 1992 WJSC-SC 2821
• Court: Supreme Court
• Date: 26 June 1992

1992 WJSC-SC 2821

THE SUPREME COURT

Hederman J.

Costello J.

McCarthy J.

418/89

SMYTH v. HUGH TUNNEY CROFTER PROPERTIES LTD

BETWEEN

PHILIP SMYTH AND GENPORT LIMITED

PLAINTIFFS/APPELLANTS

AND

HUGH TUNNEY CROFTER PROPERTIES LIMITED, GERALD B. COULTER AND CAROLINE DEVINE

DEFENDANTS/RESPONDENTS

Citations:

RSC O.58 r8

HARRIS V TIPPETT 1811 2 CAMP 637

R V BUSBY 75 CAR 79

AG V HITCHCOCK 1847 1 EX 91

LYNAGH V MACKIN 1970 IR 180

MURPHY V MIN FOR DEFENCE 1991 2 IR 161

R V BOARDMAN 1975 AC 442

DPP V P 1991 3 WLR 161

HALES V KERR 1908 2 KB 601

CUMMINS V SIR W ARROL & CO 1962 1 AER 623

MOOD MUSIC V DE WOLFE 1976 CH 119

MANENTI V MELBOURNE TRAFFIC CO 1954 VLR 115

CROSS ON EVIDENCE 6ED 289, 307 & 386

Synopsis:

PRACTICE

Appeal

Evidence - Further evidence - Introduction - Permission - Supreme Court - Relevance of additional evidence - Diligence of appellant - Rules of the Superior Courts, 1986, order 58, r. 8 - (418/89 - Supreme Court - 26/6/92)

|Smyth v. Tunney|

1 Judgment of McCarthy J. delivered the 26th day of June, 1992. [NEM DISS]

2 The Appellants” application, pursuant to Order 58 Rule 8 of the Rules of the Superior Courts or the inherent jurisdiction of the Courts is for an order giving them liberty to adduce further evidence.

3 This evidence is in two categories:

4 (a) Martin Freeman, who was a witness at the trial and now seeks to retract, vary and extend the evidence given by him at the trial.

5 (b) Eamonn Mackle, Sean McPhillips, and Thomas Quigley whose evidence would support allegations of fraudulent conduct by the Defendant, Hugh Tunney, in other transactions, between other parties, and not the subject matter of these proceedings.

(a) Martin Freeman.

6 He gave evidence at the trial and, in particular, testified that he had brought documents from Mr. Tunney Junior to Hugh Tunney's solicitor Messrs McEntee and O'Doherty in Monaghan and left them there. He purported to identify the date of doing so by recounting an incident causing damage to his employers motor car. In that respect he was not cross-examined further. It is alleged against Mr. Tunney that he heard Martin Freeman lie in Court in respect of the damage to the car and he let it go. It is open to other conclusions.

7 The Appellants relied on Cross on Evidence (6th Edition) at pages 289, 307 and 386 and in particular on Harris .v. Tippett (1811) 2 Camp 637,R. .v. Busby - 75 Criminal Appeal Reports 79 and A.G. .v. Hitchcock (1847) 1 Exch. 91. These authorities do not support the proposition that a witness who has given sworn testimony may, ordinarily, be permitted to give evidence on the hearing of an appeal from a decision on fact so that he may recant his earlier evidence and support a different case. Even if it were, applying the principles stated by the Supreme Court in Lynagh .v. Mackin ( 1970 IR) 180 and, more recently, on the diligence point, in Murphy .v. Minister for Defence ( 1991 2 IR) 161, I doubt if the evidence is material to the real issue as decided; I am far from satisfied that it is credible nor is it clear that due diligence was exercised. It overlooks the essential feature of the case - that the trial Judge decided the issue as to the amount of the inventory payment on his acceptance that the Defendant Tunney would under no circumstances have abruptly agreed to a reduction from £400,000 to £150,000. The case was decided on that point; the later references in the judgment of the trial Judge to the...