Talbot -v- McCann Fitzgerald Solicitors & ors, [2009] IESC 25 (2009)

Judge:Denham J.
Party Name:Talbot, McCann Fitzgerald Solicitors & ors
Docket Number:114/06


[Appeal No: 114/06]

Denham J.

Kearns J.

Clarke J.


Thomas Talbot



McCann Fitzgerald Solicitors

Mrs Thérèse Talbot

Judge Michael White

Judge Jacqueline Linnane

Court Services

Chief State Solicitor


Judgment delivered the 26th day of March, 2009 by Denham J.

1. Application

Thomas Talbot, the plaintiff/appellant, hereinafter referred to as "the appellant", has brought an ex parte motion and notice of vacation seeking to set aside a final judgment and order of this Court delivered on the 29th June, 2007, dismissing his appeal from a judgment and order of the High Court given and made on the 6th February, 2006, which refused his application for leave to apply for judicial review.

2. Exceptional Jurisdiction

The appellant seeks to set aside a final judgment and order of this Court. He requests this Court to exercise a jurisdiction which arises only in extremely rare and exceptional cases.

3. Constitutional Principle

The fundamental constitutional principle is that the decision of the Supreme Court is final and conclusive on matters which have been raised before it and on which a final order has been made. This principle is grounded in the Constitution of Ireland, 1937, Article 34.4.6˚ which provides:-

"The decision of the Supreme Court shall in all cases be final and conclusive."

4. Exceptions

Under the common law a final order is conclusive also, however, a few exceptions exist. These exceptions relate to technical matters and do not establish a right to review a final order. In Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 I.L.R.M. 29 at pp.36 and 37 Finlay C.J. stated:-

"There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.

We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question."

Finlay C.J. reviewed some decisions from the Courts of England and Wales and stated that:-

"The position and principles appear, however, to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] 1 Ch. 673. where at p.677, he stated as follows:

'So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28.r.11:

(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.'"

Having referred to some further cases Finlay C.J. concluded that:-

"I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached."

As I pointed out in G.McG. v. D.W. (No.2) (Joinder of Attorney General) [2004] 4 I.R. 1 at p.14 the inherent jurisdiction of the Courts as expressed in Belville does not encroach on the principle of the finality of litigation but rather is utilised to ensure that the intent of the Court in making an order is met.

5. Finality

The reason for this fundamental principle, that a final judgment is conclusive of the litigation, is because the finality of litigation is an important concept in the administration of justice. In The Ampthill Peerage [1977] A.C. 547 at p.576 Lord Simon of Glaisdale described the concept as follows:-

"Important though the issues may be, how extensive whatsoever the evidence, whatever the eagerness for further fray, society says: 'We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough.'"

In essence, the principle of finality in litigation is to underpin certainty in the administration of justice. It is a fundamental principle for the common good. It ensures that litigation comes to an end and that there is certainty in the situation.

6. Fraud

The inherent jurisdiction referred to above enables a court to vary a final order so that the true intent of the court is carried out. However, an action may be brought to set aside an order obtained by fraud. This would be by way of new and separate proceedings from the original action.

7. An exception under the Constitution

The concept of an inherent jurisdiction under the Constitution of Ireland 1937 to vary an order of the Supreme Court has been considered. In Attorney General v. Open Door Counselling Ltd (No.2) [1994] 2 I.R. 333 the jurisdiction of this Court to vary a final order arose. In that case Finlay C.J. (with whom Hederman, Egan and Blayney JJ agreed) stated that the first issue for determination was whether the Supreme Court had any such jurisdiction to vary or discharge a final order. Finlay C.J. referred to his judgment in Belville and he stated that exceptions to that principle may arise where it is established that a judgment has been obtained by fraud. Finlay C.J. held that the jurisdiction did not arise in the Attorney General v. Open Door Counselling Ltd. case. He stated at p.342:-

"I am quite satisfied that it is wholly inconsistent with the constitutional obligations and the jurisprudence of this Court, for it to consider a question of the interpretation of the Constitution by way of motion to vary an order previously made in an appeal finally determined by it which, by inevitable necessity, has never arisen in the High Court or been decided by the High Court and, furthermore, is in the instant case a provision of the Constitution which was not in force or enacted at the time when the appeal was determined."

In Open Door Counselling I wrote a dissenting judgment being of the opinion that the extant order of the Court manifestly breached a constitutional right. I considered that the Court has an inherent jurisdiction to ensure that the Constitution is not, and that rights thereunder are not, circumvented. I held that the Court has a duty to ensure that the Constitution and justice are upheld and that in that case the exceptional jurisdiction arose, and in the circumstances I would make an order varying the previous order of the Supreme Court.

8. Circumstances of a Case

In determining whether the jurisdiction arises the Court should consider all the circumstances of the case. In In Re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 an application to set aside the order of the Supreme Court was brought on the grounds that the core issue addressed (ultra vires) was decided by the Court without affording the applicants any proper opportunity to argue the point. Hamilton C.J. concluded:-

"The common law and public policy recognised the desire for finality in proceedings inter partes and Article 34.4.6 of the Constitution incorporated into the Constitution this desire and expressed it in clear and unambiguous terms. It provided that the decision of the Supreme Court shall in all cases be final and conclusive. The said provision is expressed to apply in all cases and there is nothing in the circumstances of this appeal which would justify disregarding the said provision."

In that case I stated at pp 539 and 540, of such an application in relation to a final order that:-

"The court has to balance the application against the jurisprudence, of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of justice which includes the concept of finality in litigation."

9. The circumstances must be such as to justify disregarding the primary principle that the order is final. In Bula Ltd v. Tara Mines Ltd (No.6) [2000] 4 I.R. 412 the applicants initially

appealed against the judgment and order the High Court (Lynch J.) of the 6th February,...

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