Talbot v McCann Fitzgerald Solicitors

JudgeDenham J.
Judgment Date26 March 2009
Neutral Citation[2009] IESC 25
CourtSupreme Court
Date26 March 2009

[2009] IESC 25


Denham J.

Kearns J.

Clarke J.

[Appeal No: 114/06]
Talbot v McCann Fitzgerald Solicitors & Ors
Thomas Talbot


McCann Fitzgerald Solicitors
Mrs Thérèse Talbot
Judge Michael White
Judge Jacqueline Linnane
Court Services
Chief State Solicitor



MCG (G) v W (D) (NO 2) 2000 4 IR 1




BULA LTD v TARA MINES LTD (NO 6) 2000 4 IR 412

KENNY v TRINITY COLLEGE & ANOR UNREP FENNELLY 15.10.2007 2007/32/6662 2007 2007 IESC 42




Appeal - Application seeking to set aside final judgment and order of Supreme Court - Finality of orders - Jurisdiction to vary or discharge final order of Supreme Court - Exceptional jurisdiction - Constitutional principles - Whether decision of Supreme Court final and conclusive on matters - Common law exceptions - Circumstances in which court can interfere after passing and entering of judgment - Finality of litigation - Inherent jurisdiction -Whether circumstances of case such as to justify disregarding primary principle that order is final - Applicable law - Onus on applicant - Bias - Whether applicants claim manifestly ill-founded - Belville Holdings Ltd v Revenue Commissioners [1994] 1 ILRM 29; Ainsworth v Wilding [1896] 1 Ch 673; G McG v DW (No 2) (Joinder of Attorney General) [2004] 4 IR 1; Ampthill Peerage [1977] AC 547; Attorney General v Open Door Counselling Ltd (No 2) [1994] 2 IR 333; In Re Greendale Developments Ltd (No 3) [2000] 2 IR 514; Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412; Kenny v Trinity College [2007] IESC 42, [2008] 2 IR 40 considered - Constitution of Ireland 1937, Article 34.4.6 - Rules of the Superior Court 1986 (SI 15/1986), O 84 - Application dismissed (114/2006 - SC - 26/3/2009) [2009] IESC 25

Talbot v McCann Fitzgerald

Facts the applicant brought an ex parte motion and notice of vacation to set aside a final judgment and order of the Supreme Court. He made assertions about the Supreme Court judgment, alleging, inter alia, that there was a reasonable apprehension of objective bias. The roots of the application lay in family law proceedings in the Circuit Court, which the applicant had previously unsuccessfully appealed to the High Court from.

Held by the Supreme Court (Denham J; Kearns and Clarke JJ concurring) in dismissing the motion, 1, that, decisions of the Supreme Court were final and conclusive. That fundamental constitutional principle was grounded in Article 34.4.6º of the Constitution to provide finality and certainty in the administration of justice. However, in rare and exceptional cases, a jurisdiction to vacate a final order and judgment of the Supreme Court could arise where:

(a) there had been an accidental slip in the judgment;

(b) where the judgment as drawn up did not correctly state what the Court intended and decided;

(c) in separate proceedings for fraud; and

(d) in rare and exceptional cases to protect constitutional rights and/or justice.

The applicant had not discharged the heavy onus upon him to establish that such rare and exceptional circumstances existed to give rise to such jurisdiction.

Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 I.L.R.M. 29 and Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 applied.

Reporter: P.C.


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


Judgment delivered by Denham [nem diss]

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 29 th June, 2007, dismissing his appeal from a judgment and order of the High Court given and made on the 6 th 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."


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