The Governor and Company of The Bank of Ireland v Balford Construction Ltd
| Jurisdiction | Ireland |
| Judge | Haughton J.,Ní Raifeartaigh J.,Allen J. |
| Judgment Date | 30 November 2022 |
| Neutral Citation | [2022] IECA 273 |
| Year | 2022 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2021/179 |
[2022] IECA 273
Haughton J.
Ní Raifeartaigh J.
Allen J.
Record Number: 2021/179
THE COURT OF APPEAL
Review of judgments – Amendment of pleadings – Summary judgment – Applicant seeking a review of the judgments of the Court of Appeal – Whether the judgments delivered by the Court of Appeal did not engage with key elements of the appeal
Facts: The Court of Appeal, on 25 July, 2022, heard an appeal by the appellant, Balford Construction Ltd, against an order of Hanna J made on 21 June, 2021 whereby he directed that a notice of motion issued by the respondent, the Governor and Company of the Bank of Ireland (the Bank), dated 11 February, 2021 (seeking inter alia amendment of the summary summons and summary judgment) and a notice of motion issued by the appellant (and returnable to 8 November, 2021) seeking to strike out the proceedings “should travel together to be heard and determined on the same occasion”, and whereby he directed that both motions be transferred to the non-jury list for mention on the 24 June, 2021. The appeal was dismissed. An ex tempore judgment was delivered by Allen J, with which Haughton and Ní Raifeartaigh JJ agreed. By notice of motion issued on 5 October, 2022, grounded on an affidavit sworn by Ms McNicholas, the appellant applied for a “Review of the Judgments” of the Court. Ms McNicholas was the solicitor acting on behalf of the appellant. In the application for review Ms McNicholas relied on the authority of Doyle v Banville [2018] 1 I.R. 505 and Launceston Property Finance DAC v Wright [2020] IECA 146 to suggest that the judgments delivered by the Court on 25 July, 2022 did not engage with key elements of the appeal, and that the appellant could not know why it lost the appeal. She suggested that the judgments of the Court proceeded on an erroneous premise, namely that Hanna J did not direct that the Bank’s application to amend its pleadings, along with its application for summary judgment and the appellant’s application to strike out, should “travel together to be heard and directed on the same occasion”. She therefore suggested that the Court did not address or engage with the second ground of appeal which pleaded that the trial judge in making his order “erred in law”, and hence she argued that the Court failed to give reasons. She argued this on the basis that at no point did the judgments delivered by the Court expressly recite the relevant part of the order of Hanna J. She therefore submitted that the Court gave judgment on the incorrect premise that the only part of the application of the Bank that was transferred to the non-jury list was the application for summary judgment, and that her written and oral submissions on the second ground were not considered.
Held by the Court that the appellant had not demonstrated any error of law or fact in the judgments delivered in the Court. The Court found it hard to conceive of how judgment on an appeal from case management orders of the sort made in the High Court could ever engage an issue of constitutional justice. The Court of Appeal held that this application, with a wide-ranging grounding affidavit and written submissions addressing issues not even arising in the appeal, appeared to be one aimed at revisiting the merits of the summary judgment decision of Ferriter J in the High Court, which itself was the subject of a pending appeal before the Court of Appeal, or, at best, the merits of the appeal that was decided by the Court nor was the appellant deprived of its constitutional right to a fair hearing by the Court. The Court held that the appellant had failed to discharge the heavy onus on it to engage the exceptional jurisdiction of the Court to review its own judgment. The Court held that there was no denial of justice or engagement with any constitutional issue.
The Court refused the review application.
Application refused.
RULING OF THE COURT delivered ex tempore on the 30th day of November, 2022
On 25 July, 2022 this court heard an appeal by the appellant against an order of Hanna J. made on 21 June, 2021 whereby he directed that a Notice of Motion issued by the respondent (“the Bank”) dated 11 February, 2021 (seeking inter alia amendment of the Summary Summons and summary judgment) and a Notice of Motion issued by the appellant (and returnable to 8 November, 2021) seeking to strike out the proceedings “should travel together to be heard and determined on the same occasion”, and whereby he directed that both motions be transferred to the Non-Jury List for mention on the 24 June, 2021.
The appeal was heard on 25 July, 2022 and dismissed by this court. An ex-tempore judgment was delivered by Allen J., with which Haughton and Ní Raifeartaigh JJ. agreed in short ex tempore judgments. All questions of costs have been adjourned for future determination. A typed copy of the ex tempore judgment of Allen J. was delivered to the appellant's solicitors, and this ruling should be read with that judgment.
By Notice of Motion issued on 5 October, 2022, grounded on an affidavit sworn by Marilyn McNicholas on that day, the appellant has applied for a “Review of the Judgments” of the court. Ms. McNicholas is the solicitor acting on behalf of the appellant. She has also delivered written legal submissions dated 18 November, 2022. No replying affidavit has been filed on behalf of the respondent, but written legal submissions dated have been filed. The court also heard oral submissions on 30 November, 2022.
As this court found in Launceston Property Finance DAC v Wright [2020] IECA 146 the jurisdiction to review or set aside a judgment now invoked is an exceptional one. Judgments are otherwise final (subject, in the case of this court, to the acceptance by the Supreme Court under Article 34.5.3 of the Constitution of an application for leave to appeal to it on the ground that the decision involves a matter of general public importance or in interests of justice it is necessary that there be an appeal to the Supreme Court).
As was stated in Launceston, the jurisdiction to revisit an earlier decision was first recognised by Denham J. in the decision of the Supreme Court in Greendale Developments Limited (No. 3) [2000] 2 I.R. 514, where, at p. 544 she said:-
“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”
Subsequently, in DPP v. McKevitt [2009] IESC 29, the Supreme Court held that:-
“ Firstly the application must patently and substantively concern an issue of constitutional justice...
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The Governor and Company of the Bank of Ireland v Balford Construction Ltd
...division of the court decided that the application brought by the defendant to “review” the judgments then delivered must be refused: [2022] IECA 273. Regarding the costs of the appeal and the review application, the plaintiff contended that the circumstances were such as to warrant not onl......