Tolan v Connaught Gold Co-Operative Society Ltd

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IECA 267
• Date: 31 July 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 267 2017/348

[2018] IECA 267

THE COURT OF APPEAL

Whelan J.

Hogan J.

Whelan J.

McGovern J.

Neutral Citation Number: [2018] IECA 267

2017/348

BETWEEN

FINBAR TOLAN

APPELLANT

AND

CONNAUGHT GOLD CO-OPERATIVE SOCIETY LIMITED

RESPONDENT

Bias – Constitutional rights – Fair procedures – Appellant seeking to re-enter concluded proceedings – Whether the orders and judgment had been obtained unfairly and by deceit

Facts: The appellant, Mr Tolan, appealed to the Court of Appeal against the judgment and orders of Noonan J made in the High Court on 31st May 2017. The appellant’s motion sought to re-enter concluded proceedings, where final orders had been made in the High Court by Kearns P on 15th May 2014. Those orders had subsequently been upheld by the Court of Appeal. The basis for the application included, inter alia, that the orders and judgment had been obtained unfairly and by deceit. The motion to re-enter claimed that the final orders were obtained in breach of constitutional rights and fair procedures and were tainted by bias. The appellant alleged that since the former President of the High Court who heard the case was a brother in law of a solicitor in the firm of solicitors who represented him in the High Court litigation this gave rise to bias.

Held by Whelan J that Noonan J considered and applied the correct legal principles and was inexorably driven to the correct conclusion namely that there was no legal basis upon which the High Court would be justified in interfering with the final orders and judgments already pronounced in the proceedings.

Whelan J held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 31st day of July 2018

1 This is an appeal against the judgment and orders of Noonan J. made in the High Court on 31st May 2017. The appellant's motion sought to re-enter concluded proceedings, where final orders had been made in the High Court by former President Kearns on 15th May 2014. Those orders had subsequently been upheld by this Court.

2 The basis for the application included, inter alia, that the orders and judgment had been obtained unfairly and by deceit. The motion to re-enter claims that the final orders were obtained in breach of constitutional rights and fair procedures and were tainted by bias. The appellant alleges that since the former President of the High Court who heard the case was a brother in law of a solicitor in the firm of solicitors who represented him in the High Court litigation this gave rise to bias. The appellant is a litigant in person.

Background

3 The appellant was a cattle dealer involved in the purchase of cattle at marts owned by the respondent Co-Operative Society. He had a credit facility with the respondent for over twelve years until the relationship between the parties deteriorated in the year 2012. The appellant contended in the original action that the co-operative engaged in unconscionable conduct against him. He alleged breach of contract and that he suffered significant loss, injury, harm and damage.

4 In September 2012 he sought legal advice from Dillon Leetch & Comerford, solicitors (hereinafter ‘the solicitors’) of Ballyhaunis, County Mayo. He attended the home of Mr. Robert Potter Cogan from that firm. He recalls that the solicitor worked from home at that time. They had a number of meetings. In an affidavit sworn by the appellant on 15th November 2016 grounding his motion he deposes that ‘… after a lot of back and forth Mr. Potter Coogan explained to me that if this matter would not be resolved without going to court, that he may not be able to attend court… But he informed me that if I wanted to take advice from another solicitor I could do so but to keep him updated on the case and to feel free to come back to him at any time in the future if I required any further assistance with relation to the matter…’

5 Thereafter the appellant, without involvement on the part of the said solicitors, caused plenary proceedings to be instituted before the High Court in late November 2012.

6 Subsequently, in 2013, the appellant went back to the said solicitors for advices. It appears that from 2013 the appellant primarily dealt with a Mr. Brady within the firm. The firm of solicitors did not formally come on record in the High Court proceedings until about the 3rd day of February 2014.

7 In arguments and submissions before the High Court and in this Court the appellant raised a series of grievances and issues directed against his former solicitors. However, the said solicitors are not a party to these proceedings. A primary grievance relates to delays in having his action heard.

Former President of the High Court

8 It appears that on 20th November 2014 an application came before the former President of the High Court in the non-jury list. The respondent sought to have the case struck out. The appellant had not replied to a notice for particulars and had also failed to make discovery. The President refused to strike out the case and fixed a hearing date. The appellant contends that his instructions to his solicitors on that day were to obtain the earliest possible date wherever it could be secured e.g. ‘Cork, Galway etc.’:

‘I was endeavouring to secure as early a hearing date as possible. However, when the President asked Ms. Denning for a date, he was advised that the next date was circa six months away, May 12th 2015.’

It appears that the appellant was not personally present in court on 20th November 2014 and cannot give a first-hand account of what transpired.

9 Subsequently, the appellant engaged directly with the High Court registrar whom, he alleges, confirmed that earlier hearing dates were available if the parties were willing to travel to Cork. He also expressed dissatisfaction directly to his solicitor for failing to secure an earlier date. Following the fixing of the trial date the appellant continued to ventilate disgruntlement that an earlier date had not been secured. There is a letter dated 2nd December 2014 from his solicitor, Mr. John Brady, to the appellant referring to ‘text messages sent on the 28th November 2014.’

10 The letter recounts that the High Court registrar had spoken with the appellant's solicitor on the evening of 1st September 2014:

‘She confirmed to me that you did not tell her that the President of the High Court has retained seisin of your case. You will recall that I have previously explained what this means to you. It means that the President of the High Court is going to hear your case and make sure it gets a good and proper hearing.’

11 The letter continues:

‘Your instructions to us were to obtain the earliest date. We asked the court for the earliest date. Ms. Denning was the lady who called out the date of the 12th May 2015 as the earliest date possible when we made the application on the 20th November 2014. There was another date before this in May 2015 but that was not suitable due to the fact that the Solicitor for the Defendant was engaged with the High Court in Sligo at the same time.’

12 The case came on for hearing before the High Court on 12th May 2015 and was heard by the former President over four days. The appellant was represented at all material times by the firm of solicitors and by senior and junior counsel. At the conclusion of the hearing the President of the High Court found in favour of the respondent.

13 The orders and judgment of the President of the High Court were appealed to this Court. The hearing took place on 19th December 2015 and judgment was delivered on 5th May 2016 dismissing the appeal and awarding costs to the respondent. An application for leave to appeal to the Supreme Court was refused on the 28th day of July 2016. Accordingly, the orders of Kearns P. were not reversed and continue to be in full force and effect.

Brother in law

14 The appellant became aware in the month of September 2016 that the trial judge, Kearns P., was related by marriage to Mr. Potter Cogan, the solicitor he had initially dealt with in the firm. Mr. Potter Cogan is a brother in law of the former President. The appellant asserts that by virtue of this fact the President ought to have recused himself from hearing the case and that arising from his failure to do so the hearing was tainted by bias. As such all findings and determinations ought to be set aside and the case heard by a different judge.

The motion

15 The within application was brought by a notice of motion dated 14th November 2016 seeking to re-enter the High Court proceedings on the basis, inter alia, that the orders were:

‘obtained unfairly and by deceit and by the Court and the Plaintiff having been misled both innocently and deliberately’

16 It is alleged that the findings made by the President were ‘unsound’ and ought to be set aside as being tainted by bias. It was further claimed that the orders were:

‘gravely flawed by reason of a fundamental breach of fair procedures and justice guaranteed by the Constitution.’

17 The appellant's grounding affidavit of 15th November 2016 goes into detail on the history of the relationship between him and his former solicitors. He also rehearses various perceived grievances concerning the conduct of that litigation by that firm. The appellant is aggrieved that certain witnesses who, in his view, were important had not been called at the hearing on his behalf or were released early in the course of the hearing. There is no suggestion that the President of the High Court had any input into these decisions.

18 At para. 32 he deposes that:

‘… in September 2016 it came to my attention that the Former President of the High Court, Justice Nicholas Kearns, who heard my case is in fact a Brother-in-Law of Robert Potter-Coogan…’

He deposes that he should have been made aware of this fact by his solicitors:

‘I say with respect that the learned President...