Supreme Court dismisses motion to set aside judgment for minor factual errors, allowing correction via slip rule instead.

THE SUPREME COURT

JR 351/2010

Appeal Nos: 22 & 24/2013

Denham C.J.

O’Donnell J.

Clarke J.

Dunne J.

Charleton J.

Between

Mark Nash

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Judgment of O’Donnell J delivered the 13th of July, 2017.

1 Every judge, particularly a judge in a final court of appeal lives with the possibility, and sometimes the reality, of judicial error. This

should not be surprising. If there was no possibility of judicial mistake, either in fact or law, there would be no need for an appellate

system. At a more basic level, there is a well established jurisdiction to alter a decision prior to the making and perfection of the order

in a case. See e.g.: Millensted v Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 and in the criminal context Richards & anor v.

Judge O’Donoghue and D.P.P. [2016] IESC 74. It is not necessary here to discuss the circumstances in which such jurisdiction may be

exercised in civil cases. (See Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed, paras. 24-32). Judgments and orders

may also amended by the ‘slip rule’, Order 28, to which a reasonably generous interpretation is given: see the observations of Lowry

LCJ in McNichol v Neely [1983] NI 43 quoted with approval by Murray J in McMullen v Clancy [2002] 3 IR 493. There is also a

procedure for speaking to the minutes of a final order with a view to clarifying that order. None of this would be necessary if error, or

at least the possibility of error, did not exist.

2 The possibility of judicial error in its broadest sense is a particular reality for a court of final appeal. No one has improved upon the

statement of Justice Robert H Jackson in Brown v Allen, 344 US 443, 540, (1953):-

“There is no doubt that if there was a super – Supreme Court a substantial proportion of our reversals of State courts

would also be reversed. We are not final because we are infallible, but we are infallible only because we are final”.

The awareness that error if made cannot be corrected is a sobering reality which explains in part the time and care courts take to try

to ensure that the process is fair, and in particular the outcome, is correct.

3 Litigants, lawyers, witnesses and observers can all make mistakes. Judges, even judges in appellate courts reviewing decisions for

error, make mistakes; they do not mean to but they do. But they try extremely hard not to, and for the most part succeed. And in

particular, they try to get the decision correct. The core and irreducible function of any court, even in cases with obvious and

profound general consequences, is to resolve the issues between the parties to the litigation. The facts must be ascertained and

recounted, not to provide an authoritative record of information to future generations, but to identify the issues between the parties

which has given rise to the dispute. Even then it is worth recalling that while a decision is binding between the parties as to the legal

consequences, the decision as to what occurred in the past, or prediction of what may occur in the future, is made by a person who

was not, or will not be, present. Any decision in a civil case is made on evidence sometimes limited and unsatisfactory, on a balance

of probabilities, and is reviewed on appeal by the standard which considers whether such findings of primary fact were open to the

trial court on the evidence. It is not perfection therefore; it is, or should be, however, the best that we can do. In fairness too,

although there is an established jurisdiction to set aside a judgment, it is rarely invoked and even more rarely leads to the setting

aside of an order and although the court receives occasional requests to address and clarify a factual matter contained in a

judgment, that too is rare.

4 Despite the efforts of all involved, however, errors of fact can and do occur. I do not find this either surprising or ultimately

troubling. For my part, I would prefer to have decisions made about me by a person conscious of the possibility of error rather than

one who believed that appointment to the bench conferred a unique form of secular infallibility. Indeed, those who profess almost

mystical belief in the impossibility of judicial error are most often to be found contending that even a small mistake justifies the setting

aside, or even the reversal, of a judgment , and who, not coincidentally, point to just such an error in a judgment pronounced. But

the legal system does not deny the possibility of mistake; rather, it recognises it and seeks to protect against it and provide a remedy

if appropriate.

5 This case is concerned with alleged errors of fact contained in a judgment delivered in this Court on the 24th October, 2016, by

Clarke J, with which Denham CJ, Dunne and Charleton JJ, and I agreed. The scope for significant error of fact, that is, an error which

could have an impact on the outcome of a case, is much more limited in an appellate court than in a trial court, since an appellate

court is concerned with issues of law and is not itself a court which normally makes any finding of primary fact. There will normally be

a judgment of the trial court, and in most cases, one or more judgments of the Court of Appeal, and accordingly, the impact or

significance of any error of fact recounted in the judgment of this Court which is not central or fundamental to the case must be

limited. In this case, since there was affidavit evidence and only limited cross-examination it is also possible to point to the underlying

evidence before the trial judge should the Supreme Court judgment be used as an account of all the facts and alleged to be incorrect.

It is rare, therefore, for this Court to be invited to revisit factual matters.

6 I do not doubt that some errors of fact or description can creep into a judgment particularly in matters which are not central to the

outcome and reasoning. Sometimes there is a lack of clarity in the information submitted. Sometimes, as occurred in People (DPP) v.

McKevitt [2009] IESC 29, there is an error in the legal submissions which is then repeated in the judgment, and on other occasions,

there is a simple misunderstanding which is not picked up or clarified in oral argument, or identified by the judge or his or her

colleagues. What then is to be done when a party (normally the losing party) considers that a judgment contains errors of fact? In

principle, this may arise in all courts but for present purposes I propose to consider only the position in the Supreme Court. In my

view, the first thing that must be done is that the party, and if legally advised, his or her advisors, should make a careful assessment

of the nature of the alleged error. If an error is identified, in principle it may be one which is trivial or inconsequential, or it may be of

some significance either as a matter of simple accuracy, or because of its potential effect on the legitimate interests of the parties or

indeed other individuals. As Clarke J. points out, an example occurred at an earlier stage in this case. Exceptionally, an error may be

capable of being so fundamental and central that it should lead to the setting aside of a judgment including perhaps resulting in the

reversal of the decision itself. It will be necessary to consider these matters in some more detail but at this stage it is important to

emphasise the responsibility that lies upon the party and his or her advisors in making this analysis, and if appropriate advising upon it.

7 This responsibility flows from the significance of an application to court in respect of a judgment delivered. It is sometimes thought

that such applications are not welcomed or encouraged because of the potential embarrassment of an error being publicly identified.

As Baroness Hale observed in Re L and B [2013] UKSC 8, while judicial tergiversation is not to be encouraged, it takes courage and

intellectual honesty to admit ones mistake. But those are features required at all stages. The obligation to do justice fairly, and

without fear or favour, which guided the judge to give the original judgment, should extend to a willingness to acknowledge error if

justice should require it. History has shown in any event, that courts have entertained applications and exceptionally made orders

setting aside judgments already given. Courts are, however, reluctant to entertain such applications for different and good reasons.

First, the revisiting of old ground inevitably adds to the costs incurred by and the stress imposed upon all the parties involved. It also

requires the allocation of scarce time and resources which are therefore necessarily denied to litigants who have not yet had their

case heard or considered on appeal. For example, this application has occupied considerable time both in and outside court. More

importantly again, such an application in principle runs directly counter to an important value which the law, and it should be added

justice, accords to finality. That applies with particular force in the Supreme Court by virtue of the provisions of Art. 34.4.6 which

provides:-

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

8 It should not be necessary to elaborate upon all the reasons why finality is both necessary and desirable. Litigation is hard fought

and expensive. If a case has been fought to conclusion and appealed and determined, it will often be the case that it is a finely

balanced one with much to be said on either side, or perhaps that one or both parties has become particularly entrenched and

committed to the litigation. In some cases, both considerations may apply. If it were permissible to reopen cases, then the losing

party, who by definition has no other route available, would often seek to do so however remote the possibility of success. That

would be intolerable for the successful party but also for other litigants seeking hearings. It would also follow that there could be no

theoretical point at which the process would stop. It would be the legal equivalent of the boy who loses a coin toss and immediately

suggests best out of three. As Murray J. observed in the case of Riordan v An Taoiseach [2000] IESC 61 at 4:-

“If a party, solely because he or she disagreed with the judgment of the Court of final appeal could by one means or

another restart the proceedings to have issues tried all over again, and perhaps even again, it would undermine the

functioning of the administration of justice and weaken the authority of the law, which are there for the benefit, not of

the Courts, but of citizens as a whole.”

9 The requirement of finality in litigation is not therefore the product of judicial decision or statute. It is encapsulated in the provisions

of the Constitution which establishes this Court and which it is bound to uphold. That imposes constraints upon the court when it is

invited to alter or set aside its decision. On the plain words of the Constitution it is not permitted and the court is obliged to uphold

both the text and the values it espouses.

10 Notwithstanding the apparently all-embracing terms of Art. 34.4.6, there is however an exceptional jurisdiction to revisit a

judgment of this Court which is otherwise entitled to finality. The justification for this is perhaps the fundamental constitutional

obligation of this Court to administer justice which is in unqualified terms and is the governing principle of Art. 34. Any tension

between these two provisions may perhaps be reconciled by considering that where by reason of judicial error or some other

extraneous consideration, it is plain that the outcome of the case cannot be said to be the administration of justice for the purpose

of Article 34 then it cannot be said to be a ‘decision ‘for the purposes of Art. 34.4.6. It is not necessary to discuss here the possible

circumstances in which such an exceptional application could be made. It is plain it must be something fundamental to the decision.

One clear example is where a case of objective bias is established for some reason in respect of one or more members of a court. See

for example the discussion in Bula Ltd. v. Tara Mines (No. 6) [2000] 4 IR 412 at 476, and in another jurisdiction R v. Bow Street

Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 at 585. The jurisdiction was originally

identified in Re Greendale Developments Ltd. (No. 3) [2000] 2 IR 514. There Denham J (as she then was) said at p. 544:-

“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.”

11 A case which may come close to the exercise of this jurisdiction was Abbeydrive Developments Ltd. v Kildare County Council

[2010] IESC 8; [2010] 2 IR 397, where through, it must be said, no fault of the court, a body was not able to participate in

proceedings and make submissions on an issue where it contended that the declaration made that a party was entitled to a default

permission would be contrary to EU law. It is its own measure of the exceptional nature of this jurisdiction that this appears to be the

only case since the decision in Greendale that an order has been set aside.

12 Important guidance as to the exercise of this jurisdiction was given by this Court in DPP v McKevitt [2009] IESC 29. There, Murray

CJ (Denham, Hardiman, Geoghegan and Fennelly JJ concurring) delivered a ruling on an application to set aside the decision of the

Court which had dismissed an appeal pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) on the grounds of an alleged

error of fact in the judgment. The ruling referred to the explicit provisions of Art. 34.4.6, observing that when a party seeks to set

aside a final decision of this Court a preliminary question always arises as to whether the court has jurisdiction even to entertain such

an application. Two important factors had to be addressed in considering whether to re-open a decision which had been delivered:-

“Firstly the application must patently and substantively concern an issue of constitutional justice other than the merits of

the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive

issue concerning a denial of justice in the proceedings in question consistent with the onus of proof on an applicant.”

13 The jurisdiction therefore was aptly described as a “potential jurisdiction” (emphasis in original) to be exercised only in exceptional

circumstances and an applicant was obliged to show cogent and substantive grounds which are objectively sufficient to enable the

court to enter upon the exercise of wholly exceptional jurisdiction. In the circumstances of that case, the Court considered the error

complained of, which had originated in the submissions made on behalf of the DPP but had not been identified or brought to the

attention of the Court on behalf of the applicant, was in any event not central to, or indeed, necessary for the determination of the

particular issue in the case. Accordingly, the Court did not consider it necessary to hear submissions from either party and refused

the application. This decision illustrates, therefore, that the existence of the Greendale jurisdiction, exceptional as it is, does not

subtract from the constitutional importance of Art. 34.4.6 , and if a court concludes at any stage that the case is one captured by

that Article, then it must dismiss the application since to proceed further would arguably involve a separate breach of the provisions

of the Article. The basic rule established by the Constitution is that justice itself requires that there be an end point to all disputes.

14 It may be, however, that an error identified is not considered either central to the reasoning in the case, or capable of establishing

such a fundamental departure from the administration of justice as would justify the application of the Greendale jurisdiction.

Nevertheless, the error, if it be such, may be considered of some significance either because of its impact on an individual, the

potential for confusion and worse in relation to separate matters, or perhaps, for the sake of simple accuracy. There is and can be no

objection either in principle or in constitutional law to the correction of such matters which do not affect the decision of the court

captured by Art. 34.4.6. Often judgments are delivered marked “unapproved” and in the process of the approval of a judgment for

promulgation on the website of the Courts Service, and perhaps for reporting in official or unofficial reports, such errors including

typographical and grammatical errors, can be addressed. It is not desirable to announce a decision and judgment without circulating

the judgment on that day and making it available. The delivery of judgment is a part of the administration of justice in public and

normally comprehends making the text of a judgment publicly available. Some jurisdictions seek to avoid this problem by circulating a

judgment in draft to the parties subject to an embargo on publication. As I understand it, any comments on the draft are normally

limited to factual corrections. I am not aware that it has ever been suggested that such a system should be adopted in Ireland, or as

a practical matter would be capable of operation. It follows, therefore, that the necessity for delivering a judgment in public and for

making available the reasons for such a decision means that a judgment must be available on the day it is delivered. However, any

such judgment, whether so marked or not, should be treated as unapproved and capable of factual correction for a limited period

after delivery of perhaps two weeks. Either party could within that time write to the court, copying the letter to the opposite side,

with any suggested corrections. Should the court consider it necessary to make such corrections it would then do so in the approved

version. This would balance the demands of factual accuracy for posterity with the need for contemporaneous publication of the

fullest reasons for a decision.

15 Finally, there are matters which may be errors but which are self-evidently trivial and inconsequential. To take a simple example, in

a case which concerns a car accident, the judgment of this court may inadvertently describe a motor car as green when it was

aquamarine or even blue. Save in cases where visual identification is central, the colour of the car will be entirely irrelevant to the

question of negligence or damages etc. Some disappointed litigants (and it an unavoidable function of litigation that some litigants are

disappointed in every case) engage in the form of reasoning that suggests that because the judge got the colour wrong, the decision

is somehow of less force or could be set aside. In such circumstances, the party, and where represented the party’s advisors, also

have an obligation to recognise that the point is trivial, inconsequential, and that no point is served by seeking to require a correction

of it, still less an application to set aside the judgment. The obligation of solicitors, as officers of the court, and the duties of counsel

appearing before a court requires all such lawyers to exercise responsibility in this matter as well.

16 It remains to consider into what category the issues in this case fall. One legitimate question is whether there are in truth any

errors in the judgment that require to be addressed. The submissions of the applicant were surprisingly diffuse and imprecise in this

regard. For the reasons set out in the judgment of Clarke J., with which I agree, it can be said that taking a scrupulous approach,

there are two respects in which the judgment should perhaps be clarified. However, there was a lack of clarity as to what the

applicant contends should follow from this.

17 A letter was delivered by hand to the Registrar of the Supreme Court on the 25th of October, 2016, that is the day after the

delivery of the judgment suggesting that there may be “a significant error of fact which may require to be corrected”. The letter

continued:-

“The thought does occur to us however that it may be that the Court would prefer not to further promulgate the

Judgment for instance by putting it on the Court’s Service website pending the clarification of this matter.”

A lengthy letter was sent on the same day to the Chief Prosecutions Solicitor identifying concern in relation to “two factual errors

which appear to underpin the judgment”. It was suggested that it seemed the court “based its finding of no culpable delay on [a]

mistaken view.” It was further suggested that the fact that the court had “proceeded on this mistaken basis” was clear from certain

extracts from the judgments which were then set out and which are discussed in the judgment of Clarke J. The letter concluded:-

“Unfortunately, therefore, as regards the period of time under scrutiny by the Court there again appears to be an error of

fact underpinning the conclusions arrived at in relation to culpable delay which in our view requires to be addressed for

the integrity of the judgment.

We are anxious to agree with you how these two sensitive matters should be addressed before the Supreme Court and

await hearing from you.”

18 The Director of Public Prosecutions responded by stating that the office considered there was not material errors in the judgment

as delivered, and certainly none that would have made any difference to the court’s findings. In response to this, the applicant issued

a notice of motion seeking:-

“1 Liberty to be heard in respect of matters arising on foot of the judgment of this court delivered on the 24th day

of October 2016;

2 Further or other Order as to this Court shall appear meet;

3 Costs.”

19 The motion was grounded upon an affidavit of the applicant’s solicitor. At para. 12 it stated that an “error of fact has now

influenced the judgment of the Court on the question of damages and costs”. At para. 15 it was stated that:-

“the mistakes of fact identified in the decision of Clarke J. could be material to the Court’s ultimate conclusion because

the facts are recited in the Court’s finding of culpable delay. It seems to me that it is possible that the Court could have

arrived at a different conclusion had it appreciated at the time of writing the judgment that a DNA sample was on file in

the Forensic Science Laboratory since 1998.”

Paragraph 16 of the affidavit said:-

“I believe and am advised that the Court has full jurisdiction to ensure that the record is factually correct including the

power to revisit a judgment when errors of fact undermine the integrity of the reasoning in that judgment. I understand

that the judgment has not been published on the courts website pending clarification of the issues arising and no order

has been drawn pending a finalization of all matters arising from the judgment. I respectfully ask the Court to consider

how best to remedy the errors appearing in the judgment or to clarify the Court’s position with regard to properly stated

facts in this case.”

The affidavit also indicated that it was the intention of the applicant to make a complaint to the European Court of Human Rights

(ECtHR) and wanted to clarify the facts for that purpose.

20 The notice of motion is in a curious form. The relief sought at para. 1 is at best redundant since the motion was heard. The

application, therefore, becomes a generalised request for such order as the court may think appropriate. Normally the principles of

adversarial litigation require one party to assert something and the other to respond, and the court to decide. It may be that the

correspondence and application was framed in this vague and indirect fashion out of a respectful diffidence although that seems

doubtful but if so, it was in any event misplaced. The references to errors underpinning the judgment and undermining the integrity of

the judgment and proceeding on a mistaken basis all suggest that the applicant and his advisors consider that these matters could, or

perhaps should, lead to the court setting aside its judgment. This also follows from the suggestion that the court refrain from drawing

up an order which would normally suggest that the party was invoking the jurisdiction to invite the court to alter its decision before

the final order was issued. If this is the case, it should be stated forthrightly and the factual and legal basis for the application

accurately identified. There was in my view a surprising lack of precision about both the factual matters relied upon, and the legal

framework for analysis. No written legal submissions were received from the applicant. It is sufficient to say that having considered

the matter carefully, I agree fully with the judgment of Clarke J. that there could be no basis on which it is said that the matters

identified, properly analysed and fairly understood could approach the high threshold which is necessarily required for this court to

consider setting aside a judgment it has delivered. Insomuch as there are errors of description in the narrative of the judgment, I

agree that the opportunity should be taken to correct the judgment in that regard. However, those are matters which could plainly

have been dealt with in correspondence and by agreement if indeed it was considered that this was a case in which it was necessary

to address such matters. Accordingly I would dismiss the application.