Court of Appeal refused reconsideration of its own judgment due to lack of material error and bias.

THE COURT OF APPEAL

Neutral Citation Number: [2019] IECA 197

Record Number: 2017/236

Whelan J.

Costello J.

Kennedy J.

BETWEEN/

FRIENDS FIRST MANAGED PENSION FUNDS LIMITED

PLAINTIFF/APPELLANT

- AND -

PAUL SMITHWICK

DEFENDANT/RESPONDENT

- AND -

A.T. UNIFORMS LIMITED AND THOMAS KENNEDY

THIRD PARTIES

RULING of Ms. Justice Máire Whelan delivered on the 16th day of July 2019

1. On the 20th March, 2019 judgment was delivered (Whelan J., (Costello and Kennedy JJ. concurring)) on the appeal of the plaintiff

from the decision of Mac Eochaidh J. on 6th April, 2016. The appeal was allowed reversing the determination of the High Court.

2. On the return date for submissions on the form of the order, Mr. Smithwick applied under the exceptional jurisdiction of the Court

that the Court reconsider its judgment citing a number of alleged errors including that: -

(i) the Court failed to properly address and rule on the central basis for the determination of Mr. Justice Mac Eochaidh in

the High Court, and

(ii) the judgment contains a number of material errors as to fact and as to law.

There is no affidavit sworn in support of the application.

3. Accordingly, it appears the first issue for determination is whether the respondent has met the relatively high threshold of

establishing:

(i) that there was material error and

(ii) that it is of such a nature that the interests of justice dictate that this Court should allow the application to reopen

the entire decision and judgment.

4. In the event that this Court determines that issues arise requiring further consideration, Mr. Smithwick contends that any remittal

for consideration should be to a differently constituted panel of this Court by reason of bias shown by this Court in its judgment. The

latter point and arguments advanced in support of same only fall to be considered if he succeeds in his application for a

reconsideration in the first place.

5. Both parties to the appeal are in agreement that this Court does have an exceptional jurisdiction to revisit an issue determined in a

written judgment provided the matter is raised prior to the order of the court being drawn up and perfected.

The Slip Rule

6. The submission on behalf of Mr. Smithwick identifies some factual errors in the draft judgment which fall within O. 28 r. 11. I have

incorporated requisite corrections and a few amendments to ensure clarity into the final draft of the judgment. I am satisfied that

none materially impacts on the ultimate determination and outcome of the case.

Potential jurisdiction of the Court to revisit its own judgment

7. As was noted by Finlay Geoghegan J. in this Court in Bailey v. The Commissioner of An Garda Síochána & Ors. [2018] IECA 63, the

relevant principles and their correct application were comprehensively summarised by O’Donnell J. in Nash v. DPP [2017] IESC 51. This

Court adopts the approach advocated in Bailey where Finlay Geoghegan J. stated at para. 31: -

“…this Court should follow closely the approach taken by the Supreme Court in those judgments allowing for the

different factual contexts and nature of the errors identified.”

8. As was observed by Finlay Geoghegan J. in Bailey at para. 35: -

“Applying the above to the different constitutional position of the Court of Appeal means that there is, notwithstanding

Article 34.4.3 an exceptional jurisdiction to revisit a judgment of this Court which is otherwise entitled to finality where it

is considered necessary to do so to comply with the constitutional imperative to administer justice. Whether that

threshold is met will depend upon the relevant facts.”

9. O’Donnell J. In Nash noted that the jurisdiction was aptly described as a “potential jurisdiction”. At para. 14 he observes: -

“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.”

I respectfully adopt the principles set out in both the Bailey and Nash decisions.

Capacity of the Court to entertain the application

10. In the instant case there is no final order and the judgment is in draft form and subject to amendment, amplification and/or

correction. Whenever a judgment has been pronounced the court retains control over it and the case until the order giving effect to

the judgment has been passed and perfected.

The standard to be established – exceptional circumstances

11. Finlay Geoghegan J. in this Court noted in the Bailey decision (ante) at para. 34 that O’Donnell J. in Nash had, in turn, considered

the earlier guidance given by Murray C.J. in his judgment in The People at the Suit of the DPP v. McKevitt [2009] IESC 29: -

“There are two particularly important factors to be addressed when considering whether this Court has, in the

circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly, the application must

patently and substantively concern an issue of constitutional justice other than 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.”

12. The Supreme Court in McKevitt noted that: -

“Very exceptionally the Court has jurisdiction to review a decision in the special circumstances referred to in the case-

law…”

13. Murray C. J. noted at p. 4: -

“Accordingly, insofar as this Court has potential jurisdiction, in the exceptional circumstances referred to in the case-

law, to review one of its earlier decisions, an applicant must show cogent and substantive grounds which are objectively

sufficient to enable the Court to enter upon an exercise, by way of a hearing of an application on the merits, of that

wholly exceptional jurisdiction. (For example, a mere assertion of subjective bias on the part of the Court by a

dissatisfied litigant could not be a ground upon which the Court could have jurisdiction to hear and determine an

application).”

Strong Reasons

14. Having reviewed the jurisdiction in Re McInerney Homes Ltd. and Others [2011] IEHC 25 Clarke J. noted at para. 3.7: -

“It seems to me that, in order for the court to exercise its jurisdiction to revisit a question after the delivery of either

an oral or written judgment, it is necessary that there be ‘strong reasons’ for so doing.” (emphasis added)

Discussion

15. The court retains a power to vary or reverse its decision at any time until the order consequential upon its judgment has been

perfected. The power to review is to be exercised in accordance with the overriding objectives of the Constitution. It is incumbent on

the parties to assist the court in ensuring that the matter is dealt with justly and at a proportionate cost.

16. Implicit in the jurisprudence is the importance of proportionality and finality. The exceptional jurisdiction is not an invitation to

litigants who are dissatisfied with the outcome of an appeal hearing to apply to the court to review its determination so that a

variation or a revocation of the judgment can take effect. In particular, the jurisdiction cannot appropriately be used as a vehicle to

present further other or new arguments after judgment on material that was before the court which could have been deployed or

availed of at the original appeal hearing for the proposition later advanced.

17. As was observed by MacMenamin J. in Bates & anor v Minister for Agriculture, Fisheries and Food & Ors. [2019] IESC 35 at para.

115 et seq. in considering the judgment of O’Donnell J. in Nash: -

“…the judgment lays a heavy emphasis on the duties of an applicant and principles which should be adhered to prior to

making such an application. There is a duty on parties to make a careful assessment of the nature of the alleged error.

They should ask themselves whether an error is trivial or inconsequential; whether it may be of some significance as a

matter of simple accuracy, or whether because of its potential effect on the legitimate interests of the parties, or other

individuals, it is fundamental. At the extreme end, an error may be 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. There is a duty to do justice

fairly and without fear and favour which must guide this Court as all other courts. But to this I would add that in such an

application a court must closely consider whether there is actually an error and if there is, what is its cause and effect,

and whether the conduct or submissions of a party or parties contributed to what occurred? A court must look to the

whole case, seen in the round.

This is an exceptional jurisdiction. The fundamental question is whether, by reason of error, or some other extraneous

consideration, it is plain that the outcome of the case cannot be said to have been an administration of justice for the

purpose of Article 34 of the Constitution. In such circumstances, the Court may conclude that the judgment is not a

‘decision’ for the purposes of Article 34.4.6° of the Constitution. But the issue must be one which patently and

substantively concerns an issue of constitutional justice, other than the merits of the decision as such. Then, the Court

cannot make an order (See Greendale and Nash).”

18. Having considered the very detailed submissions of the parties (both written and oral) in connection with this application for a

reconsideration of the judgment, I am satisfied that the issue for this Court now is whether any of the points raised on behalf of Mr.

Smithwick, taken singly or together, satisfy the high threshold and demonstrate strong reasons which warrant that this Court exercise

its exceptional jurisdiction to revisit its written judgment.

Arguments advanced on behalf of Mr. Smithwick for reconsideration of the judgment

19. In a written submission Mr. Smithwick advanced six matters in particular which he contended to be either material errors or

determinations contrary to the evidence or which are unreasoned or which fail to address the submissions advanced at the hearing on

his behalf:

(1) That A T Uniform Limited (ATU) was simply a corporate emanation of Mr. Kennedy such that the two companies ATU

and Alias Tom Ltd should be considered as synonymous and the post-sublease occupation treated as overholding by the

2004 subtenant.

(2) That Mr. Neill was merely an agent for the lessor and that the actions of Mr. Neill and Duke House Property Limited

(DHPL) are treated interchangeably as actions of the landlord during the relevant period.

(3) That Mr. Smithwick’s conduct pre-2005 was relevant as to the question of whether the parties’ post-2005 conduct,

objectively construed, gave rise to a surrender.

(4) That Mr. Neill/DHPL and Friends First by accepting rent from ATU did so as agent of Mr. Smithwick contrary to Mr.

Smithwick’s submission that a letter of 17th December, 2004 provided that rent could only be accepted from Alias Tom

Limited and did not confer agency on any assignee of DHPL.

(5) The fact that Mr. Smithwick amended his defence prior to the resumption of the High Court hearing on day 3 to

advance a case for surrender “…rendered it inappropriate that the Court should find in favour of the Amended Defence”

by reason that Mr. Smithwick’s previous claim was inconsistent with his amended defence.

(6) That the November 2004 sublease and call option required Mr. Smithwick’s case, based on post-June 2005 conduct

only, to be rejected.

20. In light of the authorities, I have reached the conclusion that there is no valid basis established by Mr. Smithwick, on which it

could fairly be said that the matters identified in the lengthy written and oral submissions advanced in support of his application, when

properly analysed and fairly understood, could be asserted to even approach the high threshold which is necessarily required for this

Court to consider acceding to an application to reconsider the judgment.

21. First, in large measure, Mr. Smithwick is merely seeking to reopen and re-argue the position based on those facts upon which he

seeks to rely and emphasise, which is something he cannot now do. The application, arguments and submissions are in substance

directed to the merits of the decision rather than any bona fide issue of constitutional justice. The lengthy grounds relied on fail

objectively to demonstrate that there is a substantive issue that could fairly be characterised as being concerned with a denial of

justice in the proceedings in question consistent with the onus of proof on the applicant. The burden of proof for alleged surrender of

a lease by act and operation of law is high. The outcome of such a case will inevitably cause some hardship for an unsuccessful

litigant. This is not to be equated with a denial of constitutional justice for that party. Each of the points advanced in the extensive

written and oral submissions, which I do not propose to rehearse exhaustively, goes to the merits of the decision and fall very far

short of the test set out by Chief Justice Murray in McKevitt. It is clear that what Mr. Smithwick objects to in reality is the conclusion

of the judgment and the determination that there was no surrender of this lease by act or operation of law.

22. It is fully accepted that Mr. Smithwick disagrees with the conclusions in the judgment and would have wished for a different

outcome. However, having very respectfully looked at all the additional factors raised, Mr. Smithwick has not established or identified

valid reasons or any sound reasons which could justify this Court in acceding to his application.

23. Second, I am satisfied that the contention that the judgment ought to be set aside or reconsidered on the basis that the appeal

was determined “on grounds not canvassed by Mr. Smithwick” is not sound. No stateable basis has been identified in the written or

oral submissions which would warrant interfering with the conclusion in the judgment of this Court under its wholly exceptional

jurisdiction to review its judgment. There is a fundamentally erroneous proposition underpinning a large number of the submissions

advanced on behalf of Mr. Smithwick which amounts to a contention that this Court was required to address the case and the issues

arising solely or primarily based on the new arguments advanced by counsel for Mr. Smithwick on his feet at the hearing of the

appeal. However, the appeal was brought by Friends First and the Court was entitled to consider the specific issues raised in the

appeal and structure the judgment with due regard to the grounds of appeal and the arguments advanced by both sides, taking into

account and weighing in the balance the competing contentions and arguments without slavishly recounting and recalling each and

every passing comment, submission and argument.

24. Third, I am satisfied that the respondent was not subjected to an unfair procedure. The assertion of bias is unfounded and there

was no reasonable basis identified in written or oral submissions for advancing it in the first place. The judgment of the Court was

unanimous. No member of the Court expressed any different view of the narrative or determination or took any issue with the

judgment. Further, I am satisfied that the judgment did not contain any material errors such as would warrant a reconsideration of

the judgment for further determination whether by a differently constituted panel of this Court or otherwise.

Conclusion

25. The appellant is entitled to finality. In substance the application amounts to a collateral attack on the determination of the Court

availing of a number of non-material factual errors which are indeed embodied in the judgment and could readily have been addressed

by consent or on foot of an application pursuant to O. 28 r. 11. The primary aim of the application was to seek to persuade the Court

to reopen the merits of the case. The effect of the application, if successful, could only lead to a reassessment of the “merits” of the

case. This Court cannot simply “vacate” a judgment in the absence of a constitutional basis for adopting such a course of action. No

constitutional want of fairness has been identified. There was no defect in procedure established by the applicant. I am satisfied that

there has been no breach of fair procedure in the manner in which the appeal was heard or in the determination by this Court of the

issues raised; neither were there any special or unusual circumstances in this case which would justify this Court in granting to Mr.

Smithwick the relief sought.

26. Accordingly, the application for a reconsideration by this Court of its judgment on the within appeal delivered in draft form on the

20th March 2019, and which is now to be circulated in its final form, is refused.