Appeal against judgment dismissed; application to set aside final order refused as abuse of process.

THE COURT OF APPEAL

Record Number: 2024 No 18

High Court Record Number: 2022 No 16SP

Neutral Citation Number [2024] IECA 262

Binchy J. Pilkington J. O’Moore J.

BETWEEN/

ROBERT ALAN ROBERTS

PLAINTIFF/RESPONDENT

-AND-

DAVID IAN ROBERTS AND JANICE ROBERTS

DEFENDANTS/APPELLANTS

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 5th day of November, 2024

1. On the 12th December, 2023 the High Court (Nolan J.) made an order in favour of Robert Alan Roberts (“Robert Roberts”) against David Ian Roberts and Janice Roberts (“David Roberts and Janice Roberts”). The operative part of the High Court order read: - “AND THE COURT DOTH DECLARE that the principal monies secured by the said Judgment Mortgage created by the registration as aforesaid of a copy of a Judgment Mortgage Affidavit the interest thereon the costs of such registration and the costs herein after awarded stand well charged on the First Named Defendants interest in the said lands and premises described in the Second Schedule hereto…”

2. The judgment referred to in the order of the High Court is a judgment in favour of Robert Roberts against David Roberts, and obtained by Robert Roberts on the 5th March, 2010 in proceedings before the Chancery Division of the High Court of England and Wales.

3. David and Janice Roberts appealed the judgment and order of the High Court. By judgment of this court dated the 22nd July, 2024, and bearing the neutral reference [2024] IECA 193, this appeal was allowed. The order of the High Court was set aside. The matter was sent back to the High Court. As is set out in paragraph 21 of the judgment of this court:- “The Notice of Appeal does not seek an order striking out the Special Summons proceedings.” This important fact is not disputed in the current application made by David Roberts on his behalf and on behalf of his wife, Janice.

4. In sending the matter back to the High Court, the judgment of this court noted (at para.

22): -

“The parties should reflect on whether these proceedings serve any useful purpose.” This observation was made given certain concessions made by counsel for Robert Roberts during the course of the hearing of the appeal.

5. The appeal was listed for the 30th of July, 2024 to deal with any outstanding issues, including the question of costs. Between the delivery of the judgment and 30th of July, David Roberts provided to the Court of Appeal Office a number of documents taking issue with the judgment, notwithstanding the fact that the judgment was in his favour. These were unsolicited by the court, and did not form the basis of any formal application to the court either prior to or at the hearing on the 30th of July, 2024. While the contents of these memoranda are misconceived, perhaps the most obviously baseless set of observations is to be found in a document headed: - “Legal Error in item 4.”

6. This document begins: -

“Judge O’Moore stated, ‘I do not accept that [David] in some way assigned the monies to his wife to pay for the failure of [Robert] to purchase shares. That seems to me to be a far fetched notion.”

7. Quite plainly, this wording ascribes to this court the rejection of a contention put forward by David Roberts. In fact, the quote supposedly from the judgment of this court is actually a quote from the judgment of the High Court judge. Paragraph 4 of the judgment of this court refers to “two paragraphs of the ex tempore judgment of the High Court Judge”. The quoted section of the judgment of the High Court is introduced by the following statement: - “A summary of his conclusions is helpfully to be found at page 6 of the Transcript… of his ex tempore judgment…”

8. There can be no doubt that anybody reading paragraph 4 of the judgment of this court would understand that the quote to which David Roberts takes exception is actually a quote from the judgment of the trial judge.

9. Notwithstanding this, and on the erroneous basis that the relevant wording is part of the judgment of this court, David Roberts proceeds (in the memorandum to which I refer) to build a series of conclusions about the judgment of this court, which are entirely without foundation. Among other things, and based on an entirely false premise, David Roberts alleges that: - “[This court] clearly did not consult how the UK and Ireland legally handles property ownership and equity assignment.” “[This court] overlooked the fact under British Company Law, all sales of company shares and loans made to directors, have to be recorded by a limited company in its books of account.” The finding “suggests a very unfair element of bias was afoot when coming up with that nonsense!” “Ignored the fact (sic) Janice had rights as a shareholder …” The judgment displayed a “lack of understanding of legitimate accountancy practice.”

10. It is worth repeating that all of these assertions, including the very serious allegation of bias, are grounded solely on a misreading of this court’s judgment which is simply impossible to understand.

11. Subsequent to the hearing on the 30th of July, at which David Roberts was awarded his expenses in respect of the appeal and the hearing of the original application before the High Court, he has now sought to bring an application to “appeal” against the judgment of this court, which was in his favour.

12. Of course, this court has no jurisdiction to hear appeals against itself. However, it is plain from the papers in their entirety that what David Roberts actually wants is a review of the earlier judgment of this court.

13. The application for review is grounded upon a nineteen page affidavit, and a set of written submissions which runs to five pages.

14. The basis upon which this court will review its own judgments in accordance with the so-called Greendale Developments jurisdiction, is comprehensively set out by Whelan J. delivering the judgment of this court in two related judgments. These are Bank of Ireland v Carey [2024] IECA 245 and Bank of Ireland v Carey [2024] 247.

15. In the first of these (at para. 43) Whelan J. refers to the “succinct yet compendious exposition on the application of the Greendale principles” by Murray J. in Decobake (in Liquidation) [2022] IECA 31 (at para. 4). The judgment of Murray J., in turn, emphasised the requirements that the Greendale jurisdiction “is by definition wholly exceptional in nature…, arises only where it is established that a failure to set aside a decision will result in a breach of the constitutional rights of the applicant and to that end must constitute something extraneous going to the very root of the fair and constitutional administration of justice … [and] is not available only because the decision is alleged to have been wrong on the merits …”

16. In the latter of these related judgments, Whelan J. (at para. 44) that: - “Ordinarily, it is a two step process. Firstly, a determination whether such a review is warranted and thereafter, in the event that it is considered so warranted, the review takes place.”

17. This judgment addresses whether the requirements of this first step have been met. I have carefully considered the papers lodged by David Roberts for the purpose of seeking a review of this court’s earlier judgment. None of these reasons satisfy the requirements for such a review.

18. At para. 4g of his grounding affidavit, David Roberts sets out what he describes as the “principal error” in this court’s judgment. He avers that para. 1 of the principal judgment is factually incorrect. In fact, para. 1 of that judgment does no more than set out as a matter of fact that the Will of David Roberts’ late father “failed to make a bequest of the property in which [Thomas Roberts] lived at the time of his death.” This is entirely accurate, and in fact is consistent with the position of David Roberts to the effect that the interest in this property had been transferred to him by his late father during his father’s lifetime. Para. 1 of the judgment goes on to state that because of this failure the proceeds of sale of the relevant property “should have been divided equally between David and Robert.” That is entirely consistent with the judgment of the High Court of England and Wales, upon which these proceedings are based. In order to avoid this inconvenient fact, David Roberts (at para. 28a of his affidavit) gives the following evidence. It should be noted that District Judge Sheldrake is the judge who made the order of March 2010. The proposition is: - “28A All decisions have consequences, some intended, some not. Retrospectively Judge Sheldrake ended the meritless and completely unnecessary dispute by [Robert Roberts], with a clean sharp edge. He released [David Roberts] from further harassment by punishing [Robert Roberts] through the use of subtlety. Expectation followed by disappointment. [Robert Roberts] was awarded a monetary judgment for the sum he asked for, but legal procedure required he had to return to the court for the order to be perfected under UK CPR 74 through which the order will be rendered unenforceable.” In other words, David Roberts appears to be making that case that the order against him to pay to Robert Roberts half of the proceeds of sale of their late father’s property was designed by the English judge to be a toothless one.

19. It may, of course, be the case that should this action ever proceed to hearing David Roberts will succeed in persuading an Irish court that this view of events is both factually correct and legally meaningful. However, the summary of the background to the English order (and the separate summary of the claim made by Robert Roberts in the English proceedings) contained in the principal judgment have not been shown by David Roberts to be inaccurate in any material way. In any event, as this is an interlocutory hearing dealing with the sole issue as to whether or not the application for a well charging order should go to a plenary hearing, this court has not even purported to make findings of fact which could bind any trial judge in the future.

20. David Roberts is therefore incorrect in suggesting that there is any error in para. 1 of the principal judgment of the court. It follows that the consequences which he claims to flow from such an error simply do not arise. It is notable that, at para. (b) on p. 5 of his grounding affidavit that David Roberts refers to “item four…” as an example of “prejudice at work”; the prejudice is one which he alleges this court has against him. Item four is, of course, para. 4 of the principal judgment which was the subject of complaint by David Roberts in the memorandum which I have described (at some length) at the start of this judgment. For the reasons set out there, the complaint is entirely misconceived. As I have explained, the very serious allegations of bias and prejudice made against this court arise from an understanding of para. 4 of the principal judgment which could not have been reached by a literate person acting honestly.

21. The second principal complaint of David Roberts is that these proceedings should have been struck out by this court. During the course of this section of the affidavit of David Roberts, he advances criticisms of a range of people (other than members of the court) which appear farfetched. David Roberts has also made allegations against members of the court which simply make no sense. In particular, David Roberts has misinterpreted questions put by members of the court as binding “declarations” by individual judges. He also ignores the fact that the substantive judgment is a judgment with which all three judges agreed.

22. As I have already said, nowhere in his affidavit or his submissions does David Roberts meaningfully engage with the finding of the court that the Notice of Appeal of Janice Roberts and David Roberts does not seek a striking out of the proceedings. In those circumstances, it cannot be said that justice requires a review of our judgment in order to provide David and Janice Roberts with an order which they did not even seek in their Notice of Appeal. As noted by Clarke C.J. in Student Transport Scheme Ltd. V The Minister for Education and Skills [2021] IESC 35, in considering the analogous jurisdiction of the Supreme Court, “where an unsuccessful party seeks to have a final order set aside it must establish as a prerequisite a fundamental denial of justice against which no other remedy is available such as an appeal”; as paraphrased by Whelan J in Bank of Ireland v Carey [2024] IECA 247, at paragraph 33. Apart altogether from the fact that David Roberts and Janice Roberts were successful in obtaining the principal relief sought by them in this appeal, it is always open to David Roberts and Janice Roberts, when the matter returns to the High Court, to apply for the proceedings to be struck out and for such an application to be brought in a procedurally proper way.

A word about language

23. During the course of this judgment, I have referred to the intemperate language used by David Roberts in papers lodged with this court. It is simply unacceptable for any litigant to employ the sort of language that David Roberts has chosen to use. Were it not for what we are told about the personal circumstances of the appellants, the court would have had to consider whether or not the behaviour of David Roberts constituted a contempt of court. As it is, we have decided not to go down that road given the situation in which the appellants find themselves. However, that should not prevent any judge (who subsequently may have to deal with any element of these proceedings) from taking action to ensure that David Roberts realises that he cannot without consequence behave in the groundlessly abusive manner which has characterised his most recent application to this court.

24. The current application does not, in any real way, attempt to satisfy the criteria which must be met if a court is to revisit its judgment. Instead, it has all the characteristics of an abuse of process. The fact that such an application is made, and fails, is not without consequences. The court having delivered its judgment in late July, and conducted a costs hearing at the end of that month, has now been obliged to revisit the appeal on foot of the current application (initiated in early September). The three members of this court have had to read into the original appeal papers, recall the oral hearing, consider the principal judgment, and scrutinise the folder of papers lodged by David Roberts. It has then been necessary to draft this judgment, and for each of the three judges involved to decide not only on the outcome but also on the wording of this ruling. The ordinary citizen, whether a litigant or not, must be bemused at the fact that this elaborate process is triggered by someone who has actually won his appeal.

25. Binchy and Pilkington JJ agree with the contents of this judgment, and the order which I propose. The application dated the 4th September, 2024 made by David Ian Roberts and Janice Ruth Roberts will be refused.