Court of Appeal dismisses appeal to set aside a family law settlement due to lack of proven duress or fraud.

APPROVED NO FURTHER REDACTION NEEDED

THE COURT OF APPEAL

Court of Appeal Record No.: 2025/54

High Court Record No.: 2013 2 M

Neutral Citation No.: [2025] IECA 145

Faherty J. Binchy J. Meenan J.

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW

REFORM ACT 1989, AND IN THE MATTER OF THE FAMILY LAW ACT 1995,

AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

BETWEEN/

H

APPLICANT/

RESPONDENT

- AND -

H

RESPONDENT/

APPELLANT

JUDGMENT of Mr. Justice Binchy delivered on the 14th day of July 2025

1. This is a judgment in an appeal brought by the appellant from a judgment of the High Court (Jordan J.) delivered (ex tempore) on 11th December 2024, whereby the High Court judge dismissed the appellant’s motion, which is undated but which was filed on 27th June 2024 whereby the appellant sought a series of reliefs against the respondent, including an order that a settlement agreement entered into between the parties on 18th January 2024 be declared unenforceable.

2. There is a very long history to these proceedings, which commenced in the High Court in 2013, and which resulted in a detailed judgment of White J. delivered on 5th November 2014, following a 15-day hearing. Following delivery of that judgment, White J. made a series of orders on 22nd January 2015. The was no appeal brought by either party from the judgment or orders made by White J.

3. On 1st April 2021, the respondent issued a motion seeking liberty to re-enter the proceedings and seeking orders, inter alia, requiring the appellant to take certain steps arising out the orders of the High Court of 22nd January 2015. That motion was initially returnable for 1st November 2021.

4. On 19th April 2023, the appellant issued a notice of motion returnable for 8th May 2023, seeking, inter alia, the re-entry of the proceedings, the re-hearing of certain matters, and the variation of various orders making proper provision for the respondent. This motion was grounded upon an affidavit of the appellant of 19th April 2023 in which she claimed that White J. had been misled by the respondent in a key respect, viz. that the company from which the business of the parties was conducted had a tax liability of €1,422,476. The appellant claims that this is was untrue, and that as a result a gross injustice had been visited upon her, because, and without getting into the details of the proceedings before White J., the respondent was assuming the liabilities of owed by the company to the Revenue Commissioners, and this was taken into account by White J. in the orders that he made as to proper provision for the parties. So obviously therefore, if there was no such liability, the respondent stood to benefit by this amount.

5. The appellant further claimed that the respondent had failed to produce documentation relating to this liability as directed by the Court at the time. Both motions ultimately came on for hearing before the High Court, Jordan J. on 16th January 2024. At this time, the appellant was represented by solicitors and counsel, as she had been previously when the substantive proceedings came on for hearing before White J. in 2014.

6. When the motions came on for hearing on 16th January 2024, following some preliminary exchanges with the High Court judge, counsel for the appellant asked the judge for some time to facilitate discussions between the parties, and Jordan J. acceded to the request. Although the appellant does not accept that these discussions resulted in a settlement, terms of settlement were in fact written up and signed by the parties on that date but that agreement could not be ruled by the Court because of an issue that required to be clarified in relation to the discharge of mortgages over the former family home of the parties, which pursuant to the orders made by White J., was to be transferred to the appellant, with the respondent to be liable for the discharge of the mortgage liabilities. However, while that issue was being resolved, the appellant expressed to her legal team her deep unhappiness with the settlement. This led to further negotiations and the conclusion of another settlement agreement on 18th January 2024, which was ruled by the Court the same day, in the presence of the appellant. Counsel for the appellant, when handing up the terms of settlement to the Court, described the terms as being an improvement on the existing orders. The final terms of settlement incorporated a number of hand-written amendments to the typed version of the agreement of 16th January, and these amendments were initialled by both parties. Jordan J. described the terms as being both sensible and fair, and commended the parties for their efforts.

7. However, notwithstanding having executed the terms of the settlement agreement, and being present in Court when the same were ruled and reflected in orders made by the Court, the appellant claims that she remained unhappy and only agreed to the term of settlement under extreme duress from her own legal team, who, she claims, informed her that they would not represent her further if she declined the terms on offer. Importantly, at the hearing of this appeal, in answer to a question from the Court, the appellant confirmed that she does not claim that the respondent or his legal team had any awareness of the duress she claims she was put under by her own legal advisors. However, she does claim that the following day she wrote to the High Court registrar in order to bring to the attention of Jordan J. that she had signed the settlement agreement of 18th January 2024 under duress from her own legal representatives.

8. On 23rd February 2024, the appellant sent a lengthy email to the solicitor acting on behalf of the respondent informing him, inter alia, that she was not a willing party to any agreement signed between 16th and 18th January 2024 and that the “state of play” of the proceedings was that subsisting prior to the commencement of negotiations on 16th January 2024. In the same letter the appellant made a series of further demands of the respondent in order to resolve matters. Unsurprisingly in the circumstances, there were no further negotiations.

9. The appellant’s former solicitors filed an application to come off record on 27th February 2024, and the appellant has represented herself in the proceedings ever since. At the hearing of this appeal the appellant represented herself skilfully and with utmost courtesy, and demonstrated a keen understanding of the issues to be decided by the Court.

Appellant’s Motion to Set Aside the Settlement

10. On 27th June 2024, the appellant filed the notice of motion giving rise to the judgment with which this appeal is concerned. As I have mentioned already, by this motion the appellant seeks, amongst other things, to have the settlement entered into by the parties declared unenforceable. Other reliefs sought by the appellant only arise for consideration if she is successful in obtaining that relief. The motion was not supported by a sworn grounding affidavit although the appellant did provide a document which it appears she intended to have sworn as an affidavit. In this document, the appellant seeks to explain the various reliefs that she seeks in her notice of motion. So far as setting aside the settlement is concerned, she says simply that she has explained how the settlement came into being in earlier correspondence, and that she reported this (to the Court) within one working day. She says that her former legal team have admitted, in writing, exercising coercion upon her, although she does not exhibit any such document. The respondent has sworn two affidavits in opposition to the application, deposing at some length as to the difficulties that he is experiencing as a result of the appellant’s actions.

Judgment of the High Court

11. The appellant’s motion came on for hearing before Jordan J. on 11th December 2024 who delivered an ex tempore judgment from which the appellant now appeals. In his judgment, having summarised the background, the High Court judge noted that the matter for determination by him was whether or not the appellant was entitled to a declaration that the settlement agreement and the court order made on foot thereof on 18th January 2024 is unenforceable on the grounds that the appellant was subject to coercion by her own legal advisors. The Judge observed that such a complaint is an issue between the appellant and her legal team, unless the respondent and his legal team were, as he said in colloquial terms, “in on it” in terms of the claimed duress.

The Judge held that the evidence before him was to the effect that the negotiations on both sides were conducted by legal teams in the way such negotiations are usually conducted, and that in this instance the negotiations were particularly protracted, effectively running over the course of three days between 16th and 18th January 2024. The Judge observed that litigants attending court for cases, and in particular protracted cases, will invariably under be under pressure and stress and will be nervous. Moreover, the Judge observed, more often than not some pressure will be brought to bear upon litigants by their own legal advisors.

The Judge referred to the Australian case of Anderson v. Anderson [1982] FamCA 36 in which the court had the following to say regarding pressures being brought to bear by counsel and solicitors on their clients: - “22. Counsel and solicitors representing clients involved in litigation in the Courts frequently subject their clients to considerable pressure to compromise that litigation. That is a necessary and proper part of the function of such legal representatives in the proper discharge of their duties to their clients and the Court. If every such compromise were to be open to attack by way of appeal by the client who subsequently thought better of it, there would be no end to litigation in this or in any other Court.

If in any particular case a client under no legal disability has been so overborne by his legal representative that such representative has breached the duty which he owes to the client in relation to the litigation then in train and I hasten to add that I make no such finding of any such breach in this case, then the client’s proper remedy, in my opinion, lies elsewhere than in an appeal against the orders made with his consent in that litigation”.

12. The High Court judge concluded that there was no legal basis for granting the declaration sought by the appellant and that it would be “completely wrong… to declare the settlement and court order unenforceable having regard to the evidence before the Court.” The Judge noted that the appellant herself presented as a careful, meticulous and intelligent woman, well seized of the facts and the issues so far as the litigation is concerned.

13. Noting that he had not been asked to do so, the Judge also considered the possibility – which he described as “questionable” of looking at the application as one being advanced under s. 22 of the Family Law Divorce Act, 1996 i.e., as an application to vary the order made on 18th January 2024. However, he was satisfied that there was no evidence before the court such as to persuade him that it would be proper to interfere in any way with that court order.

14. The Judge concluded that the position of the appellant was simply that she wished to obtain more than she had agreed to accept on 18th January 2024. The Judge further concluded that, on the evidence, there was no good reason or persuasive evidence to grant the declaration sought by the appellant and he dismissed the application. Since the respondent was wholly successful in resisting the application, he made an order that the appellant discharge the respondent’s costs incurred in connection with the same.

Notice of Appeal and Submissions of Appellant

Notice of Appeal

15. The appellant’s notice of appeal is somewhat diffuse and contains a great deal of information regarding the proceedings generally, rather than focussing upon those matters in respect of which the appellant contends the High Court judge fell into error. However, it is possible to discern five distinct grounds of appeal, which were also the main focus of both the written and oral submissions of the appellant. These are as follows:

(1) That the High Court judge informed the parties that he was “not of a mind to hear the case” because of its complexity and likely duration, and that he effectively ordered the parties to negotiate and come to an agreement;

(2) That the High Court judge erred in failing to make a finding that the respondent had failed to comply with orders made by White J. requiring the disclosure of information in particular concerning the liability (if any) of the Company to the Revenue Commissioners;

(3) That the High Court judge erred in failing to make a finding that the respondent had misled the High Court and/or committed a fraud in claiming that the Company had a liability to the Revenue Commissioners in excess of €1.4 million, in circumstances where (the appellant contends) the Company had no liability to the Revenue Commissioners;

(4) That the appellant was medically unfit to partake in the proceedings in January 2024. It is not contended that the High Court judge erred in this regard, because this issue was not raised before the High Court judge, but rather the appellant relies upon a medical diagnosis that she has received since the hearing in the High Court; and,

(5) That the High Court judge erred in failing to find that, during the course of the negotiations leading to the settlement, the appellant had been subjected to duress by her own legal advisors such that the settlement agreement should be set aside.

16. I turn now to address each of these grounds of appeal.

The Appellant’s Claim that the High Court Judge “was not of a mind” to Hear the Case

17. The appellant claims that during the course of the hearing on 16th January 2024, the High Court judge stated (although the appellant makes it clear that she is paraphrasing) that the proceedings: - “Had gone on for too long, was too complicated and complex and that he was not of a mind to hear the case and that he thought that the hearing of the case could take between 3 and 5 days and that he would then have to write up a Judgment which could take another day or two – and that, in summary, he was not of a mind to do so.” The appellant states that both sides were “ordered to go out” and come to an agreement.

18. The appellant repeats this assertion in her written submissions, at p. 17, where she states that it came as an enormous shock to hear the High Court judge announce on 16th January 2024 that he was not of a mind to hear the case due to its complexity. She also claims that the legal team that she had retained (which she claims she was instructed to do by the judge) at a cost of €50,000, was not allowed to present her case.

19. However, it is apparent from the transcript of the proceedings in the High Court that the Judge said nothing of the kind and that he made it plain that he was there to hear the case if it did not resolve. There is nothing at all in the transcripts that suggests any reluctance on the part of the Judge to hear the case or that he put any pressure of any kind on the parties to settle the proceedings. On the contrary, at pages 24 - 25 of the transcript of the hearing on 16th January 2024, Jordan J. had the following exchange with counsel for the appellant: - Judge: “…There is a level, to my mind, of entrenchment involved in terms of positions or certainly a position adopted. …parties would do well to reflect on the situation as it actually is. But I am here as a judge, not as a mediator; I propose to deal with the matter. It may not end here. The -- this case could still be going after I've left the Four Courts at the rate it's going, but I'm here to do my job.” Counsel: “Fair enough.” Judge: “I’ll hear the application and I will give you a few minutes if you want a few minutes. If not, we'll start into it."

20. When this exchange was brought to the attention of the appellant at the hearing of this appeal, she said that she definitely heard the High Court judge say what she claims he said, and that it must not have been picked up by the stenographer. She drew the attention of the Court to the transcript of the hearing of this motion before Jordan J. on 11th December last, when she submitted to the judge (as the transcript of that hearing records) that he had said he wouldn’t hear the case, and that he had sent the parties out to negotiate. The judge replied that he was prepared to hear the case, and that what had occurred was that he had acceded to an application for time for negotiations. If anything, this exchange undermines the appellant’s attempt to persuade this Court that there is text missing from the transcript of 18th January 2024, but the appellant submitted that she would hardly have said what she said to Jordan J. on 11th December 2024 if she had not heard him say what she claims he said.

21. It may be that the appellant’s recall of what the trial judge said at the very end of proceedings on 18th January 2024, when he did indeed refer to the complexity of the proceedings and express the view that had it proceeded it would have taken a considerable amount of time, has influenced her recall of what was said by the judge, but what Jordan J. most assuredly did not say was that he was not prepared to hear the case, and nor did he say anything that was open to that interpretation. As I have already said, and as is apparent from the extract of the transcript quoted above, the contrary is the case. The appellant is plainly wrong in the assertions she makes under this heading, and accordingly this ground of appeal must be dismissed.

Grounds No. 2 and 3 – Failure to find Fraud and Non-Disclosure

22. Both in her written submissions to this Court and again at the hearing of this appeal, the appellant relied heavily on the fraud that she asserts the respondent perpetrated before the High Court at the hearing of the substantive proceedings in 2014, insofar as he claimed before that court that there was a debt due to the Revenue Commissioners in excess of €1.4 million. The appellant also placed heavy reliance on what she claims was incomplete disclosure by the respondent. The appellant criticises Jordan J. for stating, as he did, that the alleged fraud had never been proved, and claims that she was denied her entitlement to present to the Court the evidence that the respondent had put to the High Court in 2014. The appellant submits that the court orders made by the High Court in January 2015 were conditional orders and that the respondent failed to meet those conditions, including those relating to the provision of information and documents, and that for this reason, she submits, Jordan J. should have allowed her to “reconsider the settlement terms”.

23. It is apparent that these grounds of appeal are misconceived. The appellant fails to understand that these very issues (and others) were raised by her own notice of motion of May 2023, and were put to rest upon conclusion of the terms of settlement, which was expressly stated to be in settlement of the motions issued by each of the parties. It goes without saying that if the fraud or misrepresentation relied upon induced the appellant to enter into the terms of settlement on a false premise or false premises, then the settlement would be vulnerable to being set aside, but that is not the situation here. The matters about which the appellant complains under these headings were clearly extinguished by the settlement, and it is not open to the appellant to resurrect them and litigate them now.

Ground No. 4: Failure to take into Account the Appellant’s Poor State of Health

24. In her notice of appeal, the appellant raises for the first time an issue regarding her state of health during and around the time the motions were listed for hearing in January 2024. She explains that in 2018 she had been diagnosed with atypical migraine which at that time had caused her very serious disability including loss of sight, speech and power in her arms and legs. It appears that those symptoms abated, but that she continues to have other problems including very severe headaches as well as difficulties in processing information and loss of concentration. The appellant informed this Court that since the proceedings in the High Court, she has received a further diagnosis of a different (and serious) condition known as cerebral amyloid angiopathy, which is aggravated by stress and hypertension. She said that at the time these motions came on for hearing in the High Court, she was very unwell, and had been very unwell since early November 2023. The clear import of all of this was that she was not fit to participate effectively in the proceedings in January 2024, although the appellant did not say so expressly, and nor did she provide (or apply to adduce) any medical evidence to this effect. In fact, somewhat surprisingly in the context of a ground of appeal based upon a medical condition, the appellant has not provided nor sought permission to provide any medical reports at all.

25. Moreover, although claiming to be suffering from these very debilitative symptoms since November 2023, the appellant took no steps to seek an adjournment of the proceedings, either in advance of the proceedings in the High Court or at the time, although she claims that she told her legal team during the course of the settlement discussions that she was very unwell. However, she says, that instead of looking for an adjournment, her legal advisors insisted that the negotiations should continue in what the appellant describes as freezing cold conditions.

26. This ground of appeal is beset with multiple obstacles. The first is that the appellant did not raise it at all in the High Court. The High Court judge can hardly be in error for failing to address a matter which he was not asked to address and in respect of which (as a result) he reached no conclusion. This is a matter of first principles in appeals, and it is well settled that an appellate court, generally speaking, will not entertain arguments or determine issues that were not raised in the Court below. I say “generally speaking” because there are of course exceptions, but as I have already said, the appellant made no application to this Court to admit evidence not adduced in the Court below, nor to permit her to advance an argument not made in the High Court.

27. Furthermore, and very strikingly, the appellant made no reference at all to her illness or to being unable participate in the appeal by reason of being very unwell when she wrote to the solicitors for the respondent by email of 23rd February 2024, asserting that she was labouring under duress from her own legal advisors at the time of the settlement. While I do not doubt the appellant is suffering from the medical conditions that she has drawn to the attention of the Court, it seems reasonable to expect that, in a letter sent so soon after the

conclusion of the settlement, the very purpose of which was to reopen the proceedings, she would have mentioned that at the time of the settlement discussions she was as unwell as she now claims.

28. It follows from all of the foregoing that this ground of appeal must be dismissed because (a) it was not raised at all in the High Court (b) the appellant has not sought leave of this Court to raise it now (c) there is no evidence at all of the appellant’s state of health at the time of the settlement discussions and (d) if the appellant was as unwell as she claims at the time of the discussions, she should have sought an adjournment of the proceedings no later than January 2024.

Ground No. 5: Duress

29. The duress relied upon by the appellant under this heading is pressure which she claims was brought to bear upon her by her own legal advisors. The appellant claims that she made it clear from the very outset of the proceedings (on 16th January 2024) that the terms on offer were not acceptable to her, but that she was prevailed upon by her counsel to sign the terms of settlement on 16th January 2024 on the basis that they were not binding. She claims that the next day she contacted her legal advisors and made it plain that the terms were not acceptable to her. It is not in dispute that there were at the time further negotiations and that amendments were made to the terms that had been written up on 16th January 2024. These amendments were to the benefit of the appellant, as the judge pointed out to her on 11th December 2024 (Transcript, p. 45, line 4, and again at line 21) and the appellant did not cavil with that assessment. They were initialled by both parties, and the appellant signed amended the terms of settlement on 18th January 2024, in the presence of her solicitor. However, the appellant maintains that she remained under very significant pressure, amounting to duress, to sign the terms of settlement. She claims that her legal advisors informed her that if she did not do so, they would cease acting on her behalf in the proceedings.

30. The appellant claims that she immediately regretted entering into the settlement and that she informed the High Court registrar of this by email the following day. The appellant places heavy reliance upon this document, on the basis that the authorities (she submits) make it clear that a person who wishes to resile from a settlement on grounds of duress must act promptly after the conclusion of the settlement. Notwithstanding the reliance that the appellant placed on this document, she did not exhibit a copy of it, and it was not available either to the High Court judge or to this Court. When the Court raised the issue with the appellant at the hearing of the appeal, she said that she did not have a copy of the email available, but she offered to show the members of the Court the copy that she had retained on her computer. However, the Court did not consider it appropriate to accept evidence tendered in this way.

31. In any case, nothing really turns on this omission because the appellant did write to the solicitors for the respondent soon afterwards by email of 23rd February 2024, informing them, amongst other things, that she had entered into the settlement agreement under duress from her legal representatives, and claiming that the agreement did not reflect the instructions that she had given to them. Moreover, she claims, that when the Court was informed of the settlement on 18th January 2024, she felt powerless to say or do anything, having previously observed the trial judge in another case declining to hear a solicitor in circumstances where counsel retained by the solicitor was present. In the same letter, the appellant informed the solicitor for the respondent of the email that she had sent to the Court registrar within 48 hours of the settlement being ruled by the Court, informing the Court that she had been coerced into signing the agreement and that she had made her objections known at all times.

32. Significantly, the appellant does not claim that the respondent or his legal representatives were aware of the pressures that she claims were being exerted upon her by her legal advisors, or that she entered into the terms of settlement under duress. In response to an express question from this Court, the appellant accepted that the other side knew nothing of the issues between the appellant and her legal advisors.

33. In her written submissions, the appellant accuses counsel for the respondent of being a party to concealment of essential information (although she does not specify what information she is referring to) and she also submits that the High Court judge was made aware by both senior counsel in the case that the respondent was threatening to withdraw from negotiations unless he had assurances from Bank of Ireland that the mortgage on the family home had been paid in full. She submits that “overall” the Judge was aware of “different levels of duress and coercion to ‘get the deal signed’”. The appellant claims that having written to her legal team on several occasions asking them to renegotiate with the other side, her legal team refused to assist her. Moreover, she claims that her legal team threatened to come off record if she did not agree to the settlement.

34. The appellant relies upon the case of R. v. C. [2025] IEHC 76, a judgment of Jackson

J. in the High Court on 7th February of this year. That judgment was given in the context of an appeal from the Circuit Court to the High Court in circumstances where the proceedings had been settled in the Circuit Court and no evidence had been given to that court. The proceedings were initially brought pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, and the applicant (who was also the appellant) subsequently issued separate proceedings seeking reliefs under various provisions of the Family Law Act, 1981, the Family Law Act, 1995, the Family Law (Divorce) Act, 1996 and the Family Law (Maintenance of Spouses and Children) Act, 1976. The settlement entered into by the parties encompassed both sets of proceedings and was made an order of the court.

Both parties were represented at the time of settlement, but neither was represented at the appeal, leading the trial judge to observe that in such circumstances a definitive determination of the legal principles concerned in the context of certain family law applications would have to await different case where the matters are fully explored. The judge noted that the case gave rise to a complex legal issue, and particularly so in the context of certain family law proceedings, namely the extent to which consent orders may be appealed. Jackson J. concluded, as para. 36: - “In the present case, the Applicant/Appellant has agreed in the Consent Terms that she is not a qualified cohabitant and she has signed a document so confirming and she did so with the benefit of independent legal advice. No determination was made by the Circuit Family Court in this regard rather the Applicant/Appellant agreed that the proceedings under the 2010 Act could be struck out on the basis that she was not a qualified cohabitant. In all of the circumstances and having regard to the evidence before me, in particular the signed Consent Terms, I am satisfied that it is not appropriate for me to grant redress as pleaded pursuant to the 2010 Act in circumstances in which there is a signed acknowledgement of the applicant/appellant that she is not a qualified cohabitant. To permit this matter to be litigated for the first time in the context of an appeal would be entirely unreasonable and unfair and contrary to authority.”

35. It is not apparent to me how R. v. C. is of any assistance to the appellant. In the course of her judgment, Jackson J. referred to another recent judgment of the High Court, that of Bradley J., Paes v. O’Connor [2024] IEHC 199, another case in which an appellant purported to have a settlement entered into in the Circuit Court set aside via an appeal to the High Court. In that case, the appellant, who had not been represented in the Circuit Court sought to argue that she had been under duress at the time of the settlement. Bradley J. held, at para. 42: - “42. As stated, in seeking to impeach the settlement agreement/consent reached between the parties on 29th November 2022, [Ms. X] essentially seeks to set aside the settlement agreement on alleged grounds of duress but attempts to do so via the prism of a purported appeal from the Order of the Circuit Court dated 29th November 2022 which incorporated the settlement into a court order.

43. The attempt to do so, however, falls foul of the decision of the Supreme Court in Charalambous v Nagle [2011] IESC 11.

44. In that case an order had been made by the Circuit Court (His Honor Judge Terence O'Sullivan) on consent that Ms. Nagle recover possession of the premises, the Avoca Inn, from Mr. Charalambous. Both parties were legally represented before the Circuit Court. The Order cites that it was made “on consent”. Mr. Charalambous appealed the order and the High Court (Edwards J.) refused the appeal on the grounds that it was an order made on consent, that no appeal lay, and ordered that: (a) the appeal do stand refused; (b) the order of the Circuit Court was affirmed; and (c) the respondent do recover against the appellant the costs of the appeal. Separate intoxicating liquor licence proceedings and Circuit Court and High Court proceedings in relation to the matters also issued. When the matter came before the Supreme Court, Denham J. (as she then was) observed at paragraph 27 of her judgment that the kernel of the case related to a consent order of the Circuit Court and in that context further stated at paragraphs 28 and 29 (and in the context of the order from His Honour Judge O'Sullivan) that “(28) [t]here were no grounds raised upon which to set aside the consent order on a basis recognised by law. The appellant has brought several sets of proceedings subsequent to the order of the 5th February, 2008.

However, there has been no claim of fraud. (29) These were final orders. Final orders are final and conclusive and may not be relitigated except in circumstances such as indicated in Belville holdings v Revenue Commissioners [1994] 1 ILRM 29.”

36. The appellant submitted to this Court that the authorities establish that settlement agreements and consent orders may be reopened or set aside where the consent to settlement is shown to have been given as a result of misrepresentation or vulnerability. The former proposition (i.e., that a settlement may be set aside on grounds of misrepresentation) is not in dispute between the parties. The difficulty for the appellant is that she has not sought to rely on any misrepresentation inducing her to enter the settlement. The misrepresentation she relied upon in her motion of April 2023 (which was not admitted by the respondent) was anterior to and resolved by the settlement of January 2024.

37. Counsel for the respondent submitted that the High Court judge was correct to reject the appellant’s application in circumstances where, as far as the respondent is concerned, she freely entered into terms of settlement on 18th January 2024, following almost three days of negotiations and with the benefit of and assistance of solicitors and counsel. While counsel accepts that there is authority for the proposition that terms of settlement may be set aside in circumstances of duress, it is clear from those authorities that the jurisdiction is a very limited one and should only be exercised in circumstances where it is established to the satisfaction of the court that the other party to the settlement was a party to the duress or was acting in cahoots with the representatives of the person asserting duress.

38. Counsel for the respondent submitted that there are few authorities directly on the issue as it arises in this appeal, but that the following authorities are instructive: Y.G. v. N.G. [2011]

3 I.R. 717, Witham v. Commercial Union Capital Ltd. [2002] EWCA Civ 1776 and Aujla v. Aujla, an unreported decision of the County Court of Redding of 5th October 2022. The respondent also relies on the decision in the Australian case of Anderson v. Anderson, and the extract from the judgment in that case cited by the trial judge (see para. 11 above).

39. In Witham v. Commercial Union Capital Ltd. [2002] EWCA Civ 1776, a decision of the English Court of Appeal, the plaintiff entered into a settlement which he immediately regretted, and claimed that he had entered into it under the duress of his legal advisors. He also said that he suffered from ill health having previously suffered a stroke. Approving the dicta in an earlier case of Kesarmal & Anor v. NKV Valliappa Chettiar [1954] WLR 380, Laws L.J. held that in order to set the settlement aside, it had to be shown that the other party had constructive notice of the duress relied upon or that the other party had procured the making of the contract through the agency of the party who exerted the duress.

40. Similarly, in the case of Aujla v. Aujla [2022] WL 10640367 it was held by the English County Court that even if duress is established (in that case it was claimed that a mediator who negotiated a settlement had overborne the plaintiff’s will, and marginalised his legal advisors) in order to render the agreement void, it would have been necessary for the plaintiff to establish that the other party to the agreement had actual or constructive notice of the conduct complained of, and on the facts there was no evidence of such conduct.

41. The appellant is asking the Court to set aside a settlement which has been made an order of the court, in circumstances where:

(i) The settlement was negotiated over a period of three days;

(ii) The appellant was represented by solicitors and counsel; and,

(iii) The settlement was made an order of the court upon the application of the appellant’s counsel when she was present in the Court.

42. In doing so, the appellant relies upon duress to which she claims she was subjected by her own legal advisors, but which she candidly acknowledges was unknown to the respondent, and nor does she assert that the respondent should have been aware of the same, i.e. she does not seek to impute constructive notice of the duress to the respondent.

43. That a settlement concluded in these circumstances could be set aside on this basis alone is a startling proposition that could only be entertained upon the clearest of authority. The appellant has produced no such authority and her reliance on R. v. C. is misplaced. It does appear, as counsel for the respondent has submitted, that there is a surprising dearth of authority in which this issue has been considered. Those authorities that have been produced, and which have been summarised to the extent relevant above, make it plain that for duress to form a basis upon which to set a settlement aside, the duress must have been known to the other party to the settlement or alternatively the circumstances must be such that the other party should be fixed with constructive notice of the same. It goes without saying that if the other party to the settlement was in any way complicit in the exercise of the duress relied upon, then the other party would have had knowledge of it, be it by way of actual knowledge or constructive notice.

44. A party to a settlement is entitled to the benefit of it and to rely upon it, and it may only be set aside by the other party on the establishment of recognised grounds of which duress in the circumstances described in the last paragraph is one. Other such grounds include (but may not be limited to) fraud or misrepresentation leading to the settlement. The entitlement to finality in litigation has been repeatedly emphasised by the Courts (as it was in this case by the High Court judge) and while in the context of family law that is qualified by an entitlement to apply for variation orders, this is not such an application, although it may be observed that even in that context the Supreme Court in Y.G. v. N.G. recognised the importance of finality and certainty in appropriate circumstances. Where, in the family law context a person seeks to set aside a settlement on any grounds, as distinct from making an application for variation of existing orders, I can see no reason why the principles to be applied should not be the same as any other litigation. If the person crying foul is unable to establish any of the recognised grounds upon which a settlement may be set aside, then that person will be held to the bargain that has been struck.

45. I should add that while the trial judge did, while expressing reservations about doing so, consider the possibility of treating this application as an application to vary the orders made by the Court of foot of the settlement, he concluded that there was no evidence before the court to justify interfering with the orders made pursuant to the settlement. While I would agree with the latter conclusion, I am also of the view that this application should not be treated as an application to vary those orders pursue it to s. 22 of the Family Law Divorce Act, 1996, as that jurisdiction should be expressly invoked and the evidence in support of such an application marshalled accordingly. In any event, the appellant made no submissions on this issue.

46. The appellant has failed to identify any error on the part of the High Court judge in his treatment of this issue. In my view, all of his observations in regard to the issue which I have summarised at paras. 11 - 14 above, are both apposite and correct. I would therefore dismiss this appeal.

47. Since the respondent has been entirely successful in this appeal, my preliminary view is that he is entitled to an order requiring the appellant to discharge his costs incurred in connection with the same. If the appellant wishes to contend for a different order, then she may within ten days from the date of delivery of this judgment request a brief oral hearing for the purposes of making submissions as to why the order that I have indicated above should not be made, but if the appellant does so, and if she is unsuccessful in making an application for any different order to that indicated above, then she may be held liable for any additional costs incurred by the respondent by reason of such further hearing.

48. As this judgment is being delivered electronically, Faherty and Meenan JJ. have authorised me to indicate their agreement with it.