Court of Appeal dismisses application to vary final judgment on defamation appeal, citing no basis for review.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2024 143

Neutral Citation Number [2025] IECA 147

Whelan J. Allen J. Meenan J.

BETWEEN/

JOHN O’CONNOR

PLAINTIFF/APPELLANT

- AND –

LEGAL AID BOARD, THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

RULING OF THE COURT delivered on the 22nd day of July, 2025

Introduction

1. This is an application made by an unsuccessful appellant to vary or rescind a final judgment and order of the Court. In accordance with Court of Appeal Practice Direction CA14 it has been considered by the panel of judges who heard the appeal. In his affidavit grounding the application Mr. O’Connor has asked that the panel members should recuse themselves but there is no basis on which they should do so. Contrary to Mr. O’Connor’s apprehension, the Court has considered the papers with an entirely open mind.

The judgment the subject of the application

2. By order made on 16th May, 2025 – for the reasons given in a written judgment delivered on 20th February, 2025 on the substance of the appeal [2025] IECA 39) and a written ruling delivered on 6th May, 2025 on the question of costs ([2025] IECA 94) – the Court dismissed, with costs, Mr. O’Connor’s appeal against the judgment and order of the High Court (Stack J.) whereby his action against the Legal Aid Board for damages for defamation and malicious falsehood was dismissed on the ground that the statement on which the action was brought was not reasonably capable of being found to have a defamatory meaning.

3. Mr. O’Connor – understandably, since he had lost – was dissatisfied with the judgments.

The application to review

4. On 14th May, 2025 Mr. O’Connor issued and possibly served a notice of motion by which he sought inter alia an order pursuant to O. 28, r. 11 of the Rules of the Superior Courts. Order 28, r. 11 is concerned with clerical mistakes in judgments or orders or errors arising from accidental slips or omissions. The substance of the application, however, was that the substantive judgment contained both minor and major errors and “error(s), mistake(s), and material error(s) for the findings and determinations made in [the] judgment including untrue statements in relation to” Mr. O’Connor which – he contended – if left uncorrected would lead to an injustice.

5. Mr. O’Connor’s motion was not, in truth, an application pursuant to O. 28, r. 11 but an application to vary or rescind a final judgment of the Court of Appeal. The motion was de-listed and Mr. O’Connor was directed to make any application he wished in accordance with Court of Appeal Practice Direction CA14.

6. On 25th June, 2025 Mr. O’Connor filed a “CA14 SHORT SUBMISSION” in which he first protested that the practice direction is unconstitutional and then set out his complaints in relation to [2025] IECA 39.

Court of Appeal Practice Direction CA14

7. Practice Direction CA14 was issued by the President of the Court of Appeal on 5th December, 2024 pursuant to the provisions of s. 7C(2) of the Courts (Supplemental Provisions) Act, 1961, inserted by s. 10 of the Court of Appeal Act, 2014. It governs “Applications to vary or rescind a final Judgment or Order made by the Court of Appeal (‘Review Applications’), or to correct a Judgment or Order (‘Correction Applications’)”. It spells out, in Part B, that it does not apply to applications for the correction of clerical mistakes or errors arising from accidental slip or omission or applications to set aside a judgment or order on the grounds that it was obtained by fraud. The Court of Appeal practice direction reflects mutatis mutandis Supreme Court Practice Direction SC17, issued by the Chief Justice on 27th November, 2024.

8. The practice direction commences by reciting Article 34.4.3 of Bunreacht na hÉireann, which provides that:- “The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.” And by noting that the Supreme Court has appellate jurisdiction from a decision of the Court of Appeal if satisfied that the decision involves a matter of general public importance, or that in the interests of justice it is necessary that there be an appeal to the Supreme Court.

9. It then sets out the principle – following the case law of the Supreme Court, starting with Greendale Developments Ltd. [2000] 2 I.R. 514 and citing the previous decisions of this Court – that review applications will be considered by the Court only in the most exceptional circumstances, where, through no fault on the applicant’s part, the judgment or order operates both to deny the applicant justice and to clearly breach the applicant’s constitutional rights. Recitals d and e emphasise – in accordance with the decided cases – that an intending applicant bears a very heavy onus of establishing that such circumstances exist, and must show cogent and substantive grounds which are objectively sufficient to enable the Court to determine that a hearing of a review application on the merits is justified.

10. The power conferred on the President of the Court of Appeal by s. 7C(2) of the Act of 1961 (as inserted) is a power, in the interests of the administration of justice and the determination of proceedings in a manner which is just, expeditious and likely to minimise the costs of proceedings, to issue practice directions in relation to the conduct of appeals or applications made to the Court of Appeal. Practice Direction CA14 recites, at para. g, that the President was satisfied that it was in the interests of the administration justice and the determination of a review application in a manner which is just, expeditious and likely to minimise the costs that she should issue that practice direction.

11. Mr. O’Connor in his CA14 Short Submission correctly identifies that the practice direction imposes a leave stage before a court application is issued. He suggests that it introduces a new procedure which conflicts with the Rules of the Superior Courts and denies him what he asserts is his fundamental right to issue a motion on notice under the RSC. This fails to recognise that the wholly exceptional jurisdiction which he seeks to invoke is not one which is regulated by the RSC. The issuing of practice directions is clearly authorised by s. 7C(2) of the Act of 1961. The starting point is that decisions of the Court of Appeal are final and conclusive. The successful party will have incurred expense in obtaining the final

decision and in principle ought not to be put to additional expense at the whim of the unsuccessful party. Plainly, the object and effect of PD14 is to save court time and expense.

12. Unless in a case in which leave is granted, the imposition of a screening requirement will save court time and will spare the intended respondent potentially irrecoverable expense. In a case in which leave is granted, the additional burden on the intending applicant of having lodged the papers in advance will be marginal. Contrary to his submission, Mr. O’Connor has no right to seek a review of the decision by issuing a motion on notice under the RSC.

13. Mr. O’Connor next suggests that the establishment of a leave stage is an unlawful barrier to accessing the courts, breaching his constitutional right of access to the courts. It is nothing of the kind. On the contrary, PD14 sets out a clear and inexpensive procedure by which he can seek to invoke the Court’s jurisdiction to review a final judgment. It is not a barrier but a gateway.

14. Next Mr. O’Connor suggests that CA14 creates an invalid parallel process to an application for leave to appeal to the Supreme Court. It does not. It is a possible alternative to a leave application.

15. Mr. O’Connor submits that the decision of the registrar to delist his motion lacked legal authority, breached court rules, and undermined court authority. Again he is mistaken. An important function of the Office of the Court of Appeal is to ensure that applications and books comply with the requirements of the rules and with any applicable practice direction. This is in aid of the party filing – who might otherwise find himself or herself exposed to an adverse costs order – and in aid of the counterparty – who might be burdened with irrecoverable costs in answering an application which ought never to have been issued. In this case the office was mistaken in issuing Mr. O’Connor’s motion and by de-listing it simply corrected that mistake.

16. Next Mr. O’Connor submits that CA14 does not apply to his application. He is quite correct in recognising that the jurisdiction first identified by the Supreme Court in Greendale is one which will be exercised only in the most exceptional circumstances. He is mistaken in his view that Greendale only applies to judgments of the Supreme Court and only after the Supreme Court judgment has been perfected. He is correct in his submission that the Court retains jurisdiction to correct or revisit errors in judgments both under the RSC and its inherent jurisdiction, but fails to recognise the fundamental difference between an application for the correction of a clerical or accidental error, on the one hand, and an application for review of a final judgment, on the other.

The papers lodged

17. I should say at this point that the papers lodged by Mr. O’Connor do not comply with the requirements of CA 14.

18. Paragraph 1(2) of Part A of CA14 requires that an intending applicant must ordinarily lodge the papers within twenty-eight days of the perfection of the order of the Court. Strictly speaking, Mr. O’Connor’s CA14 Short Submission was out of time but it is clear from the fact that he filed his motion on 14th May, 2025 that he decided well within the time to apply for a review. In the circumstances, the Court will extend the time for the lodging of the papers.

19. Paragraph 1(1) of CA14 requires than an intending applicant must lodge in the office:-

(a) A copy of the notice of motion sought to be issued in the proceedings seeking a review;

(b) An affidavit (not to exceed 2,000 words) duly sworn, verifying any facts sought to be relied on in support of the intended application;

(c) Any exhibits referred to in the affidavit; and

(d) A short statement (not exceeding 1,000 words) stating how it is said the intended application satisfies the criteria for review and arises in the “the most exceptional circumstances.”

20. Mr. O’Connor’s CA14 Short Submission meets the word count requirement but he relies in support of his application on the affidavit filed on 14th May, 2025 which does not. Nor has he filed a draft notice of motion. In view of the confusion surrounding the issue and de-listing of Mr. O’Connor’s motion, the Court – with some misgivings – is prepared to deal with the substance of his application.

Background

21. To understand the complaints which Mr. O’Connor would make in relation to the judgment, it is necessary to briefly recall first, the background and then, what the appeal was all about.

22. Mr. O’Connor was involved in family law proceedings in which he was represented by solicitors and counsel. The family law proceedings were settled but there was a delay in implementing the settlement. Mr. O’Connor blamed his and his then wife’s solicitors for the delay in implementing the settlement and in 2014 he issued professional negligence proceedings against both firms. Mr. O’Connor acted for himself in instituting the professional negligence proceedings.

23. An application by Mrs. O’Connor’s solicitors to have the action against them dismissed as an abuse of process was refused by the High Court (Keane J.) ([2017] IEHC 781) on the grounds – not without some hesitation – that Mr. O’Connor had established sufficient “reasonable grounds” to have justified the commencement of proceedings.

24. On 20th March, 2018 the Legal Aid Board granted two legal aid certificates to Mr. O’Connor but these were terminated in September, 2018.

25. By plenary proceedings issued in late 2018 Mr. O’Connor challenged the termination of his legal aid certificates and in 2019 issued two further sets of proceedings. An application was made to the High Court to consolidate the three actions.

26. In the thicket of claims in the three actions one stood out. It was a claim for damages for defamation and injurious falsehood in respect of which Mr. O’Connor was prima facie entitled to a jury. On 20th January, 2020 the High Court (Twomey J.) made an order consolidating the three actions, save the claim for damages for defamation and injurious falsehood which, consequently, was all that remained of 2019 No. 5432P.

27. The claim for damages for defamation and injurious falsehood was based on a letter of 27th July, 2018 by which the Legal Aid Board advised Mr. O’Connor of what he needed to do to allow his professional negligence actions to be progressed. Specifically, he was advised that he needed a report from an independent solicitor. By then the Legal Aid Board had two opinions from senior counsel which were apparently supportive of Mr O’Connor’s claims. A significant part of Mr. O’Connor’s grievance that his legal aid certificates were terminated is his unshakeable belief that he did not need an independent expert report because the Board had the opinion of senior counsel. The statement of claim pleaded a number of meanings but his essential complaint about the letter of 27th July, 2018 was that the suggestion that he needed an expert report to progress his professional negligence actions meant that he had been guilty of abusing process by issuing the proceedings without one.

28. The Legal Aid Board made an application to the High Court pursuant to O. 1B RSC and s. 34(2) of the Defamation Act, 2009 to have that claim dismissed on the grounds that the statement in the letter of 27th July, 2018 on which it was founded was not reasonably capable of being found to have a defamatory meaning. The High Court (Stack J.) granted that application and this Court, for the reasons given in [2025] IECA 39, dismissed Mr. O’Connor’s appeal.

The grounds advanced

29. The first of the grounds on which Mr. O’Connor would argue that the judgment of this Court should be reviewed is that it failed to adequately consider the non-defamation claims pleaded in 2019 No. 5432P. The fact of the matter is that Mr. O’Connor in his statement of claim had obliquely sought to introduce issues as to the entitlement of the Legal Aid Board to have terminated the certificates but these had all been cut out of these proceedings by the consolidation order. The judgment of this Court focussed on the only issue that was properly before the Court, and the core issue that had been before the High Court, which was the meaning of the letter of 27th July, 2018.

30. The second of the grounds on which Mr. O’Connor would argue that the judgment of this Court should be reviewed is that the judgment mischaracterises what is described as the expert evidence of senior counsel said to have been obtained by the Legal Aid Board. This is plainly and simply an attempt to re-open the finding of this Court (at para. 27) that a supportive opinion from senior counsel is entirely different from a supportive report from an independent expert. The fact of the matter is that the professional negligence actions against the solicitors were instituted by Mr. O’Connor without a supporting report from an independent expert. The action against his wife’s solicitors survived an application to dismiss on the ground that the view expressed by Mr. O’Connor’s solicitors in a letter which they wrote to him in the family law proceedings, was deemed to be sufficient “reasonable grounds” to have justified the commencement of professional negligence proceedings.

31. Shortly before the grant of the legal aid certificates on 20th March, 2018 – long after the commencement of the proceedings, and presumably in the context of Mr. O’Connor’s legal aid application – the Legal Aid Board obtained two formal opinions from senior counsel as to the merits of the actions against the solicitors. Mr. O’Connor would now complain of a lack of candour on the part of the Legal Aid Board for not having referred to these on its motion to dismiss. He repeatedly refers to counsel’s opinions as expert reports: which they are not. His complaint of a lack of candour on the part of the Legal Aid Board is entirely unfounded. The fact that the Legal Aid Board had obtained counsel’s opinions was relied on by Mr. O’Connor is resisting the motion to dismiss. If Mr. O’Connor thought they were relevant, he could have put them before the court. In fact they were not relevant to the only issue which the High Court, and this Court on appeal, had to decide: which was whether the letter of 27th July, 2018 was reasonably capable of being found to have had a defamatory meaning.

32. Mr. O’Connor has correctly identified an error in para. 26 of the judgment where it is suggested that Keane J. found in 2017 that the opinion of senior counsel amounted to reasonable grounds for the commencement of the professional negligence action against the wife’s solicitors. The evidence was that counsel’s opinions were not obtained until 2018 and the reasonable grounds found by Keane J. were based on a letter from Mr. O’Connor’s solicitors to him of 2nd May, 2014 but this is of absolutely no materiality. The point is, and was, that legal advice – whether from solicitors or counsel – is quite different to an independent expert report.

33. The third of the grounds on which Mr. O’Connor would rely is that “the evidence does not support the conclusion in the [2025] IECA 39 judgment that ‘anything in the letter was untrue.” In fact the finding was that there was nothing in the letter that was untrue but, on any view, Mr. O’Connor is simply trying to re-open an argument which he has already made and lost.

34. In his affidavit grounding this application, Mr. O’Connor variously suggested that he Legal Aid Board’s letter of 27th July, 2018 was not privileged and that in answer to a question from the Court, counsel admitted that it was not privileged. This is based on a misunderstanding of the nature of the application and the appeal. The Legal Aid Board’s contention was that the letter was not reasonably capable of a defamatory meaning. Accordingly, no question of privilege arose. In the course of argument counsel did suggest that the letter was privileged but in answer to a question from the Court acknowledged that this was irrelevant to the issue before the Court.

35. Mr. O’Connor would complain that there are errors in the judgment which if left uncorrected would infringe his fundamental rights to fair process and fair procedure but cutting through the prolixity, his real and only complaint was that the Court was wrong in the

conclusion it came to. That is not a basis on which the Court can be asked to review its judgment.

36. In accordance with para. 6 of the practice direction the panel refuses leave to make the application and will ask the registrar to notify Mr. O’Connor in writing or by email.

37. For good order – although completely immaterial to the reasoning or conclusion of the Court – the error identified by Mr. O’Connor in para. 26 of the judgment of 20th February, 2025 will be corrected. So also will the obvious typographical error in para. 16, where the date of the notice of motion is misprinted as 15th November 2013 rather than 15th November 2023.