Court of Appeal rejects review application as final judgment stands absent Supreme Court leave.

COURT OF APPEAL

CIVIL

[approved]

[no redaction needed]

[2023 No. 196]

[2021 No. 341 MCA]

The President Neutral Citation Number [2025] IECA 229

Faherty J

Burns J

BETWEEN

PIOTR SKOCZYLAS

APPLICANT/APPELLANT

AND

THE MINISTER FOR FINANCE

RESPONDENT

RULING of the Court delivered on the 18th day of November 2025

1. The Court heard the appeal from the judgment of the High Court (Owens J) dated 17 January 2023, and by a judgment delivered on 30 July 2024, dismissed the appeal. The question of costs (in the High Court and in this Court) remains to be addressed, and for that reason, no order has yet been drawn or perfected. This ruling is not part of the judgment but should be read with it. This ruling concerns an application to review the judgment and subsequent rulings of this Court.

Constitutional Framework

2. Article 34.4.3° provides that “the decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article”. Article 34.5.3° provides that the Supreme Court shall have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that the decision involves a matter of general public importance, or it is necessary in the interests of justice that there be an appeal to the Supreme Court. It is accepted that in most matters which come before the Court of Appeal, its decisions are final and conclusive, given that relatively few matters are granted leave to appeal pursuant to Article 34.5.3°.

3. The Supreme Court, in the matter of Greendale Developments Ltd [2000] 2 IR 514, LP v MP [2002] 1 IR 219, and DPP v McKevitt [2009] IESC 29, identified the exceptional potential jurisdiction which exists where injustice would be suffered if a final judgment of the Supreme Court could never be altered or amended, notwithstanding an error of fact identified in the judgment. The jurisdiction was founded upon the primary role of the Supreme Court to administer justice, and it recognised that there could be very exceptional cases where, in order to fulfil that constitutional role, it would be necessary to review a judgment which was otherwise final and conclusive.

4. There have been a considerable number of cases identifying and discussing the parameters and limitations of the jurisdiction. The Supreme Court has adopted a Practice Direction for dealing with applications invoking the exceptional jurisdiction, as has the Court of Appeal, initially in a Practice Direction dated 15 February 2023, and subsequently, in a revised Practice Direction dated 5 December 2024. The latter was the applicable Practice Direction at the time the appellant made his application. It provides: “1. (1) An intending applicant must lodge in the Office of the Registrar of the Court of Appeal (in this practice direction “the Office”) in hard copy –

(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 that affidavit, and

(d) a short submission (not exceeding 1000 words) stating how it is said the intended application satisfies the criteria for review and arises in ‘the most exceptional circumstances’.

(2) Such lodgement by an intending applicant should be made before the expiry of

28 days (or such extended period as the panel of judges hereinafter mentioned in paragraph 2 may permit) from the date of perfection of the order of the Court.

2. The papers referred to in paragraph 1 shall be considered by the panel of judges that heard the appeal, or, in the discretion of the President of the Court, by such other panel as the President may direct for that purpose.

3. The panel of judges referred to in paragraph 2 shall determine on the papers referred to in paragraph 1, and on any papers in reply furnished in accordance with paragraph 4, whether or not, having regard to the principles referred to in the relevant case-law including the case-law referred to in the recitals to this practice direction, the application intended to be made is one in respect of which a hearing on the merits is justified.

4. The panel of judges referred to in paragraph 2 may, in its absolute discretion, direct that the papers referred to in paragraph 1 be served on any party to the original proceedings and on any other person for the purpose of affording that party or person an opportunity to furnish to the Court a reply in writing, supported where appropriate by a replying affidavit, to the allegations of the intending applicant.

5. The papers in reply referred to in paragraph 4 shall be lodged at the Office within such time from the date of service of the intending applicant’s papers as the panel of judges referred to in paragraph 2 shall direct.

6. If not satisfied in accordance with paragraph 3 that the application intended to be made is one in respect of which a hearing on the merits is justified, the panel of judges referred to in paragraph 2 shall refuse leave to make the application, in which event the intending applicant shall be notified of such refusal by the Registrar in writing or by email.

7. If satisfied in accordance with paragraph 3 that the application intended to be made is one in respect of which a hearing on the merits is justified, the panel of judges referred to in paragraph 2 shall give leave to the intending applicant to issue a motion on notice for a specified initial return date, in which event notification of such leave and of that return date shall be given by the Registrar to the intending applicant in writing or by email.

8. On the initial return date of the motion the Court shall give such directions as it considers appropriate for the hearing of the motion. Save where the President of the Court in his/her discretion otherwise directs the motion shall be heard and determined by the panel of judges referred to in paragraph 2.”

5. The principles the Court will apply to applications of this nature have been analysed in Bailey v Commissioner of An Garda Síochána [2018] IECA 63, Bates v Minister for Agriculture [2019] IESC 35, Student Transport Scheme v Bus Eireann [2021] IESC 22 and IESC 35, Scotchstone Capital Fund Ltd v Ireland [2022] IECA 275, Dowling & Ors v Minister for Finance [2022] IECA 285, and Launceston Property Finance DAC v Wright [2020] IECA 146, and I do not propose to repeat the analysis set out in those cases. In Dowling, the Court accepted that the scope of the jurisdiction of the Court of Appeal was correctly set out in Friends First Managed Pension Funds Ltd v Paul Smithwick [2019] IECA 197, and that the position had been correctly summarised in Launceston Property Finance DAC. The Court stated at paras. 29 and 30 of its judgment: “29. The scope of the jurisdiction in this Court was addressed in Friends First Managed Pension Funds Limited v. Paul Smithwick [2019] IECA 197 where Whelan J. said:- ‘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.’

30. Recently in Launceston Property Finance DAC v Wright [2020] IECA 146 Whelan J. [sic] conducted a review of the caselaw and restated the proposition that the jurisdiction to review or set aside a judgment now invoked is an exceptional one. Judgments are otherwise final (subject, in the case of this court, to the acceptance by the Supreme Court under Article 34.5.3 of the Constitution of an application for leave to appeal to it on the ground that the decision involves a matter of general public importance or in interests of justice it is necessary that there be an appeal to the Supreme Court). Following her review of the caselaw, Whelan J. helpfully summarised the position as follows:- ‘7. In summary, the jurisdiction:-

(i) is wholly exceptional;

(ii) it must engage an issue of constitutional justice;

(iii) requires the applicant to discharge a very heavy onus;

(iv) is not for the purpose of revisiting the merits of the decision;

(v) alleged errors which have no consequence for the result do not meet the required threshold;

(vi) cannot be invoked on the basis of the discovery of new evidence;

(vii) requires the applicant objectively to demonstrate that there is a fundamental issue concerning a denial of justice, by which is meant some error which is so fundamental as to have an effect on result;

(viii) cannot be used as a species of appeal where a party seeks to address, critically or otherwise, the judgment;

(ix) is to be distinguished from the application of the Slip Rule in respect of errors of fact which have no bearing on the outcome.’”

6. It is in the context of this potential and exceptional jurisdiction that this current application must be considered.

Factual Background

7. The appellant was awarded certain costs in proceedings he and others, including Scotchstone Capital Fund Ltd, brought to set aside the Direction Order made by the Minister for Finance on 26 July 2011 pursuant to s. 9 of the Credit Institutions (Stabilisation) Act 2010. The appellant sought to have those costs adjudicated or taxed. On 18 January 2021, the Legal Costs Adjudicator (“LCA”) gave certain directions regarding the application for adjudication pending before him. He directed that the issue of whether the Scotchstone LLP (“SCLLP”) costs claimed by the appellant were captured by the court orders was to be determined as a preliminary issue. The parties were to provide written submissions confined to that issue and “any material either party wishes to rely on” was to be lodged in physical format at a given date. The LCA gave his interim determination on 2 June 2021 and the appellant applied for consideration of the decision and for a determination under s. 160(1) of the Legal Services Regulation Act 2015. The LCA delivered his ruling on the consideration on 15 November 2021. The appellant sought a review of the consideration of the adjudicator in accordance with s. 161(4) of the Act. The scope of the review by the High Court is limited. Section 161(5) provides:- “(5) The High Court shall allow a review under subsection (4)(b) only where it is satisfied that the Legal Costs Adjudicator has, in his or her determination, erred as to the amount of the allowance or disallowance so that the determination is unjust.”

8. In a judgment delivered on 17 January 2023, the High Court refused the appellant’s claim. The appellant appealed the decision of the High Court to the Court of Appeal. Thus this Court was considering an appeal from the limited review by the High Court of the

decision of the adjudicator.

The Costs at Issue

9. In the underlying proceedings, the appellant appeared pro se. Whilst the proceedings themselves were unsuccessful, the trial judge made an order in favour of the appellant for 40% of his “allowable outlay” to be taxed in default of agreement. He was also awarded his “out of pocket expenses” in respect of two interlocutory applications made in the course of the proceedings. The appellant sought to recover the sum of €769,964.34 as expenses for “professional expert non-legal litigation advice and services” under these three orders for costs. The services were provided to the appellant by SCLLP. There were 26 invoices from SCLLP to the appellant claiming sums due for services rendered during the course of the underlying proceedings. The appellant contended that the costs were recoverable as a matter of law and that the High Court erred in failing to so conclude.

10. This Court gave judgment on the appeal on 30 July 2024 (“the principal judgment”). At paras. 43 and 44, Burns J (with whom Costello and Faherty JJ agreed), held that: “43 . . . the cost of a cost claimant’s expert employees can be a recoverable expense subject to a) such employees truly being experts in the work which is being claimed for, and b) the expert work which they have conducted being expert work necessarily arising from the litigation and necessarily caused by the course it takes.

44 It also appears to me that that principle is not limited to the cost claimant's employees but also extends to any third party whom the cost claimant might engage, subject to the caveats already mentioned.”

11. Burns J agreed with Owens J in the High Court on the issue of the recoverability of costs of this nature in principle. Confusion has arisen because the appellant read the judgment of the High Court as rejecting this principle and the appellant asserted that the trial judge erred in so doing. But the difficulty was that the High Court did not so err because it did not so hold. In essence the appellant was arguing on appeal an issue of principle which had been accepted by the High Court, but he lost the review because he did not prove that the persons carrying out the work in SCLLP were truly expert or that the expert work was expert work necessarily arising from the litigation and necessarily caused by the course it took.

12. Burns J noted that counsel for the respondent argued that the law of costs had not developed to this extent in this jurisdiction and she expressed her surprise at the submission. She recorded that the High Court was of the view that the law had developed to this extent in this jurisdiction (at para. 4 of the High Court judgment), and yet there was no cross-appeal in relation to this finding. Furthermore, the written submissions of the respondent did not refer to the issue.

13. At paras. 54 to 60, Burns J applied the case law to the facts in the appeal before the Court. The question which the Court was required to determine was “whether the work is of an expert nature carried out in relation to matters necessarily arising from the litigation and necessarily caused by the course it takes” or whether, per contra, it was “work of a fact finding nature” which is not recoverable. Paragraph 58 identified some work included in the

26 invoices which was clearly of a legal nature, and which was not recoverable. In relation to the balance of the work claimed in the 26 invoices, Burns J points out that there was no evidence as to what work was actually carried out, and so it was not possible to analyse the nature of the work and to determine whether or not it was of an expert nature carried out in relation to matters necessarily arising from the litigation and necessarily caused by the course it took. At para. 60, the judgment concludes that “the work carried out could not be determined to be expert work necessarily arising from the litigation and necessarily caused by the course it takes” and thus, that the appellant had failed to prove his case. At para. 61, the Court concludes:

“Accordingly, the High Court's determination that the Adjudicator did not err in determining that the SCLLP expenses were not recoverable, is not in error.”

14. The various other issues raised on appeal were also dismissed by Burns J in her judgment. At para. 76, she held: “As the appellant has been unsuccessful on all grounds of appeal, the usual rule that costs follow the event should apply.” This conclusion is at the heart of the appellant’s arguments in this application.

Developments Post-Delivery of Judgment

The stay application

15. The Court of Appeal delivered its judgment on 30 July 2024. The appellant was afforded an opportunity to make written submissions in relation to the order for costs of the appeal in light of the Court’s preliminary view on this issue, as is the usual practice of the Court. He emailed the Office of the Court of Appeal, seeking an extension of time in which to file those submissions in view of the fact that the time allowed fell during the month of August. On 27 September 2024, he issued a motion, seeking a rather unusual stay. The appellant requested the Court to defer perfecting its order on the appeal pending the outcome of a further set of proceedings which he had initiated and which were then pending before the High Court. The relief sought was as follows: “1. An order to stay these proceedings and to stay any order in this case, pending the conclusion of the adjudication regarding the Bill of Costs lodged at the Office of the Legal Costs Adjudicators on 27 September 2024 in the taxation/adjudication rec. no. H: LCA: OLCA: 2024.771 in light of the Court of Appeal judgment delivered on 30 July 2024 Neutral Citation [2024] IECA 201;

and

2. An order that this motion be adjudicated upon before the Court decides on costs of the main proceedings; and

3. An order that this motion be heard via a remote hearing; and

4. Such further or other orders or directions as to this Court may deem just; and

5. An order that costs of this application be paid by the Respondent.”

The stay judgment

16. The motion was on notice to the respondent and the parties exchanged written submissions in advance of the oral hearing. The hearing took place in the morning and an ex tempore judgment (“the stay judgment”) was delivered later that day by the President of the Court, with Faherty and Burns JJ indicating their agreement with the judgment. The stay judgment quoted from the directions of the LCA and noted that the appellant did not object to proceeding by way of a preliminary issue and that he did not submit any material to substantiate his argument that, in principle, some or all of the work carried out on his behalf by SCLLP was recoverable pursuant to the orders for costs in his favour. The stay judgment held: “On appeal, this Court held that the High Court did not err in its conclusions and rejected all of the grounds of appeal advanced by Mr Skoczylas” (p. 93, lines 22-24) The judgment then quoted paras. 54, 58-59 from the principal judgment. In oral submissions, the appellant repeated his contention that the High Court had in fact adopted the position of the respondent in relation to the recoverability in principle of the value of the use of a litigant’s own expertise on foot of an award of party and party costs or expenses. He argued that as this Court agreed with him on this issue of principle, he had won on this point. At p. 97, lines 22-26 of the transcript, the President noted that: “Underpinning his submission was the contention that the judgment of this court overturned the judgment of the High Court because paragraph 9 of the judgment of the High Court was contradicted by paragraph 59 of the judgment of this court which I have opened.” This argument was rejected on the basis that para. 9 of the High Court judgment should not be read in isolation and noted that the High Court recognised the exception in Re Nossen’s Patent [1969] 1 WLR 638, which was the basis upon which Burns J reached her conclusion at para. 59 of her judgment. The President held: “So the contention that the decision of the High Court was the [sic] totally at odds with the decision of the Court of Appeal is simply based upon a misreading of the two judgments.” (P. 100, lines 21-24)

17. In refusing to stay the order in these proceedings, pending the determination of the new proceedings then pending before the High Court, the President rejected the contention that there was any contradiction between the two judgments properly read. She said: “Fundamentally the issue is that the evidence (assuming that there exists such evidence for the purposes of the argument) necessary to establish that the claimed costs, or some of them, were recoverable under the jurisprudence commencing with London Scottish Benefit Society was not adduced by Mr. Skoczylas before the LCA. He was given express permission to adduce this evidence (again assuming that such exists) and he failed to do so. The fact that this ultimately proved fatal to his case before this Court is a matter for which Mr. Skoczylas must bear sole responsibility. It cannot afford a basis to stay the order of this Court.” (P. 103, line 21 to 104, line 3) The reference to “assuming that there exists such evidence for the purposes of the argument” was the second basis for the appellant’s application.

The correction application

18. The appellant engaged in further email correspondence with the Office of the Court of Appeal. On 6 January 2025, he sent an email seeking “corrections” of the principal judgment under Court of Appeal Practice Direction 14, and of the stay judgment, under O. 28, r. 11 of the Rules of the Superior Courts.

19. The appellant sought a correction of para. 76 which held that “the appellant has been unsuccessful on all grounds of appeal”. He did so on the basis that “the Minister failed in respect of the key aspect of this appeal, i.e. in his main arguments regarding liability/recoverability in principle – I prevailed.”

20. He also sought a correction of the stay judgment quoted above to delete the words “(assuming that there exists such evidence)” and “[h]e was given express permission to adduce this evidence (again assuming that such exists) and he failed to do so.” The appellant argued that the two references to assuming that such evidence exists appears to be an unintentional slip as this puts in doubt “the unequivocal unopposed existence of the aforementioned evidence (i.e. the two expert reports) glaring at this Court” in Exhibit PS 1 to the appellant’s affidavit sworn on 27 September 2024 (i.e. after this Court had delivered its judgment on 30 July 2024). The appellant also asserted that the reference to him being given an express permission by the LCA to adduce evidence, and failing to do so, was an unintentional slip and he referred to the directions given on 18 January 2021, directions (b),

(c) and (e).

The ruling on the correction application

21. The Court did not direct the respondent to be put on notice of the appellant’s application and gave a written ruling on 15 January 2025 (“the correction ruling”). In relation to para. 76 of the principal judgment, the ruling held: “4. While the respondent’s stance in relation to what the common law position is regarding the recoverability of expenses incurred by a litigant with particular expertise where that expertise is properly required for the purpose of the litigation, was contrary to what the Court ultimately found the law to be, this is not what was at issue in the appeal.

5. As noted at paragraph 45 of Burns J.’s judgment, the High Court judge accepted the legal principle argued by the appellant (‘the High Court was of the view that the law had developed to this extent in this jurisdiction (see para 4 of the High Court judgment)’ and the respondent had not appealed against this determination. Indeed, the respondent’s submissions did not address the issue of law whatsoever.

6. What was at issue before this Court was whether the High Court was correct in deciding that the Legal Costs Adjudicator (‘LCA’) did not err in determining the expenses claimed by the appellant in respect of services undertaken by Scotchstone Capital LLP for the appellant were not recoverable. The ruling of Burns J. was that the High Court did not err in making this determination, for the reasons set out in the judgment. Hence, the appellant failed on that ground of appeal.

7. Accordingly, what was at issue in the appeal was not what the law was in relation to the issue of costs, but rather whether the LCA was correct in refusing the expenses claimed on the basis of the claim before him.

8. The reason the appellant seeks to have the judgment corrected does not relate to the remaining grounds of appeal in respect of which the appellant failed on each.

9. Therefore, paragraph 76 correctly reflects the decision of the Court on this appeal and is not an incorrect statement.

10. A patent prejudice/bias/denial of justice or breach of the appellant’s constitutional rights, as the appellant asserts would occur should the Court decline to make the correction sought, does not arise as paragraph 76 of the judgment is not incorrect.”

22. The appellant read this passage as reinventing or wrongly recasting what the appeal had been about, that this was deliberate on the part of the Court, and was with a view to ensuring that he lost his appeal.

23. The application to amend the stay judgment of the President, under the slip rule, was also rejected by the Court in the correction ruling. In relation to the references to “assuming that there exists such evidence”, the ruling provides: “14. This argument misunderstands the point. The appellant has exhibited two reports, but that is not say that they establish that the claimed costs or a part of them were recoverable. The judgment makes no such finding one way or the other, hence, it is appropriate to refer to the assumption that such evidence exists. The phrase is intentional and does not appear in error.”

24. As regards the directions given by the LCA on 18 January 2021, the ruling points out that: “This quotation omits point (e) of the LCA’s direction which provided that any material either party wished to rely on at the hearing of the preliminary issue was to be lodged physically with the Office of the LCA in advance of the hearing. It was therefore open to the applicant to put such material as he believed would support his claim before the LCA. He did not place such evidence to which the court referred in its judgment of 30th July 2024 before the LCA. While the ex tempore judgment of 19th December 2024 is succinct, there is no error and it does not require correction under the slip rule.”

Request to amend the correction ruling

25. The ruling prompted further emails from the appellant, seeking to amend aspects of the correction ruling. On 22 January 2025, he was emailed the perfected order in respect of the motion for a stay. There was a further email taking issue with the perfection of the order and requesting an urgent listing of the matter so that he could apply for a further stay. On the direction of the Court, the registrar emailed the appellant on 23 January 2025, indicating that the Court refused to amend its correction ruling.

A further motion

26. The following day, the appellant drafted a notice of motion, seeking the following principal order: “An order, pursuant to the Court of Appeal Practice Direction CA14 – Part A (‘Review application’) and the case law and principles referred to in the preamble of the Practice Direction CA14, to vary or rescind the closely interrelated Judgments/Rulings of the Court of Appeal delivered on 30 July 2024, 19 December 2024 (ex tempore) and 15 January 2025 – i.e., for the specific, intentionally contrived, far-reaching misrepresentations in question embedded in those judgments sua sponte (avowedly/expressly not resulting from any accidental slips or omissions), as outlined in the grounding affidavit herein, to be corrected and the judgments varied respectively, or for the judgments to be rescinded altogether – having regard to the following:

• this application patently and substantively concerns an issue of constitutional justice, and the grounds of the application objectively demonstrate that there is a substantive issue concerning a denial of justice in the proceedings, while the application demonstrates cogent and substantive grounds which are objectively sufficient to enable this Court to enter upon an exercise, by way of a hearing of the application on the merits, of the exceptional jurisdiction, pursuant to which this application is made; and

• this application is fact – and evidence-based and written with utmost respect; nothing in this application should be misconstrued as being in any way disrespectful vis-à-vis the institution of the Court of Appeal or vis-à-vis any Judge, while the Court is respectfully urged to duly engage – in a probative and non-prejudicial manner – with the gross miscarriage of justice addressed in this application.”

27. It was apparent to the Court, given the history of the litigation, the reliefs sought in the motion and the allegations made in the grounding affidavit and in email correspondence with the Office of the Court of Appeal that it would not be possible to finalise the appeal without a further hearing, so the Court authorised the Office of the Court of Appeal to issue the motion filed by the appellant, directed that it be served on the respondent and gave directions for the hearing of the motion.

The Appellant’s Application

28. Written submissions were exchanged, and the application was heard. The affidavit grounding the application made very grave allegations against the Court in stark terms. The appellant swore that the Court had “contrived, far-reaching, prejudicial falsehoods/misrepresentations embedded intentionally sua sponte in the judgments in question”. He averred that the conduct of the Court amounted “to a fundamental denial of justice by violating the constitutionally protected rights in a manner that was beyond discretion inherent in judicial proceedings”. He swore that the Court’s judgments are “a nullity, as the outcome of the case cannot be said to be the administration of justice for the purpose of the Constitution’s requirements”. His application, he avers, was driven primarily “by the far-reaching falsehood/misrepresentation this Court contrived, that I have ‘been unsuccessful on all grounds of appeal’, which is patently false”. He pointed to the fact that the principles guiding the recoverability of the costs in issue were as he, and not the Minister, asserted, and that the principal judgment found in his favour on this issue. He therefore succeeded, according to the appellant, on the “primary aspect” of the appeal and that it was “a manipulation, too, to claim that [he] failed on those ancillary aspects of the appeal” as they were ancillary, and he manifestly did not fail on “all” of them.

29. He swore that in the correction ruling, the Court “abusively” justified “one misrepresentation/falsehood by contriving another one”. The appellant further referred to “the additional contrived falsehoods/misrepresentations that ‘what was at issue in the appeal was not what the law was in relation to the issue of costs’ and ‘the respondent’s submissions did not address the issue of the law whatsoever’.” He submitted under oath that the “intentionally contrived prejudicial misrepresentations, combined with the Court’s refusal to fulfil its statutory duty to adjudicate on a motion exposing/addressing those falsehoods/misrepresentations, mean the Court’s judgments in question operate both to deny me justice and clearly to breach my constitutional rights”.

30. In his oral submissions, the appellant asserted that “I won on the issue of law and the respondent lost” and that therefore the Court “intentionally” contrived “a falsehood … to prejudice my position”, by holding, at para. 76, “that I had been allegedly unsuccessful on all grounds of appeal”. He said that the Court, in its subsequent refusal to change this paragraph in both its stay judgment and correction ruling, manipulated matters to show that he lost, when in fact he had won on the law and that this was the key issue in the case. He said that in doing so, the Court had “contrived the falsehood” and that this amounted to gross misconduct by the Court and that it was done “intentionally to hurt me”. He said “[y]ou set out to hurt me . . . because … I won but you didn’t like it.” He accused the Court of inserting para. 76 into the principal judgment to prejudice him and to rule on costs against him. He said the Court had justified the “error” in para. 76 by making up what the case was about in the correction ruling.

31. He argued that Practice Direction CA14 mandated a procedure which meant that the issue of whether he had met the high threshold to bring an application under the Practice Direction was res judicata because the Court had permitted the motion to be brought. Having decided to allow him to issue the motion, the Court could not go back on this decision. Elsewhere, he said the Court cannot “revisit” its decision that he has met the high threshold. He contended that he had gone through the filter, as described in Student Transport [2021] IESC 22 at para. 3.2 and other cases.

32. In his reply, he said that both the Court and the respondent misunderstood Practice Direction 14 and that he had “successfully gone through” the first stage because the Court had allowed the motion to issue and a hearing to take place. He said he was therefore an applicant, not an intending applicant.

33. He accepted that on the hearing on the merits of his application, he still had to meet the “very high threshold” established in the jurisprudence. He says that this is met by the fact that the Court acted deliberately to deprive him of his victory. He concluded that his motion could not be an abuse of process as the Court permitted him to issue it and it had thereby decided that he had met the very high threshold required under the case law.

Decision

34. The first issue to consider is whether the appellant has met the high threshold which he must meet before the potential extraordinary jurisdiction is engaged. The appellant argues that this Court gave him leave to issue the motion - not to bring an application to seek liberty to issue the motion - and therefore this question is res judicata. He argues that having permitted him to issue the motion, the Court could “not go back” on this decision. He says that by permitting him to issue the motion pursuant to the Practice Direction, the Court must have already decided that he met the very high threshold established in the jurisprudence. Otherwise it was not properly applying its own Practice Direction.

35. This contention may readily be disposed of. The Court directed the Office of the Court of Appeal to issue the motion, as explained above. It did so without having heard from the respondents on any of the issues, and in particular whether the appellant met the very high threshold required under case law to engage the jurisdiction at all. It is axiomatic that there cannot be res judicata where one party has not been heard. In addition, the direction of the court is not a final order and the doctrine of res judicata applies to final orders of the court. Finally, the court has a very wide discretion to direct how a matter is to proceed, subject to affording the parties the opportunity to present their cases. In this instance, it was exercising its inherent jurisdiction and so it enjoyed particular freedom in relation to the procedures to be followed. The Practice Direction is not a statute, and the court is free to direct procedures otherwise than in strict accordance with the Practice Direction, if it sees fit. In conclusion, in directing that the motion be issued on notice to the respondent and fixing a date for the hearing of the application, the Court did not determine that the draft motion furnished to the Office of the Court of Appeal met the very high threshold required under the case law. The issue is not res judicata.

36. The first issue for consideration by this Court is whether the potential exceptional jurisdiction is engaged. In the circumstances of this case, is the very high threshold met?

37. The appellant’s application is based upon two elements. The first, his interpretation of the principal judgment, and second, the Court’s responses to his motion for a stay, his correction application and the other emails sent by the Office of the Court of Appeal since the delivery of the principal judgment, which leads the appellant to attribute to the Court a conscious motive to deny him the outcome to which he says he is entitled.

38. The start of the analysis must be the correct interpretation of the principal judgment. The appellant says he was successful on the substantial issue in the appeal – whether, in principle, the costs of SCLLP were recoverable – and the respondent lost this issue. Therefore, it was wrong to say that he had been unsuccessful on all grounds of appeal.

39. The first issue pleaded in the notice of appeal concerns the principle of the recoverability of costs of this nature. The plea was based on the appellant’s misreading of the judgment of the High Court. As is explained in this ruling and in the principal judgment, the High Court judge accepted that, in principle, the costs of SCLLP could be recoverable. Owens J then held, on the facts, that the appellant had not demonstrated that they were recoverable, and therefore he refused the appellant’s appeal under s. 161 of the 2015 Act. The fundamental difficulty is that the appellant purported to appeal a finding which the High Court did not make. He interpreted the High Court judgment as rejecting the principle that the costs could as a matter of principle be recoverable. But that was not the finding of the High Court. The Court of Appeal agreed with the decision of the High Court on the matter of principle, as explained above. However, the appellant cannot convert an appeal against a finding not made by the Court at first instance into an issue in the appeal in which he has been successful, when in fact there was no such finding to appeal in the first place and, hence, no “success” for the appellant.

40. All the other grounds of appeal raised by the appellant were rejected, so it was correct for the Court to hold that the appellant had been unsuccessful on all grounds of appeal.

41. Second, the respondent opposed the appellant’s first ground of appeal on the merits and argued that the appellant was incorrect in relation to the principle of recoverability. The parties disputed the point, but it was not properly an issue in the appeal. Firstly, because the High Court had agreed with the appellant on the issue of principle and so his appeal was misconceived and in respect of a finding not made. Second, the respondent did not crossappeal the finding of the High Court and so he did not make it an issue in the appeal. Therefore, even though the Court of Appeal rejected the argument advanced by the respondent in opposing the appellant’s appeal, that did not mean that the appellant succeeded on any of the grounds of appeal – other than his misconceived ground based upon a mistaken reading of the judgment of the High Court. That, of course, cannot amount to a success on a ground of appeal which would entitle him to claim that he had succeeded on an issue in the appeal.

42. Thirdly, in determining whether a party is successful on an appeal or not, the court may look at the order that was or will be made. The principal judgment finds that the High Court’s determination that the adjudicator did not err in determining that the SCLLP expenses were not recoverable was not in error. The appellant did not succeed on any other ground of appeal. That being so, it cannot be incorrect to say that the appellant has been unsuccessful on all grounds of appeal. Accordingly, the order of this Court, when perfected, will be to refuse the appeal and to uphold the decision of the High Court. This supports the statement in para.

76 of the principal judgment.

43. Finally, the appellant is eliding legal arguments upon which he must succeed as a precursor to winning his appeal and actually winning his appeal. The Court (as had the High Court) accepted the principle advanced by the appellant as to the recoverability, in principle, of the type of costs in dispute. The Court then proceeded to apply those principles to the facts in the case before it, at paras. 54 to 61. In essence, the Court held that some of the costs were clearly not recoverable, and as regards the balance of the claim, the appellant failed to establish that the work carried out was expert work necessarily arising from the litigation and necessarily caused by the course the litigation took. In other words, the Court is of the view that the appellant had failed to prove his case before LCA and before the High Court.

44. For all of these reasons, the appellant’s interpretation of the principal judgment, and in particular, para. 76 thereof, is incorrect.

45. This Court therefore rejects the argument that it “intentionally contract [sic] a falsehood … to prejudice my [the appellant’s] position”, by holding, at para. 76, “that [the appellant] had been allegedly unsuccessful on all grounds of appeal”. The Court did not seek to manipulate matters to show that he had lost, when he had in fact won. There was no “manipulation” to “intentionally” hurt the appellant. The argument that the Court contrived to deprive him of a victory is as spurious as it is entirely unjustified. It flies in the face of the Court’s principal judgment, the stay judgment and the correction ruling. The appellant can have been in no doubt what the Court held and why: he chose to ignore what it said and instead raised completely unmeritorious arguments to the contrary.

46. The appellant also sought the correction of the observation in the stay judgment regarding the absence of evidence as to the work carried out “assuming that there exists such evidence for the purposes of the argument”. He said this was an error by the Court because he had exhibited two expert reports in his affidavit of 27 September 2024 grounding his application for a stay. He says there was evidence before the court as to the nature of the work undertaken on his behalf and therefore it was not correct to refer to an assumption that such existed when it had been placed before the court.

Again, the appellant misunderstands the process and the judgment. The principal judgment was written on the basis of the evidence which was properly before the court on the appeal. That judgment was delivered on 30 July 2024. The evidence referred to by the appellant was exhibited in an affidavit sworn on 27 September 2024, after judgment had been delivered. The stay judgment held as follows: “Fundamentally the issue is that the evidence (assuming that there exists such evidence for the purposes of the argument) necessary to establish that the claimed costs, or some of them, were recoverable under the jurisprudence commencing with London Scottish Benefit Society was not adduced by Mr.

Skoczylas before the LCA. He was given express permission to adduce this evidence (again assuming that such exists) and he failed to do so. The fact that this ultimately proved fatal to his case before this court is a matter for which Mr. Skoczylas must bear sole responsibility. It cannot afford a basis to stay the order of this court.” The stay judgment was addressing the evidence which had been adduced before the LCA and which was before the High Court and this Court at the hearing of the appeal. The Court was aware that after the judgment had been delivered, the reports had been exhibited by the appellant.

Hence, it was appropriate to refer to them in the manner employed by the President. The Court was making no ruling as to whether or not those reports in fact proved that the costs came within the scope of recoverable costs, but was prepared to contemplate that such evidence could exist for the purposes of the argument. The Court was not ruling on whether the reports exhibited by the appellant after the Court had delivered judgment established that some or all of the work was work of an expert nature, carried out in relation to matters necessarily arising from the litigation and necessarily caused by the course it takes.

47. In those circumstances, it is simply unstateable to say that the Court erred in failing to correct this part of the stay judgment.

48. The appellant contends that the stay judgment was factually incorrect when the stay judgment stated that he was given express permission to adduce evidence as to the nature of the expert work claimed in the 26 invoices. The appellant referred to the terms of the order for directions of the LCA of 18 January 2021, but he ignored the express provision at (e) which provided that any material either party wished to rely on at the hearing of the preliminary issue was to be lodged physically with the Office of the LCA in advance of the hearing. This was not an error and no correction was required.

49. The appellant contends that in its the correction ruling the Court in effect “doubled down” on its own errors, that it did so knowing that they were errors and it refused to correct them. He concluded that this was deliberate and with a view to depriving him of justice based on an antipathy towards him which he imputes to the Court. These are exceptionally grave charges to make against any court and they have been treated with the utmost seriousness by this Court.

50. The charges made by the appellant are entirely baseless. They stem from a misreading of the judgments and rulings given by the High Court and this Court, misunderstandings and misconceptions and the inferences drawn by the appellant are entirely incorrect and utterly without substance or merit.

51. The correction ruling delivered by the Court on 15 January 2025 must be read in the light of the principal judgment and the stay judgment and the issues raised by the appellant. At para. 7 the Court held: “[W]hat was at issue in the appeal was not what the law was in relation to the issue of costs but rather whether the LCA was correct in refusing the expenses claimed on the basis of the claim before him.” The appellant says that the Court is wrongfully restating what the appeal is about in order to bolster its earlier wrongs. In fact, the sentence succinctly states that the issue of the principle of recoverability was not at issue in the appeal. The High Court had held that, in principle, the costs were recoverable and so the purported appeal against a finding not made did not thereby become an issue in the appeal. There was no cross-appeal in respect of this finding so the respondent did not make it an issue in the appeal. The fact that the appellant misinterpreted the judgment and appealed against a finding not made by the High Court, does not alter this fact. Further, the appeal was an appeal from the decision of the High Court under s. 161(5) of the 2015 Act. The narrow focus of the High Court was whether it was satisfied that the LCA had in his determination erred as to the amount of the allowance or disallowance so that the determination was unjust. In particular, had the LCA erred in disallowing all of the costs claimed. On appeal, this Court was concerned with whether or not the High Court erred in that regard. Therefore, it was correct to state that what was at issue in the appeal was whether the LCA was correct in refusing the expenses claimed on the basis of the claim before him. This was not a recasting of the earlier judgments. It was a simple statement of what is ultimately at issue in an appeal under s.161(5) of the 2015 Act.

52. Paragraph 14 of the correction ruling also addresses the references in the stay judgment to evidence “assuming that there exists such evidence”. The paragraph succinctly explains the position of the Court which is reiterated in this ruling. There is no error to be corrected.

53. Similarly, the correction ruling deals with the question of the directions given by the LCA on 18 January 2021 and confirms that the stay judgment does not require to be corrected under the slip rule. There is no error to be corrected.

54. In these circumstances, it is clear that the premise of the application is false: there was no error within the meaning of the jurisprudence in either para. 76 of the principal judgment or in the stay judgment. It follows that there was no error in the correction ruling in refusing to correct the alleged error. It follows that there is no basis for the appellant’s contentions that the Court deliberately contrived a falsehood or refused to right a wrong for entirely improper motives. There was no malicious or otherwise improper action by the Court in delivering the stay judgment or the correction ruling. All improper motives imputed to the Court are emphatically rejected.

55. In those circumstances, the application falls far below the very high threshold required to engage this exceptional jurisdiction. It has no basis at all. There is no basis for varying or rescinding the judgments as contended for by the appellant. The application – far from “objectively” demonstrating that there is a substantive issue concerning a denial of justice in the proceedings - demonstrates the contrary. The application does not demonstrate any grounds upon which the wholly exceptional jurisdiction is engaged.

56. In effect, the application is brought, not to correct alleged errors, but for the purpose of revisiting the merits of elements of the decisions of the Court with which the appellant does not agree. This is impermissible. The appellant has not shown that there was any “error which is so fundamental as to have an effect on result”. In effect, he has used this application as a species of appeal. Under the Constitution where a party is dissatisfied with the outcome of an appeal in the Court of Appeal the appropriate course of action is not to bring multiple applications (of whatever kind) aimed at changing or indeed reversing its judgment(s). The principal judgment is final and conclusive, save in the event the Supreme Court grants the appellant leave to appeal. The application is refused.