Court of Appeal dismisses appeal where High Court correctly treated set aside application as merits appeal, not procedural irregularity review.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2025/91

High Court Record Number: 2024/2749P

Neutral Citation: [2025] IECA 237

Whelan J. Faherty J. Butler J.

BETWEEN/

TERESA BARRINGTON AND SEAN BARRINGTON

PLAINTIFFS/

APPELLANTS

– AND –

THE ATTORNEY GENERAL AND TAILTE ÉIREANN AND PROMOTORIA

(OYSTER) DESIGNATED ACTIVITY COMPANY AND DAVID O’CONNOR AND

B.D.O. AND M.R.C.S LIMITED AND PAUL GARAVAN

DEFENDANTS/

RESPONDENTS

JUDGMENT of Ms. Justice Butler delivered on the 28th day of November 2025

Introduction

1. This is an appeal from the decision of the High Court (Twomey J.) [2025] IEHC 143 refusing the appellants’ application, made under Order 124 of the Rules of the Superior Courts (RSC), to set aside “the proceedings heard and Order issued” by Nolan J. (ex tempore 18th June 2024). The appellants complain that Twomey J. did not deal with their application as one to set aside the earlier High Court order on the grounds of irregularity but instead treated it as an appeal on the merits from Nolan J.’s decision and incorrectly dismissed it on the grounds, inter alia, that there is no appeal from one High Court judge’s decision to another High Court judge.

2. In order to address this issue, it is necessary to look at the provisions of O.124 and the manner in which that rule has been interpreted by the courts. However, before doing this, it may be useful to set out the background to these proceedings and the matters which led to the making of the set aside application. It should be noted that this account is given in a context where the central difficulty faced by the appellants before Nolan J. arose from their failure to place evidence before the court relating to the factual circumstances giving rise to the proceedings. Exchanges before this court suggests that there is a complex backstory to the litigation stretching over two decades or so, but as none of the matters alluded to in argument are on affidavit, they cannot be considered to be properly before the court.

Factual Background

3. The appellants are a married couple and in September 2003 were registered as the owners of a unit in an industrial estate in County Galway (“the property”). Until recently the second appellant ran a business from the property which was the source of the appellants’ livelihood. For the most part the appellants have not been legally represented and acted as litigants-in-person during the two applications with which this appeal is concerned and in the appeal itself.

4. In February 2006 a charge over the appellants’ interest in the relevant folio was registered in favour of Ulster Bank. In March 2017 the charge in favour of Ulster Bank was transferred and registered in the name of the third defendant. That charge was cancelled on 29th December 2022 and on the same date the sixth defendant (of whom the seventh defendant is a director) was registered as the full owner of the property comprised in the folio. All of this information is apparent from the folio which was exhibited in affidavits sworn by both the first appellant and the seventh defendant.

5. The appellants’ claim concerns what they perceive as the unlawful actions of the other parties that led to the registration of the sixth defendant as owner of what they contend is still their property. They assert that the legislation under which title was transferred to the sixth defendant, namely section 62(6) of the Registration of Title Act 1964, is unconstitutional. The first defendant is sued to answer this constitutional claim; the second defendant is the statutory body responsible for the registration of title in Ireland; the third defendant is the corporate entity to which the security originally provided by the appellants to Ulster Bank was ultimately transferred; the fourth defendant is a receiver appointed by the third defendant and the fifth defendant is the company for which the fourth defendant works. The sixth defendant is now the registered owner of the property, and the seventh defendant is a director of the sixth defendant. The sixth and seventh defendants are the respondents to this appeal.

6. It appears that at some time in 2021/2022 the appellants became aware that the third and/or the fourth defendants were planning to sell the property. As a result, the second appellant issued proceedings in his sole name (at a time when the first appellant was out of the country) and registered a lis pendens on 14th September 2022. Notwithstanding the registration of a lis pendens, a sale clearly proceeded leading to the registration of the sixth defendant as owner of the property in December 2022. Despite the sale, the appellants remained in occupation of the property until relatively recently (the circumstances in which they were forced to leave the property is the subject of a separate application). Solicitor’s correspondence was issued to them in March 2023 requesting that they deliver up possession of the property. They did not do this, and further solicitor’s correspondence issued in May 2024 indicating that the sixth defendant would “take whatever steps may be available to it to secure vacant possession of the Premises, including (but not limited to) obtaining peaceable possession of the Premises”. The first appellant regarded this as a threatening letter on the basis that the opposite to peaceable possession involves the use of violence.

7. It seems that prompted by this correspondence, the appellants issued High Court proceedings on 28th May 2024. The plenary summons of that date seeks more than 30 declarations relying on the appellants’ constitutionally protected property rights and the right to fair procedures; alleging that the actions of the various defendants are not in compliance with section 62(6) of the Registration of Title Act 1964 or, alternatively, that section 62(6) is unconstitutional. Declarations are also sought regarding the contractual right or capacity of the fourth defendant, as receiver, to deal with the property. On 10th June 2024 the appellants issued a notice of motion seeking what is described as both an interlocutory injunction and a constitutional injunction. This application was grounded on an affidavit of the first appellant sworn on the same date.

8. As the affidavits of the first appellant and the High Court’s treatment of them featured significantly in the appeal, it is appropriate to outline briefly the content of that affidavit. The affidavit invokes various constitutional provisions, most notably Article 34.3 and 34.5.1 in respect of the independence of the judiciary (which is actually expressly provided for in Article 35.2) and Article 40.3 in support of the appellants’ personal rights including the right to fair procedures. Various cases dealing with these constitutional provisions are set out and discussed. Apart from the first appellant’s name and address, the affidavit does not include any material that could be described as factual and no information at all about the property or the circumstances that gave rise to the application. The exhibited correspondence includes the solicitor’s letter of 16th May 2024 which the appellants regarded as threatening.

9. The appellants made an ex parte application for an interim injunction to Sanfey J. on 11th June 2024. The ex parte docket sought various injunctions to prevent interference with the land register, the property itself and what is described as the appellants’ legal estate in a specific folio (which had been exhibited in the first appellant’s affidavit) which does not appear to be the folio in issue, nor indeed a property owned by the appellants. The correct folio is exhibited in a supplemental affidavit.

10. Sanfey J. granted an interim injunction restraining the sixth and seventh defendants from taking possession of the property for a limited period until the scheduled return date for the motion a week later on 18th June 2024. He expressly made his order subject to the first appellant filing an affidavit “setting out the facts relevant to any application for an injunction and containing an undertaking as to damages.”

11. The first appellant then swore a supplemental affidavit but, somewhat surprisingly, did not actually comply with either of the matters stipulated in Sanfey J.’s order. As regards the undertaking for damages, she claimed to have offered an oral undertaking in court to Sanfey

J. “under protest” and in circumstances where she feared for the appellants’ safety if an injunction were not granted. No further undertaking appears to have been offered. The only factual matters addressed in the body of the affidavits concerned the hearing before Sanfey

J. on 11th June 2024. The constitutional arguments made in the first affidavit are repeated and expanded upon. The exhibits to the supplemental affidavit include the correct folio and a bundle of correspondence between the plaintiffs and the solicitor acting for the sixth and seventh defendants raising a range of issues including the appellants’ refusal to accept that stamp duty had been paid on the appearance filed on behalf of those defendants.

12. This affidavit was sworn on 14th June 2024 which was a Friday, and the matter was be listed again in the Chancery list the following Tuesday, 18th June. The seventh defendant swore a replying affidavit on 17th June which was, apparently, emailed to the appellants that night. That affidavit complains inter alia that the sixth and seventh defendants don’t know the basis on which the plaintiffs are seeking an injunction against them due to the lack of any factual account in the appellants’ affidavit. The seventh defendant’s affidavit had not been filed by 18th June and the appellants had not received the email. The decision of Nolan

J. to admit the unfiled affidavit on the solicitor’s undertaking to file it is the subject of significant complaint by the appellants and forms one of their grounds of appeal.

Hearing before Nolan J.

13. The appellants’ application for an interlocutory injunction proceeded before Nolan J. on 18th June 2024. At the call over, counsel for the first and second defendants and counsel for the third, fourth and fifth defendants indicated that although the motion had been served on their clients, no relief was sought against them. Counsel for the sixth and seventh defendants applied to have the seventh defendant’s unfiled affidavit accepted into court. The matter was then adjourned while the judge dealt with other matters in the list. When the application resumed, the first appellant began her presentation. Nolan J. immediately raised her failure to provide a sworn undertaking as to damages and to set out the relevant facts on which the appellants were relying in her supplemental affidavit. I do not propose to refer again to the absence of a sworn undertaking as to damages as this did not feature in the set aside application from which this appeal has been taken.

14. Nolan J. identified the types of facts he had expected to see in the supplemental affidavit and attempted to explain the difference between facts of which evidence should be adduced and legal submissions. He repeatedly advised the first appellant that the matters of which she was complaining were not on affidavit and offered to adjourn the proceedings for a week to allow her to put in an affidavit setting out the facts to which she was referring in her oral submission. Nolan J. expressly advised the first appellant that it would be “very hard for the court to make any order” in the absence of an affidavit. He also indicated that the appellants would be entitled to an adjournment because of the lateness of the seventh defendant’s affidavit. Notwithstanding these repeated offers, the first appellant insisted on proceeding on the basis that she was “standing on the law of the Constitution” and Nolan J. permitted her to do so.

15. In the course of her submissions, the first appellant made a technical objection to the appearance filed on behalf of the sixth and seventh defendants on the basis that there was no evidence that stamp duty had been paid on it. Nolan J. relied on the court record which showed the appearance had been filed from which it necessarily followed that the requisite stamp duty was paid. At a slightly later point, Nolan J. stopped the first appellant from reading her grounding affidavit into the record as he had already read it. He again indicated that it was not an affidavit, but he would accept it as a legal submission if the first appellant wished to rely on it. She proceeded to read it in full. He also allowed her to read the seventh defendant’s affidavit on the basis that she had not had time to read it beforehand. The defendants did not make any substantive reply.

16. Nolan J. delivered an ex tempore judgment the same afternoon. He described the nature of the pleadings and the affidavits and outlined what had occurred before Sanfey J. and before himself earlier that day. He noted that he had asked the appellants if they wanted an adjournment to consider matters and to consider swearing an affidavit, but they had refused. He characterised the documents before him as not being “an affidavit in the sense of setting out any facts” and that it was at best a legal submission. He examined the folio from which all he could deduce was that the appellants had been the owners of the property as of September 2003 but that on 29th December 2022 the sixth defendant was registered as full owner. He observed that the register is conclusive proof of title in the absence of fraud or mistake. He ultimately concluded that “in this case there was no evidence whatsoever before me to make any order of any description”. He made an order for costs against the appellants in respect of each of the three sets of defendants.

Proceedings before Twomey J.

17. Very shortly after Nolan J. had delivered judgment, the appellants issued their set aside motion under Order 124 RSC on 10th July 2024. It appears that this motion was listed before Barniville P. on a number of occasions. At an early stage, when the appellants were still within time to appeal the order of Nolan J. to this court, Barniville P. advised them that the normal and proper route for a litigant who was unhappy with a decision is to appeal to the Court of Appeal rather than make the unprecedented application of asking one High Court judge to set aside the interlocutory order of another on the basis of alleged errors of law rather than any change in circumstances. Notwithstanding this advice, the appellants persisted with their set aside application and the time for lodging an appeal expired. Having failed in their set aside application, the plaintiffs then reverted to the possibility of an appeal and sought an extension of time from this court to do so. That application (in respect of which the appellants were legally represented) was recently heard and refused (record no. 2025 110, 14th October 2025).

18. The set aside application is grounded on an affidavit of the first appellant of 9th July 2024. That affidavit pleads, at a very high level of generality and without any particulars, breaches of the Constitution and of the Rules of the Superior Courts, abandonment of stare decisis and “breaches of process, procedures and protocols” all of which are unspecified. Much of the affidavit is taken up with a lengthy description of what occurred in court before Nolan J. The only part of the affidavit which attempts in any pragmatic fashion to set out the complaints which are alleged to constitute irregularities in the proceedings before Nolan

J. is para. 6, the subparagraphs of which identify the following: – “(a) The refusal to accept my affidavits as evidence, both sworn, stamped and filed.

(b) The refusal to allow me my right to be heard and make legal submissions. (c)The inclusion as evidence of a document, still sitting in Galway, that was not stamped or filed and to which I vehemently objected to the end. (d)The refusal to give me access to the DAR for the hearing between 11.00am and 12:45pm approximately on 18th June 2024, despite my vehement objection to the end.

(e) The sitting of the solicitor for the Chief State Solicitors Office as far away from the bench as possible and as close to the door as possible. (f)The acceptance of the courts computer system as evidence, without any evidence been proffered and there being evidence to the contrary, which was ignored, despite my vehement objections to the end.

(g) The refusal to accept my first affidavit as evidence, despite the High Court accepting that same affidavit on 11th June 2024 by Judge Sanfey, in courtroom 3, under the sovereign seal of Éire.

(h) The rewriting of history in the order issued on 28th June 2024 and published on 1st July 2024 which was null and void ab initio.” This detail is significant because the appellants’ appeal is premised on the contention that Twomey J. did not engage with the set aside application to determine if irregularities had occurred but instead treated the application as an appeal from the decision of Nolan J.. Therefore, it is important to understand precisely the grounds upon which the appellants contended that there were “problems/errors” in the first High Court hearing.

19. A replying affidavit sworn by the seventh defendant on 18th July 2024 took issue with the procedural mechanism invoked by the appellants which the seventh defendant characterised as an attempt “to seek to circumvent an Order of the High Court by applying again to another High Court Judge”. The deponent also expressed a concern that the first appellant was being advised by a third party “who does not understand legal procedures” and named the person he believed was providing such advice. Finally, the second appellant swore an affidavit in which he emphasised that the appellants were “seeking to have the process followed on the day set aside” and that they were “not seeking to appeal the outcome”.

20. The set-aside application was heard by Twomey J. on 12th February 2025. Interestingly, the statement of claim in the substantive proceedings was filed a number of days earlier on 7th February 2025. The filing of the statement of claim does not alter the legal issues on the appeal but, without itself constituting evidence, it does give some idea of the factual case the appellants wish to make. The first appellant made the case on behalf of the appellants before Twomey J. along the lines of their argument as reflected in the preceding sections of this judgment. Unlike the application before Nolan J., where the sixth and seventh defendants rested largely on the written submissions, a detailed substantive reply was made to Twomey J. on their behalf.

21. This submission emphasised that the normal and correct process for litigants dissatisfied with the determination of the High Court is to appeal to the Court of Appeal. Counsel then took the court through the affidavits that were before Nolan J. and pointed out how unsatisfactory they were. He noted that the appellants had made no effort to set out their facts on affidavit and that they could have had an adjournment had they wanted one. He parsed out and attempted to justify each element of Nolan J.’s ruling. In a similar manner, he went through each of the grounds advanced by the first appellant at para. 6 of her affidavit. He then focused on what the appellants were asking the court to do and the very limited and exceptional circumstances in which it might be appropriate for an order of the High Court to be set aside. Counsel acknowledged that there might be more leeway for doing so in the case of an interlocutory order but submitted that, in any event, the appellants had not identified the sort of circumstances where that would be appropriate.

Judgment of Twomey J.

22. I do not propose to analyse the High Court judgment in great detail as I will return to the salient parts of this when considering the issues raised by the appellants. However, a striking feature of this judgment is that nearly half of it deals not with the issues raised on the appeal but with the judge’s conclusion that the appellants, as litigants-in-person, were being assisted, perhaps for payment, by someone who was not a qualified lawyer and the naming of that person.

23. I share many of the concerns expressed by Twomey J. regarding the involvement of unqualified legal advisers in litigation conducted by litigants-in-person. However, I do not agree that there was a sound evidential basis for reaching a positive conclusion that this had occurred in this case, much less for identifying a third party as having acted in that role. The “understanding” of an opposing litigant of matters of which he does not have direct knowledge is not evidence. The comments of Nolan J., who also had understandable concerns in this regard, were more nuanced and did not purport to reach any definitive

conclusion on the issue. Manifestly, these comments do not constitute evidence either.

24. Crucially, at the outset of the hearing before Twomey J. the second appellant addressed the court and identified that because he suffers from hearing loss, a friend who was present with him in court (i.e. the third party) would sit with him and write notes so that he could follow the proceedings. His wife, the first appellant was unable to do this as she would be actively making a presentation to the court on both of their behalves. Not only was this disclosed to the trial judge, he had also expressly agreed to it.

25. Access to the courts is a fundamental right protected by the Irish Constitution and by the European Convention on Human Rights. If a litigant suffers from a disability which may restrict such access or make their participation in court proceedings more difficult, it is important that suitable accommodations are made to ensure that the litigant is able to engage meaningfully in any proceedings to which they are a party. This is even more important where the litigant with the disability is also a litigant-in-person since they will not have the benefit of legal representatives who can explain the process and what is occurring in court as the case unfolds. In this case the accommodations requested by the second appellant were relatively limited, i.e. that his wife, the first appellant, would speak on his behalf and that the third party would sit beside him in court and provide written notes to explain what was happening. Having agreed to these accommodations, which were entirely reasonable, it was inappropriate for the judge to then make adverse comments in his judgment as to the putative role of the third party.

26. Twomey J. commenced the analytical part of his judgment by looking at the very limited circumstances (usually involving fraud) in which an order of the High Court might subsequently be amended or set aside. He emphasised the importance attaching to the finality of proceedings. He acknowledged that judges are on occasion asked to set aside their own interlocutory orders, usually because of a change in circumstances, and because an interlocutory order is by its nature temporary, in rare circumstances it might be appropriate to do this. In the only example cited of one High Court judge being asked to set aside the order of another (Board of Management of Wilson’s Hospital School v. Burke [2024] IEHC 453), the application was refused.

27. Twomey J. then identifies a number of errors made by the appellants in pursuing their litigation, not least their decision to not appeal the decision of Nolan J. but instead to seek to have the order set aside. While some of the issues he addresses are not material to this appeal (e.g. service of the motion papers on the first to fifth defendants against whom no relief was sought), others overlap with the grounds set out in para. 6 of the first appellant’s affidavit upon which the set aside order was sought. I will return to these in due course. Having gone through these issues, Twomey J. concluded by noting that the appellants had not relied on any change in circumstances or any fraud or similar matter which might justify the setting aside of Nolan J.’s order and that if such grounds existed it should be brought to the attention of Nolan J. and not to a different High Court judge. In circumstances where the plaintiffs had refused Nolan J.’s offer of an adjournment to allow them to file an affidavit setting out the facts on which they were relying, Twomey J. was of the view that the order made by Nolan J. was the only one open to him and consequently he refused to set it aside.

Grounds of Appeal

28. The appellants raise five grounds of appeal one of which is exclusively directed at the costs order made in favour of the first to fifth defendants inclusive. I shall touch briefly on that issue at the end of this judgment. The other four grounds all relate to what the appellants characterise as the “irregular processes employed by Nolan J.” and Twomey J.’s alleged failure to consider and rule upon these. Specifically, the appellants contend that Twomey J. erred in treating their application as an appeal against Nolan J.’s order “rather than the technical set aside motion that was before him”. They complain that none of the grounds on which the setting aside of the order was sought were addressed. They contend that Twomey

J. erred by failing to recognise Order 124. Finally, they contend that Twomey J. erred by failing to consider the effect of alleged breaches of Order 40 by Nolan J. The specific complaint made under Order 40 is that Nolan J. accepted the seventh defendant’s unstamped, unfiled and unserved affidavit but excluded the appellants’ affidavits and exhibits treating them only as legal submissions.

Order 124 RSC

29. Clearly the text and scope of Order 124 is central to the appellants’ case that Twomey

J. failed to treat their application as one for the setting aside of an order rather than an appeal. During the course of the appeal hearing, the first appellant objected to the court querying the applicability of Order 124 to decisions and orders of the High Court as distinct from proceedings before that court on the basis that the respondents had not raised that issue, and it is not dealt within the High Court judgment. Both points are technically correct but as the allegation of non-compliance by Twomey J. with Order 124 underpins almost all the grounds of appeal, in my view it is necessary to consider that order and whether the relief sought by the appellants could ever be properly granted within it. Order 124 provides as follows: “(1) Non-compliance with these Rules shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court shall think fit.

(2) No application to set aside any proceeding for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.

(3) Where an application is made to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated in the notice of motion.”

30. Order 124 deals generally with the consequences of non-compliance with the Rules of Court. On its face, it applies to proceedings and allows the setting aside of any proceedings or proceeding for irregularity. Although the nature of the irregularities which may be relied upon are not specified, it can be inferred from the fact that Order 124(1) opens with a statement to the effect that non-compliance with the Rules will not automatically render proceedings void, that the type of irregularity envisaged is non-compliance with another Rule. It seems that the irregularities relied on by the appellants are breaches of Order 40 and breaches of fair procedures on Nolan J.’s part.

31. The real issue as regards the applicability of Order 124 in the circumstances of this case is what is meant by “proceedings”. In general legal parlance, the noun “proceedings” is used to mean both a case that is brought before the courts and the formal steps taken by the parties within that case. For example, Order 122, which deals with time, refers repeatedly to the “doing of any act or taking of any proceedings”. Order 122(11) allows for the dismissal of a cause or matter in “which there has been no proceeding for one year from the last proceeding had”. Read this way the rule allows, but does not require, proceedings to be set aside on the application of a party where there has been an irregularity in the steps taken by the other party to advance the litigation. Indeed, I note that in discussing Order 124 the cases examined by the authors of Delaney and McGrath on Civil Procedure (5th Ed., 2023 at Section E, paras. 2-120 et seq.) all relate either to defects in the form of the originating proceedings adopted by the parties or defects in the service of proceedings.

32. It is very difficult to read the word “proceedings” as used in Order 124 as referring to or including the judgments and orders of the court itself as distinct from the action and the steps taken by the parties in the action before the court. The appellants did not provide the court with any authority suggesting that Order 124 applies to the judgments and orders of a court. Indeed, one of the authorities on which they relied, Start Mortgages DAC v. Kavanagh [2023] IEHC 37 suggests the contrary is the case.

33. In Kavanagh, as here, Order 124 was relied on in an application which asked one High Court judge to set aside a final, unappealed order made by another High Court judge. Kavanagh differed from this case in that the moving party purported to rely on an irregularity in the special summons issued by the opposing party in the litigation. However, the case had been determined and an order for the possession of property had been made before the application under Order 124 relying on the alleged defect in the originating proceeding was issued. Thus, Simons J. had to consider the extent to which proceedings which had already been determined by the court could be set aside under Order 124.

34. In fairness to the appellants, I will cite firstly the paragraph of Simon J.’s judgment on which they rely before looking at those which undermine their case. Reliance is placed on paragraph 24 as establishing the test to be applied to an application under Order 124: – “24. As appears, the court has a wide discretion as to how to treat non-compliance with the Rules of the Superior Courts. This discretion must be informed by the overriding imperative of advancing the interests of justice and ensuring that all sides’ constitutional right of access to the court is properly respected. The factors to be considered in the exercise of this discretion include (i) the nature and extent of the breach of the Rules of the Superior Courts; (ii) whether the breach has caused prejudice to the other party(s) to the proceedings; and (iii) the purpose which the particular rule, which has been breached, is intended to achieve.”

35. This paragraph is undoubtedly a useful consideration of how the exercise of discretion under Order 124 might be approached by a court. I note the factors listed are described as being included amongst those a court should consider and not as exhaustive criteria. This is of course appropriate in the case of the exercise of a discretion which will necessarily depend very much on the circumstances of the individual case. The appellants do not attempt to relate the application of these criteria to the issues in this case.

36. In my view the comments of Simon J. in the following paragraph are also significant: “25. The essence of the moving party’s argument is that the special summons in these proceedings is “irregular”, and that, accordingly, the “proceedings” must now be set aside pursuant to Order 124. With respect, the moving party’s invocation of Order

124 is entirely misconceived. Order 124 is concerned with ongoing proceedings, and not with a final, unappealed judgment and order. Order 124 affords the court a discretion to set aside ongoing proceedings on the grounds that there has been noncompliance with the Rules of the Superior Courts. The concept of setting aside a judgment or order is different and is addressed separately under the Rules of the Superior Courts: see, for example, Order 27, rule 15, and Order 36, rule 33.”

37. Further, Simons J. makes the following observation, with which I agree, at para. 38 of his judgment: – “38. Having failed to appeal the judgment and order of 8 July 2016 to the Court of Appeal, the moving party cannot seek to challenge the merits of same through the back door by inviting the High Court to overturn the judgment and order itself.”

38. The first appellant notes that the orders cited by Simons J. at paragraph 25 of his judgment as dealing with the setting aside of a High Court judgment do not apply to their case, which is correct. Order 27, rule 15(2) allows for the setting aside of a judgment obtained in default if the court is satisfied that “special circumstances” existed at the time of the default which explain and justify the failure. Under Order 36, rule 33 a verdict or judgment obtained when the opposing party has not appeared at trial must be served on that party who then has 28 days to apply to set the judgment aside. There is also provision in Order 28 rule 11 for the amendment of judgments and court orders to correct clerical mistakes or errors arising from any accidental slip or omission (the slip rule).

39. In my view the relevance of these provisions is that the Rules of the Superior Courts expressly make provision for the amendment of orders and for the setting aside of judgments and orders in very limited circumstances and usually where the party affected has not been present in court. It does not follow that because none of these circumstances avail the appellants, it is instead open to them to seek to set aside the decision and order of Nolan J. by means of an application under Order 124. Rather it means that the appropriate course of action was, as was pointed out to the appellants by Barniville P., an appeal to this court.

40. It is not obvious why the appellants set their faces so steadfastly against the taking of an appeal. It may be that as litigants-in-person they misunderstood the import and purpose of Order 124. The first appellant relies on Order 124, rule 2 to argue that they could not have appealed the order of Nolan J. as this would have constituted the taking of a “fresh step” with knowledge of the impropriety which would then have precluded their application under Order 124. This argument is somewhat circular as it is premised on the assumption that the application under Order 124 is properly made. In my view, Order 124, rule 2 means that if one party is aware of an irregularity on the part of the other side but continues to take steps in the litigation, they cannot at a later stage seek to unscramble the egg and revert to and rely on the earlier irregularity as a reason for striking out the proceedings. Having chosen to make their application under Order 124, the onus is on the appellants to establish that their application properly comes within the scope of that Order. This they have singularly failed to do.

41. Before I leave this part of the judgment I should point out, as Simons J. did in Kavanagh, that there is a separate line of authority which establishes an exceptional, inherent jurisdiction to re-open a final judgment (see the decision of the Supreme Court in Greendale Developments Ltd (No. 3) [2000] 2 IR 514). Again, it is clear from the subsequent jurisprudence, including the cases mentioned by Simons J., that in order for a court to exercise this jurisdiction there must be exceptional circumstances such that a failure to reopen the judgment might itself amount to a clear and significant breach of the fundamental constitutional rights of a party going to the root of the constitutional administration of justice (see Student Transport Scheme Ltd v. Minister for Education and Skills [2021] IESC 35). There is of course a vast difference between the very high level of exceptionality required to re-open a final judgment pursuant to Greendale and irregularities arising from non-compliance with the RSC under Order 124. The difference is entirely logical because it reflects the distinction between the exercise of a discretion where a court still has seisin of proceedings which are live before it and the exercise of an exceptional or inherent jurisdiction where the court is technically functus officio. As the appellants have not relied on the Greendale line of authority, I do not propose to consider the extent to which it might apply to a High Court order of this nature from which there is a right of appeal to this court.

Alleged Irregularities in High Court Procedure

42. The analysis in the preceding section of this judgment disposes of the appellants’ appeal in its entirety. However, for the sake of completeness I propose to examine the grounds upon which they contend Twomey J. erred in not finding that there were irregularities in the procedure adopted by Nolan J. It is clear that notwithstanding the decisions of Nolan J. and Twomey J., the appellants do not accept that the affidavit sworn by the first appellant failed to contain any material constituting evidence upon which the court could rely in considering their application. I have already summarised those affidavits and pointed to their very minimal factual content. During the hearing before Nolan J., he expressly described the type of facts which would need to be in evidence before him in order for him to consider granting an injunction to the appellants. Considerable latitude had been shown to the appellants by Sanfey J. in granting them an interim injunction despite the fact that their affidavit had not put the material facts in evidence. He afforded them the opportunity to do so by specifically making it a requirement in his order that an affidavit as to the facts be filed. Similarly, Nolan J. afforded the appellants the opportunity of seeking an adjournment to file an affidavit setting out the facts on which they were relying but, again, for reasons which are not clear, the appellants refused this offer.

43. As a general rule of thumb, in making any decision a court has to do two things. It has firstly to ascertain the facts material to the decision it has to make and then it has to apply the law to those facts. In a common law system, the facts are ascertained on the basis of evidence adduced by the parties. The parties may then make legal submissions as to how the law should be applied to those facts.

44. Within that broad framework there are, of course, many variables. The parties may be in agreement regarding the facts but dispute the legal consequences of those facts. Alternatively, the application of the law may be clear-cut and the parties may dispute only the facts to which that law should be applied. Different standards apply to the proof of relevant facts in civil and criminal cases. Depending on the particular nature of an interlocutory application, the court may be required to take the moving party’s case at its height and assume that the relevant facts (set out in the pleadings and/or on affidavit) will be proved. Alternatively, if the disputed facts will not be determined until a later stage in the proceedings, a moving party may be required to show that they have a fair case to be tried, a prima facie case based on facts which are reasonably capable of proof or that the case is strongly arguable. The precise formulation will depend on the nature of the particular application, the time in the proceedings at which it is made and the potential consequences of granting or refusing interlocutory relief if those facts are ultimately established, or not established as the case may be.

45. The detail of these variables and how they are applied in practice is not relevant here. What is relevant is that there must be a factual basis underpinning every decision a court is asked to make. The facts themselves must, at a minimum, be identified by the party relying on them and are then either assumed to be true or proved to the requisite standard by reference to evidence led by that party. When the facts are established, it is to those facts that the submissions as to the application of the law are made.

46. The purpose of an affidavit is to allow evidence to be put before the court in written form (Order 40, rule 1). Order 40, rule 8 requires affidavits to be confined to such facts that the witness is able to prove from his/her own knowledge, save for interlocutory motions where an affidavit may include statements of belief (with the grounds for such belief). Affidavits may not be argumentative. Many types of case proceed exclusively on evidence adduced by way of affidavit (e.g. summary proceedings, judicial review proceedings) subject to the entitlement of the court to adjourn a matter to plenary hearing or to allow crossexamination on the affidavits. Interlocutory applications, such as this application for an injunction, typically proceed on the basis of affidavit evidence as it is understood that the court will not make any final determination on disputed issues of fact in advance of the substantive trial.

47. The first appellant is clearly of the view that once an affidavit is sworn its contents become evidence. Although under Order 40, rule 1 evidence may be given by way of affidavit, it does not follow that everything that is put on affidavit becomes evidence. Evidence, in a legal sense, comprises facts and information which may be derived from statements, documents or objects, and which are used to prove the existence of something or the truth of a factual proposition. In her affidavit, the first appellant set out a series of legal arguments, largely based on the Constitution, on which she sought to rely.

48. Legal principles do not themselves constitute evidence. Further, the law cannot be applied in a vacuum, it must be applied to something, and the court must have sufficient evidence of that thing. Consequently, in order to succeed in the legal argument she sought to make in her affidavit, the first appellant needed to place evidence of the factual position before the court so that the court could apply the legal principles to those facts. In the absence of establishing any factual basis to which the law could be applied, the court simply could not find in the appellants’ favour.

49. Thus, the starting proposition for the appellants’ appeal is entirely misconceived. Nolan J. did not exclude evidence on which they wish to rely. He sought to explain to the appellants that the contents of their affidavit did not constitute evidence and to encourage them to file a proper affidavit setting out the material facts. He did not refuse to consider the affidavits - instead he said he would treat them as a legal submission. This was manifestly not an error on his part since, apart from some immaterial facts, the affidavits comprised only legal submissions.

50. Further Nolan J. gave a very fair and legally correct summary of these issues in the course of his exchanges with the first appellant when encouraging her to adjourn the matter and to file an affidavit setting out the facts on which she was relying. It was entirely correct to treat the bulk of the first appellant’s two affidavits as a legal submission as, in effect, that is what they were. Swearing to a legal submission in an affidavit does not make it evidence. Even if Nolan J. had acceded to the first appellant’s desire to have affidavits treated as evidence, they still did not set out or establish any facts material to the question of whether the appellant should be granted an interlocutory injunction. As I have found Nolan J.’s approach to the first appellant’s affidavits to be legally sound and appropriate, it necessarily follows the Twomey J. did not err in failing to consider this treatment of the affidavits as an irregularity under Order 40 sufficient to justify the grant of relief under Order 124.

51. The appellants make a related complaint that the seventh defendant’s filed affidavit was accepted by the court in breach of Order 40. In fact, the complaint of lack of fair procedures seems to be premised at least in part on what the appellants perceive as the contrasting treatment afforded to each sides’ affidavits. Again, the appellants misconstrue what actually occurred before Nolan J. and fail to appreciate the scope of the discretion a court has to accept an affidavit which, at the time it is accepted, does not fully comply with the rules. For example, Order 40, rule 4 allows a court to grant leave for the use of an affidavit which has been filed outside the relevant time limit. Order 40, rule 22 allows a court to receive any affidavits sworn for the purposes of any court matter notwithstanding any defect or other irregularity in the form thereof. Thus, the strictures of the rules are always subject to the court’s discretion to receive a non-compliant affidavit when it is necessary to do so to ensure a fair hearing.

52. When considering this issue, it should be noted at the outset that it would have been manifestly unfair to the respondents to have allowed the appellants to proceed with their application for an interlocutory injunction without the court accepting the affidavit the respondents wished to file in response. It will be recalled that the first appellant’s supplemental affidavit was sworn and presumably served on Friday 14th of June. The matter was listed for hearing on Tuesday 18th of June. The time available to the seventh defendant to swear an affidavit was necessarily very limited. The affidavit was sworn on the only working day available to the seventh defendant, namely the 17th of June. It was sent to the appellants by email that night but apparently not received by them. On the 18th of June the original affidavit was still physically located in Galway where it had been sworn but copies were available in court and provided to the appellants. The appellants were invited to apply for an adjournment in order to consider and reply to the seventh defendant’s affidavit. They chose not to do so and instead proceeded with their application. Manifestly, the court could not allow the appellants’ decision to proceed with their application deprive the respondents of the right to file an affidavit setting out their position. Put simply, once the appellants insisted on proceeding with their application, then the court had little choice but to accept the respondents’ affidavit on their solicitor’s undertaking to file it. In this regard Twomey

J. is correct in his observations (paragraph 80 of his judgment) that it is standard practice for a court to accept an affidavit into evidence, even if it has not been stamped or filed when time for preparing the affidavit was very limited. He is also correct in his observation that it is standard practice for judges to read affidavits in advance such that it is not necessary for them to be read aloud either at all or in full in open court.

Failure to Adjudicate on Set Aside Motion

53. It follows from the preceding portions of this judgment that I am of the view the appellants’ motion was not properly brought under Order 124 and, in any event, the irregularities alleged - largely in the treatment of affidavits under Order 40 - were not in fact irregularities in any sense. It follows that the appellants’ appeal to this court from the judgment and order of Twomey J. necessarily fails. However, I am conscious of the fact that the first two grounds of appeal by the appellants are premised on the contention that Twomey J. erred in treating their motion as an appeal from the decision of Nolan J. and not as a set aside application under Order 124. Even though that element of the appeal is moot in light of the conclusions I have already reached, I will briefly set out why this ground of appeal should also fail.

54. In normal course there should be no confusion between an application to set proceedings aside on the grounds of irregularity under Order 124 and an appeal from a judgment or order of the High Court. This is because Order 124 is not designed to deal with final judgments and orders of the court but rather to deal with irregularities in the steps taken by the parties in proceedings which remain live before a court. That said, when pressed on this issue the appellants were unable to draw a clear distinction between the case they were making and the way in which to Twomey J. handled that case, save of course that they disagreed with his conclusions. There is, if anything, a very thin line between saying that the decisions made by a judge in the conduct of proceedings are irregular and an appeal from those decisions.

55. In the course of the appeal hearing the first appellant confirmed that the grounds upon which they alleged that the proceedings before Nolan J. were irregular were those set out at paragraph 6 of her affidavit grounding the set aside motion. Contrary to the appellants’ contention, these grounds have been dealt with comprehensively either expressly or by necessary implication in the judgment of Twomey J. The grounds themselves have been set out in full at paragraph 18 above.

56. Paragraphs (a) and (g) relate to the complaint that the first appellant’s affidavits were not treated as evidence. I have already explained why Nolan J. was correct in not treating those affidavits as evidence since they did not set out the facts on which the appellants were relying but instead comprised the legal arguments they wish to make. These issues are dealt with by Twomey J. between paragraphs 65 and 68 of his judgment, in which he reaches conclusions similar to those which I have set out above. For completeness, the reference to affidavits being sworn, stamped and filed is immaterial if the content of an affidavit does not consist of facts within the knowledge of the deponents. Therefore, it is manifestly incorrect to assert that Sanfey J. had accepted the first affidavit as evidence on 11th June 2024. The order he made granting the appellants an interim injunction expressly required them to file an affidavit setting out the facts on which they relied because there was no affidavit putting those facts in evidence before him.

57. The complaint regarding the acceptance of the affidavit sworn by the seventh defendant at paragraph (c) is dealt with by Twomey J. at paragraphs 79 and 80 of his judgment. The complaint made at paragraph (b) to the effect that the first appellant was denied her right to be heard and to make legal submissions is dealt with at paragraph 82 of the judgment. The complaint seems to relate to Nolan J.’s attempts to truncate the reading aloud of material from the affidavit which he had already read in advance of the hearing. As Twomey J. observes, this is a standard practice about which there is nothing unfair or unusual. It is in the interests of the efficient use of court time and thus of other litigants waiting to have their cases heard.

58. At subparagraph (e) the appellants complain about the location in which one of the attending solicitors sat in court on 18th June. I entirely agree with Twomey J. that this ground is simply nonsensical. Although not expressly dealt with by Twomey J., I think ground (h) can be disposed of in a similar fashion. This appears to be a complaint that the formal order drawn up to reflect Nolan J.’s decision refers to the court having read the affidavits of the first appellant dated 10th June and 14th June 2024. This is no more than a recitation of the material proffered to the court and the form in which it was proffered. What is important is that the court considered all of that material. The use of the word “affidavits” in the order does not convert the content of those affidavits into evidence when they do not set out any facts and consist only of legal argument.

59. The complaint made at subparagraph (d) regarding access to the DAR is not expressly dealt with by Twomey J. but could never comprise an irregularity in the proceedings before Nolan J. Access to the DAR arose at the conclusion of the hearing and was dealt with subsequent to the decision that Nolan J. had made. Even if Nolan J. erred in respect of his treatment of the appellants’ applications for the DAR (and I am not finding that he did), it could have no bearing on the regularity or irregularity of the proceedings before him.

60. Objection is taken to the fact that Nolan J. consulted the court’s computer system to ascertain that the appearance filed on behalf of the sixth and seventh defendants appeared on the system (sub-paragraph (f)). This matter is not expressly dealt with by Twomey J. but in my view is sufficiently unstateable not to require it to be expressly dealt with in rejecting the appellants’ application. An appearance was entered on behalf of the sixth and seventh defendants on 12th June 2024 and had been provided in advance to the appellants. The appellants raised an issue in correspondence that, although this appearance is stamped as having been entered in the Central Office it does not, on its face, show the payment of the requisite stamp duty. By confirming that the appearance showed up on the Court Service file in relation to the case, Nolan J. was able to satisfy himself that the requisite stamp duty had been paid. The point was an entirely technical and unmeritorious one and could never constitute an irregularity in the procedures adopted by Nolan J. which would justify the setting aside of the decision he reached.

61. The application to set aside was framed by the appellants in the affidavit sworn by the first appellant to ground the motion. By going through most of the grounds advanced in that affidavit and dealing expressly with them, Twomey J. was doing no more and no less in hearing and determining the motion on the terms on which it had been brought by the appellants. He did not purport to treat the application as an appeal from the decision of Nolan J. and indeed decried the notion that such an appeal was either appropriate or legally possible.

Conclusions

62. In the circumstances, all of the substantive grounds of appeal advanced by the appellants are rejected and their appeal must fail.

63. As the respondents to the appeal (i.e. the sixth and seventh defendants) have been successful in their defence of this appeal it seems to me that the appropriate order for costs is an order in their favour for the costs of this appeal against both of the appellants. If the appellants wish to contend for a different order, then they should notify the office within 10 days of receipt of this judgment in which case further directions will be given as to the disposal of any costs application.

64. There is one outstanding issue relating to the costs which were awarded to the first to fifth defendants inclusive by the High Court judge. The appellants have specifically appealed those costs. The first to fifth defendants have filed Respondents’ Notices and attended court whilst acknowledging that their only interest in the appeal was in respect of the costs orders made in their favour in the High Court. The disposal of the appeal against the respondents together with the indicative costs order in respect of that appeal does not deal with the separate issue of whether the High Court should have made costs orders against the appellants in favour of the first to fifth defendants. In the circumstances, this matter will be listed for a brief hearing on the question of costs on a date to be arranged by the Office.

65. My colleagues Whelan J. and Faherty J. have read this judgment in advance of its delivery and have indicated their agreement with it.