Supreme Court dismisses motion to set aside final order striking out appeal for lack of grounds.

THE SUPREME COURT

Appeal No. 29/2011

Denham C.J.

Fennelly J.

O’Donnell J.

Between/

Thomas Kennedy

Plaintiff/Appellant

and

Owen Harrahill

Defendant/Respondent

Judgment of Denham C.J. delivered on the 12th day of June, 2013

1. Thomas Kennedy, the plaintiff/appellant, referred to as “the appellant”, brought an appeal from the judgment and order of the High

Court (McKechnie J.) given on the 11th June, 2010, made on the 10th December, 2010, and perfected on the 5th January, 2011,

whereby the learned trial judge dismissed the appellant’s claim that he was the owner of specified lands.

Motion on 18th May, 2012

2. On the 18th May, 2012, Owen Harrahill, the defendant/respondent, referred to as “the respondent”, moved a motion to strike out

the notice of appeal of the appellant on the basis of the absence of any grounds to the appeal, and/or the appeal being an abuse of

process, disclosing no reasonable cause of action, being frivolous and/or vexatious, and/or without any lawful cause or excuse. In

addition, a ground was advanced that the books of appeal had not been filed without delay.

Supreme Court Order on 18th May, 2012

3. On the 18th May, 2012, the Supreme Court (Hardiman, Clarke, MacMenamin JJ.), having heard the appellant in person and counsel

for the respondent, granted the respondent’s motion that the appellant’s appeal be struck out as it disclosed no stateable cause of

action, affirmed the order of the High Court, and ordered that the appellant pay to the respondent his costs.

Motion to set aside Supreme Court Order

4. The appellant has brought a notice of motion seeking an order pursuant to the inherent jurisdiction of the Supreme Court to set

aside a final order of the Court, being the order recited above of the 18th May, 2012. It is claimed that this was being done:-

“[S]o as to protect my constitutional rights and justice and to allow the appeal to proceed so that the real issues of the

case can be argued when the books of appeal are lodged in the Supreme Court Office”.

5. In an affidavit deposed on the 16th July, 2012, the appellant set out the events before the Supreme Court on the 18th May, 2012;

and his reasons why he should be allowed to proceed with his appeal.

6. The appellant described the hearing before the Supreme Court. When this matter came before the Supreme Court on the 18th May,

2012, the respondent argued that the notice of appeal contained no grounds for an appeal. The Court asked the appellant to point to

grounds of appeal. The appellant sought liberty to amend the notice of appeal, and the Court indicated that it would grant leave to

amend the notice of appeal but with the condition that the appellant articulate the grounds to the Court. The appellant did not

provide grounds. A son of the appellant, who was assisting the appellant, accepted that there were no grounds of appeal. The

appellant then sought time to obtain legal advice, and he asked for an adjournment. The Court said it was late to be seeking legal

advice on the motion. Some time was granted, but the appellant failed to provide any grounds for appeal. The Court rose to consider

the matter and then struck out the appellant’s notice of appeal.

Motion on 11th April, 2013

7. On the 11th April, 2013, this Court heard the appellant on his motion to set aside the final order of the Supreme Court made on the

18th May, 2012. The Court also heard counsel on behalf of the respondent, who opposed the motion.

Setting Aside an Order of the Supreme Court

8. The issue in this case is whether the order of the Supreme Court of the 18th May, 2012, should be set aside; and whether the

circumstances of the case meet the established criteria for such an order.

9. This Court has considered the issue of setting aside one of its orders in several cases including Greendale Developments Ltd. (in

liquidation) [2000] I.R. 514, Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, and People (Director of Public Prosecutions) v.

McKevitt [2009] IESC 29 (Judgment of the Court by Murray C.J. of the 26th March, 2009), and has established the criteria for such

an exceptional order.

10. In Greendale Developments [2000] I.R. 514, the applicants sought to set aside the judgment and order of the Supreme Court on

the ground that the core issue was decided without proper opportunity given to the applicants to argue the point. Hamilton C.J.

considered Article 34.4.6° of the Constitution which provides that“[t]he decision of the Supreme Court shall in all cases be final and

conclusive” and stated, at 524, that the Supreme Court’s “jurisdiction is not unfettered but is limited by the provisions of the

Constitution and is subject to the provision contained in Article 34.4.6°.” Hamilton C.J. stated, at 522, that:-

“The order correctly stated what the court actually decided and intended and the order is of a final nature”.

The issues raised by the applicants were dealt with by the Court, which had regard to both the oral and written submissions of the

applicants. He found that there was no breach of fair procedures nor where there special or unusual circumstances that would justify

the Court in granting the applicants the relief sought.

11. In my judgment in Greendale Developments [2000] I.R. 514 at 544 to 545, I stated:-

“… it is only in most exceptional circumstances that this jurisdiction arises. The jurisdiction will only be exercised

when a constitutional right or justice lies to be protected. The jurisdiction will arise only to protect constitutional

rights. The jurisdiction will not arise, in general, if facts are in issue - unless the situation is an exception, e.g. order

obtained by fraud. […]

A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most

exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be

rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where,

through no fault of the party, he or she has been subject to a breach of constitutional rights. In this case, the

applicants have failed to discharge the onus. The facts of the case do not establish any breach of fair procedures.”

12. Barron J. stated at 546 that:-

“The Constitution requires the decisions of this court to be final and conclusive for good reason. There must be

certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these provisions must

prevail unless there has been a clear breach of the principles of natural justice to which the applicant has not

acquiesced and such that a failure to take steps to remedy such breach would, in the eyes of right-minded citizens

damage the authority of this court. I believe that the jurisprudence of this court has always been to this effect.

In the instant case, there are no circumstances which require investigation; there is no such clear breach of the

principles of natural justice.”

13. In Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, this Court considered an application to set aside a judgment and order

of the Court by reason of the appearance of bias in the Court constituted for the hearing of the appeal. I stated, at 438:-

“I am satisfied that the Supreme Court has an inherent jurisdiction to protect constitutional rights and justice. This

may on occasion apply to an application in relation to an order of the Supreme Court. This jurisdiction arises only in

rare and exceptional cases. It arises where a clear case has been established for it to be invoked, where at issue is

a clear breach of a constitutional right or justice.”

14. In the judgment, the 17 links between the named judges and the parties or the issues alleged to have created the appearance of

bias were analysed and I concluded that none of the links raised a ground or created a cogent and rational connection between the

judges and the parties, and that many of the alleged links were repetitive and misunderstood the relationship between client and

counsel.

15. McGuinness J. also refused the application and stated at 478:-

“I respectfully agree with the analysis of this court's jurisdiction as set out by Denham J. and Barron J. in In re Greendale

Developments Ltd. (No. 3) [2000] 2 I.R. 514. In summary, whilst very great weight must be given to the principle of

finality and to the provisions of Article 34.4.6, this court has a jurisdiction to review and if necessary to set aside what

appears to have been a final order in circumstances where the court's duty to protect constitutional rights or natural

justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the applicants

to establish that such exceptional circumstances exist. It is in this context that this court must consider the facts of the

present case and the arguments put forward by the applicants.”

16. People (Director of Public Prosecutions) v. McKevitt [2009] IESC 29 (Judgment of the Court by Murray C.J. of the 26th March,

2009) considered an application to set aside the judgment and order of the Supreme Court of an appeal from the Court of Criminal

Appeal, which certified the case as involving a point of law of exceptional public importance and that it was desirable in the public

interest that an appeal should be taken to the Supreme Court. The application was grounded upon an incorrect statement of fact

regarding photographic evidence in the judgment of the Court of Criminal Appeal, which was conceded as an error by the respondent.

17. The Court reviewed the case law and stated:-

“When a party seeks to set aside a final decision of this Court a question as to whether the Court has jurisdiction to

entertain such an application must always arise having regard to the terms of Article 34.4.6°.

There are two particularly important factors to be addressed when considering whether this Court has, in the

circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly the application must

patently and substantively concern an issue of constitutional justice other than the merits of the decision as such.

Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning a

denial of justice in the proceedings in question consistent with the onus of proof on an applicant.

Accordingly, insofar as this Court has potential jurisdiction, in the exceptional circumstances referred to in the case-law,

to review one of its earlier decisions, an applicant must show cogent and substantive grounds which are objectively

sufficient to enable the Court to enter upon an exercise, by way of a hearing of an application on the merits, of that

wholly exceptional jurisdiction. (For example, a mere assertion of subjective bias on the part of the Court by a dissatisfied

litigant could not be a ground upon which the Court could have jurisdiction to hear and determine an application).

Where an applicant fails to discharge the onus on him or her the Court has no jurisdiction to deal with the matter and the

application must be considered as manifestly unfounded.”

18. The Court may assess whether the application may proceed further by way of summary procedure:-

“A summary ruling, in this context, means a ruling by the Court, having taken into account all that is stated in such an

application, including any supporting affidavit, that the application is manifestly ill-founded without the necessity of

holding a hearing on the matter in which further legal argument is heard from all parties to the proceedings as if it were a

hearing of the application on its merits. This was the approach adopted by this Court in Philp -v- Ryan & Ors (Supreme

Court Ruling, Unreported, 18th January 2005).”

19. The Court found that it was:-

“quite satisfied that no reasonable interpretation of the judgment could lead to the conclusion that the decision of the

Court in this case was, or could have been, in any way affected by the incorrect reference to photographs of what the

gardaí saw in their sightings and recorded in the relevant documentation. It is equally manifest that the error in question

had no bearing on the other limited grounds of appeal and of course had nothing to do with any issue as to the guilt or

innocence of the appellant. The Court considers the application to be unmeritorious and opportunistic.”

The Appellant’s Submissions

20. The appellant submits that while he appreciated that Hardiman J. granted him leave to amend the notice of appeal if he could

indicate any new grounds, the appellant submitted that he was denied fair procedures because he was refused time to seek legal

advice. The appellant submitted that he has a strong case and the remainder of his submissions concern matters relating to litigation

in many courts over many years in relation to the land in issue.

Decision

21. The appellant’s complaint in the present proceedings is against the ruling of this Court on the 18th May, 2012, on the ground that

he was denied fair procedures because, during the hearing of a motion to strike out his appeal for failure to provide grounds of appeal,

he was refused an adjournment in order to obtain legal advice in respect of substantively the same issue: identifying grounds of

appeal.

22. The jurisdiction of this Court is to consider whether the proceedings before the Court on the 18th May, 2012, breached the

appellant’s constitutional rights.

23. I am satisfied that the appellant has not met the high threshold articulated in Greendale Developments [2000] I.R. 514, Bula Ltd

[2000] 4 I.R. 412, and People (D.P.P.) v. McKevitt [2009] IESC 29 (Judgment of the Court by Murray C.J. of the 26th March, 2009), to

have the Supreme Court set aside its decision and order of the 18th May, 2012. The appellant was informed of the application in

advance of the hearing, chose to act as a litigant in person, and was provided with an opportunity and time by the Court at the

hearing to consider whether he could advance any ground upon which his appeal would be stateable.

24. The request for an adjournment by the appellant was in respect of substantively the same issue to which he had come before the

Court to respond. Legal advice could have been sought before the hearing date of the motion and/or an application for an

adjournment could have been made before the hearing date of a motion.

25. When litigants act in person, the Court seeks to facilitate the litigation of the issues so that the lack of professional

representation does not hinder justice being done between the parties. However, respondents, whether professionally represented or

not, also have rights in respect of the conduct of litigation and these must be taken into account in court proceedings.

26. Even though the appellant has substantial experience as a litigant in person in respect of issues concerning the land dispute

claimed in his substantive pleadings, the Court facilitated the appellant to the extent that was required to do justice between the

parties.

27. This application does not come close to meeting the rare and exceptional circumstances by which this Court will set aside a final

order of the Court as described in the jurisprudence set out above.

28. The claim of a lack of fair procedures before this Court on the 18th May, 2012, lacks merit, and the mere assertion of a lack of

fair procedures is not sufficient for this Court to overturn its decision.

29. The appellant has failed to discharge the onus on him, and consequently the Court has no jurisdiction to deal with the matter and

the application is unfounded.

30. I would refuse the appellant’s motion. Accordingly, the order of this Court of the 18th May, 2012 stands.

Lis pendens motion

31. On the 3rd October, 2012, the respondent lodged with the Supreme Court office a motion to direct the Examiner of Titles to

discharge the lis pendens that was registered by the appellant in respect of the land, the ownership of which was in dispute in these

proceedings.

32. This motion was moved on behalf of the respondent before the Court.

33. The proceedings in relation to these lands are no longer under appeal to this Court because of the order of this Court made on the

18th May, 2012. I would allow the respondent’s motion for an order directing the Examiner of Titles to discharge the lis pendens in

respect of the lands registered against Folio TY6265F County of Tipperary.