Supreme Court dismisses appeal to introduce new evidence on chain of title irrelevant to current fishing rights module.

THE SUPREME COURT

[Appeal No: 95/2013]

Clarke J.

MacMenamin J.

Charleton J.

Between/

Inland Fisheries Ireland

Plaintiff/Respondent

and

Peadar O’Baoill, John Gerard Boyle and John Boyle

Defendants/Appellants

Judgment of Mr. Justice Clarke delivered the 15th May, 2015.

1. Introduction

1.1 These proceedings concern fishing rights in Donegal. The proceedings generally are complex. Certain issues were tried before the

High Court (Laffoy J.) as a first module and are the subject of a judgment delivered on the 19th December, 2012 (Inland Fisheries

Ireland v. O’Baoill & ors [2012] I.E.H.C. 550). On the issues which were then before the High Court in that first module it can, I think,

be said that the plaintiff/respondent (“Inland Fisheries”) was successful. The defendants/appellants (“the Fishermen”) have appealed

to this Court against the decision of Laffoy J.

1.2 It is in that context that an application has now been made on behalf of the Fishermen seeking to introduce new evidence for the

purposes of the appeal. In order to understand the issues which arise in the context of that application it is necessary to say a little

more about the High Court judgment.

2. The High Court Judgment

2.1 As pointed out by Laffoy J., in a detailed history of the proceedings up to the date of her judgment, an extensive statement of

claim was filed by Inland Fisheries and an extensive defence and counterclaim was filed by the Fishermen which, in substance,

challenged the right of Inland Fisheries to bring these proceedings and also asserted certain rights of their own.

2.2 Thereafter, on the 21st November, 2011, Murphy J. directed a modular trial and specified that the first issues to be tried were to

be:-

(a) Does Inland Fisheries have the right to manage, control and regulate access to the lands within what is referred to as the

“Gweebarra Fishery” as identified on relevant maps;

(b) Is Inland Fisheries entitled to the reliefs sought against the defendants in respect of those lands; and

(c) Are the defendants entitled to the reliefs set out in the counterclaim in relation to the same lands.

2.3 It is clear from para. 79 of her judgment that the trial judge, correctly in my view, considered that point (a) was specifically

concerned with the current position in respect of the entitlements of the parties and not with any historical position which might have

some relevance to other issues in the case but which was not relevant to the issues which fell to be determined in the context of the

first module of the trial. Indeed, the very point which the trial judge makes in para. 79 is that certain points made might have had an

effect on the entitlement of Inland Fisheries in 2009, but not as of the date of trial, and might, therefore, be relevant in other

modules but were not relevant to the issue which required to be determined at (a).

2.4 The trial judge went on to conclude that Inland Fisheries did have, as at the time of her judgment, the right to manage, control

and regulate the relevant part of the fishery.

2.5 So far as issue (b) is concerned, the trial judge concluded that Inland Fisheries was entitled to the relevant reliefs because she

was not satisfied that the Fishermen had established that they had an equal or superior right to a state agency (there being some

doubt about which state agency) in respect of the southern bank and a Mr. McDonnell in respect of the northern bank. So far as

issue (c) was concerned, the ultimate decision of the trial judge was that this question was academic in the light of the decisions on

issues (a) and (b), for she came to the view, at para. 88, that the Fishermen had not established “any right, public or otherwise, to

fish in the freshwater part of the Gweebarra river, including the part thereof the subject of this module”.

2.6 Thus, it is clear that the decision of the trial judge, on the specific issues which were before her in the first module, was entirely

prospective. She held that, as of the time of the trial, Inland Fisheries had established a sufficient interest to maintain the

proceedings and the Fishermen had not established any entitlement to fish, whether as a matter of public or private right. It is as

against those findings that this appeal lies.

2.7 However, there is one further aspect of the judgment of the trial judge to which reference is necessary because it is relevant to

the specific issue which arises on this application. It will be recalled that the finding of the trial judge on issue (b) indicated that

Inland Fisheries was entitled to the relevant relief because the Fishermen had failed to establish any right which, so far as the

northern bank of the Gweebarra river was concerned, was equal or greater than the rights of a Mr. McDonnell. The trial judge had

proceeded, in the course of her judgment, to consider Mr. McDonnell’s title and to note that a predecessor to Inland Fisheries (the

Northern Regional Fisheries Board), had acquired a contractual entitlement to manage, control, use and regulate a fishery purportedly

owned by Mr. McDonnell as a result of an agreement reached in 2008. The trial judge concluded that Mr. McDonnell had title so that

Inland Fisheries, as a result of the 2008 agreement, had the necessary status to maintain the proceedings in respect of that part of

the fishery which the trial judge had concluded Mr. McDonnell had title to.

2.8 Against that background, it is next necessary to turn to what is said to be new evidence relevant to this appeal.

3. The New Evidence

3.1 In essence, it is suggested on behalf of the Fishermen that, as a result of extremely diligent searches carried out since the

hearing in the High Court by their solicitor, Mr. Seán Boner, there may now be evidence which would establish that, rather than Mr.

McDonnell having any title to the fisheries in question, those fisheries were now vested in the Minister for Communications, Energy

and National Resources. Mr. Boner, in his affidavit setting out his research of the chain of title of the fishery, described the history of

fishing rights in the Gweebarra as “complex and convoluted”. It is suggested that the relevant interest in various fisheries in Donegal,

including the Gweebarra Fishery, passed to the Congested District Board by a Deed of Conveyance dated 6th July, 1905. It is then

said that the same interest, together with other fisheries not under consideration here, was transferred by statutory intervention from

the Congested District Board to the Land Commission, and thereafter to the Minister of Lands and Fisheries, who is now succeeded by

the Minister for Communications, Energy and Natural Resources.

3.2 It was not, however, contested at the hearing of the application to admit new evidence that, if it were to transpire that the

ownership of the fisheries which Laffoy J. held were vested in Mr. McDonnell were in fact to transpire to be as the Fishermen now

assert, nonetheless Inland Fisheries would, as of today, and indeed as of the time of the trial of the first module in the High Court,

have been entitled to manage those fisheries, although as a result of a different chain of title to the one identified by the trial judge.

3.3 It is against that background that it is necessary to consider the application of the well established principles for the admission of

new evidence before this Court.

4. The Admission of New Evidence

4.1 As the evidence sought to be admitted was in existence at the time of the trial of the first module (and indeed for many years

before it), it follows from O.58, r.8 of the Rules of the Superior Courts that leave of the Court is required and that, in the terms of the

jurisprudence and the rule, leave should only be granted on special grounds.

4.2 The ordinary basis on which such leave will be granted is as set out by Finlay C.J. in Murphy v. Minister for Defence [1991] 2 I.R.

161 at 164 in the following terms:-

“1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it

could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it

need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it

need not be incontrovertible.”

4.3 More recently in Emerald Meats Ltd v. Minister for Agriculture [2012] I.E.S.C. 48, O’Donnell J. set out the following analysis at

para 37 of his judgment:-

“I would not wish to rule out the possibility that where a trial takes an unexpected turn, the mere fact that some information

was available and could have been obtained for the trial, should not mean that it should be excluded on an appeal, particularly

when the issue may be decisive, the evidence cogent, and its potential relevance could not have been known in advance of

the trial. However, in this case, it is important to have regard to the precise circumstances in which the challenged evidence

came to be given and the issue in respect of which it was relied upon by the trial judge.”

4.4 Similarly, in McMullen v. Kennedy [2012] I.E.S.C. 56, Denham C.J. provided the following review of case law on this matter:-

“18. This is a court of appeal where the appeal is grounded on the hearing before the High Court. Thus, in general, new

evidence is not permitted in this court, subject to the exception set out in Order 58, rule 8. However, new evidence is

permitted where suppression of the evidence would be an injustice: Fitzgerald v. Kenny [1994] 2 I.L.R.M. 8. The legal principles

which are relevant to analysing whether new evidence should be admitted on appeal to this Court were stated in Murphy v.

Minister for Defence [1991] 2 I.R. 161. Finlay C.J. reviewed the principles set out by this Court in Lynagh v. Mackin [1970] I.R.

180, where this Court considered Order 58, rule 8 of the Rules of the Superior Courts and utilised the principles on the issue of

fresh evidence that were set out by Denning L.J. in Ladd v. Marshall [1954] 1 W.L.R. 1489.”

4.5 Likewise, O’Donnell J. made reference to Fitzgerald v. Kenny in his judgment in Lough Swilly Shellfish Growers Co-Operative

Society Ltd. v. Bradley [2013] 1 I.R. 227. Lough Swilly was primarily concerned with the question of whether a party should be

entitled to argue, on appeal, a case not made at the trial. There are obvious connections between the question of allowing fresh

evidence to be adduced and allowing a new argument to be made. The overall approach requires that strict requirements be met, but

the jurisprudence does recognise that there may be unusual cases where somewhat different criteria may require to be applied to

avoid injustice.

4.6 However, there was no dispute between counsel on this application that the criteria identified in Murphy were the appropriate

criteria to be applied in the circumstances of this case. No exceptional or unusual circumstances were argued to exist which would

justify a departure from those criteria. In addition, counsel for Inland Fisheries helpfully conceded that the requirements set out in

items (1) and (3) of the relevant criteria were met. The evidence which the diligence of the Fishermen’s solicitor has produced

appears at least to be prima facie credible. Furthermore, it should be noted that Inland Fisheries itself, which is after all a state body,

had failed to unearth the potential evidence which, apparently, is to be found in old state records. In those circumstances it would

have been very difficult for Inland Fisheries to argue that diligence on the part of the Fishermen ought to have found the relevant

records sooner.

4.7 The issue of the admission of new evidence in the circumstances of this case, therefore, turns solely on whether the evidence

has the potential to meet the second criteria of being important to the result of the case. The argument put forward on behalf of

Inland Fisheries was that, even if it were to established that the title to the relevant part of the fisheries was as the Fishermen now

suggest, that could not affect any of the ultimate determinations of the trial judge in the first module and, thus, could not be

relevant to this appeal. As noted earlier, the decision of the trial judge was, in express terms, concerned with the position as it was

at the time of the trial and not as it might have been at any earlier stage, even though it was noted that the position at an earlier

stage might be relevant for other modules of the trial. The context in which that comment was made was that part of the claim made

by Inland Fisheries, for example, concerns allegations of trespass by the Fishermen. That trespass is alleged to have occurred in

2009. If that aspect of the claim is persisted with, then the entitlement of Inland Fisheries at a particular time prior to the trial might

well be relevant. However, counsel argued that establishing that Inland Fisheries had a current entitlement, but by a different route,

could not conceivably change the result of the first module of the trial, for that module was only concerned with the current and

future position.

4.8 Counsel for the Fishermen, on the other hand, made the point that there stands, on the record as it were, a finding concerning

Mr. McDonnell’s title. If, the argument goes, that finding is not upset on appeal, then it would follow that a trial judge dealing with

any subsequent module of the case would be bound by that finding, even if it was incorrect, and that the finding in question might,

therefore, affect the result of further modules on the basis of an incorrect view of the title to the relevant part of the fishery.

4.9 In essence, the issue on the admissibility of new evidence came down to that dispute. Inland Fisheries argued that the new

evidence could not be relevant to the issues before this Court on appeal for it could not affect the actual result of any of the issues

required to be determined in the first module. The Fishermen argued that, even if that were so, a failure to disturb aspects of the

findings of the trial judge which, it was said, could be shown to be wrong by the new evidence sought to be adduced, could have

adverse effects on future modules.

5. Discussion

5.1 It must be recalled that this is a modular trial. One of the features of a modular trial is that it remains a single trial of all issues in

the case, save that the evidence and argument in respect of certain issues are heard in different modules, with decisions being made

on the earlier modules before the Court goes on to determine such further issues as may require to be determined in the light of the

decision made on those earlier modules.

5.2 However, an important feature of that procedure, and what might be perceived as an advantage of a modular trial over the formal

carving out of a preliminary issue in accordance with the rules, is that the trial judge retains overall control over the proper conduct

of the trial as a whole. See Cork Plastics (Manufacturing) v. Ineos Compounds U.K. Ltd. [2011] I.R. 492, McCann v. Desmond [2010]

4 I.R. 554 and Weavering Macro Fixed Income Fund Limited (In Liquidation) v. PNC Global Investment Servicing (Europe) Limited (now

known as BNY Mellon Investment Servicing (International) Limited) [2012] 4 I.R. 681.

5.3 It would, of course, defeat the purpose of a modular trial if a party could easily and for little good reason seek to reopen matters

already determined in an earlier module when the Court came to consider later modules. However, it seems to me that a judge hearing

a modular trial has much greater room for manoeuvre in doing justice between the parties in the context of the way in which issues

which arise at a second or subsequent module are to be dealt with. There is, in my view, no formal res judicata arising out of findings

in an earlier module. It is true that a court should not, without good and strong reason, enable any finding from an earlier module to

be revisited at a subsequent module. In particular, the formal findings of the Court on the specific issues which were to be, and were

in fact determined on an earlier module should only be reopened in exceptional circumstances. However, in the course of making its

findings on a first module, a court may reach conclusions which are not, necessarily, essential to the ultimate conclusions reached on

the issues determined on that module. If, on the hearing of a subsequent module, there is cogent reason to believe that such non-

essential determinations may be incorrect, then it always remains open to the trial judge, on terms if necessary or appropriate, to

allow a point to be reopened on the basis of, for example, new evidence. The jurisdiction of the trial judge to so permit should, of

course, be sparingly exercised. To do otherwise would be to risk procedural chaos and to defeat the purpose of a modular trial in the

first place. However, a modular trial remains in being until all modules are concluded, and there is no formal or jurisdictional barrier to a

judge allowing a point to be reopened if the justice of the case requires it.

5.4 In those circumstances, it seems to me that it would be open to a trial judge considering a further module of this case to revisit

the question of the chain of title to the northern bank of the fishery. Obviously, a trial judge might well only do that if satisfied that

there were good grounds for believing that the findings of the trial judge on the first module were both inessential to the ultimate

result of that module and based on incomplete evidence. However, both of those factors may be present in this case. For those

reasons I am satisfied that, to the extent that it might be necessary in the context of any subsequent module to determine the chain

of title to the relevant part of the fishery at some date prior to the time at which the first module was tried, it would be open to the

Fishermen to put forward evidence to suggest that the findings in that regard by Laffoy J., although entirely sustainable on the

evidence which was before her, may be incorrect as a result of additional evidence which is now available. I should emphasise that a

trial judge permitting that matter to be reopened should only do so if persuaded that the difference in the chain of title identified by

Laffoy J. to that now proposed to be established would make a material difference to the issues which the trial judge had to

determine in the context of that module.

5.5 On the other hand, to allow the issue of the chain of title to now be agitated before this Court would be wholly unsatisfactory for

at least two reasons. First, it is clear that the new evidence could not affect the actual findings of the trial judge in respect of the

issues which she was required to determine in the first module. Second, it must be open to significant doubt as to whether, even if

the evidence were admitted and even if the Court felt that such evidence casts some doubt as to the correctness of the findings of

Laffoy J. concerning the ownership of the relevant part of the fishery, this Court could, almost at first instance, make its own finding.

It seems highly probable that the height of what this Court could do would be to remit the matter back to the High Court for further

consideration. But what would be the point of that course of action? It could have no effect on the actual determinations made as a

result of the first module, for it would copper-fasten the current entitlement of Inland Fisheries as determined by the trial judge. It

could only have an effect if it turned out to be relevant in the context of some subsequent module. But for the reasons I have

already sought to address, if the issue of the chain of title becomes material to an issue arising on some subsequent module, that

question can be addressed afresh in the relevant module.

5.6 There are, thus, many disadvantages and no advantages in the proposal that this Court should consider the chain of title question

on this appeal. It does not directly arise. Insofar as it may have relevance to subsequent modules it can be addressed in those

modules and it would, indeed, be preferable that it be there addressed, rather than for the first time on appeal. For those reasons, it

seems to me that the proposed new evidence is not relevant to the issues which arise on this appeal even it though it may well be

relevant, dependent on the subsequent progress of these proceedings before the High Court, in respect of subsequent modules of the

trial.

6. Conclusions

6.1 For the reasons set out in this judgment I am, therefore, satisfied that the chain of title to the fishery at the northern bank of the

Gweebarra river is not relevant to the specific issues which Laffoy J. had to determine on the first module of the trial and is not,

therefore, relevant to the issues which specifically arise on this appeal.

6.2 To the extent that the relevant chain of title may be relevant to any subsequent module, it will be open to the trial judge hearing

that module to consider, if thought appropriate, additional evidence which might suggest that the chain of title identified by Laffoy J.,

although sustainable on the evidence before her, is in fact incorrect. In those circumstances, the proper place in which to explore any

issues concerning the chain of title concerned is in the context of any subsequent module during which that chain of title may

transpire to be material to the result of the issues which the judge hearing that module has to determine. It would be inappropriate to

expand this appeal to consider a question of the chain of title which could have no possible bearing on the result of module in respect

of which this appeal has been brought, and which would require this Court either to embark on the entirely unsatisfactory task of

considering, at first instance, the issues of title raised or, alternatively, would result in the matter being remitted back to the High

Court. Should the latter course of action be adopted then there would, in practice, be no difference to what will happen anyway, and

thus no prejudice to the Fishermen.

6.3 I would, therefore, conclude that the question of the chain of title prior to the trial of the first module in the High Court is not an

issue which can properly be raised on this appeal and it follows, therefore, that the evidence sought to be introduced cannot itself be

relevant, for it only touches on that question. In those circumstances I would dismiss the application.