Supreme Court of Ireland Decisions

Judgment Title: Talbot -v- McCann Fitzgerald Solicitors & ors

Neutral Citation: [2009] IESC 25

Supreme Court Record Number: 114/06

High Court Record Number: 2005 1423 JR

Date of Delivery: 26 March 2009

Court: Supreme Court

"There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.


We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question."

"The position and principles appear, however, to be accurately stated in the judgment of Romer J. in Ainsworth v. Wilding [1896] 1 Ch 673. where at p.677, he stated as follows:



'So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:

(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O.28.r.11:

(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.'"

"The common law and public policy recognised the desire for finality in proceedings inter partes and Article 34.4.6 of the Constitution incorporated into the Constitution this desire and expressed it in clear and unambiguous terms. It provided that the decision of the Supreme Court shall in all cases be final and conclusive. The said provision is expressed to apply in all cases and there is nothing in the circumstances of this appeal which would justify disregarding the said provision."

"The applicant made an ex parte application for leave to seek relief by way of judicial review of certain orders made in the Circuit Court in family law proceedings to which he was the respondent party.


It is very difficult to understand the background to the present application by reference only to the documentation prepared and produced to the Court by the applicant. He is unrepresented. But there is a very clear and useful summary of the chronology of events which is contained in a judgment of Mr Justice Abbott dated 26th June 2002 when making his decision on the Appeal by the applicant from the order of the Circuit Court (His Honour Judge White) dated 21st November 2001. That arose out of an application for, inter alia, an order of divorce. There had in 1990 been an order for judicial separation, and other ancillary orders, by His Honour the late Judge Spain. The applicant appealed against the making of those orders, which in due course was affirmed by McKenzie J. in the High Court.


In his judgment, Mr Justice Abbott referred to the fact that the litigation between the applicant and his former wife has been protracted. That is certainly so. In order to assist the applicant in his present application I sought the Circuit Court and High Court files so that I could perhaps better understand what relief the applicant was seeking and the reasons for same, since that was not at all obvious from the documentation produced by the application when he moved his application. When these files arrived to me it was evident that they amounted to a bundle of documents measuring about one foot in height. The applicant has sought already to obtain leave to seek relief by way of judicial review in respect of the order of Mr Justice Abbott already referred to. That application was refused by Mr Justice Quirke on the 7th February 2003.


Having considered the applicant's ex parte application I informed him on the 6th February 2006 that I was not satisfied that he had shown any arguable grounds for seeking a judicial review of the order of His Honour Judge White and that indeed he was many years outside the time for so doing in any event. I drew attention to the fact that he had already availed of his right to appeal to the High Court against that order, and that there could be no question of another judge of the High Court judicially reviewing an order of a High Court judge.


I will not attempt to try and set forth the grounds upon which the applicant seeks to rely in the papers prepared by him since the contents are so incomprehensible that such a task is impossible. But it is without any doubt in my view that it is an attempt to impugn orders of the Circuit Court made several years ago, and in respect of which appeals have been heard and adjudicated upon. In my view the applicant is out of time by a long way, even if he could show, which he has not, that there are arguable grounds for contending that he is entitled to seek relief. I exercised my discretion in the matter not to grant leave, having made all reasonable allowance in considering the papers for the fact and that the applicant is representing himself."

"Mr Talbot appears before this court seeking leave to apply for judicial review of certain Circuit Court decisions. He made this application initially before Mr Justice Peart in the High Court on foot of a document entitled introductory motion, and which is dated with two dates, the 23/03/05 and the 25/11/05.


The judicial review procedure under Order 84 of the Rules of the Superior Court requires that there be a statement of grounds. It also requires that that statement of grounds be verified on affidavit. The document which at the top is headed "Introductory Motion" says that it is an application for judicial review ex parte. That obviously has to be interpreted as an application for leave to apply for judicial review, because of course judicial review itself cannot be obtained ex parte. The purpose of the ex parte application is to obtain leave from the court to apply for judicial review.


Mr Justice Peart heard that application in the High Court and by his order of the 6th February, 2006 he refused it. The applicant, Mr Talbot, applies to this court, not by way of appeal, but by way of application ex parte in this court for leave to apply for judicial review.


He still relies, as he has to, on the document entitled "Introductory Motion" and application for judicial review ex parte. He has however, produced no verifying affidavit. But he has made it clear that the Circuit Court orders in respect of which he seeks judicial review are made respectively by Judges White, Linnane and Spain. There were two substantive hearings in the Circuit Court. The first of those was before Judge Spain who made his decision in the Circuit Court order of the 1st May, 1990. The second of those was made by Judge White in the Circuit Court and it was heard and determined by an order of the 21st November, 2001. I will leave aside the matter of the order of Judge Linnane for the moment, but two things stand out in respect of the two orders respectively of the 1st May, 1990 and the 21st November, 2001. The first is that each of them is so long ago that an application for judicial review is extraordinarily late and is out of time and the second is that each of those was appealed to the High Court, there was a rehearing in the High Court and there was a High Court order. The consequences of those two matters are as follows; firstly in relation to time, the rules in Order 84 provide that any application for judicial review must be made at the earliest possible time but in any event within respective periods of three or six months depending on the nature of the order made. In the case of certiorari it should be six months. So the application here would be for an order of certiorari clearly of the two Circuit Court orders.


It is quite obvious that these orders were in each case made many years ago and much longer ago than six months. Now the law provides and the rules provide for extensions of time in cases where grounds for an extension are established. That has to be done by the applicant who has to explain the reasons for the delay. No attempt has been made in this case to explain the delay, there is no affidavit setting out grounds of any sort and there is no attempt to explain why the applications are being made so late. That in itself would be sufficient ground for refusing leave in each case.


The second is just as fundamental, in one sense perhaps more fundamental, and that is that each of those orders was appealed to the High Court. There was a full High Court hearing and in each case an order was made at the end of that hearing by the High Court. In the case of the order made by Judge Spain in the Circuit Court, it was made after hearing in the High Court by Mr Justice McKenzie and that order was dated the 28th February, 1991. In the other case there was an order made by Mr Justice Abbott in the High Court on appeal from the decision of Judge White and that order was made on the 26th June, 2002.


So those matters were fully heard and determined in the High Court. Two further points then arise. The first is that no appeal lies to the Supreme Court from an order made by the High Court on appeal from the Circuit Court. That is well established. This court has no jurisdiction. That aspect of the constitutional right of appeal from the High Court is regulated by law and it has been well established that no appeal lies. The second is, although no application is made of course for judicial review of either of those orders, the fact is that it could not be because no remedy by way of judicial review lies against a High Court order.


The attempt to question the validity of the two orders respectively of Judge Spain and Judge White is entirely baseless and without any possible foundation and therefore this court will refuse judicial review.

The remaining matter then is an order made in April, 2004 by Her Honour Judge Linnane in the Circuit Court. That order related to an application which was made by the applicant originally in the Circuit Court proceedings for an order known, under the colloquial appellation of an Isaac Wunder order, a sort of order which restrains vexatious litigants from pursuing repeated applications before a court. That application was made but no order was made and that is the vitally important matter. Judge Linnane made no order whatever on foot of the application for the Isaac Wunder order, except to adjourn it.


Apart from that altogether there are two other vital, obvious and fundamental matters which render this application in respect of Judge Linnane's order baseless and without foundation like the others and that is there is no grounding affidavit at all. Indeed, Mr Talbot says before this court, that he believes, interpreting Rule 19, not Rule 84, Order 19 of the Rules of the Superior Courts that he does not have to produce any affidavit. That is his reason for not producing it, but the fact of the matter is that he has not produced any affidavit grounding leave to apply for judicial review. On that ground alone the application would have to be refused as being completely unjustified by evidence. But the second is that, in any event, that order, although perhaps not so long ago as the other two orders, was made more than three years ago now, and there is no attempt in that case either to justify the delay in applying for judicial review. It has to be said, in the end, that no substantive order was in any event made by Judge Linnane. Her only order was that the matter be adjourned with liberty to re-enter.


So in these circumstances the court, having given Mr Talbot every opportunity to present the grounds for his applications for leave to apply for judicial review is satisfied, but they are without foundation and must be refused."

"(a) Clear perception of bias favouring legal fraternity and subjective too;

(b) In camera "inquisitorial" unjudicial proceedings;

(c) "Adversarial" strength in my extensive "books" was ignored;

(d) No finality in Irish divorce law; and

(e) That named lawyers misused court influence with judges involved having no track record in family jurisprudence, Supreme and High and Circuit and District (if you go back to 1989) Courts."

"I submitted "Grounding application for judicial review" to Ms McGuigan 3 Sept 2004. I already had a deep sense of misgiving about all Courts treatment of what was basically an indictment of themselves. Judges, Court Services, Legal Profession and began to explore the possibilities of both sec 40 of Civil Liability and Court Act 2004 and Commission of Investigation Act 2004 in effect the cost cutting time saving son of Tribunal for sins I perceive as committed by the father figure. This Hon Courts Judges have to read the 18 typed pages of pleadings submitted to J.M. White Counsel and Solicitor present during 4 days hearing to 21 Nov 2001 to understand and sympathise with my position at that point and to wonder how it worsened with bias overcoming strength of case from beginning to end."

"… this Court can only deal with it if it has jurisdiction and it cannot under any circumstances, no more than any other Court, deal with a matter for which it does not have jurisdiction.



… [this Court] does not have jurisdiction to entertain appeals from the High Court where the decision of the High Court is on an appeal from the Circuit Court. That has been the clear and stated law for a very long time."