Supreme Court of Ireland Decisions

Judgment Title: Talbot -v- Hermitage Golf Club & ors

Neutral Citation: [2009] IESC 26

Supreme Court Record Number: 97/09

High Court Record Number: 2006 850 P

Date of Delivery: 26 March 2009

Court: Supreme Court

Denham J.
Kearns J.
Clarke J.



Between/


Thomas Talbot

Judgment delivered the 26th day of March, 2009 by Denham J.






1. This is an application by Thomas Talbot, the plaintiff/appellant, hereinafter referred to as "the appellant".

2. The appellant has brought a notice of motion and a notice of vacation to this Court. He seeks to appeal the whole of the final order of this Court made on the 30th November, 2007.


3. On the 30th November, 2007, the Supreme Court (Hardiman J., Geoghegan J, and Finnegan J.) heard a motion of the appellant seeking to dismiss the appeal from a motion of the Hig Court of the first and third named respondents, for delay. The Supreme Court ordered that the appellant's motion be struck out and that he pay to the respondents the costs of the motion.


4. This motion arises in proceedings brought by the appellant against the respondents. The appellant is a member of the first respondent, a golf club. In his proceedings he is suing the golf club, the Golfing Union of Ireland and a former handicap secretary of the golf club (the third named respondent), seeking damages arising out of events surrounding the regulation of the appellant's golf handicap. The primary relief sought by the appellant is damages for defamation, although other causes of action are also pleaded.


5. The motion in issue arose in interlocutory proceedings of the action by the appellant.


5.1 The first and third named respondents issued a notice for particulars seeking answers to various questions arising out of the three documents comprising the statement of claim of the appellant.

5.2 In March, 2007 the High Court (Hanna J.) refused an application on behalf of the respondents, by notice of motion, seeking to compel the appellant to deliver replies to particulars.

5.3 The first and third named respondent appealed that order of the High Court to the Supreme Court.

5.4 While the appeal was pending before the Supreme Court, on the 25th April, 2007, the appellant served a notice of trial in the High Court. The first and third named respondents wrote to the appellant pointing out that the matter was not ready for trial.

5.5 The first and third named respondent brought a motion to have the notice of trial set aside.

5.6 On the 30th July, 2007, the High Court (Murphy J.) made an order setting aside the notice of trial.

5.7 By notice of motion dated 26th November, 2007, the appellant applied to the Supreme Court to dismiss the appeal relating to replies to particulars, and for an order reinstating his notice of trial.

5.8 The motion came on for hearing before the Supreme Court on the 30th November, 2007. The Supreme Court (Hardiman J., Geoghegan J. and Finnegan J.) ordered that the motion be struck out and awarded costs against the appellant. The Supreme Court noted that the appeal by the respondents from Hanna J.'s judgment, concerning replies to notice for particulars, was awaiting a date for hearing. The Court indicated that it could not dismiss the appeal by motion unless it was manifestly vexatious or stood no reasonable chance of success. The Court did not accept that either applied. Also, there had been no appeal of the striking out of the notice of trial. However, that was not necessary. The appellant could apply for a new notice of trial when the case was ready for hearing. There may have been a misunderstanding by the appellant that his proceedings had been struck out, which they were not.

6. The appellant seeks to vacate the final order of the Supreme Court of the 30th November, 2007. The appellant lists the following matters as grounding his motion for vacation of the final order:-



"1 Fair adversarial divining of merits of my five page sworn affidavit neglected by the Court set aside in unjudicial inquisitorial proceedings on 30 Nov 07.


2 On 30 Nov, 2007 clear perception of subjective bias on the part of Judges Hardiman, Geoghegan, Finnegan and Assistant Reg Mary O'Donoghue


3 Defendants submission directed by Chief Justice JLM on 25/10/07 assailed by my counter submission and sworn affidavit assisted by motion and paginated index all agreed for 30 Nov 07 date for hearing fixed in office


4 Were ignored by Judges these pleadings that would put me in an unassailable position going as far as to prevent me even referring to them


5 Judges did not strike out but deferred to another day my application No 3 of motion to dismiss their appeal of H.C. orders duly confined me to issue of Part 2 Notice of Trial yet orders conversely and falsely ignore this instead upholding their appeal of High Court orders and I pay costs?"



7. The appellant deposed a five page affidavit with forty eight paragraphs and many documents in support of his application.


8. I have read carefully the documents filed by the appellant, and I have had the benefit of hearing his oral submissions.


9. The appellant's primary allegation is of bias of the Supreme Court. He returned several times to the argument that his case was unassailable and that the order of the Supreme Court evidenced its bias. He stressed his belief that the High Court (Hanna J.) had not erred. He submitted that the very strength of his case would prove bias. He referred to and relied upon Kenny -v- Trinity College & Anor [2007] IESC 42.



10. Law on Jurisdiction


I have considered in detail the law relating to an application to vacate a final order of the Supreme Court in my judgment delivered today in Talbot v. McCann Fitzgerald & ors. Appeal No.114/2006.

11. The appellant seeks to vacate a final order of this Court. In principle an order of the Supreme Court is final and conclusive: See Article 34.4.6 Constitution of Ireland, Belville Holdings Ltd v. Revenue Commissioners [1994] 1 I.L.R.M. 29 at pp.36-38; McG v. D.W. (No.2) (Joinder of Attorney General) [2000] 4 I.R. 1; Attorney General v. Open Door Counselling Ltd (No.2) [1994] 2 I.R. 333; In re Greendale Developments Ltd (No.3) [2000] 2 I.R. 514; Bula Ltd v. Tara Mines Ltd (No.6) [2000] 4 I.R. 412.


12. The fundamental principle is that an order of the Supreme Court is final and conclusive. It may be varied under the slip rule or to ensure that the order reflects the intended order of the Court. New proceedings may be brought if an order has been achieved by fraud. In extremely rare and exceptional cases the Court has an inherent jurisdiction to vary an order of the Court to protect constitutional rights and justice. There is a very heavy onus on a person requesting the Supreme Court to engage such jurisdiction to establish a high degree of exceptional circumstances.


13. Thus the appellant must establish that (a) the circumstances of this case are so exceptional as to give rise to this jurisdiction; and (b) if the jurisdiction arises, that there was reason to exercise it, such as bias.


14. The appellant is seeking the exercise of this exceptional jurisdiction of the Court to vacate the order of the 30th November, 2007 striking out his motion to dismiss on grounds inter alia of delay the appeal of the first and third named respondents from the order of the High Court (Hanna J.) refusing to compel the appellant to give replies to particulars sought.


15. I have read the papers filed, and considered them, and I have had the benefit of the appellant's oral submissions.


16. The appellant feels very strongly that his motion to dismiss the respondents' appeal from the order of the High Court refusing to require him to answer particulars in the action had a very good basis. He asserts that there was personal bias of the judges against him. It is clear that the appellant considers he should have been given time to open the 18 points on his affidavit on this motion. He referred to acts of conspiracy. He makes assertions over a wide range of topics. However, no factual or legal foundations were established.


17. The appellant has not met the heavy burden required in such circumstances to raise this exceptional jurisdiction. He has not proved rare and exceptional circumstances such as would give rise to the jurisdiction to intervene in a final order of the Supreme Court. In the circumstances of this case no such jurisdiction arises. The appellant has failed to disclose any objective basis for the exercise of this exceptional jurisdiction. The claim is manifestly ill-founded. Thus I would dismiss his case on the basis that the Court lacks jurisdiction to proceed.


18. However, even if jurisdiction did arise, which I am satisfied it does not, the appellant has not proved grounds upon which this Court could exercise that jurisdiction.


19. His submissions and assertions do not establish a basis for intervention, nor do they establish objective bias. Attendance at the same schools by judges and lawyers does not establish objective bias. Having a spouse, who many years before was a member of a law firm which is a respondent in a case, does not establish objective bias by a judge. Having advised persons as clients previously does not prove objective bias. The decision of a court on its merits, with which a litigant does not agree, does not establish objective bias.


20. The appellant sought to rely on Kenny v. Trinity College Dublin & Anor [2007] IESC 4. I would distinguish the facts of this case from Kenny. That case related to the issue of the perception of bias, applying the objective test, arising out of a family connection between the judge who delivered the judgment and a member of a firm of architects retained as an expert witness. No such issue arises here. This case is more similar to Bula Ltd v. Tara Mines Ltd (No.6) [2000] 4 I.R. 412. That case held that the test was whether an ordinary reasonable member of the public would have a reasonable apprehension that an appellant would not have a fair hearing before an impartial judge. It was pointed out that barristers were independent and did not become espoused to a litigant's ambitions in providing the litigant with legal services. The reasonable person would be aware of that. Similarly, a solicitor does not espouse his client's ambitions. There must be additional factors establishing a cogent and rational link and its capacity to influence. In that case the application was dismissed.


21. I am satisfied that the appellant has not established that an ordinary reasonable member of the public would have a reasonable apprehension that he did not have a fair hearing before the Supreme Court on the 30th November, 2007. I would dismiss his application on this basis also.


22. In fact the appeal in relation to the notice for particulars, which the appellant sought to stop by his motion which was heard on the 30th November, 2007, has been heard and determined.


23. On the 29th February, 2008 the motion by the first and third named respondents appealing from the judgment of the High Court (Hanna J.), refusing to compel the appellant to reply to particulars, was heard. The appeal was allowed in part. It was held that the appellant should reply to certain matters as stated in the order. While this order was not referred to in the original notice of motion, and could not have been because of its date, and it forms no part of this application, however, it provides the up to date situation. The appellant did refer to it in oral submissions. Having had the benefit of reading the papers, it is clear to me that it could not be challenged by the appellant.


24. For the reasons given I would dismiss the application to vacate the order of the Supreme Court of the 30th November, 2007.