5.2 In addition, Mr. Mulrooney swore a detailed affidavit in support of his application to be allowed to have the lease forensically examined. In that affidavit he reiterated the points already made concerning the various forensic examinations and his contention concerning fair procedures. He also sought to place reliance on Article 40.3 of Bunreacht na hÉireann which, of course, obliges the State to vindicate the rights of every citizen. Mr. Mulrooney also filed written submissions which followed much the same lines.
5.3 It is next necessary to turn to the arguments which arose at the oral hearing.
6. The Oral Hearing
6.1 In order to understand the development of the argument which occurred at the oral hearing, it is important to note that the case had been listed for case management on a number of occasions prior to the full hearing of the appeal. It had been emphasised to Mr. Mulrooney that his appeal was an appeal against the decision of the High Court in this case and that it was not open to him to seek to appeal against previous decisions made by other courts and, in particular, the decision made by the Circuit Court in the earlier proceedings to which reference has been made.
6.2 However, it does not, of course, follow that those Circuit Court proceedings were irrelevant to the issues which this Court now has to decide. The fact remains that Mr. Mulrooney was a party to proceedings in the Circuit Court in which the question of whether the lease had been unlawfully altered was specifically raised by him. Counsel for the continuing defendants did make the point in the course of the hearing that an attempt to go behind the settlement of the earlier Circuit Court proceedings was impermissible. That point, although not touched on by the trial judge in his judgment, was raised in the documents filed on behalf of the continuing defendants in their application to dismiss in the High Court.
6.3 In order to assist Mr. Mulrooney (who, spoke through his son, William Mulrooney), the court asked him what he wanted to say concerning the possibility that he might now be unable to raise questions concerning the alteration of the lease in the light of the fact that he had settled previous proceedings in which that same issue had been raised.
6.4 The answer provided was twofold. First, it was said that Mr. Mulrooney believed that he had been badly served by his then legal representatives. Second, it was said that the presence of an allegation of fraud allowed the matter to be reopened.
6.5 In the light of the case as it appeared from the notice of appeal, the written submissions of the parties and the oral argument as it developed at the hearing, it seems that this Court was required, potentially, to consider four questions viz:-
(a) Whether the settlement of the previous Circuit Court proceedings now means that Mr. Mulrooney cannot seek to raise the question of fraud which is at the heart of these proceedings;
(b) whether the allegation of having been badly served by his legal advisers at the time would provide an answer to any difficulties that might arise as a result of issue (a);
(c) whether, by virtue of the fact that a claim in fraud is now brought, Mr. Mulrooney can be prevented, by virtue of the settlement of the previous Circuit Court proceedings, from pursuing this claim; and
(d) in the event that Mr. Mulrooney is, in the light of the answers to questions (a) to (c), prima facie entitled to pursue these proceedings, was the trial judge correct in dismissing the proceedings without giving Mr. Mulrooney an opportunity to have a further forensic examination of the lease document.
Obviously question (d) only arises in the event that the cumulative effect of the answers to questions (a) to (c) is such that Mr. Mulrooney is entitled to maintain these proceedings at all.
7. Discussion
7.1 The starting point of any consideration of the issues which arise has to be to note the legal effect of a settlement of proceedings. As the authors of Delany and McGrath - Civil Procedure in the Superior Courts, 3rd Ed., point out at para. 19-28 "the compromise of a cause of action will extinguish it so that it can no longer be litigated by a party to the compromise or their privies". The authors cite as an example Mahon v. Burke [1991] I.L.R.M. 59 at p.63.
7.2 As the authors also point out, the rationale for the rule lies in two aspects of public policy, being the need for there to be an end to disputation and the desirability of parties being held to their bargains.
7.3 The basic position is, therefore, clear. Where a party settles proceedings then whatever cause of action was raised in those proceedings can no longer be the subject of litigation. A party has, by entering into an agreement to settle, given up their right to whatever claim might have been made in the proceedings in question.
7.4 It should be recalled that there were, in fact, two separate settlements which led to the ultimate disposal of the previous Circuit Court proceedings. The third party claim brought by the Mulrooneys against Shee and Hawe was, as the Circuit Court order noted, settled so that the claims arising in that third party issue were struck out. In the context of that third party issue, a specific claim had been made by the Mulrooneys to the effect that the lease had been unlawfully altered. Therefore, at the time settlement was reached, the allegation of unlawful altering of the document in question was already alive and before the court. Equally, if such unlawful altering could have been established, it would obviously have provided the Mulrooneys with a defence to the action brought against them by Mr. Malone, for in those circumstances the Mulrooneys could not be held to be bound by a document which they had signed in one form and which had been unlawfully altered.
7.5 Thus, the claim of unlawful altering was alive in the Circuit Court proceedings and would have been available, had it been established, both as against Shee and Hawe, as third parties, and against Mr. Malone as plaintiff. The only other party to this appeal is John Shee & Company, solicitors, who have privity with their client in that there is, in the words of Megarry V.-C. in Gleeson v. J. Wippell & Company Limited [1977] 1 W.L.R. 510 at 515 "a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party". It should be noted that a similar view was expressed by O'Donnell L.J. in Shaw v. Sloan [1982] N.I. 393. Anything John Shee & Company did was done on behalf of their clients. There is no suggestion whatsoever that John Shee & Company did something independent of their clients as a separate wrongful act in their own interest. If the allegation of an unlawful alteration of the lease had been made out, then John Shee & Company could only be liable if they had been a party to the unlawful altering. Given that their client, Mr. Malone, stood over the five year lease period and sued asserting that the lease was for five years, then there could be no question of any separate wrongdoing on the part of John Shee & Company independent of the interests of their client.
7.6 It follows that all three of the continuing defendants either were parties to the Circuit Court proceedings or had the same interest as parties to those proceedings. It follows that, prima facie, the settlement of those proceedings must be taken to be an agreement on the part of Mr. Mulrooney that he would not again seek to litigate against those parties the allegation which he had made, in those proceedings, to the effect that the lease document had been unlawfully altered.
7.7 That leads to the second and third questions as to whether the reasons put forward by Mr. Mulrooney for seeking to go back on his settlement permit him so to do. It is important, at this stage, to note that the lawyers who represented Mr. Mulrooney in the Circuit Court proceedings were not the subject of any appeal to this Court. It also follows that Mr. Mulrooney's own lawyers were not represented at the appeal before this Court (because they were not parties to the appeal) and did not, therefore, have any opportunity to have their say on the circumstances which led to a settlement of the Circuit Court proceedings.
7.8 It would, in that context, be wholly wrong for this Court to express any view on the allegations which Mr. Mulrooney makes to the effect that he was not well advised. The fact remains that Mr. Mulrooney had the benefit of legal advice at the time of the relevant settlements and those with whom he was settling were entitled to assume that he was properly advised. In oral argument, Mr. Mulrooney told the Court, speaking through his son, that he had been advised at the relevant time that the allegation of fraud "was not a runner". This Court cannot comment on whether that advice was given or whether, if it was given, the general circumstances and context in which it was given made it good or bad advice. The fact remains that Mr. Mulrooney obtained advice and acted on it in settling the case. If he has any complaint arising out of the advice which he was given (and I would wish to make it clear that no such finding is made), then that is a complaint which he has against his own lawyers and it does not afford him any legitimate basis for seeking to reopen legal issues which he has previously settled. The parties with whom he settled are entitled to take him at his word that the proceedings are settled and are not to be reopened.
7.9 The second issue concerns fraud. It is true that there are circumstances in which a court will allow a judgment or settlement which is procured by fraud to be set aside so that the underlying cause of action can be litigated. However, the problem which Mr. Mulrooney faces in this case is that the fraud which he alleges now is the same fraud which he alleged in the Circuit Court proceedings. There is no reason in principle why proceedings alleging fraud can not be settled in exactly the same way as any other type of proceedings. The public policy which favours giving effect to settlements and holding parties to their word when they have settled applies just as much in the case of an allegation of unlawful altering of a document as it does in any other type of litigation.
7.10 If there was now a different allegation of fraud which was said to have induced the settlement of the Circuit Court proceedings then the situation might be different. However, Mr. Mulrooney was aware of the allegation of unlawful altering at the time of the Circuit Court proceedings. It was in fact he who had made the allegation. Having made that allegation he thereafter settled the proceedings. He must, therefore, be taken to have settled proceedings including the allegation of unlawful altering, for that allegation was squarely before the court at the time when he entered into the settlement. If Mr. Mulrooney is, as all of the legal authorities make clear he must, to be kept to his word in the settlement, then his word involves him agreeing by his settlement not to re-litigate the allegation of unlawful altering. It follows that Mr. Mulrooney is no longer in a position to attempt to re-litigate that very same allegation of unlawful altering which he has long since settled.
7.11 It is also appropriate to note that, in the course of argument, Mr. Mulrooney placed emphasis on the fact that there might now be new evidence in the sense of the possibility that one or other or both of the English forensic experts might, were they to be given access to the original of the lease document, be able to come up with a definitive view which might support the allegation of unlawful altering. In that context, it does need to be emphasised that the mere fact that new evidence is, or may, be available does not, of itself, justify reopening proceedings which have come to an end. The principle of legal certainty requires that, in the absence of significant and exceptional circumstances in accordance with established case law, proceedings once brought to an end cannot be reopened. It is true that there are limited circumstances in which an appeal court, such as this Court, may admit new evidence which could have a bearing on whether the decision under appeal was correct. However, even in those circumstances a necessary proof is that the evidence could not, with reasonable diligence, have been obtained before the trial giving rise to the judgment under appeal. In the case of issue estoppel (whereby a party is bound by the result of issues decided in previous proceedings) and where a party seeks to re-open a relevant issue, it may be possible for the court to consider further material but only, as pointed out by O'Hanlon J. in Kelly v. Ireland, [1986] I.L.R.M. 318, where credible and vital evidence becomes available and where the evidence concerned "could not, by the exercise of reasonable diligence, have been made available at the previous hearing". In that regard, O'Hanlon J. was following the test articulated by Goff L.J. in McIlkenny v. Chief Constable of the West Midlands [1980] Q.B. 283.
7.12 This is not, of course, a case of res judicata or issue estoppel. These proceedings were settled and did not come to an ultimate judgment by a court of competent jurisdiction. However, the same overall principle applies. To whatever extent it might be open to a party to go back on a settlement reached because of the availability of fresh evidence (and the circumstances in which such a course of action could be adopted, if it is possible at all, would, undoubtedly, be extremely limited), it could never be open to a party to seek to rely on the availability of fresh evidence which could, with reasonable diligence, have been made available at a time when a previous action involving the same allegation came to a settlement. It seems to me that the discovery of fresh evidence relevant to a case which has settled could never be a ground for seeking to reopen the case if the party, at the time of the settlement, could, with reasonable diligence, have obtained the evidence in question. I should emphasise that it does not follow that, even if it could be established that the evidence was genuinely new in the sense that it could not have been obtained with reasonable diligence at the time in question, a settled case can be reopened. It would be necessary that the case could be brought within the established jurisprudence concerning the circumstances in which issues once settled can be re-litigated. The point which I seek to emphasise at this stage in this judgment is that the courts will never have regard to fresh evidence which could have been earlier obtained by reasonable diligence.
7.13 The original of the lease was, of course, available, if required, at the time of the Circuit Court proceedings. An application could have been made to have that lease made available to an expert of Mr. Mulrooney's choosing. For whatever reason it was decided not to go down the road of having the lease examined forensically at that stage. However, Mr. Mulrooney nonetheless had made an allegation of unlawful altering.
7.14 Any evidence which might now be obtained as to unlawful altering would clearly be evidence which could just as easily have been obtained at the time when Mr. Mulrooney made his allegation of unlawful altering in the Circuit Court proceedings. Having chosen to settle those proceedings, with that allegation in being, and without having sought then to have the document forensically examined, it is now far too late to seek to raise the issue again with the benefit of forensic evidence.
7.15 The time to have obtained the forensic examination which Mr. Mulrooney now seeks is when he first made the allegation of unlawful altering in the context of the Circuit Court proceedings. Having failed to do it then and having settled those proceedings, he has now lost the right to seek to re-litigate the same question of unlawful altering which he has already settled. He is, in substance, asking not to be taken at his word when he settled those proceedings. The law does not allow him to depart from his word. He is bound by the settlement. The settlement binds him not to seek to re-litigate the issues which were then before the Circuit Court. Those issues clearly included the allegation of unlawful altering. Mr. Mulrooney is precluded from now seeking to make that allegation by virtue of his previous settlement of the proceedings and the trial judge was, therefore, correct to dismiss the proceedings as being an abuse of process.
7.16 Given that Mr. Mulrooney is not, for the reasons set out, entitled to bring an allegation of unlawful altering, it follows that there would be no point in directing that he have an opportunity to have the document forensically examined. It follows that it is unnecessary to consider whether, if circumstances had been otherwise and Mr. Mulrooney were entitled to pursue this case, he would be entitled to have the document in question forensically examined.
8. Conclusions
8.1 For those reasons I am, therefore, satisfied that the trial judge was correct in dismissing Mr. Mulrooney's proceedings as being an abuse of process. Mr. Mulrooney is seeking, in these proceedings, to re-litigate an issue and a cause of action which he has already settled. The question of unlawful altering was put before the Circuit Court by Mr. Mulrooney and was alive at the time when he settled both the third party issue against Shee and Hawe and the claim brought against him by Mr. Malone. The question of the legal advice given to him which led to that settlement is a matter between him and his then lawyers and is not a matter which can affect the rights of the continuing defendants. While Mr. Mulrooney seeks to make, in these proceedings, an allegation of fraud, it was that very same allegation of fraud by virtue of unlawful altering of the lease that was before the Circuit Court and which he settled. He has, therefore, settled the allegation of fraud and cannot bring it again.