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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kennedy v Harrahill [2013] IESC 26 (12 June 2013)
URL: http://www.bailii.org/ie/cases/IESC/2013/S26.html
Cite as: [2013] IESC 26
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Judgment Title: Kennedy v Harrahill Neutral Citation: [2013] IESC 26 Supreme Court Record Number: 029/2011 High Court Record Number: 2005 2267 P Date of Delivery: 12/06/2013 Court: Supreme Court Composition of Court: Denham C.J., Fennelly J., O'Donnell J. Judgment by: Denham C.J. Status of Judgment: Approved
Notes on Memo: Refuse Appellants Motion | ||||||||||||||||
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 Supreme Court Order on 18th May, 2012 Motion to set aside Supreme Court Order
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 Setting Aside an Order of the Supreme Court 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:-
11. In my judgment in Greendale Developments [2000] I.R. 514 at 544 to 545, I stated:-
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.”
In the instant case, there are no circumstances which require investigation; there is no such clear breach of the principles of natural justice.”
15. McGuinness J. also refused the application and stated at 478:-
17. The Court reviewed the case law and stated:-
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.”
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 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 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.
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