SC Proceedings II
Cases
Talbot v McCann Fitzgerald
[2009] IESC 25
1. Application
Thomas Talbot, the plaintiff/appellant, hereinafter referred to as “the appellant”, has brought an ex parte motion and notice of vacation seeking to set aside a final judgment and order of this Court delivered on the 29th June, 2007, dismissing his appeal from a judgment and order of the High Court given and made on the 6th February, 2006, which refused his application for leave to apply for judicial review.
2. Exceptional Jurisdiction
The appellant seeks to set aside a final judgment and order of this Court. He requests this Court to exercise a jurisdiction which arises only in extremely rare and exceptional cases.
3. Constitutional Principle
The fundamental constitutional principle is that the decision of the Supreme Court is final and conclusive on matters which have been raised before it and on which a final order has been made. This principle is grounded in the Constitution of Ireland, 1937, Article 34.4.6˚ which provides:-
“The decision of the Supreme Court shall in all cases be final and conclusive.”
4. Exceptions
Under the common law a final order is conclusive also, however, a few exceptions exist. These exceptions relate to technical matters and do not establish a right to review a final order. In Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 I.L.R.M. 29 at pp.36 and 37 Finlay C.J. stated:-
“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.”
Finlay C.J. reviewed some decisions from the Courts of England and Wales and stated that:-
“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.'”
Having referred to some further cases Finlay C.J. concluded that:-
“I am satisfied that these expressions of opinion validly represent what the true common law principle is concerning this question. I would emphasise, however, that it is only in special or unusual circumstances that an amendment of an order passed and perfected, where the order is of a final nature, should be made by the court. The finality of proceedings both at the level of trial and, possibly more particularly, at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law and should not lightly be breached.”
As I pointed out in G.McG. v. D.W. (No.2) (Joinder of Attorney General) [2004] 4 IR 1 at p.14 the inherent jurisdiction of the Courts as expressed in Belville does not encroach on the principle of the finality of litigation but rather is utilised to ensure that the intent of the Court in making an order is met.
5. Finality
The reason for this fundamental principle, that a final judgment is conclusive of the litigation, is because the finality of litigation is an important concept in the administration of justice. In The Ampthill Peerage [1977] A.C. 547 at p.576 Lord Simon of Glaisdale described the concept as follows:-
“Important though the issues may be, how extensive whatsoever the evidence, whatever the eagerness for further fray, society says: ‘We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and juries are fallible human beings, we have provided appellate courts which do their own fallible best to correct error. But in the end you must accept what has been decided. Enough is enough.'”
In essence, the principle of finality in litigation is to underpin certainty in the administration of justice. It is a fundamental principle for the common good. It ensures that litigation comes to an end and that there is certainty in the situation.
6. Fraud
The inherent jurisdiction referred to above enables a court to vary a final order so that the true intent of the court is carried out. However, an action may be brought to set aside an order obtained by fraud. This would be by way of new and separate proceedings from the original action.
7. An exception under the Constitution
The concept of an inherent jurisdiction under the Constitution of Ireland 1937 to vary an order of the Supreme Court has been considered. In Attorney General v. Open Door Counselling Ltd (No.2) [1994] 2 I.R. 333 the jurisdiction of this Court to vary a final order arose. In that case Finlay C.J. (with whom Hederman, Egan and Blayney JJ agreed) stated that the first issue for determination was whether the Supreme Court had any such jurisdiction to vary or discharge a final order. Finlay C.J. referred to his judgment in Belville and he stated that exceptions to that principle may arise where it is established that a judgment has been obtained by fraud. Finlay C.J. held that the jurisdiction did not arise in the Attorney General v. Open Door Counselling Ltd. case. He stated at p.342:-
“I am quite satisfied that it is wholly inconsistent with the constitutional obligations and the jurisprudence of this Court, for it to consider a question of the interpretation of the Constitution by way of motion to vary an order previously made in an appeal finally determined by it which, by inevitable necessity, has never arisen in the High Court or been decided by the High Court and, furthermore, is in the instant case a provision of the Constitution which was not in force or enacted at the time when the appeal was determined.”
In Open Door Counselling I wrote a dissenting judgment being of the opinion that the extant order of the Court manifestly breached a constitutional right. I considered that the Court has an inherent jurisdiction to ensure that the Constitution is not, and that rights thereunder are not, circumvented. I held that the Court has a duty to ensure that the Constitution and justice are upheld and that in that case the exceptional jurisdiction arose, and in the circumstances I would make an order varying the previous order of the Supreme Court.
8. Circumstances of a Case
In determining whether the jurisdiction arises the Court should consider all the circumstances of the case. In In Re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514 an application to set aside the order of the Supreme Court was brought on the grounds that the core issue addressed (ultra vires) was decided by the Court without affording the applicants any proper opportunity to argue the point. Hamilton C.J. concluded:-
“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.”
In that case I stated at pp 539 and 540, of such an application in relation to a final order that:-
“The court has to balance the application against the jurisprudence, of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of justice which includes the concept of finality in litigation.”
9. The circumstances must be such as to justify disregarding the primary principle that the order is final. In Bula Ltd v. Tara Mines Ltd (No.6) [2000] 4 I.R. 412 the applicants initially appealed against the judgment and order the High Court (Lynch J.) of the 6th February, 1997. The appeal was heard, determined and dismissed by the Supreme Court (Hamilton C.J., Barrington and Keane JJ.). Subsequently the applicants applied seeking to have the judgment of the Supreme Court set aside on grounds of objective bias. The applicants alleged that Barrington J. and Keane J., when practising at the Bar, had had links with the respondents which were of such a character as to give rise to a perception of bias. Barrington J. had acted for the fifteenth respondent in two sets of proceedings, relating to the Tara respondents in one case and the applicants in another; had advised on legislative reform in the area of mineral mining; had acted against Tara in a case; and had prepared two sets of advices for the first named respondent. Keane C.J. had advised the first named respondent as to an exempted development under the planning legislation and had undertaken to appear for the first named respondent in an anticipated hearing before An Bord Pleanála, which in the end he did not so do as he was appointed to the High Court. The applicants contended that objective bias arose from these connections between these judges and the respondents.
The Supreme Court held that it had an inherent jurisdiction to protect constitutional rights and justice. This jurisdiction may arise on an application relating to a final judgment of the Supreme Court, but only in rare and exceptional cases would it be invoked to protect a constitutional right or justice.
This Court exercised that jurisdiction in Bula Ltd v. Tara Mines Ltd No.6 and considered the application alleging perceived bias. It 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 from 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. A prior relationship of legal advisor and client did not generally disqualify the former advisor on becoming a member of court sitting in proceedings to which the former client is a party. There must be additional factors establishing a cogent and rational link between the previous association and its capacity to influence the decision to be made in the particular case. A reasonable apprehension would arise where the judge as counsel had previously given legal services to a party on issues alive in the case to be heard by the court. In that case I referred to the fact that there were seventeen alleged links between the respondents and the two judges, and that it was alleged that there was a reasonable apprehension of bias because of the links alleged. I found that none of the seventeen alleged links raised an issue so as to ground such an application. The Court dismissed the application.
10. In Kenny v. Trinity College & anor [2007] IESC 42 by notice of motion Mr Kenny applied for an order vacating the order made by the Supreme Court on 20th June, 2003, on the ground of objective bias. Mr Kenny submitted that the facts were sufficient to establish objective bias. The gravamen of his claim was that one of the judges who heard his application was a brother of an architect in the firm of architects which were witnesses in the case and were responsible for the design and execution of the development. The respondent in that case relied on two factors, (i) that the architect mentioned had no involvement whatever with the development in question; and that (ii) the architect was not a party, but that a member of the firm in a different city had charge of the project and was a witness in the proceedings.
There was no analysis in Kenny of the nature of the jurisdiction of the Court to set aside an order which is final and conclusive. There was no express decision as to what gave rise to the jurisdiction in that case and as to why the jurisdiction should be exercised in that case. Consequently the case does not assist the jurisprudence on this topic. Kenny did analyse the nature of objective bias. The test for objective bias was referred to, as were cases relevant to that test, and an order was made setting aside the order of the 20th June, 2003.
11. Applicable Law
The applicable law may be found in the Constitution of Ireland, 1937 and case law.
(i) The Constitution provides that the decision of the Supreme Court shall in all cases be final and conclusive.
(ii) In Attorney General v. Open Door Counselling Ltd. No.2 [1994] 2 I.R. 333 the Supreme Court held that it was inconsistent with the constitutional obligations and jurisprudence of the Court to vary the order previously made in an appeal finally determined by the Court.
(iii) The common law and public policy recognises the desire for finality in proceedings inter partes. Article 34.4.6 of the Constitution incorporated into the Constitution this desire and expressed it in clear and unambiguous terms. This is the fundamental principle to be applied by the Court. As Hamilton C.J. said in In Re Greendale Developments Ltd. (No.3) at p.536:
“… there is nothing in the circumstances of this appeal which would justify disregarding the said provision.”
(iv) Bula Ltd. v. Tara Mines Ltd. (No.6), held that the Supreme Court could set aside its own decisions in rare and exceptional cases as an exercise of its inherent jurisdiction to protect constitutional rights and justice. McGuinness J. held at p.478:-
“In summary, whilst very great weight must be given to the principle of finality and to the provisions of Article 34.4.6, this court has a jurisdiction to review and if necessary to set aside what appears to have been a final order in circumstances where the court’s duty to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the applicants to establish that such exceptional circumstances exist. It is in this context that this court must consider the facts of the present case and the arguments put forward by the applicants.”
(v) Therefore, in this case the appellant must establish:-
(a) That the circumstances of this case are such as to give rise to this rare and exceptional jurisdiction.
(b) If this jurisdiction arises, that there was good reason to exercise it, such as establishing that there was objective bias.
12. Judicial Review
The appellant has sought to bring this motion to set aside the judgment of the Supreme Court made on the 29th June, 2007. That judgment related to an application for leave to apply for judicial review in the High Court.
13. The application for leave to apply for judicial review in the High Court was sought in relation to several decisions of the Circuit Court including:-
(i) The Hon Mr Justice Spain on the 1st May, 1990,
(ii) Judge White on the 21st November, 2001,
(iii) Judge Linnane in April, 2004 relating to an Isaac Wunder order.
Also, the appellant referred extensively to proceedings before those courts and raised issues and complained of the first named defendant/respondent and its letters.
14. The appellant argued and stressed that the inherent strength of his case proved that there was bias by the court when determining the application against him. While I am not satisfied that there is any such applicable principle, I have considered the strength of the appellant’s case in both the High Court and the Supreme Court.
15. In essence the appellant brought an application seeking leave to apply to judicially review a decision and/or decisions of the High Court which were hearings of appeals from the Circuit Court.
16. This application was refused on the 6th February, 2006 by Peart J.
17. Peart J. held:-
“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.”
18. The appellant appealed the decision of the High Court (Peart J.) to the Supreme Court.
19. On the 29th June, 2007, the Supreme Court heard and gave judgment, in an ex tempore judgment delivered by Fennelly J., (with which Macken J. and Finnegan J. agreed). Fennelly J. held:-
“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.”
20. It is clear that the Supreme Court addressed the case and pointed out that there was no jurisdiction to bring the application which the appellant sought. It was without legal foundation. This is a correct statement of the law. There was no strength in the appellant’s case and it could not be a basis (if indeed such a ground existed) upon which to establish bias.
21. The appellant has brought the motion before the Court seeking to vacate a decision of the Supreme Court. He wishes to have the judgment and order of the Supreme Court made on the 29th of June, 2007 set aside.
22. The basis for his submissions, on his Notice of Motion, is:-
“That all bias and prevarication be set aside by this Honourable Court in agreeing my application for judicial review first mooted October 2002.”
The appellant also asks the Court to further take notice that he will rely on the following grounds:-
“(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.”
23. The appellant filed extensive papers in relation to his claim and was heard in oral submissions.
24. Lay Litigant
The appellant brought this application in person. The Court gave the appellant great latitude in the presentation of his case, both for his oral submissions and in his written submissions, as he is a lay litigant. The appellant was permitted to submit many documents. Also, the Court heard two hours of oral submissions presented by the appellant on his behalf. The Court has taken great care to ensure that the appellant had a reasonable opportunity to present his submissions. In the circumstances the Court has had a full opportunity to hear the appellant’s case.
25. Roots
The roots of this application lie in family law proceedings in the Circuit Court. Family law litigation may be very stressful to parties. Clearly the appellant is unhappy with decisions made by a number of Circuit Courts on matters relating to his family, such as orders for protection, a barring order and the family property. He did, however, as he is entitled to do, appeal these orders to the High Court, where a full rehearing was held and decisions made on the appeals.
26. I have read carefully the papers filed by the appellant and considered carefully his oral submissions.
27. The appellant made oral submissions which ranged over many issues. He alleges bias of judges in all jurisdictions. He made reference to matters in the family law cases in the Circuit and High Courts. He referred to events “in the maelstrom of family law”. He spoke of losing his house in litigation. He stated that he got nothing and paid everything. He made allegations that solicitors had had arranged a scorched earth policy. He referred to the voluminous correspondence. He objected to barring and protection orders being made without him being present. He stated that he had been an excellent husband, he made statements about his wife, he said he did not know where his wife and children live. He argued that the written judgments did not reflect what the judges said. For example, he alleged that Peart J. said there were arguable grounds but then wrote that there not arguable grounds. He revisited events in submissions which had clearly been upsetting, such as being arrested and charged. At times he spoke well of the judges, saying, for example, that Judge Abbott gave him everything, and that Judge McKenzie gave him a good hearing.
28. I have also considered carefully the documents and the additional documents filed by the appellant, including those filed after the Court hearing, as was permitted by the Court. It is clear from the papers that the appellant is alleging objective bias of judges, and alleging illegal acts of solicitors in family law proceedings in the Circuit, High and Supreme Court. He alleges that judicial bias and activities of legal representatives contrary to law existed from 1989 in the maelstrom of family law proceedings. He stressed the strength of his case.
29. The appellant referred to and relied on a letter from Mr Justice Finnegan, when he was President of the High Court, who wrote to the appellant in reply to a letter of 12th February, 2003.
The appellant states that Mr Justice Finnegan “kindly pointed out no appeal from High Court to Supreme Court when appeal from Circuit Court to High Court has taken place.” In that letter Mr Justice Finnegan referred to the issue of judicial review:-
“Further where a Judge of the High Court makes a decision I have no power to interfere with the same or to review the same and the only remedy available is in the case of Judicial Review when the decision of the High Court can be appealed to the Supreme Court. In those circumstances I regret that I am unable to assist you in the circumstances which you outline.”
This letter has been misinterpreted by the appellant. It does not advise the appellant that judicial review is open to him. It pointed out that if the case were one of judicial review that then an appeal could lie to the Supreme Court, but that an appeal did not lie to the Supreme Court from a High Court decision on an appeal from the Circuit Court.
30. The appellant made submissions about the proceedings before Mr Justice Spain. He also made submissions about the proceedings before Judge White, and the solicitors and counsel. He made allegations against staff of the Courts Service. He made allegations about property transfers arising out of the family law proceedings. He expressed concern about his pension.
He made allegations that court orders were falsified. He alleged lack of fair decisions in the courts and that this is the background of general and specific bias. He wrote lengthy submissions for this Court. For example:-
“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.”
The appellant referred to many appearances and issues before the Courts over the years. He constantly returned to assertions of bias and to the many occasions on which his suspicions were aroused.
31. Decision
31.1 This case was heard in open court, it was not heard in camera.
31.2 This was an ex parte application by the appellant. There was no one in court holding a watching brief for the respondents.
31.3 Papers were received from the appellant both before and after the Court hearing, with permission of the Court.
31.4 The appellant was granted two hours to make oral submissions on this motion. This was in excess of the time which would be allocated to a case where counsel acted for a party, the extra time was awarded to the appellant because he is a lay litigant. In fact, he exceeded this time, but the Court permitted him the extra time.
31.5 The first issue for the Court is whether it has jurisdiction in the circumstances, where the appellant seeks to vacate a final order and judgment of the Supreme Court.
31.6 The decisions of the Supreme Court are final and conclusive. This fundamental constitutional principle is to provide finality and certainty in the administration of justice. The finality of litigation is important in all courts, but especially so in the court of final appeal. The fundamental principle is that the order of the Supreme Court is final. However, in rare and exceptional cases a jurisdiction may arise. The appellant has a heavy burden to establish that such rare and exceptional circumstances exist as to give rise to this jurisdiction.
31.7 The Constitution expressly states that the decision of the Supreme Court shall in all cases be final and conclusive. In rare circumstances the Court has jurisdiction to vary a final order. This may arise (a) where there has been an accidental slip in the judgment; (b) where the judgment as drawn up does not correctly state what the Court intended and decided; (c) in separate proceedings for fraud; (d) in rare and exceptional cases to protect constitutional rights and/or justice.
31.8 The appellant has come before the Court submitting that such exceptional circumstances exist in his case that there should be an intervention in the final order of the Supreme Court made on the 29th June, 2007.
31.9 I have considered very carefully all the documentation furnished by the appellant, and his oral submissions. I understand that he is very unhappy with the way the litigation relating to his family proceeded in a variety of Circuit Courts and High Courts. He feels he has not had the strength of his case recognised by the Courts. While I understand his distress at his family break up, those decisions of the Circuit Court and the High Court are not in issue before this Court. This Court has no jurisdiction to review those decisions. The only judgment and order before this Court is the judgment of the 29th June, 2007, of the Supreme Court. That judgment has been set out earlier.
31.10 The appellant has made assertions about the Supreme Court judgment of 29th June, 2007. But mere assertions do not give rise to the jurisdiction he seeks to invoke. The appellant has not discharged any onus, let alone the heavy burden of establishing that such exceptional circumstances exist that this Court should exercise a jurisdiction to review a previous judgment of this Court. Therefore, in the circumstances of this case I am satisfied that no such jurisdiction arises. Consequently I would dismiss the application on the basis that no jurisdiction arises to review the judgment and order of the Supreme Court of the 29th June, 2007.
32. Even if the appellant had discharged the burden of proof, which he has not, and even if the Court had a jurisdiction to review the judgment of the 29th June, 2007, which it does not in the circumstances, there is no basis on which to vary the judgment of the Supreme Court of the 29th June, 2007.
33. The legal system gives a right to a hearing and a right to an appeal. In this case the initial hearings were in several Circuit Courts and appeals were heard by several High Courts. These High Court appeals were a full rehearing of each case. There is a right of access to the courts, and a right of appeal. The appellant has exercised both rights. But there has to be finality to litigation. That finality is achieved on the conclusion of an appeal, in this case in the High Court.
34. The right to judicial review is a right to apply to the High Court to review decisions of lower courts or tribunals or administrative decisions. The right to apply for judicial review does not apply to review an appeal heard by the High Court of a decision of the Circuit Court. This was clearly stated by the High Court, by Peart J., on the 6th February, 2006 and it was affirmed by the Supreme Court on the 29th June, 2007.
35. Even if the jurisdiction arose, which I am satisfied it does not, the appellant has not shown any bias by the Court in its judgment of the 29th June, 2007. Consequently, I would dismiss the application on this basis also.
36. The issue of objective bias was argued in submissions before the Court and considered. The test is whether an ordinary reasonable member of the public would have a reasonable apprehension that the appellant would not have a fair hearing by an impartial judge. While the appellant has made lengthy submissions on his application for judicial review, and many assertions, he has failed to establish any objective bias.
37. At the root of the application is the appellant’s misunderstanding of court proceedings and his disappointment with decisions in family law matters in Circuit and High Courts. His assertions of objective bias are only that, assertions. His belief in the strength of his case does not establish any bias by the Court. He has no right under the Constitution or the law to have the previous final decision of the Supreme Court reviewed. The litigation must conclude.
38. Procedure
The jurisdiction to review a previous decision of the Supreme Court arises from its inherent jurisdiction to do justice.
38.1 There are occasions when it is manifestly clear that the Supreme Court does not have jurisdiction to exercise this exceptional jurisdiction. For example, the Supreme Court does not have jurisdiction to hear an appeal from the High Court where the High Court decision was on an appeal from the Circuit Court. As Murray C.J. pointed out in P. Clohessy v. P. Clohessy Supreme Court 31st July, 2008:-
“… 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.”
Where it is clear that the claim is manifestly ill-founded and the Supreme Court has no jurisdiction to hear an application, the matter can be dealt with administratively in the office of the Supreme Court.
38.2 If on the papers an applicant fails to disclose any objective foundation for the exercise of the exceptional jurisdiction of the Supreme Court to review its decision, and the claim appears to be manifestly ill-founded, then the Supreme Court may make a ruling that the application is manifestly ill-founded without the necessity of holding an oral hearing.
39. In this case the appellant was granted an oral hearing. He failed to disclose any objective basis for the exercise of the exceptional jurisdiction on the papers filed and the claim appeared to be manifestly ill-founded. However, he was granted an oral hearing, and written and oral submissions were presented and considered. Having considered the documents filed and the written and oral submissions I am satisfied that the appellant’s claim is manifestly ill-founded and I would dismiss the application.
Conclusion
For the reasons given I would dismiss the appellant’s motions.
John Callaghan v An Bord Pleanála
, Ireland and the Attorney General v Element Power Ireland Limited, Element Power Ireland and North Meath Windfarm Limited
19/2017
Supreme Court
27 July 2017
unreported
[2017] IESC 60
Mr. Justice Clarke
July 27, 2017
JUDGMENT
1. Introduction
1.1 This Court has recently granted leave to appeal (see Callaghan v. An Bord Pleanála & ors [2017] IESCDET 32) to the appellant (“Mr. Callaghan”) against a decision of the Court of Appeal delivered by Hogan J. on the 21st December, 2016 (Callaghan v. An Bord Pleanála & ors [2016] IECA 398). In the ordinary way a notice of intention to proceed was filed on behalf of Mr. Callaghan and written submissions were thereafter filed on his behalf and on behalf of three sets of respondents being, respectively, the first named respondent (“the Board”), the second and third named respondents (“the State”) and the notice parties (“Element Power”). In each of the submissions filed by the Board, the State and Element Power a suggestion was made that Mr. Callaghan had, in the written submissions filed on his behalf, gone beyond the scope of the appeal permitted in accordance with the determination of this Court granting leave to appeal.
1.2 In those circumstances, when the matter first was before the Court for the purposes of case management, it was determined that an issue be tried as to the proper scope of the appeal in order to bring clarity to those matters in advance of the substantive hearing. Such an oral hearing then ensued and this judgment is directed to the issues raised. Before going on to deal with the specific issues which arise in the circumstances of this case it is appropriate to identify the general principles by reference to which a decision such as this should be taken.
2. General Principles
2.1 In Grace & Sweetman v. An Bord Pleanála & ors [2017] IESC 10 this Court, confirming its previous decision in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26, indicated that, subject to very limited exceptions, the only questions which are properly addressed by the Court on an appeal under the new constitutional architecture, which has been in place since the 33rd Amendment to the Constitution came into effect, “are the issues which can fairly be said to come within the ambit of the grounds on which leave to appeal is given”. However, in an analogous area, this Court has also recently, in a determination in SPV Osus Limited v. HSBC Institutional Trust Services (Ireland) Limited & ors [2017] IESCDET 84, indicated that the Court should not adopt an “overly technical attitude to the question of whether the relevant issues were raised in precisely the same form in the court or courts below”. For like reasons this Court should not adopt an overly technical approach to the precise boundaries of the issue or issues in respect of which leave to appeal was granted. An application for leave to appeal is necessarily made in a relatively summary form and the Court does not have access to all of the materials which were before the Court below. Because of this the precise boundaries of the arguments which may be properly addressed to the Court should not be regarded as written in stone by reference to the exact language used in the determination of this Court granting leave. Rather, by analogy with the question of whether an issue sought to be relied on was raised in a court or courts below (which issue was addressed in SPV Osus), the Court should consider whether the arguments sought to be put forward can fairly be said to arise within the terms on which leave has been given recognising that arguments will necessarily be refined or adjusted to some extent as the appellate process progresses.
2.2 Indeed, a similar issue is addressed by O’Donnell J. in his judgment in McDonagh v. Sunday Newspapers Limited (reference to be inserted when available) which is also delivered today. The difficulty which arose in that case stemmed from complications which derived from the fact that the Court had certified some but not all of the issues in respect of which leave to appeal was sought. As O’Donnell J. points out the Court considers leave to appeal on the basis of limited materials and it may become clear as the appeal develops that some latitude on the issues which require to be considered must be afforded to the parties. The alternative, as O’Donnell J. also points out, is a risk of a descent into Dante’s inferno. On the facts of McDonagh, O’Donnell J. held that the Court was entitled to review the scope of the issues which can be argued. It is not necessary to go that far in the circumstances of this case. However, McDonagh is certainly authority for the proposition that a court should not adopt a narrow or overly technical approach to the scope of the appeal.
2.3 It follows that the approach of this Court to the scope of an appeal should be to ensure that the arguments sought to be put forward on behalf of the appellant can be said to come reasonably and fairly within the scope of the issues or grounds identified in the determination granting leave to appeal but that an overly technical or rigid approach should not be adopted to determining those boundaries. In particular, refined or adjusted arguments directed to the same general end may well be permissible provided that the issue to which those arguments are directed comes fairly within the scope of the leave granted.
2.4 There was one further issue which does need to be considered in the context of this judgment which derives from the fact that the issue of controversy centres on a question of European law, and the issue arises as to whether that fact makes any difference to the proper approach of the Court. I propose to deal with that question when considering the application of the general principles identified to the facts of this case.
3. Application to the Facts of this Case
3.1 The underlying issue in respect of which leave to appeal has already been granted concerns the question of whether a party, who wishes to oppose a proposed development, has an entitlement to be heard at the stage when the Board is considering whether the development concerned comes within the scope of the type of strategic infrastructural development contemplated by the Planning and Development (Strategic Infrastructure) Act, 2006 (“the 2006 Act”). The effect of the Board forming an opinion that the proposed development is such a strategic infrastructural development is, amongst other things, that the application for permission is made directly to the Board rather than to the local planning authority.
3.2 Much of the debate before both the High Court and the Court of Appeal centred on the question of the extent to which the Board, having formed that initial opinion and having thus required that the procedures contemplated in the 2006 Act were to be followed, could nonetheless, in the context of an environmental impact assessment, revisit questions which were determined (or, on one view, provisionally determined) in the formation of the opinion in question.
3.3 Both the High Court (Costello J.) (Callaghan v. An Bord Pleanála [2015] IEHC 357) and the Court of Appeal (for whom Hogan J. wrote) (Callaghan v. An Bord Pleanála [2016] IECA 398) determined that, on a proper construction of the relevant statutory framework and purely as a matter of national law, the Board was entitled, and may well be obliged in an appropriate case, to look again at any issues which were considered in the course of forming its initial opinion that the development in question was a strategic infrastructural development, where the same question properly arises in the context of conducting an environmental impact assessment of the project for the purposes of deciding whether or not to grant permission. On the basis of that finding it was held that the formation by the Board of the relevant opinion under the 2006 Act did not adversely affect the rights of an objector, such as Mr. Callaghan, for no determination adverse to his interests would, in those circumstances, be made at the initial stage. On the contrary, and on the basis of the view taken by the courts below on the proper construction of the statutory framework, any issue relevant to the grant or refusal of the permission concerned remained open in the course of the environmental impact assessment by the Board. All objectors were, of course, entitled to submit observations in relation to that environmental impact assessment and the appropriateness or otherwise of the grant of permission.
3.4 However, Mr. Callaghan has been given leave to appeal against that decision of the Court of Appeal, and there is no dispute but that the question of whether the proper construction of the statutory framework is as it was found to be by the Court of Appeal is squarely before this Court. The question which has given rise to controversy concerns the issue of European law raised.
3.5 In the initial case made to the High Court on behalf of Mr. Callaghan it was said that the 2006 Act does not properly transpose directive 2011/92. The reason why such was said to be the case was that it was argued, on the basis of the construction sought to be placed on the 2006 Act on behalf of Mr. Callaghan, that members of the public did not have an effective public participation in the relevant decision making process at a time “when all options are still open to the decision maker” (see the judgment of Costello J. at. para. 31 in that regard). Having concluded that the Board was obliged, in the course of the environmental impact assessment, to look again at the sort of socio-economic aspects of the assessment which would have been considered in the formation of the opinion that the proposed development was a strategic infrastructural development, Costello J. came to the conclusion that an involvement at the stage of forming that opinion was not necessary to comply with the obligation to permit participation when all options remained open to the decision maker. Given that, on the basis of the construction favoured by Costello J., all options remained open during the environmental impact assessment, it followed that participation at that stage was, in her view, sufficient to meet the obligations of the Directive.
3.6 It should also be noted that Mr. Callaghan sought a certificate for leave to appeal from the decision of Costello J. to the Court of Appeal. That matter was the subject of a separate judgment delivered by Costello J. on the 24th July, 2015 (Callaghan v. An Bord Pleanála [2015] IEHC 493). As appears therefrom one of the issues sought to be certified was a contention that the relevant provisions of the 2006 Act failed “to properly transpose Directive 2011/92 into Irish law by failing to ensure that there is effective public participation in the decision-making process at a time when all options were still open to the decision maker”. Costello J. declined a certificate on that ground but did grant a certificate on the more general ground associated with the proper construction of the statutory framework.
3.7 It also needs to be recorded that Mr. Callaghan sought leapfrog leave to appeal directly from the High Court to this Court. This application was made after Costello J. had given the certificate just referred to but before the Court of Appeal had determined the appeal. The application for leave was refused by a determination of this Court (Callaghan v. An Bord Pleanála & ors [2015] IESCDET 60). Likewise, reliance is placed by Mr. Callaghan’s opponents on the fact that no separate leave to pursue the transposition issue was sought from this Court when the application for leave to appeal, which was ultimately granted, was made.
3.8 However, at the oral hearing counsel for Mr. Callaghan emphasised that there was a connection between at least one aspect of the European Union law argument and the issue of construction which is undoubtedly within the scope of this appeal. Counsel accepted that, in the light of the construction which both the High Court and the Court of Appeal placed on that statutory framework, the European Union law point did not really arise. However, counsel argued that, in the event that this Court was persuaded to take a different view of the proper construction of that statutory framework, the European Union law point would clearly arise.
3.9 On the other hand, counsel for the State (who, with the agreement of counsel for the Board and counsel for Element Power, made the substantive submissions in opposition to those of Mr. Callaghan), argued that the transposition case as originally advanced on behalf of Mr. Callaghan in the High Court was different in substance to the case identified in oral submissions by counsel for Mr. Callaghan.
4. Discussion
4.1 Reference was made during the oral hearing to the judgment of the Court of Justice in joined cases C-430/93 and C-431/93, Jeroen van Schijndel. That well known case is the original authority for the principle that a national court is not obliged, of its own motion, to raise a point of European law where the national procedural law of the jurisdiction in question would not require, in an analogous circumstance, the Court to raise, of its own motion, an overriding issue of national law. It follows that there could be no European Union law obligation on this Court to raise an issue which was not properly before the Court, under national procedural law, unless this Court would also raise a similar question which was derived from national law.
4.2 However, in my view, it is possible, in that general context, to identify two different types of situations which might arise within the Irish legal order. The Irish courts would not be obliged, as a matter of national law, to raise of their motion a question of whether primary legislation was invalid having regard to the Constitution or whether secondary legislation was invalid having regard either to the Constitution itself or to the primary legislation which conferred the secondary legislative power under consideration. Unless one or other of the parties properly raised the question of the validity of the law in question then it would not be regarded, as a matter of Irish procedural law, to be properly before the Court and would not be considered.
4.3 On the other hand, there may be circumstances where an Irish court would raise overriding issues, such as the application of the Constitution to legislation, purely for interpretative purposes. The obligation of an Irish court, in accordance with Irish constitutional law, to interpret legislation, insofar as possible, in a manner consistent with the Constitution has been clear since East Donegal Co-operative v. Attorney General [1970] I.R. 317. While the precise application of the double construction rule which derives from East Donegal is not the same as the application of the principle of conforming interpretation which applies in European Union law, nonetheless the principles are, at least at a very general level, analogous. In both cases, a court in interpreting a measure may be required to adopt an interpretation, which might not be the normal construction, by virtue of an overriding obligation to ensure conformity with, on the one hand, the Constitution, or on the other hand, measures of European Union law.
4.4 Where an Irish court is considering the proper interpretation of a statutory measure it may well take into account any constitutional principles which might impact on the proper construction of the legislation concerned. Indeed, it is fair to say that a court might very well be reluctant to disregard such constitutional questions of interpretation even if they were not specifically raised by the parties. A court, and in particular a court of final appeal, is, as a matter of national law, required to give a definitive interpretation of a legislative measure which comes into question in the course of proceedings properly before it. It could not be ruled out, therefore, that a court in such circumstances would be reluctant to give a construction to legislation without having regard to any constitutional issues which might impact on the proper construction of the measure concerned in accordance with East Donegal principles. This might well be so where there would be a real risk that the Court would give an incorrect interpretation of the legislation in question if it did not itself raise the constitutional construction issue. It must be recalled that the proper interpretation of legislation is objective and is not dependent, necessarily, on the arguments put forward by the parties.
4.5 By analogy it seems to me that it is at least arguable that an Irish court, in order to comply with the principle of conforming interpretation, would be required to have regard, even on its own motion, to provisions of Union law where those provisions might have an impact on the proper interpretation of national measures under consideration.
4.6 Essentially the key issue in this case will be as to whether, as is argued on behalf of Mr. Callaghan, it is necessary to imply a right to be heard at the stage of the decision by the Board to form an opinion on whether the relevant proposal involves a strategic infrastructural development for the purposes of the 2006 Act. As counsel for Mr. Callaghan has pointed out, Irish courts have implied similar entitlements to be heard where same was required to comply with national constitutional values, even though the legislation in question did not make express reference to such an entitlement. Irish law does not, therefore, preclude that a right to be heard may, if required, be implied. Likewise, it is difficult to see how a right to be heard could not be implied if same were necessary to comply with relevant provisions of Union law.
4.7 In those circumstances, it seems to me that it would not be appropriate for this Court to embark on the question of the proper interpretation of the overall statutory framework while ignoring the obligation of this Court to ensure, insofar as possible, that that framework is construed in a manner consistent with Union law. The proper interpretation of that statutory framework must be objectively considered, independent of the arguments of the parties, and must have regard both to principles of Irish constitutional law and provisions of Union law insofar as those principles and measures may legitimately impact on the proper construction of the statutory framework in question.
4.8 Furthermore, the question of whether Union law may be relevant to the proper construction of that statutory framework is very closely allied to the underlying issue of the construction of that framework which question is clearly within the scope of this appeal. The potential deployment of Union law as an argument on that interpretative question can properly, therefore, be regarded as a refinement of the argument which Mr. Callaghan seeks to advance in favour of what he contends is the proper construction of the relevant framework. I would, therefore, propose that Mr. Callaghan should not be excluded from making any argument which suggests that the 2006 Act must be construed in a particular way (consistent with the overall approach which he adopted in the courts below) while calling in aid, in favour of that proposition, arguments based on Union law.
4.9 However, I would not go so far as to permit Mr. Callaghan to raise the pure transposition argument which was before the High Court on the pleadings. That issue does not seem to me to be within the scope of the leave granted. That issue is not a question of interpretation but rather a question similar to one of validity. It is, therefore, analogous to an issue of constitutionality rather than constitutional interpretation. Such an issue of constitutional validity would not be permitted to be argued before this Court in a case where it did not properly arise on the pleadings and the grounds of appeal permitted.
5. Conclusions
5.1 For the reasons set out in this judgment I have come to the view that the proper approach of the Court to determining the scope of an appeal subsequent to the 33rd Amendment is to confine an appellant to issues which can fairly be said to arise within the scope of the appeal as identified in the determination of this Court granting leave to appeal. However, I also propose that the Court should not, in so confining an appeal, adopt an overly technical or narrow approach but rather should consider whether, on a fair basis, it can be said that the arguments sought to be relied on come within the broad scope of the leave granted.
5.2 In addition, I have come to the conclusion that, where the potential construction of a statute or legislative measures is at issue in proceedings, this Court should not ignore arguments which might impact on the proper objective construction of the measures concerned which derive either from the principle of constitutional construction or from the requirement of conforming interpretation as a matter of European Union law.
5.3 In those circumstances, I would propose that Mr. Callaghan be permitted to rely on any European Union law arguments which might be relevant to the proper construction of the statutory framework under the 2006 Act which is at the heart of these proceedings provided that those arguments are directed towards a construction of that statutory framework in the manner advanced on behalf of Mr. Callaghan in the courts below.
5.4 However, I would not propose that Mr. Callaghan should be entitled to raise a pure transposition argument. I would, therefore, confine Mr. Callaghan’s arguments under European law to matters which might legitimately be said to have an impact on the proper construction of the relevant statutory framework.
Nash -v- Director of Public Prosecutions
[2017] IESC 51 (13 July 2017)
Judgment
Title:
Nash -v- Director of Public Prosecutions
Neutral Citation:
[2017] IESC 51
Supreme Court Record Number:
22/2013
High Court Record Number:
2010 351 JR
Date of Delivery:
13/07/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., O’Donnell Donal J., Clarke J., Dunne J., Charleton J.
Judgment by:
Charleton J.
Status:
Approved
Result:
Other
Details:
Court treats application as one to set aside judgment and dismisses that application. Judgment also by Judge Charleton.
Judgments by
Link to Judgment
Concurring
O’Donnell Donal J.
Link
Denham C.J., Clarke J., Dunne J., Charleton J.
Clarke J.
Link
Denham C.J., O’Donnell Donal J., Dunne J., Charleton J.
Charleton J.
Link
Denham C.J., O’Donnell Donal J., Dunne J.
An Chúirt Uachtarach
The Supreme Court
Denham CJ
O’Donnell J
Clarke J
Dunne J
Charleton J
Record number: 2010/35JR
Appeal number: 22/2013
Cross appeal number: 24/2013
Between
Mark Nash
Applicant/Appellant
and
The Director of Public Prosecutions
Respondent
Judgment of O’Donnell J delivered the 13th of July, 2017.
1 Every judge, particularly a judge in a final court of appeal lives with the possibility, and sometimes the reality, of judicial error. This should not be surprising. If there was no possibility of judicial mistake, either in fact or law, there would be no need for an appellate system. At a more basic level, there is a well established jurisdiction to alter a decision prior to the making and perfection of the order in a case. See e.g.: Millensted v Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 and in the criminal context Richards & anor v. Judge O’Donoghue and D.P.P. [2016] IESC 74. It is not necessary here to discuss the circumstances in which such jurisdiction may be exercised in civil cases. (See Delany and McGrath, Civil Procedure in the Superior Courts, 3rd ed, paras. 24-32). Judgments and orders may also amended by the ‘slip rule’, Order 28, to which a reasonably generous interpretation is given: see the observations of Lowry LCJ in McNichol v Neely [1983] NI 43 quoted with approval by Murray J in McMullen v Clancy [2002] 3 IR 493. There is also a procedure for speaking to the minutes of a final order with a view to clarifying that order. None of this would be necessary if error, or at least the possibility of error, did not exist.
2 The possibility of judicial error in its broadest sense is a particular reality for a court of final appeal. No one has improved upon the statement of Justice Robert H Jackson in Brown v Allen, 344 US 443, 540, (1953):-
“There is no doubt that if there was a super – Supreme Court a substantial proportion of our reversals of State courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final”.
The awareness that error if made cannot be corrected is a sobering reality which explains in part the time and care courts take to try to ensure that the process is fair, and in particular the outcome, is correct.
3 Litigants, lawyers, witnesses and observers can all make mistakes. Judges, even judges in appellate courts reviewing decisions for error, make mistakes; they do not mean to but they do. But they try extremely hard not to, and for the most part succeed. And in particular, they try to get the decision correct. The core and irreducible function of any court, even in cases with obvious and profound general consequences, is to resolve the issues between the parties to the litigation. The facts must be ascertained and recounted, not to provide an authoritative record of information to future generations, but to identify the issues between the parties which has given rise to the dispute. Even then it is worth recalling that while a decision is binding between the parties as to the legal consequences, the decision as to what occurred in the past, or prediction of what may occur in the future, is made by a person who was not, or will not be, present. Any decision in a civil case is made on evidence sometimes limited and unsatisfactory, on a balance of probabilities, and is reviewed on appeal by the standard which considers whether such findings of primary fact were open to the trial court on the evidence. It is not perfection therefore; it is, or should be, however, the best that we can do. In fairness too, although there is an established jurisdiction to set aside a judgment, it is rarely invoked and even more rarely leads to the setting aside of an order and although the court receives occasional requests to address and clarify a factual matter contained in a judgment, that too is rare.
4 Despite the efforts of all involved, however, errors of fact can and do occur. I do not find this either surprising or ultimately troubling. For my part, I would prefer to have decisions made about me by a person conscious of the possibility of error rather than one who believed that appointment to the bench conferred a unique form of secular infallibility. Indeed, those who profess almost mystical belief in the impossibility of judicial error are most often to be found contending that even a small mistake justifies the setting aside, or even the reversal, of a judgment , and who, not coincidentally, point to just such an error in a judgment pronounced. But the legal system does not deny the possibility of mistake; rather, it recognises it and seeks to protect against it and provide a remedy if appropriate.
5 This case is concerned with alleged errors of fact contained in a judgment delivered in this Court on the 24th October, 2016, by Clarke J, with which Denham CJ, Dunne and Charleton JJ, and I agreed. The scope for significant error of fact, that is, an error which could have an impact on the outcome of a case, is much more limited in an appellate court than in a trial court, since an appellate court is concerned with issues of law and is not itself a court which normally makes any finding of primary fact. There will normally be a judgment of the trial court, and in most cases, one or more judgments of the Court of Appeal, and accordingly, the impact or significance of any error of fact recounted in the judgment of this Court which is not central or fundamental to the case must be limited. In this case, since there was affidavit evidence and only limited cross-examination it is also possible to point to the underlying evidence before the trial judge should the Supreme Court judgment be used as an account of all the facts and alleged to be incorrect. It is rare, therefore, for this Court to be invited to revisit factual matters.
6 I do not doubt that some errors of fact or description can creep into a judgment particularly in matters which are not central to the outcome and reasoning. Sometimes there is a lack of clarity in the information submitted. Sometimes, as occurred in People (DPP) v. McKevitt [2009] IESC 29, there is an error in the legal submissions which is then repeated in the judgment, and on other occasions, there is a simple misunderstanding which is not picked up or clarified in oral argument, or identified by the judge or his or her colleagues. What then is to be done when a party (normally the losing party) considers that a judgment contains errors of fact? In principle, this may arise in all courts but for present purposes I propose to consider only the position in the Supreme Court. In my view, the first thing that must be done is that the party, and if legally advised, his or her advisors, should make a careful assessment of the nature of the alleged error. If an error is identified, in principle it may be one which is trivial or inconsequential, or it may be of some significance either as a matter of simple accuracy, or because of its potential effect on the legitimate interests of the parties or indeed other individuals. As Clarke J. points out, an example occurred at an earlier stage in this case. Exceptionally, an error may be capable of being so fundamental and central that it should lead to the setting aside of a judgment including perhaps resulting in the reversal of the decision itself. It will be necessary to consider these matters in some more detail but at this stage it is important to emphasise the responsibility that lies upon the party and his or her advisors in making this analysis, and if appropriate advising upon it.
7 This responsibility flows from the significance of an application to court in respect of a judgment delivered. It is sometimes thought that such applications are not welcomed or encouraged because of the potential embarrassment of an error being publicly identified. As Baroness Hale observed in Re L and B [2013] UKSC 8, while judicial tergiversation is not to be encouraged, it takes courage and intellectual honesty to admit ones mistake. But those are features required at all stages. The obligation to do justice fairly, and without fear or favour, which guided the judge to give the original judgment, should extend to a willingness to acknowledge error if justice should require it. History has shown in any event, that courts have entertained applications and exceptionally made orders setting aside judgments already given. Courts are, however, reluctant to entertain such applications for different and good reasons. First, the revisiting of old ground inevitably adds to the costs incurred by and the stress imposed upon all the parties involved. It also requires the allocation of scarce time and resources which are therefore necessarily denied to litigants who have not yet had their case heard or considered on appeal. For example, this application has occupied considerable time both in and outside court. More importantly again, such an application in principle runs directly counter to an important value which the law, and it should be added justice, accords to finality. That applies with particular force in the Supreme Court by virtue of the provisions of Art. 34.4.6 which provides:-
“The decision of the Supreme Court shall in all cases be final and conclusive.”
8 It should not be necessary to elaborate upon all the reasons why finality is both necessary and desirable. Litigation is hard fought and expensive. If a case has been fought to conclusion and appealed and determined, it will often be the case that it is a finely balanced one with much to be said on either side, or perhaps that one or both parties has become particularly entrenched and committed to the litigation. In some cases, both considerations may apply. If it were permissible to reopen cases, then the losing party, who by definition has no other route available, would often seek to do so however remote the possibility of success. That would be intolerable for the successful party but also for other litigants seeking hearings. It would also follow that there could be no theoretical point at which the process would stop. It would be the legal equivalent of the boy who loses a coin toss and immediately suggests best out of three. As Murray J. observed in the case of Riordan v An Taoiseach [2000] IESC 61 at 4:-
“If a party, solely because he or she disagreed with the judgment of the Court of final appeal could by one means or another restart the proceedings to have issues tried all over again, and perhaps even again, it would undermine the functioning of the administration of justice and weaken the authority of the law, which are there for the benefit, not of the Courts, but of citizens as a whole.”
9 The requirement of finality in litigation is not therefore the product of judicial decision or statute. It is encapsulated in the provisions of the Constitution which establishes this Court and which it is bound to uphold. That imposes constraints upon the court when it is invited to alter or set aside its decision. On the plain words of the Constitution it is not permitted and the court is obliged to uphold both the text and the values it espouses.
10 Notwithstanding the apparently all-embracing terms of Art. 34.4.6, there is however an exceptional jurisdiction to revisit a judgment of this Court which is otherwise entitled to finality. The justification for this is perhaps the fundamental constitutional obligation of this Court to administer justice which is in unqualified terms and is the governing principle of Art. 34. Any tension between these two provisions may perhaps be reconciled by considering that where by reason of judicial error or some other extraneous consideration, it is plain that the outcome of the case cannot be said to be the administration of justice for the purpose of Article 34 then it cannot be said to be a ‘decision ‘for the purposes of Art. 34.4.6. It is not necessary to discuss here the possible circumstances in which such an exceptional application could be made. It is plain it must be something fundamental to the decision. One clear example is where a case of objective bias is established for some reason in respect of one or more members of a court. See for example the discussion in Bula Ltd. v. Tara Mines (No. 6) [2000] 4 IR 412 at 476, and in another jurisdiction R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577 at 585. The jurisdiction was originally identified in Re Greendale Developments Ltd. (No. 3) [2000] 2 IR 514. There Denham J (as she then was) said at p. 544:-
“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. 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.”
11 A case which may come close to the exercise of this jurisdiction was Abbeydrive Developments Ltd. v Kildare County Council [2010] IESC 8; [2010] 2 IR 397, where through, it must be said, no fault of the court, a body was not able to participate in proceedings and make submissions on an issue where it contended that the declaration made that a party was entitled to a default permission would be contrary to EU law. It is its own measure of the exceptional nature of this jurisdiction that this appears to be the only case since the decision in Greendale that an order has been set aside.
12 Important guidance as to the exercise of this jurisdiction was given by this Court in DPP v McKevitt [2009] IESC 29. There, Murray CJ (Denham, Hardiman, Geoghegan and Fennelly JJ concurring) delivered a ruling on an application to set aside the decision of the Court which had dismissed an appeal pursuant to s. 29 of the Courts of Justice Act 1924 (as amended) on the grounds of an alleged error of fact in the judgment. The ruling referred to the explicit provisions of Art. 34.4.6, observing that when a party seeks to set aside a final decision of this Court a preliminary question always arises as to whether the court has jurisdiction even to entertain such an application. Two important factors had to be addressed in considering whether to re-open a decision which had been delivered:-
“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.”
13 The jurisdiction therefore was aptly described as a “potential jurisdiction” (emphasis in original) to be exercised only in exceptional circumstances and an applicant was obliged to show cogent and substantive grounds which are objectively sufficient to enable the court to enter upon the exercise of wholly exceptional jurisdiction. In the circumstances of that case, the Court considered the error complained of, which had originated in the submissions made on behalf of the DPP but had not been identified or brought to the attention of the Court on behalf of the applicant, was in any event not central to, or indeed, necessary for the determination of the particular issue in the case. Accordingly, the Court did not consider it necessary to hear submissions from either party and refused the application. This decision illustrates, therefore, that the existence of the Greendale jurisdiction, exceptional as it is, does not subtract from the constitutional importance of Art. 34.4.6 , and if a court concludes at any stage that the case is one captured by that Article, then it must dismiss the application since to proceed further would arguably involve a separate breach of the provisions of the Article. The basic rule established by the Constitution is that justice itself requires that there be an end point to all disputes.
14 It may be, however, that an error identified is not considered either central to the reasoning in the case, or capable of establishing such a fundamental departure from the administration of justice as would justify the application of the Greendale jurisdiction. Nevertheless, the error, if it be such, may be considered of some significance either because of its impact on an individual, the potential for confusion and worse in relation to separate matters, or perhaps, for the sake of simple accuracy. There is and can be no objection either in principle or in constitutional law to the correction of such matters which do not affect the decision of the court captured by Art. 34.4.6. Often judgments are delivered marked “unapproved” and in the process of the approval of a judgment for promulgation on the website of the Courts Service, and perhaps for reporting in official or unofficial reports, such errors including typographical and grammatical errors, can be addressed. It is not desirable to announce a decision and judgment without circulating the judgment on that day and making it available. The delivery of judgment is a part of the administration of justice in public and normally comprehends making the text of a judgment publicly available. Some jurisdictions seek to avoid this problem by circulating a judgment in draft to the parties subject to an embargo on publication. As I understand it, any comments on the draft are normally limited to factual corrections. I am not aware that it has ever been suggested that such a system should be adopted in Ireland, or as a practical matter would be capable of operation. It follows, therefore, that the necessity for delivering a judgment in public and for making available the reasons for such a decision means that a judgment must be available on the day it is delivered. However, any such judgment, whether so marked or not, should be treated as unapproved and capable of factual correction for a limited period after delivery of perhaps two weeks. Either party could within that time write to the court, copying the letter to the opposite side, with any suggested corrections. Should the court consider it necessary to make such corrections it would then do so in the approved version. This would balance the demands of factual accuracy for posterity with the need for contemporaneous publication of the fullest reasons for a decision.
15 Finally, there are matters which may be errors but which are self-evidently trivial and inconsequential. To take a simple example, in a case which concerns a car accident, the judgment of this court may inadvertently describe a motor car as green when it was aquamarine or even blue. Save in cases where visual identification is central, the colour of the car will be entirely irrelevant to the question of negligence or damages etc. Some disappointed litigants (and it an unavoidable function of litigation that some litigants are disappointed in every case) engage in the form of reasoning that suggests that because the judge got the colour wrong, the decision is somehow of less force or could be set aside. In such circumstances, the party, and where represented the party’s advisors, also have an obligation to recognise that the point is trivial, inconsequential, and that no point is served by seeking to require a correction of it, still less an application to set aside the judgment. The obligation of solicitors, as officers of the court, and the duties of counsel appearing before a court requires all such lawyers to exercise responsibility in this matter as well.
16 It remains to consider into what category the issues in this case fall. One legitimate question is whether there are in truth any errors in the judgment that require to be addressed. The submissions of the applicant were surprisingly diffuse and imprecise in this regard. For the reasons set out in the judgment of Clarke J., with which I agree, it can be said that taking a scrupulous approach, there are two respects in which the judgment should perhaps be clarified. However, there was a lack of clarity as to what the applicant contends should follow from this.
17 A letter was delivered by hand to the Registrar of the Supreme Court on the 25th of October, 2016, that is the day after the delivery of the judgment suggesting that there may be “a significant error of fact which may require to be corrected”. The letter continued:-
“The thought does occur to us however that it may be that the Court would prefer not to further promulgate the Judgment for instance by putting it on the Court’s Service website pending the clarification of this matter.”
A lengthy letter was sent on the same day to the Chief Prosecutions Solicitor identifying concern in relation to “two factual errors which appear to underpin the judgment”. It was suggested that it seemed the court “based its finding of no culpable delay on [a] mistaken view.” It was further suggested that the fact that the court had “proceeded on this mistaken basis” was clear from certain extracts from the judgments which were then set out and which are discussed in the judgment of Clarke J. The letter concluded:-
“Unfortunately, therefore, as regards the period of time under scrutiny by the Court there again appears to be an error of fact underpinning the conclusions arrived at in relation to culpable delay which in our view requires to be addressed for the integrity of the judgment.
We are anxious to agree with you how these two sensitive matters should be addressed before the Supreme Court and await hearing from you.”
18 The Director of Public Prosecutions responded by stating that the office considered there was not material errors in the judgment as delivered, and certainly none that would have made any difference to the court’s findings. In response to this, the applicant issued a notice of motion seeking:-
“1 Liberty to be heard in respect of matters arising on foot of the judgment of this court delivered on the 24th day of October 2016;
2 Further or other Order as to this Court shall appear meet;
3 Costs.”
19 The motion was grounded upon an affidavit of the applicant’s solicitor. At para. 12 it stated that an “error of fact has now influenced the judgment of the Court on the question of damages and costs”. At para. 15 it was stated that:-
“the mistakes of fact identified in the decision of Clarke J. could be material to the Court’s ultimate conclusion because the facts are recited in the Court’s finding of culpable delay. It seems to me that it is possible that the Court could have arrived at a different conclusion had it appreciated at the time of writing the judgment that a DNA sample was on file in the Forensic Science Laboratory since 1998.”
Paragraph 16 of the affidavit said:-
“I believe and am advised that the Court has full jurisdiction to ensure that the record is factually correct including the power to revisit a judgment when errors of fact undermine the integrity of the reasoning in that judgment. I understand that the judgment has not been published on the courts website pending clarification of the issues arising and no order has been drawn pending a finalization of all matters arising from the judgment. I respectfully ask the Court to consider how best to remedy the errors appearing in the judgment or to clarify the Court’s position with regard to properly stated facts in this case.”
The affidavit also indicated that it was the intention of the applicant to make a complaint to the European Court of Human Rights (ECtHR) and wanted to clarify the facts for that purpose.
20 The notice of motion is in a curious form. The relief sought at para. 1 is at best redundant since the motion was heard. The application, therefore, becomes a generalised request for such order as the court may think appropriate. Normally the principles of adversarial litigation require one party to assert something and the other to respond, and the court to decide. It may be that the correspondence and application was framed in this vague and indirect fashion out of a respectful diffidence although that seems doubtful but if so, it was in any event misplaced. The references to errors underpinning the judgment and undermining the integrity of the judgment and proceeding on a mistaken basis all suggest that the applicant and his advisors consider that these matters could, or perhaps should, lead to the court setting aside its judgment. This also follows from the suggestion that the court refrain from drawing up an order which would normally suggest that the party was invoking the jurisdiction to invite the court to alter its decision before the final order was issued. If this is the case, it should be stated forthrightly and the factual and legal basis for the application accurately identified. There was in my view a surprising lack of precision about both the factual matters relied upon, and the legal framework for analysis. No written legal submissions were received from the applicant. It is sufficient to say that having considered the matter carefully, I agree fully with the judgment of Clarke J. that there could be no basis on which it is said that the matters identified, properly analysed and fairly understood could approach the high threshold which is necessarily required for this court to consider setting aside a judgment it has delivered. Insomuch as there are errors of description in the narrative of the judgment, I agree that the opportunity should be taken to correct the judgment in that regard. However, those are matters which could plainly have been dealt with in correspondence and by agreement if indeed it was considered that this was a case in which it was necessary to address such matters. Accordingly I would dismiss the application.
Judgment of Mr. Justice Clarke delivered the 13th July, 2017.
1. Introduction
1.1 This judgment is concerned with an application to revisit a previous judgment of this Court. On January 29, 2015, this Court gave an initial judgment on an appeal against that part of the order of the High Court in these proceedings which declined to prohibit a then pending criminal trial in which the appellant (“Mr. Nash”) was the accused. This Court dismissed that aspect of the appeal (Nash v. Director of Public Prosecutions [2015] IESC 32 (“the prohibition decision”).
1.2 However, a second leg of the appeal which had been before this Court concerned the dismissal by the High Court of a claim by Mr. Nash for damages for an alleged breach of his entitlement to a timely trial under either or both of the provisions of the Constitution or the European Convention on Human Rights. After Mr. Nash’s criminal trial had gone ahead (and he had been convicted), that second aspect of the appeal came to be heard. The Court also dismissed that part of Mr. Nash’s appeal. (See Nash v. Director of Public Prosecutions, unreported, Supreme Court, Clarke J., 24th October 2016) (“the damages judgment” or “the judgment”). For reasons connected with the issues considered in this judgment, that damages judgment has not yet been published on the website of the Courts Service.
1.3 In passing it should be noted that Mr. Nash has appealed against his criminal conviction to the Court of Appeal and in that context it is particularly important that nothing is said in the course of this judgment which might potentially impact on that appeal. However, that being said, shortly after this Court had delivered the damages judgment, correspondence was received from solicitors acting on behalf of Mr. Nash which took issue with some of the facts appearing in that judgment. Thereafter a motion was brought which sought to have certain facts corrected and suggested that the Court might like to reconsider its order in the light of what was said to be the correct facts. Against that background it is necessary first to touch on the proper approach of the Court to an application such as that with which this judgment is concerned. In that regard, I agree with the judgment of O’Donnell J. on the legal framework within which applications of this type can and should be considered. I also agree with the observations of O’Donnell J. on the requirement that there be clarity on the question of whether it is contended by an applicant that the high constitutional threshold, which is required to be met if the result of a final decision of this Court is to be altered, is met. In that context I propose first to deal with the proper approach to the correction of errors.
2. The Proper Approach
2.1 As it happens a not entirely dissimilar issue has already arisen in this case. When the appeal came back before this Court for the purposes of considering the question of damages and costs, counsel on behalf of the Director of Public Prosecutions indicated that there was concern that some of the facts set out in the judgment of the late Hardiman J., given on the earlier issue of prohibition of Mr. Nash’s criminal trial, were not fully correct.
2.2 In a statement subsequently made by the Chief Justice on behalf of the Court on the 24th October, 2016 (at the same time as the damages judgment was delivered), the Court indicated that it was not satisfied that it was open to it to amend the judgment of Hardiman J. given that, tragically, Hardiman J. had died in the intervening period. However, the Court did point out that it was, of course, the case that a judge is free to correct any typographical or similar errors identified in an unapproved judgment handed out to the parties on the day when judgment is given. It was further noted that judges have always been willing in that context to consider correcting any errors of fact which are brought to their attention.
2.3 In the particular and unfortunate circumstances which then prevailed, the best which the Court felt it could do was to indicate that it was sure that Hardiman J. would have been happy to correct the relevant errors. The Court also directed that there should be published a document for inclusion alongside the judgment of Hardiman J. on the website of the Courts Service noting the relevant facts.
2.4 It seems to me that this is clearly the correct approach. If there truly are errors of fact in a judgment then a judge should, of course, be willing to correct them so that the record can be set straight. However, it does need to be said that this undoubted jurisdiction should only be exercised where the error is of some materiality, either to the case, or to the legitimate interests of any person who may either be a party to the case or whose actions may be described in the judgment. On the occasion just mentioned the reason why counsel for the D.P.P. expressed concern was that a senior garda felt that what were said to be factual errors reflected badly on him. The senior garda concerned was not, of course, a party to the proceedings and was not subject, therefore, to any potentially adverse order arising from the result of the case. On the other hand, the Court was cognisant of the fact that the senior garda concerned had a legitimate interest in ensuring that his involvement in the events surrounding the investigation into Mr. Nash’s potential culpability for the Grangegorman murders were accurately described.
2.5 It seems to me that this approach remains the appropriate approach to be adopted on this application. Insofar as any material error of fact can be established then it should be corrected if for no other reason than to ensure that the record is correct. That jurisdiction should only be exercised, however, where there is some reasonable materiality to the potential correction.
2.6 There is, of course, then a second question as to whether even if there be an error of fact same could be said to have any consequence for the case. That is a separate matter which needs to be considered but only after it has been determined whether there are any errors of fact.
2.7 Finally, it does need to be emphasised that what are described as “errors of fact” in this judgment are statements of fact which, on the basis either of uncontested or unchallenged evidence before the court of trial or undisturbed findings of the trial judge as to the facts, can be shown to be incorrect. Many cases involve disputed facts which are required to be resolved either by a judge sitting alone or, in appropriate cases, by a jury. The fact that one or other party may not like the facts as found by the decider of fact and may assert that the facts are as per evidence given by or on behalf of the party concerned, does not mean that it can be said that there is an error of fact simply because the appeal court holds that the findings of fact of the trial judge or jury cannot be disturbed on appeal and describes the facts accordingly.
2.8 It follows that the errors of facts asserted in this case must be reviewed by that test. Are the facts as described in the damages judgment at variance with facts which were either undisputed or found by the decider of fact? Against that background it is next necessary to turn to what are said to be the errors of fact.
3. The Alleged Errors
3.1 In substance three sets of facts are said to be erroneously set out in the damages judgment. The first two sets of facts are somewhat connected. To an extent they turn on the use, in that judgment, of the word “sample”. The relevant passages of the judgment are to be found principally in paras. 3.10 and 3.11.
3.2 The context, for the purposes of the appeal then under consideration, in which the facts are thus described was the situation which pertained during the early part of the investigation by An Garda Síochána into the Grangegorman murders when an attempt was made to obtain DNA samples from a jacket connected with Mr. Nash for the purposes of ascertaining whether those samples might be associated with the victims, thus providing evidence supportive of Mr. Nash’s guilt.
3.3 In the passages concerned two statements are made concerning samples which are said to be at variance with what actually occurred. The first is a statement that the original samples taken were tested to destruction and were no longer available. The second concerns a suggestion that no samples were retained by the forensic science laboratory during the period between when the initial attempts to identify DNA failed and the time, described in more detail in the judgment, when the issue was revisited leading to the identification of DNA which was said to match that of a victim and thus provide an evidential basis for the prosecution of Mr. Nash. It will be necessary to return to those two contentions in due course.
3.4 The third contention relates to the timing at which more advanced techniques of DNA testing which, it would appear, allowed DNA to be analysed from much smaller particles of material than had heretofore been the case, became available. It is said that those techniques were available at an earlier stage than is described in the judgment. It will also be necessary to turn to that aspect of the facts in early course. However, it is first appropriate to consider the “samples” issue.
4. The Samples Issue
4.1 The first significant mention of samples is to be found in para. 3.10 of the judgment. There, in describing the initial investigations, it is said that not only “were those samples insufficient to allow for results but also that, in the course of attempting to analyse the samples in question, same were necessarily destroyed so that the samples which had originally been taken were no longer available”. However, earlier in the same paragraph it is clear that the samples being spoken of are “blood samples found on clothing belonging to Mr. Nash”. It is, therefore, clear that what is being spoken of in that passage of the judgment are blood samples taken from Mr. Nash’s clothing and then tested to destruction without yielding any result.
4.2 It is obviously the case that what was retained, whether in the form of parts of that clothing such as a button and thread to which reference will subsequently be made, or, indeed, the clothing itself, was not tested to destruction. On behalf of Mr. Nash it is sought to be argued that that aspect of the judgment is incorrect because it is asserted that what are said to be “samples”, in the sense of samples of clothing such as the thread and button to which I have already referred, were retained and were available for further investigation at any time. But it is absolutely clear from para. 3.10 of the judgment that the reference to samples being tested to destruction was a reference to blood samples which were found on the clothing rather than to the clothing itself or any part of it.
4.3 Finally, it is worth noting that the whole topic of the early samples being destroyed in the course of testing was one which was raised in the course of oral argument by counsel for the D.P.P. and was not questioned by counsel for Mr. Nash in reply. One would have expected, had it been considered at the time that the issue was both important and that the Court had been given a misleading impression by counsel for the D.P.P., that the matter would have clearly been raised in reply.
4.4 In all those circumstances, I am not satisfied that under this aspect of the samples issue there can be said to be any error in the judgment. The judgment accurately records what happened. Samples were taken for testing. It can safely be assumed that the samples were blood but it makes no difference in practice if they happened to be of some other human material. The samples were destroyed while being tested and no samples of human material as such were retained.
4.5 The second aspect of the samples issue where it is said that there is a factual inaccuracy in the judgment is to be found in para. 3.11 which suggests that the buttons and thread to which reference has already been made were returned to the forensic science laboratory in July 2007. From that statement it might reasonably be inferred that the judgment operated on the basis that the relevant button and thread were, after the time of the initial earlier investigations, held by An Garda Síochána but only later returned to the forensic science laboratory. It would appear to be an accepted fact that the button and thread in question were retained by the forensic science laboratory during the relevant period. There is no doubt, therefore, that to that extent the judgment is inaccurate. It will be necessary to consider whether anything turns on the distinction between what is said in the judgment and what actually happened in due course.
4.6 However, it is worth noting that the passage from para. 3.11 which is not fully accurate makes reference to the judgment of Charleton J. given on the earlier occasion of the appeal leading to the prohibition decision. There is a reference in para. 11 of the judgment of Charleton J. in question to exhibits being brought back to the forensic science laboratory for further investigation in June (which, from the context, refers to June 2009). The judgment of Charleton J. immediately goes on to state that, on the 16th July, buttons and thread from the jacket of Mark Nash apparently developed a DNA profile matching that of one of the victims. The judgment then addresses the question of the examination of the jacket. While the judgment is not explicit on the question of whether the button and thread in question were part of the exhibits which were returned to the forensic science laboratory in June, one might have thought that had the distinction between whether that button and thread were held in the intervening period in the forensic science laboratory, or alternatively otherwise in garda custody, been considered to be important to the case, some clarification would have been made in the course of the oral hearing on the damages issue. In that context it must be noted that the judgments leading to the prohibition decision had, of course, been available to the parties for a considerable period of time in advance of the hearing relating to the damages question. Furthermore, it should be noted that while an application was made in the context of the hearing of the damages issue to admit as fresh evidence the transcript of Mr. Nash’s criminal trial, that application was refused. The only evidence before the Court on the damages issue was, therefore, the evidence given before Moriarty J. in the High Court. That fact may have contributed to some of the lack of clarity about precise details. In addition, it is worth noting that the basis on which it was sought to introduce the detailed exploration of the facts surrounding the forensic investigation which occurred at Mr. Nash’s criminal trial was not on the basis of a suggestion that the transcript was relevant to any of the issues currently being dealt with in this judgment. As appears from the affidavit sworn by Mr. Nash’s solicitor to ground the application to admit the transcript of his trial and other materials as fresh evidence, the application related to what were described as “twin issues”, being alleged prejudice arising out of the timing of Mr. Nash’s sentence and a risk of contamination of, or damage to, forensic evidence.
4.7 All that being said, it is appropriate that, the issue having been raised, the record be corrected and that it be made clear that the relevant button and thread were held in the forensic science laboratory for the period between the initial investigation and the later time when further investigations were carried out. As noted earlier, it will be necessary to turn, in due course, to the question as to whether that distinction is of any materiality to the issues which arose on this appeal. It is next, however, necessary to turn to the third issue on which it is said the judgment is factually inaccurate, being the timing of when the relevant advanced forensic techniques became available.
5. The Timing of the Advance in Forensic Science
5.1 In this context the first relevant passage from the damages judgment is to be found in para. 4.11 which indicates that the time by which there had been a sufficient advance in technology to enable smaller samples to produce usable DNA results had arrived by “2005 or 2006 although there was some suggestion at the hearing of this appeal that the time in question may have been earlier”. On the same topic it is suggested at para. 4.15 that it might “have been possible that such a review might have occurred two or three years earlier” with the reference to a review being a review using the new technology in question. It is clear that the ultimate decision to go ahead with a final attempt to find DNA samples was taken in early July 2009. It was, in fact, accepted in cross-examination that the relevant technology was available in Dublin from 2005 although the precise date in that year was not given in evidence. It follows that it would be more accurate to speak of the relevant technology as having been available in Dublin from 2005 rather than stating that it was available from 2005 or 2006 and it would also be accurate to state that the technology concerned was available three or four years earlier (depending on the time in 2005 from which it would have been available) rather than two or three years.
5.2 It should also be recorded that it was accepted in evidence before the High Court that the technology in question may well have been available outside Ireland from an earlier period, perhaps as far back as 2001.
5.3 It must also be recorded that the general presentation of the documents, materials and evidence and the focus of the argument at both the hearing leading to the prohibition decision and also at the hearing leading to the damages judgment did not reflect the detailed focus on the precise issues of fact raised on this application. It might have been thought that, had those matters been considered to be of particular materiality to the assessment which the Court was being invited to make, same would have clearly featured in the presentation of the case.
5.4 Be that as it may, it is necessary to record, therefore, that the statements contained in the damages judgment concerning the time when the relevant technology became available are not fully accurate. In summary, it would first have been better to describe separately the time at which the technology became available in Dublin and the time at which it might have been available outside the jurisdiction. In the former case, it would have been more accurate to describe it as having been available in 2005 as opposed to “2005 or 2006” and it would have been accurate, therefore, to describe it as having been available three or four years before it was actually deployed in the final cold case review of Mr. Nash’s case rather than the two or three years as appears in the damages judgment. In addition, it would have been more complete to record that the technology was available in other jurisdictions some three or four years earlier than it had become available in the forensic science laboratory in Dublin.
5.5 Having therefore identified two matters in the judgment which were not fully accurate, I am more than happy that the correct position should be recorded both in respect of the location of the button and thread during the period between the initial investigation and the final examination, and also the timing of the availability of the relevant technology.
5.6 On that basis it is necessary to turn to the question of whether those corrections require any change to be made to the overall assessment reached in the damages judgment to the effect that there was no culpable delay.
5.7 As indicated earlier, I am in full agreement with the views expressed by O’Donnell J. as to the legal framework within which any potential reopening of a final judgment of this Court should be approached. As O’Donnell J. points out, the fact that there may have been even a material error in a final judgment of this Court does not, in and of itself, and having regard to the constitutional principle of legal certainty, require that the final order of this Court must necessarily be revisited. However, given that the issue has been raised, and given that the damages judgment was a judgment of my own, I feel it appropriate to comment on whether any of the factual questions addressed would, in fact, have altered the proper assessment of the question of whether there was culpable delay.
6. Do the Factual Corrections Change the Assessment?
6.1 I propose dealing with the two factual matters identified separately. I should first say that I am strongly of the view that the correction to the facts surrounding the location of the button and thread during the relevant period could have no material effect on the overall assessment of culpability. It should firstly be pointed out that the forensic science laboratory is, by statute, and for important reasons of policy, independent of An Garda Síochána. The decision to conduct a cold case review is ultimately one to be taken by the police authorities. The forensic science laboratory carried out each of the tests which they did at the request of An Garda Síochána. It is impossible to see that it made any difference in practice that some of the materials which ultimately yielded results were, for the relevant period, in the custody of the forensic science laboratory as opposed to being held as potential evidence by An Garda Síochána. In one case, if a decision to conduct a cold case review including further forensic investigation was taken, it would be necessary simply to ask the forensic science laboratory to conduct the tests. In the other case, it would be necessary to bring the materials to the forensic science laboratory for testing. But, in the context of any question of delay, that is a difference which is wholly immaterial. I cannot see, therefore, how the fact that it may be appropriate to correct the record by making clear that the description of where those materials were during the relevant period, as set out in the damages judgment, is not accurate, could be said to make any difference to the result.
6.2 So far as the timing at which the relevant technology became available is concerned, it is true that the technology in question was available in Dublin for approximately one year more than described in the judgment and was available in other jurisdictions for, perhaps, four years before that. But it is important, in that context, to return to the ultimate reasoning behind the finding of lack of culpable delay which is to be found in the damages judgment.
6.3 At para. 4.14 it is made clear that the reasoning in question is based on the fact that “This was a cold case which was looked at again from time to time”. It is noted that on one occasion improved technology permitted results to be derived from further testing. It is true that it must now be accepted that it might have been possible to conduct that testing in Dublin perhaps one year earlier than is recorded in the judgment and that it might, in theory, have been possible to send the materials for testing to some other jurisdiction for a period of time before that. However, none of that takes away from the fact that this was a cold case and that there was no particular reason why any of the investigating gardaí could have expected that there was a particular likelihood that further testing, in the light of improved technology, might yield results.
6.4 It is in that context that the first of the samples issues analysed earlier is of some relevance. There was no blood or other samples of human material sitting, either in the forensic science laboratory, or in the custody of An Garda Síochána, during the relevant period. What was available, in part in the forensic science laboratory, and in part in the custody of An Garda Síochána, was an item of clothing (or, in the case of the forensic science laboratory, a button and thread taken from the item of clothing) from which it ultimately proved possible to obtain human material capable of generating a DNA profile.
6.5 There are, at any given time, many unsolved cases on the books of An Garda Síochána. There is, in the common law system, no legal formality as to when an investigation can be said to have commenced or be closed. Legal formality only arises in the context of the gathering of evidence by compulsion (including the arrest of persons for questioning) or by persons being formally charged with offences. But at all other times crimes are simply potentially under investigation and every such case which may have gone cold cannot realistically be the subject of constant review. It was that analysis which led to the conclusion of no culpable delay in the damages judgment. I do not see how, in the light of that reasoning, the fact that the technology might have been available a little earlier in Dublin and for a longer period elsewhere, affects the assessment.
6.6 I would not, therefore, consider that any legitimate basis has been put forward for suggesting that a different conclusion could have been reached. That being said I am happy that the record should be corrected in the manner identified in this judgment.
6.7 I should not leave this judgment without commenting on one matter set out in the affidavit sworn by Mr. Nash’s solicitor in grounding the application to which this judgment is directed. At para. 15 it is asserted that “a DNA sample was on file in the forensic science laboratory since 1998”. It does need to be recorded that that statement is simply untrue. It is correct that there was a button and some thread in the forensic science laboratory since 1998. It is true that it subsequently transpired that those materials contained a miniscule amount of DNA which proved, in the light of improved technology, to be capable of yielding a DNA result. But there was no known DNA sample held in the forensic science laboratory between 1998 and 2009. Nor was there evidence to suggest that there were indications visible to the eye or learned from previous investigations which would have suggested that such samples were there. It follows that it is a very significant overstatement of the facts to suggest that “there was a DNA sample on file” during the relevant period.
7. Conclusions
7.1 For the reasons identified earlier in this judgment, I would propose to correct the damages judgment in the following manner.
(a) By deleting the second and third sentences in para. 3.11 and replacing them with the following:-
“Since the time of the initial investigation into the Grangegorman murders, a button and thread had been retained by the forensic science laboratory but the jacket from which that button and thread had been obtained (being Mr. Nash’s jacket) had been separately retained by An Garda Síochána. In the context of a case review, the jacket was returned to the forensic science laboratory and tests involving new technology were applied both to the retained button and thread and to other aspects of the jacket.”
(b) By amending the second sentence of para. 4.11 by deleting all of the words after “2005” and replacing them with “in Dublin”. Furthermore, an additional sentence should be added at that point stating as follows “That technology was available in certain other jurisdictions for approximately four years before that time”.
(c) By amending para. 4.15 in the last sentence by changing “two or three years” to “three or four years” and by adding after the word earlier “or, indeed, at an even earlier time if the materials had been sent outside the jurisdiction for investigation”.
7.2 For the reasons set out in this judgment, I would not propose making any further amendments and, in particular, do not believe that it is necessary to make any amendments relating to the issues raised in relation, in particular, to paras. 3.10 and 3.11 concerning “samples”.
7.3 Having made the corrections referred to above, however, I am not satisfied, again for the reasons set out in some detail in this judgment, that those corrections alter the overall assessment as set out in the damages judgment which was to the effect that there was no culpable delay. I have indicated my agreement with the judgment of O’Donnell J. as to the legal framework within which applications to revisit final orders of this Court should be approached. However, for the reasons set out in this judgment, I would go further and indicate that the errors of fact identified would not, in any event, lead to any different conclusion on the question of culpable delay. I would not, therefore, propose that any order should be made other than to identify the corrections previously mentioned.
Judgment of Mr Justice Charleton delivered on Thursday the 13th of July 2017
1. In concurring with the judgments of O’Donnell J and Clarke J, it is necessary to offer some limited observations. The motion before the Court identifies my judgment of the 29th of January 2015 as the source of one of the alleged errors now complained of; that the tiny samples from the jacket of Mark Nash were not in the Forensic Science Laboratory immediately before these were tested to find an exact correspondence with the DNA of the two murder victims but had to be brought there from storage in a Garda station.
The written submissions of Mark Nash
2. The purpose of written submissions is to highlight for an appellate court the points which a party appealing a judgment of a trial court considers significant to the outcome. These will be related to the grounds on which an appeal is advanced. Hence, stating with precision the point in issue as a matter of law is of assistance but so also is giving the facts upon which that submission is argued to potentially succeed. When it comes to oral argument, this is useful in again directing focus on a point and on why it is claimed to be a point on which the appeal should turn.
3. At this late stage of the case, it is claimed that a small error occurred in my earlier judgment. That judgment was written on the basis of the materials before this Court on appeal and was also directed to the questions which extensive oral argument on behalf of Mark Nash had proposed as decisive to the outcome of that appeal. The written submissions of Mark Nash were dated the 7th of November 2013. These say little about what is now claimed to be a crucial point: the origin of the sample that was tested after several other samples had earlier been tested to destruction in an attempt to find out was there any connection that might be established beyond reasonable doubt to the effect that Mark Nash’s clothing had been stained by DNA from the two murder victims at this most bloody scene of violence. During this appeal it was even objected on behalf of Mark Nash that it would be conjecture to describe the samples finally tested and yielding DNA as “blood stains”; this despite there being no evidence of how any other human tissue could ever have ended up on the clothing of Mark Nash during the assault which ended the lives of the two ladies in the Grangegorman facility.
4. These written submissions of Mark Nash deal with the factual background to the case, including the ostensible confession of another individual to the murders, that is Dean Lyons, the unavailability of witnesses, adverse pre-trial publicity, the right to a fair trial, the principles of expedition and an analysis of the law on damages.
5. Under the part of those written submissions which deal with delay and under the heading related to the availability of forensic evidence, the submissions for Mark Nash claim that “there was very little activity in respect of the investigation of the appellant’s potential connection with the murders for most of the period between 1998 and 2009.” The submission states that though some examination took place “in 2004, nothing with a potential to link the appellant with the murder was examined.” This was an assertion that the prosecution challenged, in my view correctly. Reference is made to what is asserted to be a decision to re-examine aspects of the case in 2007. It is then claimed that the “decision to re-examine the jacket appears to have been taken, not in the context of the investigation, but because a further set of judicial review proceedings had been commenced by the appellant and it was incumbent on the respondent to demonstrate … that it was not unreasonable” that Mark Nash be refused his application to transfer his imprisonment back to England under the transfer of prisoners legislation. As to when the technology became available whereby tiny stains might yield DNA inside the cuff of a garment and on the thread of a button has been the subject already of detailed analysis in the judgment of Clarke J.
6. In the written submissions on behalf of Mark Nash of the 7th of November 2013 there are several references to the jacket. These submissions state that the jacket was in Garda custody. The submissions do not state that the jacket was at all times in the Forensic Science Laboratory, the point that is now urged to be of importance. A garment consists of parts. A jacket has sleeves, cuffs, threads in lining and in holding on buttons, and a collar. All are part of the jacket. If it is proposed, as it now is, to differentiate the thread under buttons from the jacket, or the inner lining or part of the inner cuff of the sleeve from the jacket, that should have been then stated. In the written submissions, however, no such distinction was drawn. These submissions were not accepted by the prosecution and are considered here solely in the context of whether there was any argument put forward as to the importance of where the jacket was or whether there was any difference urged as between the jacket and any of its ordinary component parts. References, in fact, in the written submissions on behalf of Mark Nash are to “the jacket” of Mark Nash. It is useful to set out the various references in those written submissions on behalf of Mark Nash that preceded my judgment:
…further tests were carried out on the appellant’s jacket (in Garda possession since 1997 but not re-examined over the intervening 12 years) resulting in an alleged DNA link being made between the appellant and the Grangegorman murders. [Paragraph 7]
…between 1998 and 2009 no forensic review involving the appellant’s jacket was carried out despite the fact that it was in Garda possession throughout this period. [Paragraph 8]
…there were sporadic meetings (about 4 in number between 2004 and 2009), ultimately the decision to re-examined the jacket appears to have been taken, not in the context of the investigation, but because a further set of judicial review proceedings had been commenced by the appellant… [Paragraph 9]
…a purported DNA link made after such a period of time on a jacket which had previously been tested negative for blood samples and in respect of which questions arise in relation to chain of custody and storage in the intervening period (noting that exhibits were kept in Assistant Commissioner Byrne’s office in a series of Garda stations in the intervening years). [Paragraph 48]
The appellant has been in Garda custody since 1997 and they have been in possession of the jacket upon which the supposed DNA evidence was found since 1997.
…whilst further tests were discussed at intervals at meetings held sporadically and infrequently, the jacket was never tested throughout the intervening years until September 2009… [Paragraph 49]
7. As to what was done and when, and as to how technology had developed to enable DNA testing on tiny residual samples, as opposed to large blood stains etc, is correctly set out in the judgment of Clarke J and in my previous judgment in this case. What the above demonstrates is that the written submissions on behalf of Mark Nash: (a) did not suggest that any part of the jacket of Mark Nash was to be considered apart from the garment as such; (b) that any part of the jacket was stored in any place other than in Garda custody; (c) positively suggest that the jacket was at all times in Garda custody under the control of Assistant Commissioner Byrne; (d) does not suggest that the jacket was, or any component part of the jacket was, in any other place and in particular; (e) does not suggest that the jacket or any piece of it was in the Forensic Science Laboratory.
The judgment
8. Thus, my judgment refers to the Garda having that jacket in their custody. That is what the Court was told in writing. Further, knowledge of the actual practice of how samples are dealt with, which comes over many years of practice in the criminal courts, demonstrates two things. Firstly, samples – hair, clothing, blood, prints, parts of vehicles, potential weapons – are indeed collected during police work and are sent to the Forensic Science Laboratory for testing as to those samples which detective analysis suggests might yield a useful result in the investigation of crime. The results of tests are notified by the laboratory and then samples are returned to police custody. It is the job of the police to retain and to produce samples in court and to establish that the sample produced is the sample taken at the scene or from the accused. Hence, the police retain or regain custody for the trial process. No one ever said on the appeal in this case that led to my earlier judgment that this was different. In fact, in express terms the submissions on behalf of Mark Nash said, or implied, that it was the same. Secondly, analysis or reanalysis occurs through interaction between the police the forensic science service. I had never heard of an independent decision being taken in the Forensic Science Laboratory to take out samples, supposing any were there in their actual custody, which cannot be supposed, without first being directed to do so by the police or without that suggestion having been made by the police.
9. One then comes to the relevant passages in my judgment. These reflected what the Court had been told on this appeal. At paragraph 7, a chronology begins which is completely accurate. That states that:
…the murder charge against Dean Lyons was dropped by the prosecution. Later that year, in the Forensic Science Laboratory, a very small stain was found on the jacket of Mark Nash but it may then have represented too small a sample to test successfully. Testing also destroyed some samples. Some threads and buttons were forwarded for specialist DNA examination to a forensic science institute in the United Kingdom, but with no result. In October of that year, Mark Nash was tried with the other Roscommon murders and he was convicted, as indicated. This resulted in a lengthy sentence, nominally one of life imprisonment.
10. Paragraph 9 then deals with the interactions with Dean Lyons, who had confessed in the wrong to these murders, and says:
Dean Lyons was visited by an officer of An Garda Síochána prominent in the investigation of the Grangegorman murders. Apparently as a result he was now willing to become a witness for the prosecution; presumably to rule out any credibility attaching to his apparent confession. Only a few weeks later, on 12th September, Dean Lyons died, apparently in consequence of his ongoing troubles with addiction. With developments in DNA profiling, a new extraction technique called low copy number (“LCN”) profiling became available. When Mark Nash’s first application for transfer to a prison in Britain had been refused, he initiated an unsuccessful judicial review application seeking to overturn that decision in July 2001. In May 2003 one of the buttons from the jacket mentioned earlier was tested as being a hopeful source of LCN profiling but, it seems, with negative or insufficient results. In March 2004 there was a cold case review involving An Garda Síochána and the Forensic Science Laboratory. Inherent in all of this was the view that Mark Nash could not be tried for these offences unless something was uncovered that would make a case weakened by what was considered by some gardaí to be the wrongful confession of Dean Lyons much stronger. In November 2004, a High Court judgment on the judicial review application refused to overturn the administrative decision by the prison authorities not to transfer Mark Nash to England. That judgment also noted that the excuse for not doing so, being that the cold case review was ongoing and that there was hope of a development, could not continue indefinitely. That same month, Mark Nash again applied for a transfer to serve out the remainder of his sentence across the Irish Sea.
11. Paragraph 11 then sets out how the samples had been tested so that a connection was established between the two women victims and Mark Nash. That paragraph states:
In February 2009, a meeting between gardaí and forensic scientists came to the view that all the forensic tests that were available in Ireland had been completed but that it might be possible to pursue the most up-to-date DNA comparison techniques in another jurisdiction. In March of that year, the Department of Justice in the course of correspondence, apparently over the prisoner transfer issue, stated that the investigation was continuing and that this new area of DNA comparison had been “identified and is being pursued.” Mark Nash then initiated a further judicial review in relation to the refusal of his prison transfer application. Then in June a number of exhibits were brought back to the Forensic Science Laboratory for further investigation. That July, on the 16th, buttons and thread from the jacket of Mark Nash apparently developed a DNA profile matching the victim Sylvia Shiels. The jacket itself was re-examined and the seam of the right sleeve was opened. A DNA profile matching the victim Mary Callinan apparently emerged on the 24th of September. Matters moved swiftly on the receipt of the relevant scientific reports. That October members of the investigating team met. On the 10th October, on the direction of the Director of Public Prosecutions, Mark Nash was charged with the double murder at Grangegorman. The book of evidence was served that December. In the prisoner transfer application, opposition by the State was based upon the new developments.
Conclusion
12. It will be noted that this paragraph in my prior judgment in this case says that “a number of exhibits were brought back to the Forensic Science Laboratory” to be investigated. That was consistent with the written submissions of Mark Nash. That judgment also states that this was, as is the procedure, in the context of scientific and police personnel liaison. In addition to this small point, all of the points made at the oral hearing are also covered in the judgment, in addition to those in writing, including the point which dominated the oral hearing which concerned some prayer cards of a religious sect. Hence, I do not accept that there was any mistake made in the context of the submissions advanced on behalf of Mark Nash.