The Court of Appeal has refused Eileen Daly’s request to reopen a judgment dismissing her appeal in a dispute involving Allied Irish Banks and a tenancy created without the bank’s consent. It awarded the bank the costs of the appeal and left unchanged the High Court’s order limiting Daly’s responsibility for costs to those incurred after she entered the proceedings.
The court delivered its substantive appeal judgment on 22 December 2022 and invited written submissions on costs. Daly’s submissions criticised that judgment and appeared to invite the court to reconsider the case, but she had not brought a formal application to reopen it.
The court said a party seeking to reopen a concluded case must meet a very high threshold: a clear and significant breach of fundamental constitutional rights going to the root of fair and constitutional justice. It concluded Daly had not come close to meeting that threshold.
Daly argued that the court had misunderstood her appeal, including her position on the Residential Tenancies Act 2004. The court said her grounds of appeal had included an argument that the High Court judge failed to interpret the Act correctly in a way that would protect her property rights. It added that addressing an argument unnecessarily would not affect the rest of a judgment.
The court also rejected her criticism of its treatment of new arguments raised for the first time on appeal. It said it had declined to hear those arguments and had not decided them on their merits. Disagreement with that conclusion, it said, was not a basis to reopen the case.
Daly repeated that she had been prejudiced because documents were not served on her at the outset. The court referred to its earlier treatment of that issue and rejected her complaint about not cross-examining a witness. It said she was legally represented at the hearing and that no application to cross-examine had been made. Decisions about litigation strategy, including whether to seek cross-examination, were for a party and her legal advisers, not the judge.
The court also compared Daly’s costs submissions about not knowing where the landlord was living in London with an affidavit she swore in November 2020. In that affidavit, she said she had located Richard Finbar Fitzgerald in the UK and intended to obtain an affidavit from him after restrictions were lifted. The court noted that the appeal was not heard until March 2022 and that no later affidavit or other indication had been given that she could not locate him.
Applying the usual costs rule for a party entirely successful in civil proceedings, the court said the case raised no general public issue warranting a departure from that rule. It ordered the costs of the appeal in favour of the bank, which had succeeded entirely. The High Court’s costs order remained in place: Daly was responsible only for costs arising after she joined the proceedings.