The Court of Appeal has refused Brendan Kirwan’s application to review and set aside its judgment dismissing three appeals, ruling that the application did not meet the high threshold for reopening a final decision.
The ruling, delivered on 18 May 2023 by Woulfe, Power and Binchy JJ, followed a review of the papers under the court’s Practice Direction CA14. The court said a review of a final judgment is an exceptional jurisdiction, requiring a substantive issue of constitutional justice and an objectively demonstrated denial of justice.
The underlying appeals concerned orders striking out proceedings brought by Mr Kirwan. The court had dismissed the appeals in a judgment delivered on 26 October 2022. Those appeals related to the striking out, for inordinate and inexcusable delay, of proceedings begun in 2013 over a disputed 2006 property agreement; amendments to a High Court order under the “slip rule”; and a consequential order striking out separate 2012 proceedings as frivolous or vexatious and/or bound to fail.
Mr Kirwan’s December 2022 application alleged, among other things, that the earlier judgment failed to address claims of fraud, forgery and perjury, and that motions and documents had been withheld or interfered with. The court noted that the application’s supporting affidavit was sworn by his son, Barry Kirwan, without permission to do so, and that no evidence of Brendan Kirwan’s legal incapacity had been provided. The court nevertheless considered the application.
The judges concluded that the allegations about the 2006 transaction went to the merits of the underlying case, which were not being decided in the appeals. The appeals concerned delay, the excuses offered for it and the balance of justice. The court said it had made no finding on the transaction’s merits or on the authenticity of documents related to it.
On motions said to remain unheard, the court found that the papers for motions dated 11 and 18 May 2021 were not properly filed and had not been before the appeal panel. An April 2020 motion and related affidavit were among papers received, but the court had already found they were not properly before it because leave had not been obtained, and that they were not relevant to the appeal issues. It rejected the contention that these matters justified reopening the judgment.
The court dismissed the review application. It noted that Mr Kirwan remained free to seek leave to appeal to the Supreme Court and had been successful in that application. The ruling did not decide the truth of the allegations concerning the property transaction.