The Supreme Court has refused Michael Colin Geoffrey McMullen’s application to introduce documents as fresh evidence in his appeal against a High Court decision, and declined to order further examination of solicitor Pamela Madigan. It extended the time for filing his books of appeal and certificate of readiness to 28 January 2013.
In a judgment delivered on 15 November 2012, Chief Justice Denham said the documents were available to McMullen before the High Court hearing and therefore did not meet the legal test for fresh evidence. The Court also found they were irrelevant to his claim against solicitor Giles J. Kennedy, which concerned alleged acts in April 1989.
The underlying proceedings arose from McMullen’s claim that Kennedy, practising as Giles J. Kennedy & Co., had used undue influence, improper incentives and coercion in connection with evidence given by senior counsel Noel Clancy in litigation concerning McMullen’s former solicitors, Kent Carty. Those matters were allegations by McMullen, not findings made on this motion.
McMullen sought to rely on documents including correspondence, a March 1987 cheque requisition for IR£2,000 in favour of Clancy, and a costs bill extract. He alleged that the payment was made without his knowledge or permission and argued the documents supported his case. Kennedy’s side submitted that the documents had been available to McMullen, including through discovery in earlier litigation, and did not satisfy the legal test for admission.
The Court said the cheque requisition originated from Kent Carty and had been disclosed to McMullen in earlier litigation in 1990. It said the allegation about the cheque had not been investigated at trial and could not become an issue in this appeal between McMullen and Kennedy. Even if the allegation were correct, the document failed the applicable test for fresh evidence, the judgment said.
The Court also refused McMullen’s request to have Madigan further examined. It allowed an extension for the appeal documents to be filed, setting the new deadline at 28 January 2013. The judgment concerned these applications in the appeal; it did not determine the underlying allegations on their merits.