Judgment: 2023-05-12 · Court archive

Court of Appeal refuses leave to challenge its dismissal of Kehoes’ appeal

The court said the earlier judgment had dealt with the linked requests for an adjournment and permission to file a further affidavit.

Court of Appeal · [2023] IECA 116

Who, what, where, when and why

Who
  • Una Kehoe (Plaintiff)
  • Harry McCullagh
What

The court said the earlier judgment had dealt with the linked requests for an adjournment and permission to file a further affidavit.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 30 March 2023

    The court had dismissed the appeal on 30 March 2023, and the order was perfected on 9 May. The Kehoes’ notice of motion, dated 24 April, sought leave under Practice Direction 14 to bring a further application.

Why

Reasons reported in the judgment

In a ruling delivered on 12 May 2023, Ms Justice Butler said the panel that had heard the appeal considered the proposed motion and a draft affidavit from solicitor Harry McCullagh. It concluded that a hearing on the merits of the intended application was not justified.

The Court of Appeal has refused Declan and Una Kehoe leave to apply to rescind or vary its judgment dismissing their appeal against a High Court case-management decision.

In a ruling delivered on 12 May 2023, Ms Justice Butler said the panel that had heard the appeal considered the proposed motion and a draft affidavit from solicitor Harry McCullagh. It concluded that a hearing on the merits of the intended application was not justified.

The court had dismissed the appeal on 30 March 2023, and the order was perfected on 9 May. The Kehoes’ notice of motion, dated 24 April, sought leave under Practice Direction 14 to bring a further application.

The ruling explained that the Court of Appeal’s decisions are generally final and conclusive, subject to limited routes of appeal. It said the court has a wholly exceptional power to review a final decision where an applicant establishes a fundamental denial of constitutional justice. That power carries a very heavy burden and cannot be used to revisit the merits or introduce newly discovered evidence.

The Kehoes’ central complaint was that the earlier appeal judgment did not expressly decide whether they should have been allowed to file a supplemental affidavit, or give reasons for refusing that part of their appeal. They argued that the judgment criticised gaps in their evidence even though further evidence might have been available had their appeal succeeded.

Ms Justice Butler rejected the complaint. She said the request to file a further affidavit was tied to the request for an adjournment, because filing it would have required postponing the scheduled hearing. The earlier judgment set out the procedural history and the High Court judge’s reasons for refusing an adjournment, including that the plaintiffs were not entitled to delay a listed matter to address evidential deficiencies identified by the defendants.

The Court of Appeal had rejected the appeal on grounds including mootness, because the appeal had proceeded on its scheduled date, and the significant discretion given to a judge managing a court list. The ruling said the earlier judgment also relied on a similar decision in *Hanrahan v Minister for Justice*.

The court said the Kehoes had had a full opportunity to file affidavit evidence in response to the defendants’ application. They were not entitled to add evidence to meet points raised in the defendants’ written legal submissions. The panel refused leave to make the proposed application and directed the Registrar to notify the intending applicant.

Read the original court judgment

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