The High Court has allowed Roy Beattie to introduce fresh affidavit evidence in his appeal from a Circuit Court judgment and orders sought by Wicklow County Council under section 160 of the Planning and Development Act 2000.
Mr Justice Max Barrett made the order on 17 May 2018. The application was brought under Order 61, rule 8 of the Rules of the Superior Courts 1986, as amended, and/or the court’s inherent jurisdiction. It concerned a proposed affidavit from Mr Beattie’s planning adviser, Mr Taylor.
The Circuit Court heard the Council’s application on 29 and 30 June 2017 and gave judgment on 30 June. At the start of the hearing, Mr Beattie sought an adjournment to allow Mr Taylor to prepare a replying affidavit to a Council affidavit received the previous day. The Council’s affidavit was initially admitted and the proceedings adjourned. After further submissions by the Council, it withdrew that affidavit, and the Circuit Court directed that the hearing proceed immediately.
During submissions, the Council’s counsel referred to factual matters contained in the withdrawn affidavit, over objections from Mr Beattie’s counsel. The Circuit Court’s judgment later referred to some of those matters.
Mr Beattie argued in the High Court that the proposed reply would have been prepared for the adjourned hearing and would probably have had an important, possibly decisive, effect in his favour. The judge distinguished the application from earlier cases involving evidence that could have been obtained before trial, evidence unknown despite no lack of diligence, or events occurring after trial.
The court noted that Mr Beattie had sought time to prepare a reply, that the need for it disappeared when the Council withdrew its affidavit, and that the factual points the reply was intended to address were then raised in submissions and demonstrably affected the Circuit Court’s judgment. In those particular circumstances, Mr Justice Barrett said that a sense of justice favoured allowing the evidence.
The order grants the application to admit the proposed fresh evidence on appeal. The judgment does not determine the underlying appeal or state its outcome.