The High Court has refused Richard Conway and Rose (otherwise Rosaline) Conway’s application to set aside a 2020 possession order, finding it had no jurisdiction to reopen the final order after the Supreme Court refused leave to appeal. The court also found that the couple had not established a basis for setting the order aside on grounds of alleged bias.
The application concerned a High Court order made on 31 January 2020, which dismissed the Conways’ appeal against a Circuit Court possession order for a property at 33 Highfield Downs, Swords, Co. Dublin. The Supreme Court refused leave to appeal in May 2020. In May 2023, the Conways applied to set aside the High Court judgment, alleging an undisclosed business connection between the lender, Pepper Finance Corporation (Ireland) DAC, and the judge who heard their appeal.
The Conways argued that records relating to the judge’s former law firm suggested an ongoing financial connection, and that the firm had acted for Pepper. The judgment records that there was no evidence the judge personally acted for Pepper or that his former firm had any involvement in the Conways’ case. The court also noted that the possession order had been upheld by the Circuit Court and High Court, and that the Supreme Court found no basis to conclude the High Court judge had erred.
Justice Siobhán Phelan said Order 124 of the Rules of the Superior Courts did not provide jurisdiction to set aside a final order in proceedings concluded more than five years earlier. She also concluded that one High Court judge could not sit in appeal over another judge’s final decision after the Supreme Court had refused leave to appeal. The court said the application sought to reopen issues already decided.
The judge considered the bias allegations as an alternative, in case an exceptional jurisdiction to set aside the order existed. She found that the records relied on by the Conways did not establish a reasonable apprehension of bias or a fundamental denial of justice. The judge noted that the former firm’s records raised questions that might prompt further enquiry, but said they did not show that the judge remained a partner or had an ongoing financial interest when he heard the appeal.
Mars Capital Finance Ireland DAC had applied to join the proceedings following a purported transfer of Pepper’s interest in the charge. The judge joined Mars as a co-plaintiff so it could be heard opposing the set-aside application. She stressed that this was a procedural decision and did not determine whether Mars could enforce the possession order. Any request by Mars for leave to execute, and any challenge to the transfer in that context, would be for the Circuit Court. The court refused the Conways’ application to set aside the order.