The Supreme Court has dismissed businessman Dermot Desmond’s appeal against a High Court decision striking out his claim to set aside judgments delivered in 2003 and 2004.
The claim alleged that an affidavit submitted on behalf of the sole member of the Tribunal of Inquiry into Payments to Politicians and Related Matters contained misleading, inaccurate statements and omissions. Desmond argued that the evidence concerned legal advice about changes to the ownership of the ESAT Digifone consortium and had affected the courts’ earlier decisions on his challenge to the Tribunal’s use of the Glackin Report.
The earlier judicial review proceedings arose from the Tribunal’s questioning of witnesses about that report, which concerned property transactions linked to Desmond. The High Court and, on appeal, the Supreme Court had refused his request for relief. They concluded that the report could be relevant to the Tribunal’s inquiry and that Desmond was not entitled to advance notice each time it would be raised.
In 2010, Desmond began proceedings seeking to have those judgments set aside. He relied on alleged fraud and, alternatively, a fundamental breach of fair procedures. The High Court struck out the claim in 2012. Desmond appealed that decision.
In a judgment delivered on 27 July 2018, Mr Justice William McKechnie said that setting aside a final judgment for fraud required an allegation of deliberate and purposeful dishonesty, or knowing and intentional deceit of the court. Recklessness about whether statements were true or false did not meet that threshold. Desmond had disavowed alleging deliberate dishonesty, so his pleaded case could not satisfy this requirement.
The court also found that the alleged statements and omissions would not have affected the earlier judgments in a fundamental way. It considered that the courts would likely have reached the same conclusions given the Glackin Report’s public status, the Tribunal’s terms of reference and the discretion afforded to tribunals of inquiry.
On the alternative ground, the court held that the exceptional jurisdiction to set aside a final judgment for breach of fair procedures applies to failures by the court itself, not alleged unfair conduct by another party to the proceedings. Desmond had not alleged a breach by either court in the earlier proceedings.
The Supreme Court therefore upheld the High Court’s decision and dismissed the appeal. It did not reopen or set aside the 2003 or 2004 judgments.