The Court of Appeal refused Peter McNicholas’s application to introduce new evidence in his appeal over a High Court judgment ordering him to pay solicitor Douglas Kelly €150,000 in fees. It separately permitted McNicholas’s son-in-law, Alan Lynskey, to speak on his behalf at the appeal hearing because medical evidence showed McNicholas was physically incapable of presenting his own case.
The ruling, delivered by Ms Justice Irvine on 12 October 2018, concerned an appeal from a High Court order made on 17 July 2014. Kelly had brought summary proceedings to recover fees for legal services provided to Peter and Nancy McNicholas between 2001 and 2009. He had claimed €245,016.94. The High Court granted judgment for €150,000 plus costs and sent the balance of the claim to a plenary hearing.
The fees arose from legal work connected to the McNicholases’ unsuccessful proceedings against Mayo County Council and SIAC Wills J.V. Limited. Those proceedings concerned the construction of the Charlestown N5 bypass, compulsory purchase of land and access to their property. McNicholas alleged that Kelly had been negligent, including over whether an accommodation road was part of the proposed development. Kelly disputed the application to admit further evidence, arguing that the material had been available earlier and that using it would turn the appeal into a fresh hearing.
Under the applicable court rule, further evidence on an appeal from a final judgment could be admitted only on special grounds and with the court’s special leave. The judgment applied a test requiring, among other things, that the evidence could not have been obtained with reasonable diligence for use at trial.
Justice Irvine found that McNicholas’s application failed that test. She said the evidence was available before the fee proceedings began and could have been obtained with reasonable diligence before the High Court’s 2014 hearing. She also noted that McNicholas knew the matters he wished to raise and had access to the solicitors’ file. The Court of Appeal’s role was to review the High Court decision on the evidence before it, not to conduct a new hearing based on evidence that could have been presented earlier. The application to admit new evidence was refused.
The court granted the separate request for Lynskey to speak for McNicholas. It took account of medical evidence about McNicholas’s serious conditions, including multiple sclerosis, and his inability to present his own appeal. The judgment noted that Lynskey had previously assisted him in the High Court and had been allowed to represent his interests in the earlier Supreme Court appeal concerning the bypass proceedings.