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You are here: BAILII >> Databases >> Irish Court of Appeal >> Gaultier v The Registrar of Companies (Approved) [2025] IECA 58 (07 March 2025) URL: http://www.bailii.org/ie/cases/IECA/2025/2025_IECA_58.html Cite as: [2025] IECA 58 |
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Approved
No redaction needed
THE COURT OF APPEAL
Neutral Citation Number: [2025] IECA 58
Record Number: 2023/298
Faherty J.
Allen J.
O'Moore J.
BETWEEN/
ARNAUD D. GAULTIER
APPLICANT/
APPELLANT
- AND -
THE REGISTRAR OF COMPANIES
COMPANIES ACTS 1963-2009
RESPONDENT
-AND-
LOIRE VALLEY LIMITED
NOTICE PARTY
JUDGMENT of Ms. Justice Faherty delivered on the 7th day of March 2025
1. This is Mr. Gaultier's (hereinafter "the appellant") appeal against the judgment of Barr J. (hereinafter "the Judge") of 28 July 2023 ([2023] IEHC 451) (hereafter "the substantive judgment" or "the 28 July 2023 judgment") granting leave to the Registrar of Companies (hereafter "the respondent") to issue execution of the order of the High Court (Dunne J.) of 8 March 2013, and the subsequent ruling of Barr J. of 25 October 2023 ([2023] IEHC 613) refusing to reopen the substantive judgment and the award to the respondent of her costs.
Background
2. On 6 July 2012, the appellant issued judicial review proceedings challenging the decision of the respondent to strike off the notice party Loire Valley Limited (hereafter "the Company") from the Registrar of Companies and dissolve it, for the failure on the part of the Company to file accounts over a number of years.
3. By order of 8 March 2013, as perfected on 13 March 2013, the High Court (Dunne J.) refused the reliefs sought by the appellant in his judicial review proceedings and awarded the costs of the proceedings, and of a number of interlocutory applications relating thereto, to the respondent.
4. Efforts were made to agree costs but, ultimately, in the absence of an agreement on costs, the respondent pursued her costs and issued a summons to tax upon the appellant on 8 January 2015. The Taxing Master delivered his ruling on 28 April 2015. On 21 May 2015, the appellant filed written objections to the Taxing Master's decision. Following a hearing on 12 October 2015, the Taxing Master ruled on the matter on 16 December 2015.
5. The appellant sought a review of the Taxing Master's ruling pursuant to O. 99, r. 38 of the Rules of the Superior Courts ("RSC") and in a judgment delivered on 28 April 2017, the High Court (Faherty J.) rejected the appellant's application to have the taxation of costs remitted to the taxing Master.
6. On 28 June 2017, the Taxing Master issued a certificate of taxation, certifying that the respondent was entitled to the sum of €25,215.06 in respect of the judicial review costs and the interlocutory applications mentioned in the High Court order of 8 March 2013.
7. There being no response from the appellant after the respondent sought payment on foot of the certificate of taxation, on 16 October 2017, a FIFA was duly issued.
8. The appellant had however appealed the order of Dunne J. of 8 March 2013 to the Supreme Court (the appeal issued on 3 May 2013 same having been filed by the appellant on 11 April 2013).
9. The appeal was ultimately heard on 1 July 2019 by the Court of Appeal. On 23 July 2019, the Court of Appeal dismissed the appeal, and its order was perfected on 26 July 2019.
10. On 6 August 2019, the original FIFA was sent to the Sheriff's Office with a request that the Sheriff arrange to levy execution.
11. On 16 August 2019, the appellant lodged an application with the Supreme Court, seeking leave to appeal against the judgment of the Court of Appeal.
12. On 14 January 2020, the respondent's solicitors wrote to the Sheriff seeking the return of the execution order in circumstances where the appellant's leave application was in train.
13. On 20 January 2020, the Supreme Court refused the appellant's application for leave to appeal ([2020] IESCDET 2).
14. Some two years or so later, on 28 March 2022, the respondent issued her motion seeking leave to execute on the judgment and order of Dunne J. of 8 March 2013.
15. The respondent's application was grounded on an affidavit sworn on 22 March 2022 by Ms. Eileen Mulligan, a higher legal executive in the Office of the Chief State Solicitor ("CSSO"). Ms. Mulligan's affidavit outlined the history of the within proceedings much as I have already outlined above. She averred that the subsequent delay in bringing the within application before the court was occasioned by the impact of the significant and ongoing restrictions which had been implemented in the State to deal with the Covid-19 pandemic, which commenced soon after the Supreme Court determination had been handed down. She averred that at the date of the swearing of her affidavit, the sum of €25,215.06 and interest was still due and owing by the appellant to the respondent in respect of the costs of the judicial review, as certified by the Taxing Master.
16. The appellant swore a replying affidavit on 7 August 2022. Therein, he stated that the certificate of taxation and the bill of costs prepared by the respondent included consideration of a detailed report received from the Revenue Commissioners. He stated that such a report constituted an offence pursuant to s. 851A of the Taxes Consolidation Act 1997 and that counsel for the respondent had been informed of that on 22 June 2017 but had not sought to have the certificate of taxation amended, as the appellant claims he ought to have.
17. The appellant went on to allege that certain averments in Ms. Mulligan's affidavit constituted either hearsay evidence and/or were erroneous, and that Ms. Mulligan did not have capacity to prove or ascertain whether letters exhibited in her affidavit had been sent to or received by the intended recipients. The applicant averred that he had no recollection of receiving the letters exhibited at exhibits "A" and "D" to that affidavit.
18. At paras. 11-20, the appellant took issue with certain judgments of the High Court in relation to the within matter (namely the ex tempore judgment of Hedigan J. of 21 November 2012 and the judgment of Dunne J. of 8 March 2013). He also took issue with the judgment of McGovern J. which was delivered on behalf of the Court of Appeal on 23 July 2019 and the Supreme Court's determination which issued on 20 January 2020. All of these judgments and orders, it was said, were void ab initio due to the fact that each had failed to properly address substantive arguments that the appellant had raised in moving his various applications and appeals before those courts.
19. He further averred that that part of the order of Faherty J. of 28 April 2017 which relied on the order made by Dunne J. on 8 March 2013 (which the appellant alleged was void ab initio) also rendered the judgment of Faherty J. de facto void ab initio. The Supreme Court Determination too, the appellant claimed, was void, having failed to address his main arguments especially those which referred to his human rights.
20. In essence, the appellant alleged that each of the judges and courts which had determined various applications and appeals brought by him to date had acted in breach of his human rights by failing to adequately address the arguments he had made before them.
He averred that in those circumstances, he had not received a fair hearing and, therefore, on that ground as well, the judgments and orders were void.
21. At para. 21 of his affidavit, the appellant exhibited a document entitled "True Account of a Recent High Court experience". In that document, he set out details of the conduct of an unnamed judge towards a named lay litigant in another case, which the appellant regarded as being unfair and improper. He alleged that the alleged conduct was not reported in the media due, it was said, to an inappropriate alliance between journalists and the judiciary, such that the former were not prepared to criticise the latter. He stated that he had called for an investigation into judicial conduct generally, which he stated would lead to the removal from office of "the so-called State caretakers and State gatekeepers".
22. The appellant went on (at para. 23) to state that the judgments, determinations, and orders to which he had referred in his affidavit should be set aside, as soon as all judges had been removed from the bench of the Superior Courts and scrutiny of the judicial process had been ensured by severance of the ties between the courts and mainstream media and once judges could be held accountable before an independent and impartial body established by law.
23. The appellant concluded by asking the court to refuse the order sought by the respondent and to make an order granting him his outlay and expenses incurred in the defence of the respondent's motion. In the alternative, he requested the court to put a stay on the order sought by the respondent, until the conditions he had set out, namely the removal of judges; the severance of ties between the bench and journalists; and the establishment of an independent body before which judges could be held accountable, had been met.
24. On 18 October 2022, Ms. Mulligan swore a further affidavit in reply outlining, inter alia, that the respondent's application for leave to execute was not concerned with the merits of the proceedings same having been dealt with by the High Court on 8 March 2013, and that the appellant had appealed unsuccessfully against that order (para. 6). At para. 8, she averred that the appellant's arguments in his replying affidavit "appear to be an impermissible collateral attack on previous orders of the High Court, which [the appellant] has either had the opportunity to appeal, or against which he has unsuccessfully brought appeals, including to the Supreme Court". She averred that the appellant arguments were not relevant to the application that was before the court.
The High Court judgment of 28 July 2023
25. In his judgment the Judge set out the background to the case, and summarised the evidence adduced by the respondent and the appellant, and their respective submissions, including the appellant's submission that the respondent should accept on consent to have all the orders and judgments with which he took issue set aside, consent to the reinstatement of the Company onto the Register of Companies, and offer an ex gratia payment to the appellant of not less than €200,000. The Judge observed, however, that the substantive issue before him concerned the respondent's application pursuant to O. 42, r. 24 RSC for leave to issue execution on an order for costs made by Dunne J. on 8 March 2013 as perfected on 13 March 2013. He noted that the judgment and order of Dunne J. was appealed by the appellant to the Court of Appeal and that that appeal had been dismissed. He noted the appellant's unsuccessful application to the Supreme Court for leave to appeal. Thus, in the Judge's view, "the substantive matters in dispute between [the appellant] and the respondent have been finally determined in previous judgments and orders of the appellate courts" (para. 53).
26. Accepting the submission made on behalf of counsel for the respondent, the Judge stated that the only issues that were before the court were: whether the respondent had a judgment or order in her favour as against the appellant; and whether it was appropriate having regard to the delay that had ensued since the date of the order for costs, to grant the respondent leave to execute upon that order. He observed that in considering those issues, the court must also consider whether the appellant had demonstrated that he had suffered prejudice as a result of the delay on the part of the respondent in seeking to enforce the costs order.
27. After conducting a comprehensive analysis of the principles applicable to the making of an order pursuant to O. 42, r. 24 and applying those principles to the facts before him, ultimately, the Judge was satisfied to grant the order sought by the respondent. The correctness or otherwise of the decision to grant the respondent leave to execute is addressed below.
28. Being satisfied to make the order granting leave to issue execution, the Judge's preliminary view was that the respondent was also entitled to her costs. The parties were given four weeks within which to furnish brief written submissions in relation to the terms of the final order and on costs and on any other matter that may arise. The appellant's request, as made in his written submissions, for a stay on any order that the court may make, was refused.
Events post the High Court judgment
29. On 28 August 2023, the appellant emailed the Registrar of the High Court in the following terms:
"First of all, I would like to thank Mr. Justice Barr for his comprehensive judgment. Please find attached proposed amendment of the said judgment under the slip rules or otherwise.
Having just received the submissions of the Respondent in relation to costs today, I would request 4 weeks to reply to same and will request an oral hearing in relation to same. Indeed, as a result of the Ms. Justice Barr comprehensive judgment, I am now accepting to engage with his Court."
30. In fact, no attachment accompanied the appellant's email but upon this having been brought to his attention by the Registrar, the appellant sent on his proposed amendments under cover of an email of 29 August 2023. The attachment comprised a document which was a "tracked" version of the High Court judgment into which the appellant had inserted proposed amendments (highlighted in blue/red). By any logic, and contrary to the appellant's reference to the "slip rule", the proposed amendments were far removed from the type of amendments covered by O. 28, r. 11 RSC. The proposed amendments comprised, inter alia, adding sentences, altering the headings of sections, inserting comments (including comments about former judges), and including quotations from judgments, none of which were contained in the substantive judgment.
31. In tandem with the email and attachments he sent to the High Court Registrar, the appellant filed an affidavit on 28 August 2023 in which he averred that he had retrieved the scan of the proof of service on the solicitor for the respondent of his notice of appeal to the Supreme Court against the order of Dunne J. which, the appellant averred, "demonstrates that I served in person the Respondent with the said Notice of Appeal at 4.35pm on the 11.4.23". Exhibit "A" to this affidavit comprised a manuscript note which reads as follows:
"Notice of Appeal in Gaultier v. The Registrar of Companies (JR 612/212) received by Denise Buckley, CSSO, on 11/4/2013 @4.35pm."
32. At para. 3 of his affidavit, the appellant averred as follows:
"As the said above mentioned evidence contradict (sic) paragraph 13 of the Affidavit of M. Mulligan sworn on the 22.03.22 and confirmed my assertion at paragraph 7 of my replying Affidavit affirmed on the 2.08.22, I beg this Honourable Court to revisit/review his judgment delivered on the 28.07.2023 pursuant to the inherent jurisdiction of this Honourable Court (as best described in Delany and McGrath on Civil Procedure, 4th Ed., at paragraph 25.53) to revisit its judgment in circumstances where the order has not yet been perfected." ."
33. On 29 August 2023, the respondent emailed the High Court Registrar objecting, inter alia, to the appellant's proposed amendments to the substantive judgment, on the basis that the proposed amendments went far beyond any amendment covered by O. 28, r. 11 RSC and that the amendments were at best comments and sought to substantially change the judgment. The respondent denied that there were any errors in the judgment. The respondent also took issue with the averment contained in the affidavit affirmed by the appellant on 28 August 2023, in particular his statement that his averment as to service of a notice of appeal on the respondent on 11 April 2013 contradicted the contents of para. 13 of Ms. Mulligan's affidavit of 22 March 2022 and to which reference had been made at para. 9 of the High Court judgment. What Ms. Mulligan had averred at para. 13 was that the appellant had written to the CSSO on 21 October 2017 to advise that he had filed an appeal of the judicial review proceedings and at Exhibit "E", she had exhibited the appellant's letter.
34. In its communication of 29 August 2023, the respondent also objected to the appellant's request for further time in which to file submissions in circumstances where the Judge had given both parties four weeks from the date of delivery of the judgment to file brief submissions in relation to costs and the wording of the final orders. The respondent pointed out that it had complied with the court's direction and filed its written submissions on 27 August 2023 whereas the appellant had failed to comply with this direction and had failed to offer any reasons whatsoever to justify or explain his failure to do so. In those circumstances, the respondent requested the court to proceed to issue its final order without extending time for delivery of the appellant's submissions.
35. The respondent also objected to the appellant's request for an oral hearing in respect of the costs and final orders, stating that the appellant had failed to offer any reasons why an oral hearing was being requested in the case, and pointing out that the case law on costs was clear such that the respondent, as the successful party, was entitled to its costs save in exceptional circumstances, of which there were none, and which the appellant had failed to establish.
36. The respondent wrote to the appellant in similar terms on 29 August 2023 and enclosed the correspondence it had sent to the High Court Registrar.
37. In any event, on 3 October 2023, the High Court Registrar advised the parties that the Judge had given the appellant an extension of seven days from 3 October 2023 within which to file his submissions in relation to the judgment delivered and the appellant was advised that should submissions not be received by the court and the CSSO within the seven days, the court would make its final orders in the matter.
38. By email of the same date, the appellant wrote to the High Court Registrar noting the extension of time given and requesting that before he would comply with the direction, that the Registrar would forward to the Judge the appellant's 28 August 2023 affidavit and "the proposed amendments of [the] judgment under the Slip Rule", both of which the appellant attached to his email.
39. This elicited a further email from the Registrar on 5 October 2023 addressed to both parties and wherein she advised the appellant that the case had been completed and the High Court judgment had issued and that "this will not be altered in any way". She advised that the Judge's directions were clear - the appellant was to complete and file his submissions in relation to the judgment and final orders within 7 days and that it was the court's intention to issue final orders after 7 days. The appellant was advised that "the matter will not be re-listed".
40. The appellant replied on 6 October 2023 stating that it seemed that his emails had been misconstrued and seeking to clarify same. He stated that the first aspect of his application was an application under O. 28, r. 11 and, more particularly, as the respondent was not consenting, under O. 28, r. 11(b)(ii) RSC. The Registrar was then asked whether the appellant was to take her email as a refusal to list the proceedings before the court which, it was said, could be construed as the Judge directing the Registrar not to make such a listing, something, the appellant said, the Judge was not entitled to do. Alternatively, if the listing of the matter was refused, the appellant stated that he would be obliged to make the application by way of motion on notice pursuant to O. 28, r. 11(b)(i). The appellant advised that if that was the case he would produce his email to claim the costs incurred in issuing such a motion. The appellant's email continued as follows:
"Finally, in the alternative, I will request that the elements (if any) of my application for amendment of the judgment of Mr. Justice Barr, which won't be found covered by the Slip Rule, be considered to pursuant to the inherent jurisdiction of this honourable court (as best described in Delany and McGrath on Civil Procedure...) to revisit its judgment in circumstances where the order has not yet been perfected. I believe this application will save of the most precious time of the Court of Appeal and Supreme Court, as well as saving a lot of resources of the parties to the herein proceedings. Indeed, unlike paragraph 8 of the decision of Simons J. in G. v. DPP [2023] IEHC 139, such application is not 'to re-agitate [...] proceedings before the court of first instance' but an opportunity for the court of first instance to validate its decision, i.e. to make it appealable rather than void."
41. On 12 October 2023, the Registrar wrote to the appellant (copying the respondent) in the following terms:
"Judge Barr gave you an extension of 7 days from 2.10.23 file submissions. To date the submissions have not been filed. Mr. Justice Barr has given you an opportunity to lodge and serve your submissions promptly and will list the hearing of submissions on Thursday 19th October 2023 at 10.30am. He has [given] 30 minutes to hear same."
The 19 October 2023 hearing
42. As intimated in the Registrar's email, on 19 October 2023 the matter was listed remotely before the Judge. However, as is recorded in the Ruling given by the Judge on 25 October 2023, it appears that the VMR code was not sent to the appellant in sufficient time to enable him to attend the 19 October 2023 hearing remotely and by the time he was able to attend court in person, the court was not in a position to take up his application. As the 25 October 2023 Ruling records however, the appellant was offered the opportunity to have his application taken seven days later, on 26 October 2023, and given the option of having that hearing either in person or being held remotely. As recorded in the 25 October 2023 Ruling, the appellant's response to that offer was that he would prefer that the court would deliver its ruling on the basis of the affidavit he had filed, the exhibits thereto, and the documents he had sent by way of email to the High Court Registrar.
The 25 October 2023 Ruling
43. On 25 October 2023, the Judge delivered his ruling on the appellant's application to reopen the 28 July 2023 judgment
44. At the outset of his ruling, the Judge noted that the court had delivered its substantive judgment on 28 July 2023 and that at the conclusion of that judgment, the court had invited the parties to make written submissions within four weeks in relation to the terms of the final order, costs and any other matters that might arise. He noted that the appellant had petitioned the court for an oral hearing in relation to his application to have the judgment of 28 July 2023 revisited by the court and to that end, the appellant had furnished a number of emails, an affidavit affirmed by him on 28 August 2023 and a copy of the substantive judgment which had a number of suggested amendments recorded thereon using the "tracked changes feature" which the appellant was suggesting should be added to the judgment so as to make it accurate in all regards.
45. The Judge noted that the court had acceded to the appellant's request for an oral hearing of his application to amend the judgment. He noted that on the day prior to the hearing scheduled for 19 October 2023, the appellant had contacted the Registrar by email to request that the hearing of his application be taken remotely via the Pexip platform and that the court had acceded to that request. He noted that "unfortunately" it appeared that the VMR code was not sent to the appellant in sufficient time to enable him to attend the hearing remotely. The appellant had, however, attended the court in person on 19 October 2023 at approximately 10.49 hours. On that occasion it was indicated to him that the court would not be able to take up his application at that time as the court had another matter at hearing which was due to resume at 11.00 hours.
46. The Judge went on to note that the appellant was offered the opportunity to have his application heard seven days later, on 26 October 2023 either in person or remotely and that the appellant's response was that he would prefer if the court would deliver its ruling on the basis of the affidavit filed by him, the exhibits thereto and the documents that he had sent to the court by way of email to the High Court Registrar. As the Judge observed, the court had acceded to that request and the appellant had been advised that the court would proceed to issue its written ruling on his application and, if appropriate, on the terms of the final order.
47. At para. 7 of the Ruling, the Judge stated that he had read and considered the appellant's submissions, as contained in his affidavit and emails, and had also considered the documents that were exhibited to his affidavit and the copy judgment the appellant had filed containing the amendments which he claimed should be made by the court prior to issuing its final order.
48. At para. 8, the Judge accepted that the court had jurisdiction in an appropriate case to revisit its judgment at any time prior to the perfection of the final order. That jurisdiction, however, was to be exercised with caution "and only where there are strong reasons for revisiting the judgment" (in this regard the Judge cited Re McInerney Homes Ltd. [2011] IEHC 25; Re Vantive Holdings Ltd. [2009] IESC 69: and Re Middleview Ltd. [2016] IEHC 143). At para. 9, the Judge referred to the appellant's affidavit of 28 August 2023 which exhibited a document which the appellant maintained demonstrated that he had served the respondent in person with his notice of appeal to the Supreme Court "of a particular matter" at 16.35 hours on 11 April 2023. However, having regard to the substantive judgment the court had delivered, the Judge was not satisfied that the production of that document provided "strong reasons" why the court should revisit its judgment.
49. The Judge went on to state that he had considered the numerous amendments which the appellant was suggesting ought to be made to the 28 July 2023 judgment. In this regard the Judge stated:
"It is clear that [the appellant] is unhappy with many aspects of the court's judgment in this matter. The fact that he is less than satisfied with the judgment of the court, does not mean that it is appropriate for the court to revisit its judgment. If the applicant is unhappy with any aspect of the judgment delivered by the court, his remedy is to appeal that judgment to the Court of Appeal".
50. The Judge then stated:
"Having considered all the material and arguments submitted by [the appellant], the court is not satisfied that it would be in accordance with the dictates of justice for it to revisit its substantive judgment herein, which was delivered on 28th July 2023. Accordingly, the court refuses the application made by [the appellant] that it should revisit its judgment herein."
51. Accordingly, he directed that by final order should be drawn to provide:
(1) That the appellant's application to revisit the judgment of 28 July 2023 be refused.
(2) That the respondent was entitled to an order pursuant to O. 42, r. 24 RSC granting the respondent leave to issue execution in respect of the order for costs perfected by the High Court on 8 March 2013.
(3) That the appellant pay the respondent the costs of the application for leave to execute to include all reserved costs and costs of written submissions, the said costs to be adjudicated upon in default of agreement between the parties.
(4) That there would be a stay on the order for costs for a period of 28 days should either party lodge a notice of appeal within that time, such stay to continue until the first directions hearing before the Court of Appeal.
The final order was drawn in the terms outlined above on 25 October 2023.
The appeal
52. The appellant's notice of appeal lists 9 grounds of appeal. The grounds may be addressed under four discrete headings, namely:
(i) The alleged error on the part of the Judge in concluding that the substantive matters in dispute between the appellant and the respondent had been finally determined in previous judgments (which the appellant had alleged were "void ab initio") and accepting the validity of those judgments (Ground 1).
(ii) The Judge's refusal to revisit the 28 July 2023 judgment (Grounds 7, 8 and 9).
(iii) The failure of the Judge to amend the 28 July 2023 judgment pursuant to the 'slip rule' (Grounds 2 and 3).
(iv) Alleged procedural unfairness (Grounds 4, 5 and 6).
Each of these issues will be considered in turn. I will also address other arguments advanced by the appellant, both in the court below and in this Court, as to why the respondent should not be granted leave to execute and, latterly, I will address whether the Judge was correct to grant the respondent leave to execute.
Discussion and Decision
(i) Did the Judge err in concluding that the substantive matters in dispute between the appellant and the respondent had been finally determined in previous judgments?
53. The appellant's written submissions in the court below in opposition to the respondent's application for leave to execute ran to 17 pages. Appended to that submission were the submissions which the appellant had filed with the High Court in the judicial review proceedings before Dunne J. and the submissions he filed in the Court of Appeal when appealing the decision of Dunne J.
54. As the appellant's written submissions in the court below evidence, the nub of the case advanced by him was that the respondent was not entitled to execute the order for costs as such was consequential on a "void" judgment of Dunne J. and indeed a further "void" judgment of the Court of Appeal (McGovern J. writing for the Court as regards that appeal).
55. At paras. 40-51 of the 28 July 2023 judgment, the Judge summarised the arguments advanced by the appellant as to why the judgment (namely that of Dunne J. of 8 March 2013) which subtended the respondent's application for leave to issue execution should be declared void ab initio such as would preclude the court from granting the respondent the relief it sought.
56. At para. 41, the Judge noted that the appellant's complaint was that "the judges who heard his previous application, actions and appeals, connected to his substantive dispute, had acted unfairly, and in breach of his human rights, by failing to address what he regarded as the core elements in his submissions to those courts". One alleged breach on the part of Dunne J. was her failure to mention the word "right" even once in her judgment in circumstances where the appellant had mentioned the word 38 times in his written submissions to that court. In similar vein, the Court of Appeal in its judgment of 23 July 2019 on the appellant's appeal from the order of Dunne J. had only mentioned the word "right" once, yet the appellant had mentioned the word 46 times in his written submissions (para. 42).
57. At para. 44, the Judge noted the appellant's submission that the judgments of Dunne J. and the Court of Appeal were void ab initio not on their face but because they resulted from an unfair hearing, and where the contents of the judgments were said by the appellant to demonstrate "the absence of impartiality", and his submission that if the core elements of a party's submissions were not mentioned in a judgment "the said party may have been listened to, but had not been heard".
58. The Judge was also alert to the appellant's submission that in Nash v. DPP [2017] IESC 51, O'Donnell J. (as he then was) "had ignored or distorted the legal principles behind the inherent jurisdiction of a court to review or revisit its decision, by developing 'new' criteria of exceptionality".
59. The judgment also records (para. 48) the appellant decrying the alleged departure from the Bangalore Principles of Judicial Conduct as, the appellant claimed, there was no adequate remedy available to him to report judges who departed from the proper standard of conduct and ethics; nor, it was said, was the Judicial Council fit for purpose, made up as it was of judges.
60. At para. 49, the Judge records the appellant's assertion that the Determination of the Supreme Court, which refused him leave to appeal the decision of the Court of Appeal to that Court, had come as a blow as the Supreme Court, the appellant said, had ignored the objective and subjective tests of impartiality as defined by the European Court of Human Rights in Kyrianou v. Cyprus (Case No. 73797/01).
61. At paras. 50-51, the Judge noted the appellant's submission that it would be premature to grant leave to the respondent to execute the costs order until further applications the appellant might bring had been determined. He noted that the appellant was seeking liberty to issue a motion to set aside both the order and judgment of Dunne J. and the order and judgment of the Court of Appeal. The appellant's further contention was also noted, namely that the respondent should accept on consent to have all orders and judgments in the case set aside and to the reinstatement of the Company onto the Register of Companies and offer an ex gratia payment (of not less than €200,000) to the appellant for his time and trouble in bringing the within litigation.
62. The appellant's arguments did not find favour with the Judge who noted (at para. 53) that the respondent's application for leave to execute was consequent on an order made by Dunne J. on 8 March 2013 which had been upheld in the Court of Appeal, in respect of whose judgment the appellant then sought leave to appeal from the Supreme Court and was unsuccessful. In the view of the Judge, this meant that "the substantive matters in dispute between [the appellant] and the respondent have been finally determined in previous judgments and orders of the appellate courts". The Judge put it as follows:
"It is not permissible for [the appellant] on the hearing of this application to seek to reventilate arguments that he raised in his substantive proceedings. Nor is it appropriate for this Court to embark on an investigation, or inquiry as to whether [the appellant] was denied fair procedures in those previous hearings, as asserted by him in his replying affidavit and in his written submissions." (para. 54)
63. In his written submissions in this Court, the appellant asserts that the Judge erred in law and/or in fact and/or in a mixed question of law and fact in accepting the validity of the judgments of Dunne J., Faherty J. and McGovern J., and ignoring what is said by the appellant to be "the new elements of law and fact before him" which (as I understand the appellant to be saying) demonstrate that "all those decisions" come within the spectrum of cases which, as said by O'Donnell J. in Nash, "by reason of judicial error or some extraneous consideration, it is plain that the outcome of [a] case cannot be said to be the administration of justice for the purposes of Article 34 [of the Constitution]" and, hence, "cannot be said to be a [judicial] 'decision'". I am taking it that the "judicial error" of which the appellant complains was the alleged failure of Dunne J, and McGovern J. to address, in their respective judgments, the appellant's arguments, and the decision of Faherty J. to abide those judgments when determining the appellant's review of the Taxing Master's ruling in favour of the respondent.
64. Notably, in his oral submissions to this Court, the appellant stated that he was happy with the judgment of 28 July 2023 in circumstances where the Judge had addressed his arguments and submissions save in minor respects. These minor matters had, however, led to the appellant's application, via his email correspondence with the court, for the Judge to amend his judgment along the lines suggested by the appellant in his "tracked" version of the 28 July 2023 judgment. Indeed, the appellant's overarching submission on this appeal is that the amending of the substantive judgment along the lines he suggested was necessary in order to vindicate his constitutional rights under Article 40.3.1 and Article 40.3.2 of the Constitution. As we know, the Judge refused to revisit his substantive judgment. That refusal is the subject of issue (ii) in this appeal, to which I will return in due course. In his oral submissions to the Court, the appellant explained that once the Judge refused to amend the substantive judgment, he (the appellant) was no longer happy with it.
65. As already referred to, the appellant's principal contention in relation to the 28 July 2023 judgment is that the Judge erred in not addressing the alleged invalidity of the judgments of Dunne J. and McGovern J. and the order of Faherty J. Effectively, what he is saying in Ground I of his notice of appeal is that by virtue of the allegedly "void" nature of the aforementioned decisions/orders, the Judge had no legal or proper basis upon which to consider granting the respondent the relief it was seeking.
66. Albeit that the appellant takes issue with the approach taken by O'Donnell J. in Nash, arguing that the learned judge "adapts, ignores or distorts" the legal principles behind the inherent jurisdiction of a court to review/revisit its decision by developing a new criterion of "exceptional circumstances" (a term which, the appellant points out, Baroness Hale described in Re L and B [2013] UKSC 8 as "no more than a relatively uninformative label"), he nevertheless submits that the frailties which he alleges attach to the judgments of Dunne J. and McGovern J. were such that the "exceptional jurisdiction" as discussed by O'Donnell J. in Nash (see para. 10) was engaged here, and even more so when one has regard to the dictum of Baroness Hale in Re L and B [2013] UKSC 8. In his oral submissions to this Court, the appellant contended that if his suggested amendment to para. 47 of the substantive judgment had been permitted (that is the insertion into para. 47 of a particular extract from the judgment of Baroness Hale in Re L and B), then the conclusions ultimately arrived at by the Judge would have had to have been reversed. This is more fully discussed at (ii) below.
67. Staying for the moment with the appellant's complaint regarding the substantive judgment, as said by O'Donnell J. in Nash, there is an "exceptional jurisdiction" for a court to revisit a final judgment it has given. The exceptionality of such a course of action was also emphasised in Re Greendale Developments Ltd (No. 3) [2000] 2 IR 514 where Denham J. stated that "it would only be in the most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice". The question is whether the existence of that jurisdiction assists the appellant in this appeal.
68. In my view, the invoking by the appellant of the Nash or indeed the Re L and B jurisprudence, either in the court below or in this Court, cannot assist the appellant in the circumstances of this case, and his contention that the Judge erred in refusing to revisit any of the judgments or orders of which he complains is entirely misconceived in a number of respects. First and foremost, the submissions which the appellant made at the substantive hearing in the court below regarding the alleged invalidity of the judgments of Dunne J., McGovern J. and Faherty J. were addressed to a judge who was not the author of any of the judgments which the appellant sought to impugn. Secondly, the arguments the appellant advanced were in the wake of his having availed of his constitutionally provided for right of appeal from the judgment and order of Dunne J. to the Court of Appeal and, as again provided for in the Constitution, having applied to the Supreme Court for leave to appeal after receiving an adverse decision from McGovern J. writing for the Court of Appeal. Thirdly, there is no suggestion that the appellant at any time sought to apply to have either the High Court (Dunne J.) or the Court of Appeal (McGovern J.) revisit or review their respective judgments pursuant to the courts' exceptional jurisdiction to revisit a judgment.
69. As I have just said, the appellant did what any litigant is entitled to do on foot of disappointment at the outcome of proceedings in the trial court: he exercised his right of appeal to the Court of Appeal from the decision of Dunne J. and, thereafter, availed of his right to apply to the Supreme Court for leave to appeal against the Court of Appeal's decision. The fact that the appellant was unsuccessful in his action and appeal, and in his subsequent leave application to the Supreme Court, does not detract from the Judge's assessment that the substantive matters in issue between the appellant and the respondent "have been finally determined".
70. The appellant also sought to rely on the dictum of Dunne J. in Desmond v. Moriarty [2012] IEHC 202. At p. 32 of that judgment the learned judge mused "could an order ever be made by the High Court setting aside a final judgment of the Supreme Court..." and she stated that if the basis of such an application was fraud, it was clear from the authorities that the appropriate way to seek such relief was by way of a separate action. As the respondent points out in its response to the appellant's reliance on Desmond v. Moriarty, there is here no valid challenge before the courts to any order, save the appellant's appeal against of the order of Barr J. of 25 October 2023, and certainly no allegation of fraud before the courts or indeed any other challenge seeking to set aside any court order, even assuming for the moment the appellant could meet the exceptional circumstances threshold which the exercise of that jurisdiction demands.
71. In short, therefore, it is not appropriate for the appellant to seek to use the respondent's application for leave to issue execution, or indeed this appeal, as a route by which to seek to challenge the valid orders of different judges of the Superior Courts where such orders have come about by appellant having fully exercised his right of appeal against the judgment and order of Dunne J. upon which the application for leave to execute has been brought and where no application was brought by the appellant to seek to have Dunne J. revisit her judgment (even assuming for the sake of argument that the appellant could meet the exceptional circumstances threshold).
(ii) Did the Judge err in refusing to revisit his judgment of 28 July 2023?
72. The "tracked" version of the substantive judgment which the appellant furnished to the High Court and the respondent in August 2023 contained a number of insertions highlighted in blue/red which the appellant contended, in his email of 6 October 2023, were for the purpose of providing the court with an opportunity "to validate its decision, i.e. to make it appealable rather than void".
73. It is apposite to give a flavour of the amendments sought by the appellant.
74. In that section of the judgment headed "Background", the appellant proposed the insertion of a sentence in para. 5 which would convey the fact that he had served the respondent with his notice of appeal of Dunne J.'s order on 11 April 2013 which was received by the respondent's solicitor on 3 May 2013. As we have seen, the appellant also addressed this proposed correction in his 28 August 2023 affidavit. The appellant's "tracked" version of the judgment also suggested an amendment to paras. 9 and 18 where the Judge recited that by letter of 21 October 2017 the appellant wrote to the respondent's solicitors advising that he "had filed an appeal against the order made by Dunne J. on 8 March 2013" (obviously taken by the Judge from the affidavit sworn by Ms. Mulligan of the CSSO on 22 March 2022). According to the appellant, the proposed amendments would show that his letter of 21 October 2017 was to simply advise that he had applied for directions in relation to the transfer of his appeal from the Supreme Court to the Court of Appeal and would negate the error said by the appellant to have been contained in Ms. Mulligan's affidavit, and the judgment, namely that his appeal was instigated in 2017. I would observe at this stage that at all relevant times, the Judge was in fact perfectly well aware that the appellant had appealed the order of Dunne J. and that that appeal had been heard and determined by the Court of Appeal, as is clear from para. 9 and 18 of the 28 July 2023 judgment.
75. The appellant proposed an amendment to para. 44 of the substantive judgment, by an insertion to the effect that the alleged lack of impartiality in the judgments with which he took issue required to be assessed by reference to the "Bangalore Principles on Judicial Conduct".
76. It will be recalled that at para. 47 of the 28 July 2023 judgment, the Judge duly recited the appellant's critique of O'Donnell J.'s assessment in Nash of the inherent jurisdiction of the court to revisit its previous decisions. The amendment the appellant proposed to para. 47 was the insertion of certain dicta of Baroness Hale in Re L and B, together with additional text which, the appellant contended before this Court, would strengthen his argument that the approach of learned O'Donnell J. was in contradiction to the better approach of Baroness Hale as to when a judgment might be revisited. All this, presumably, was with the objective that the Judge might therefore recognise the error of his ways (as the appellant saw it) and come to the view that the judgments of Dunne J., McGovern J. and Faherty J. could not be held out as the bases upon which the respondent could legitimately pursue an application for leave to execute the costs order made by Dunne J. As can be seen above, I have, however, already concluded, for the reasons set out, that the Judge was well entitled to find (at para. 54) that it was not permissible for the appellant to seek to reventilate arguments he had made in his substantive proceedings in an application for leave to issue execution on foot of the costs order, and that the Judge was equally entitled to hold that it was not appropriate that he should embark on an inquiry as to whether the appellant had been afforded fair procedures in those previous hearings.
77. Turning again to the appellant's proposed amendments, in his submissions to the Court, the appellant contended that whilst para. 30 of the substantive judgment correctly reflected his criticism of the judiciary and his call for an investigation into judicial conduct generally, which the appellant stated would lead to the removal from office of "so-called State 'caretakers', and 'gatekeepers'", para. 70 of the judgment (which again recited the appellant's call for "...the removal of all judges from the Superior Courts...") did not, however, reflect that argument in sufficiently robust terms and, so, the appellant was looking to substitute "the removal of all judges from the Superior Courts" with instead "...the removal of all State caretakers and gatekeepers from the bench of the Superior Courts...".
78. As we see from the Ruling of 25 October 2023, upon consideration of the material and arguments submitted by the appellant, the Judge was not satisfied that it would be in accordance with the dictates of justice, for him to revisit his substantive judgment. In coming to this conclusion, the Judge had regard to the affidavit affirmed by the appellant on 28 August 2023. He did not, however, find that the production of that document provided a strong reason why the court should revisit its judgment.
79. Whilst acknowledging that the proposed amendments furnished by the appellant showed that the appellant was unhappy with many aspects of the court's judgment, in the view of the Judge, that did not mean that it was appropriate for the court to revisit its judgment. He stated that if the appellant was unhappy with any aspect of the judgment, he could appeal the judgment to the Court of Appeal.
80. At para. 17 of his written submissions to this Court, the appellant contends, inter alia, that the Judge erred by not addressing his application to review, revisit or correct the 28 July 2023 judgment. Well, clearly the Judge did address the appellant's application as he expressly states that he had regard to both the appellant's 28 August 2023 affidavit and his suggested amendments as appeared in the copy judgment the appellant furnished to the court. That being the case, the only question that arises for the Court is whether the Judge erred in refusing to accede to the appellant's application to amend the 28 July 2023 judgment.
81. Before addressing this question, it is apposite to set out the basis upon which a court will revisit its judgment prior to making a final order. As the Judge acknowledged at para. 8 of his Ruling of 25 October 2023, a court has jurisdiction in an appropriate case to revisit its judgment at any time prior to the perfection of the final order consequent on the delivery of the judgment. The Judge noted, however, that "the legal authorities make it clear that this is a jurisdiction to be exercised with caution and only where there are strong reasons for revisiting the judgment".
82. One of the legal authorities to which the Judge referred was In Re McInerney Homes [2011] IEHC 25, where Clarke J. after referring to and citing from a comprehensive judgment of the Court of Appeal of England and Wales in Paulin v. Paulin & Anor [2010] 1 WLR 1057, held that "in order for the court to exercise its jurisdiction to revisit a question after the delivery of either an oral or a written judgment, it is necessary that there be 'strong reasons' for so doing" (para. 3.7), the judge being satisfied that the extract from Paulin cited at para. 3.6 "represents the law in this jurisdiction".
83. In Bailey v. Commissioner of An Garda Síochána [2018] IECA 63, this Court confirmed that a court of first instance has jurisdiction, prior to the order envisaged by the judgment having been drawn up and perfected, to revisit an issue decided in a written judgment. The basis upon which it could do so was upon the court being satisfied that there are "exceptional circumstances" or "strong reasons" which warrant it doing so (see para. 27). The high threshold which the exercise of such jurisdiction demands is succinctly explained by Simons J. in G v. A Judge of the District Court & Ors [2023] IEHC 386 at para. 9:
"A party who is dissatisfied with a written judgment should not normally be entitled to reagitate their proceedings before the court of first instance. Were this to be allowed to happen, it would, in effect, insert an additional layer of judicial decision-making, whereby a party would seek to have the judgment revisited by the trial judge, as a prelude to an appeal if unsuccessful. This would add to delay and involve the parties incurring further costs. The proceedings would, in effect, be subject to three hearings: (i) the initial hearing; (ii) the hearing of the application to the court of first instance to reopen its judgment; and (iii) the hearing of the appeal."
84. The issue of when it is appropriate to re-open a judgment was also addressed in Hinde v. Pentire Property Finance Designated Activity Company & Kavanagh [2018] IEHC 575. There, Costello J. (as she then was) considered (at para. 15) that the test to re-open a judgment contains two elements, namely:
1. The new materials would probably have an important influence on the result of the case and be credible.
2. Such new evidence will not ordinarily be permitted to be relied on, if it could, with reasonable diligence, have been put before the trial court.
85. Bearing the above dicta in mind, insofar as the matters deposed to in the appellant's 28 August 2023 affidavit and the document exhibited thereto (said by the appellant to underpin his proposed amendments to paras. 9, 18 and 26 of the substantive judgment) are concerned, I perceive no error on the part of the Judge when he states that the production of the document upon which the appellant wanted to rely was not a strong reason as to why the court should revisit its judgment. I agree with the respondent that the gravamen of what Ms. Mulligan deposed to in her affidavit of 22 March 2022 is that the appellant had filed an appeal against the order of Dunne J. In my view, even if it could be said that her affidavit (and the substantive judgment for having reprised what she said) suggest that the appellant had filed his appeal in 2017 as opposed to April 2013, the date on which the appeal was first filed or served does not materially impact on the fact that the appellant did appeal the order of Dunne J. and that it was heard on 1 July 2019, all of which, as I have already alluded to, was known to and acknowledged by the Judge in the 28 July 2023 judgment. Moreover, as the respondent says, the date of service of the appeal on the respondent, if the appellant deemed it relevant, could, with reasonable diligence, have been adduced in the court below, if the appellant considered it germane to his opposition to the order the respondent was seeking.
86. In my view also, none of the other amendments which the appellant highlighted in the copy amended judgment he furnished to the court reach the "strong reasons" threshold. To my mind, what the appellant was attempting to do, via his proposed amendments, was to rewrite the substantive judgment to achieve a particular narrative whereby, if his efforts in getting the Judge to revisit his substantive judgment were successful, he would have some sort of foothold on which to argue that the conclusion the Judge reached at para. 54 of the 28 July 2023 judgment could not stand, thereby leaving it open to the appellant to argue that there is no valid judgment of Dunne J. in respect of which the respondent could seek leave to execute the costs order made by Dunne J.
87. Insofar as that is the appellant's objective (and I believe it is), it is not a permissible approach for the reasons I have already set out earlier in this judgment. As the Judge stated at para. 10 of his Ruling, if the appellant is unhappy with the judgment of 28 July 2023, his remedy lay in an appeal to this Court and, indeed, the appellant has appealed.
88. I am also of the view that the appellant's proposed amendments do not satisfy either end of the spectrum to which Simons J. alludes in G v. A Judge of the District Court & Ors (see paras. 10-12). Here, the matters which the appellant wishes to insert into the substantive judgment are not so peripheral that the amendment of the judgment should be allowed as a matter of course. Nor can they be said to comprise a very serious or obvious error (of the kind to which Simons J. refers in G, for example, a failure to bring a crucial precedent or statutory provision to the attention of the judge) such that a remittal of the matter for re-hearing in the trial court could be the result following an appeal. In such a scenario, it might indeed, as Simons J. says, be preferable for the court of first instance to re-open the matter and have the parties address the issue rather than let the matter simply go on appeal. As I have said, however, the appellant's proposed amendments do not fit into the serious error equation of which Simons J. speaks.
89. Accordingly, the appellant has not persuaded this Court either that the Judge failed to consider the application to revisit the judgment or, having done so, that the Judge was wrong to refuse to revisit his substantive judgment and to conclude that if the appellant was unhappy with the judgment, his remedy lay in an appeal.
(iii)The alleged failure to review the judgment of 28 July 2023 pursuant to Order 28, r. 11(b) RSC
90. By Grounds 2 and 3 of his notice of appeal, and para. 17 of his written submissions, the appellant asserts that the Judge erred in law by ignoring/not addressing his application to amend the 28 July 2023 judgment pursuant to O. 28, r. 11(b) RSC. There is no merit in the appellant's appeal grounds in this regard and indeed they are entirely misconceived. First and foremost, O. 28, r. 11 provides for a facility whereby "clerical mistakes" in judgments or orders, or errors arising from any accidental slip or omission, may at any time be corrected without an appeal. Here, however, the appellant did not highlight any "clerical mistakes". Rather, the amendments which the appellant wants to be inserted into the judgment were of a substantive nature and, as I have said, clearly were intended to add a narrative to the judgment for purposes other than correcting any clerical mistake or accidental slip or omission. He cannot therefore reasonably maintain that the Judge should have addressed his application to amend the judgment pursuant to the powers given to the court by O. 28, r. 11. Indeed, in his oral submissions, the appellant agreed that his proposed amendments went far beyond the "slip rule". Furthermore, insofar as complaint is being made that the Judge's failure to address the appellant's issues under the rubric of O. 28, r. 11 amounted to the Judge ignoring the issues the appellant wanted to be addressed, that complaint is entirely without merit in circumstances where, as I have already stated, the issues raised by the appellant post the delivery of the substantive judgment were addressed in the Ruling of 25 October 2025. The appellant's unfairness allegation is further addressed below.
(iv) Alleged procedural unfairness
91. At Grounds 4, 5 and 6 of his notice of appeal, and at para. 18 of his written submissions, the appellant asserts, variously, that the Judge did not give him a fair hearing either in relation to his application to have the substantive judgment amended or in relation to the hearing on costs. In particular, he claims at Ground 4 that he only got the opportunity to make his amendments arguments at a "purported" costs hearing of 19 October 2023. As regards the costs order made against him, he asserts at Ground 6 that he was not given a fair hearing to defend the respondent's costs application.
92. Neither contention has any merit, in my view. First and foremost, as para. 71 of the substantive judgment shows, the Judge afforded the parties 4 weeks in which to make written submissions in relation to the terms of the court's final order and costs. The respondent filed its written submissions on 25 August 2023. It is common case that by the time the 4-week time limit provided for in the substantive judgment expired on 27 August 2023 the appellant had not filed any substantive written submissions, his correspondence, rather, comprising the emails and attachments he sent to the Registrar between 2 and 29 August 2023. As can be seen, however, on 3 October 2023, the court afforded him a further 7 days in which to file submissions in relation to the judgment of 28 July 2023. The appellant was reminded of this new deadline on 5 October 2023. Furthermore, by email from the Registrar of 12 October 2023, the appellant was again reminded that his submissions had not been filed. More pertinently, he was advised that the Judge "has given you an opportunity to lodge and serve your submissions promptly" and that the matter was listed for 19 October 2023 to hear the parties' submissions with each party having 15 minutes to address the court in respect of such submissions.
93. As already well-rehearsed, the hearing scheduled for 19 October 2023 did not go ahead for the reasons already set out. When that scheduled hearing could not go ahead, the appellant was offered the opportunity to have his application to have the Judge revisit the substantive judgment heard on 26 October 2023. The appellant's response was that he was satisfied for the court to make its decision on the basis of the materials he had submitted, namely his suggested amendments to the substantive judgment, his affidavit of 28 August and the exhibit thereto. This exchange between the appellant and the court on 19 October 2023 is diligently set out by the Judge in his 25 October Ruling. Other than suggesting in his oral submissions to this Court that he could not recall that exchange, or that he might have agreed to the Judge deciding on the matter without a further hearing "for convenience", the appellant does not take issue with what is said in the Ruling to have transpired on 19 October 2023.
94. In all of those circumstances, no unfairness was visited on the appellant by the Ruling of 25 October 2023. Having declined the oral hearing on 26 October 2023 that was offered to him and confirming that he was happy to let his argument rest on the materials he had put before the court, the appellant can have no cause to complain that his application to amend the 28 July 2023 judgment was not afforded a fair hearing.
95. As already alluded to, the appellant's complaint about the manner in which the respondent was awarded its costs is equally unmeritorious. He cannot but have understood when he forewent the opportunity on 19 October 2023 to have a further oral hearing that the Judge would proceed to deal with all matters outstanding as of that date, including costs which was one of the issues upon which the Judge had invited written submissions at para. 71 of the substantive judgment. At the risk of repetition, the appellant had received more than one reminder from the court to file written submissions with the court. If he chose not to do so, he must live with that choice.
96. In his oral submissions in this Court, the appellant suggested that on 19 October 2023 and before he physically turned up in court, the respondent availed of the opportunity to put its case to the Judge for costs to be awarded to the respondent. Counsel for the respondent refuted this allegation and advised the Court that on 19 October 2023 the High Court was conducting the hearing remotely and that the court (and counsel) remained off-line until the appellant turned up physically in the courtroom, with the court only then coming on-line. I accept what counsel for the respondent says. I regard the appellant's attempt to impugn both the court and counsel for the respondent as entirely unacceptable.
The grant of leave to execute the costs order made by Dunne J. on 8 March 2013
97. Order 42, r. 24 RSC provides:
"24. In the following cases, viz.:
(a) where six years have elapsed since the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;
(b) where a party is entitled to execution upon a judgment of assets in futuro;
(c) where a party is entitled to execution against any of the shareholders of a company upon a judgment recorded against such company, or against a public officer or other person representing such company; the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried: and in either case the Court may impose such terms as to costs or otherwise as shall be just. Provided always that in case of default of payment of any sum of money at the time appointed for payment thereof by any judgment or order made in a matrimonial cause or matter, an order of fieri facias may be issued as of course upon an affidavit of service of the judgment or order and non-payment."
98. The Judge noted that the applicable principles in an application such as was before him had been considered by the Supreme Court in Smyth v. Tunney [2004] 1.R. 512 and that that decision had set out the following principles:
· The decision whether to grant leave to issue execution on the judgment, was discretionary.
· An applicant for relief did not have to show an exceptional or special reason for the delay in seeking execution.
· An applicant had to provide an explanation for the delay and the court must consider any prejudice to the judgment debtor.
· A change in financial circumstances did not amount to prejudice.
99. The Judge also had regard to the decision in Carlisle Mortgages v. Sinnott [2021] IEHC 288. There, Simons J. noted that there were three broad categories of cases where leave to seek execution had been granted namely, where the conduct of the indebted party contributed to the delay; where there had been a change in the financial circumstances of the indebted party; and where execution had been deferred pending an attempt at reaching an accommodation between the parties.
100. Simons J. went on to note, however, that the categories of cases in which the delay could be explicable, were not closed. He stated that a fourth category would be where the delay in execution was attributable to circumstances that were outside the control of the person seeking to enforce the judgment. At para. 30, Simons J. noted that delay which was attributable to logistical difficulties caused by the public health measures introduced in response to the covid-19 pandemic could also excuse delay in seeking leave to execute on foot of a judgment or order.
101. Having noted the aforesaid jurisprudence, and indeed the principle set down in Irish Nationwide Building Society v. Heagney [2022] IEHC 12 and Ulster Bank v. Quirke [2022] IECA 283, the Judge turned to the case in hand. In the first instance, he was satisfied that an order for costs was made by Dunne J. on 8 March 2013 in favour of the respondent against the appellant. Secondly, he was satisfied, having regard to the matters averred to in Ms. Mulligan's affidavit, that an adequate explanation had been given by the respondent for her delay in seeking to execute upon the order for costs made on 8 March 2013. The Judge accepted that efforts were made to resolve the issues of costs by agreement between the parties and when those efforts failed it had been necessary to embark upon the taxation of costs process. He noted that, as was his right, the appellant had raised objections to the rulings of the Taxing Master and that this had ultimately led to the application before Faherty J. in which the appellant was ultimately unsuccessful in having the matter remitted back to the Taxing Master. He noted that the subsequent attempt by the respondent to execute upon the judgment by issuing a FIFA once the certificate of taxation issued had been halted due to the fact that the appellant had lodged an appeal against the substantive order made by Dunne J. He noted the appellant's subsequent application for leave to the Supreme Court after he had been unsuccessful in the Court of Appeal and the negative decision which had emanated from that Court.
102. He noted that the refusal of leave by the Supreme Court had effectively coincided with the imposition of the Covid-19 restrictions imposed by the State, and he accepted the evidence of Ms. Mulligan that by reason of those impositions, it was not realistically feasible for the respondent to seek to enforce the order for costs during that period.
103. Ultimately, therefore, the Judge was satisfied that the respondent had given an adequate explanation for the delay in seeking to enforce the costs order.
104. The Judge then turned to the question of whether there was any prejudice suffered by the appellant by dint of the respondent's delay. The Judge found that "no evidence has been produced by [the appellant] that he has suffered any specific prejudice as a result of the delay on the part of the respondent in seeking to execute upon the order for costs made in her favour. It seems to the court that this must inevitably follow, due to the fact that such delay as there was, was primarily due to the fact that [the appellant] was taking steps to either overturn the taxation of costs, or to appeal the substantive order made by Dunne J. in March 2013".
105. Ultimately, the Judge was satisfied that the respondent was entitled to an order pursuant to O. 42, r. 24 RSC granting the respondent leave to issue execution in respect of the High Court costs order of 8 March 2013 as perfected on 13 March 2013.
106. Apart from his argument, effectively, that the "void" nature of the judgments of Dunne J., McGovern J. and Faherty J. rendered the court devoid of any power to make an order pursuant to O. 42, r. 24 (arguments which this Court has rejected for reasons already set out), in this Court the appellant did not take issue with the legal principles and caselaw (as set out at paras. 52 and 56-59 of the substantive judgment) upon which the Judge relied when considering whether to grant the respondent leave to execute. In any event, for the avoidance of doubt, I am satisfied that the Judge had regard to the requisite legal principles when considering the respondent's application.
107. In the court below, over and above his overarching argument as to the invalidity which he said attached to the judgments of Dunne J., McGovern J. and Faherty J., the appellant adverted to two discrete matters which he submitted ought to have a bearing on the court's decision. He submitted that it was inappropriate to rely on the affidavit evidence of Ms. Mulligan or on documents she had exhibited due to the fact that she did not have personal knowledge of the sending of the letters in question. The Judge rejected that argument. He was satisfied that having regard to Ms. Mulligan's position in the office of the Chief State Solicitor, it was appropriate for her to give evidence as to the receipt and sending of correspondence and other documentation. Accordingly, the evidence given by Ms. Mulligan in her affidavits, and the exhibits thereto, were admissible in evidence. For the avoidance of doubt, I concur with the Judge's view.
108. The other submission advanced by the appellant in the court below was that the ruling of the Taxing Master was unlawful because he had had regard to a report from the Revenue Commissioners. The Judge found that ground of objection unsustainable for two reasons. First, the matter had been ruled upon by the High Court (Faherty J.) in refusing to remit the taxation of costs back to the Taxing Master. Secondly, the issue was "not justiciable on this application".
109. In the course of his oral submissions to this Court, the appellant raised the reliance placed by the Taxing Master on the report and submitted that both the Revenue Commissioners (and the respondent) had committed an offence under s.851A (3) of the Tax Consolidation Act 1997 in providing information to the Taxing Master. The appellant contended that he was seeking discovery of the report in question.
110. The first thing to be observed is that nowhere in his notice of appeal does the appellant take issue with the Judge's treatment of his s. 851A argument. In any event, the Judge was correct to hold as he did, in my view. First, the ruling of the Taxing Master was not within the legal purview of the Judge, as indeed he effectively held when he stated that that matter had been ruled upon by Faherty J. On that basis alone, the argument which the appellant makes must fail. Secondly, the appellant did not appeal the judgment of Faherty J.
111. Insofar as the appellant had complained that the judges who heard his previous applications and appeals did not have regard to his arguments thereby rendering their judgments and orders void ab initio, that ground too was found by the Judge to be not justiciable on the application before him. For the reasons already set out earlier in this judgment, the Judge's conclusion in this regard in unassailable.
Overview
112. The salient fact in this case is that the appellant was unsuccessful in his substantive judicial review proceedings and in his appeal therefrom, and also unsuccessful in his Supreme Court application to seek leave to appeal to that Court. The appellant was also unsuccessful in his High Court application to have the costs awarded to the respondent remitted to the Taxing Master.
113. The time it took for the progression of the appellant's undoubted right of appeal against the judgment of Dunne J. of 8 March 2013 and his challenge to the Bill of Costs with which he was presented by the respondent (and no criticism is levied against the appellant for exercising his various appeals or applications), coupled with the disruptions caused by the Covid-19 pandemic, resulted in the respondent having to seek leave from the High Court to execute its costs order. By reason of what I have endeavoured to explain in this judgment, that application was the only valid application that was before the Judge, and certainly for the purposes of his 28 July 2023 judgment the only matter upon which the Judge could legitimately adjudicate. Indeed, the Judge recognised this to be the case and in the substantive judgment gave his reasons as to why the appellant's attempts to impugn the judgments of Dunne J., McGovern J. and Faherty J. could not be entertained, reasons which I have upheld. I have also upheld his decision to grant the respondent leave to execute, being satisfied, for the reasons set out above, that in granting leave the Judge had regard to the relevant legal principles and applied same to the facts of the case before him and that none of the arguments advanced on behalf of the appellant were sufficient for this Court to find otherwise.
114. Furthermore, for the reasons I have set out, the Judge did not err in declining (in his Ruling of 25 October 2023) to revisit any aspect of his 28 July 2023 judgment and in concluding that the appellant's remedy lay in an appeal to this Court, which the appellant duly brought.
115. Regrettably, much of the appellant's argument on the appeal was directed towards previous judgments and orders of the High Court in respect of which the appellant had either appealed unsuccessfully to the Court of Appeal/applied unsuccessfully to the Supreme Court (the Dunne J. judgment and order), or did not appeal (the ex tempore judgment of Hedigan J. of 21 November 2012 and the Faherty J. judgment and order), and where the judgments the appellant sought to impugn in the court below were never the subject of an application by him pursuant to the "exceptional circumstances" jurisdiction. Against that backdrop, the appellant's attempts to impugn those judgments in his response to the respondent's application is entirely impermissible. As said by Murray J. in Riordain v. An Taoiseach [2000] IESC 61 (quoted by O'Donnell J. in Nash, (para. 8)):
"If a party, solely because he or she disagreed with the judgment of the Court of final appeal could by one means or another restart the proceedings to have issues tried all over again, and perhaps even again, it would undermine the functioning of the administration of justice and weaken the authority of the law, which are there for the benefit, not of the Courts, but of citizens as a whole."
116. I would dismiss the appeal.
Costs
117. The appellant has not succeeded in his appeal. It would seem to follow that the respondent should be awarded her costs. If, however, any party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within 14 days of the receipt of the electronic delivery of this judgment, and a short costs hearing will be scheduled, if necessary. If no indication is received within the 14-day period, the order of the Court, including the proposed costs order, will be drawn and perfected.
118. As this judgment is being delivered electronically, Allen J. and O'Moore J. have indicated their agreement therewith and the orders I have proposed.
Result: Appeal Dismissed