Topic: Judgments or orders of the Supreme Court
SC17 - Applications to vary or rescind a final judgment or order made by the Supreme Court
(issued under section 7(7) of the Courts (Supplemental Provisions) Act 1961, inserted by paragraph (a)(iv) of section 44 of the Court of Appeal Act 2014)
(a) Article 34.5.6° of Bunreacht na hÉireann provides:
“The decision of the Supreme Court shall in all cases be final and conclusive.”;
(b) the Supreme Court (in this practice direction “the Court”) has determined that an application to vary or rescind a final judgment or order made by the Court , other than an application referred to in paragraph 9, will be considered by it only in the most exceptional circumstances (see in particular: In the matter of Greendale Developments Ltd. (in liquidation) : Stephen Fagan and May Malone Applicants v. Liam McQuaid  2 I.R. 514; Bula Ltd. v. Tara Mines Ltd. (No. 6)  4 I.R. 412; DPP v McKevitt  IESC 29; Murphy v Gilligan  IESC 3);
(c) those circumstances are that, through no fault on the applicant’s part, the order or judgment made operates both to deny the applicant justice and clearly to breach the applicant’s constitutional rights (see Greendale);
(d) a party intending to apply to the Court to vary or rescind a final judgment or order made by the Court (in this practice direction “intending applicant”) bears a very heavy onus of establishing that such circumstances exist;
(e) an intending applicant must show cogent and substantive grounds which are objectively sufficient to enable the Court to determine that a hearing of an application on the merits is justified;
(f) I am satisfied that it is in the interests of the administration of justice and the determination of such proceedings in a manner which is just, expeditious and likely to minimise the cost of those proceedings that I issue this practice direction:
1. An intending applicant must lodge in the Office of the Registrar of the Court (in this practice direction “the Office”) -
(a) a copy of the notice of motion sought to be issued in the proceedings,
(b) an affidavit, duly sworn, verifying any facts sought to be relied on in support of the intended application and
(c) any exhibits referred to in that affidavit.
2. The papers referred to in paragraph 1 shall be considered by -
(a) a single judge of the Court or
(b) a panel of three judges of the Court
as the Chief Justice or, in the absence of the Chief Justice or where the Chief Justice has determined that it would not be appropriate that he or she give a direction in the matter, the senior ordinary judge of the Court for the time being available directs.
3. The judge or, as the case may be, panel of judges referred to in paragraph 2 shall determine on the papers referred to in paragraph 1, and on any papers in reply furnished in accordance with paragraph 4, whether or not, having regard to the principles referred to in the relevant case-law including the case-law referred to in the recitals to this practice direction, the application intended to be made is one in respect of which a hearing on the merits is justified.
4. The judge or panel of judges referred to in paragraph 2 may, in his or her or its absolute discretion, direct that the papers referred to in paragraph 1 be served on any party to the original proceedings and on any other person for the purpose of affording that party or person an opportunity to furnish to the Court, a reply in writing, supported where appropriate by replying affidavit, to the allegations of the intending applicant.
5. The papers in reply referred to in paragraph 4 shall be lodged at the Office within such time from the date of service of the intending applicant’s papers as the judge or panel of judges referred to in paragraph 2 shall direct.
6. If satisfied in accordance with paragraph 3 that the application intended to be made is one in respect of which a hearing on the merits is justified, the judge or, as the case may be, panel of judges referred to in paragraph 2 shall give leave to the intending applicant to issue a motion on notice for a specified initial return date, in which event notification of such leave and of that return date shall be given by the Registrar to the intending applicant in writing or by e-mail.
7. On the initial return date of the motion the Court shall give such directions as it considers appropriate for the hearing of the motion.
8. If not satisfied in accordance with paragraph 3 that the application intended to be made is one in respect of which a hearing on the merits is justified, the judge or, as the case may be, panel of judges referred to in paragraph 2 shall refuse leave to make the application, in which event the intending applicant shall be notified of such refusal by the Registrar in writing or by e-mail.
9. (1) This practice direction does not apply to applications -
(a) for the correction of a clerical mistake in a judgment or order of the Court or of an error arising therein from any accidental slip or omission,
(b) to correct a judgment or order of the Court on grounds that the judgment or order as drawn up does not correctly state the actual determination and intention of the Court.
(c) to set aside a judgment or order of the Court on the grounds that that judgment or order was obtained by fraud.
(2) A clerical mistake or error referred to in sub-paragraph (1)(a) may at any time be corrected—
(a) where the parties consent, and with the approval of the Court, by the Registrar,
(i) on the application to the Registrar in writing of any party, to which a letter of consent to the correction from each other party shall be attached or
(ii) on receipt by the Registrar of letters of consent from each party; or
(b) where the parties do not consent, by the Court,
(i) on application made to the Court by motion on notice to the other party or
(ii) on the listing of the proceeding before the Court by the Registrar on notice to each party.
Dated this 9th day of July 2018