Issued pursuant to the provisions of Section 7C (2) of the Courts (Supplemental Provisions) Act 1961 (inserted by Section 10 of the Court of Appeal Act 2014)

Whereas:

(a) Article 34.4.3° of Bunreacht na hÉireann provides: “The decision of the Court of Appeal shall be final and conclusive, save as otherwise provided by this Article.”

Under Article 34.5. 3° the Supreme Court has appellate jurisdiction from a decision of the Court of Appeal only if satisfied –

“i  the decision involves a matter of general public importance, or

ii  in the interests of justice it is necessary that there be an appeal to the Supreme Court.”;

(b) The Court of Appeal (“the Court”), following case law of the Supreme Court (see in particular: In the matter of Greendale Developments Ltd. (in liquidation): Stephen Fagan and May Malone Applicants v. Liam McQuaid [2000] 2 IR 514;  Doyle v Banville [2012] IESC 25; Murphy v. Gilligan [2017] IESC 3; Nash v. DPP [2017] IESC 51; Student Transport Scheme v. Bus Eireann [2021] IESC 22), has determined that review applications will be considered by it only in the most exceptional circumstances (see: Launceston Property Finance DAC v. Wright [2020] IECA 146, in particular the summary in paragraph 12; Scotchstone Capital Fund Limited and Skoczylas v. Ireland and the Attorney General [2022] IECA 275; and Dowling and others v. Minister for Finance [2022] IECA 285);

(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 bring a review application (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 a review application on the merits is justified;

(f) It is desirable, in the interests of finality and certainty, that any review application to the Court be initiated as soon as possible and within the general period of time allowed by the Rules of the Superior Courts for seeking leave to further appeal to the Supreme Court (under RSC Order 58, r.16(1) or shortly thereafter;

(g) I am satisfied that it is in the interests of the administration of justice and the determination of a review application in a manner which is just, expeditious and likely to minimise the costs, that I issue this practice direction;

A. Review applications

1. (1) An intending applicant must lodge in the Office of the Registrar of the Court of Appeal (in this practice direction “the Office”) in hard copy –

(a) a copy of the notice of motion sought to be issued in the proceedings seeking a review, 

(b) an affidavit, duly sworn, verifying any facts sought to be relied on in support of the intended application,

(c) any exhibits referred to in that affidavit, and

(d) a short submission (not exceeding 1000 words) stating how it is said the intended application satisfies the criteria for review and arises in ‘the most exceptional circumstances’.

(2) Such lodgement by an intending applicant should be made before the expiry of 28 days (or such extended period as the panel of judges hereinafter mentioned in paragraph 2 may permit) from the date of perfection of the order of the Court.

2. The papers referred to in paragraph 1 shall be considered by the panel of judges that heard the appeal, or, in the discretion of the President of the Court, by such other panel as the President may direct for that purpose.

3.  The 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 panel of judges referred to in paragraph 2 may, in 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 a 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 panel of judges referred to in paragraph 2 shall direct.

6. 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 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 email.

7. 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 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 email. 

8. On the initial return date of the motion the Court shall give such directions as it considers appropriate for the hearing of the motion. Save where the President of the Court in his/her discretion otherwise directs the motion shall be heard and determined by the panel of judges referred to in paragraph 2.

B. Correction applications

9. (1) The foregoing paragraphs of this practice direction do not apply to -

(a) applications 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, or 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;

(b) applications to set aside a judgment or order of the Court on the grounds that that the judgment or order was obtained by fraud.

(2) A clerical mistake or error, or a judgment or order that does not correctly state the actual determination and intention of the Court, as 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.

(3) Case law establishes that applications to set aside a judgment or order of the Court on the grounds that the judgment or order was obtained by fraud, as referred to in sub-paragraph (1)(b), should be brought by way of plenary proceedings.  Notwithstanding that, where there is an application to set aside a judgment or order (with such ancillary or consequential orders as may be agreed) of the Court on consent of all relevant parties on grounds that the judgment or order was obtained by fraud, the application may be made to the Court by motion on notice and may be determined by the panel of judges referred to in paragraph 2.

Dated this 15^th day of February, 2023.
Signed:
George Birmingham
President of the Court of Appeal