High Court Discretion to Admit Fresh Evidence on Section 37 Appeals – Comment on S v E [2025] IEHC 377

1. Introduction

Parties: The wife (S) as applicant/respondent in the Circuit Court and appellant in the High Court; the husband (E) as respondent/appellant in the Circuit Court and respondent in the High Court.

Background: In May 2022 the parties settled their family-law dispute by consent order. Alleging breach of that order in January 2025, the wife moved the Circuit Court for enforcement reliefs. The motion was decided solely on affidavit evidence; no oral testimony was taken. On 27 March 2025 the Circuit Court re-entered the proceedings but refused the wife’s substantive reliefs. She appealed.

Key Issue on Appeal: Whether, in an appeal governed by s.37 of the Courts of Justice Act 1936 (i.e., where no oral evidence had been taken below), the High Court could – and should – grant special leave to allow new oral and/or affidavit evidence not before the Circuit Court.

Relief Sought in High Court: Leave to adduce evidence from (i) junior counsel who negotiated the May 2022 settlement and (ii) the wife’s forensic accountant, together with consequential directions.

2. Summary of the Judgment

The appeal is a rehearing under s.37(2); fresh evidence is permissible only with the special leave of the appellate judge.
Contrary to the husband’s submission, the court’s power to admit new evidence is not limited to “clearing up matters of doubt” left by lower-court evidence; it is a discretionary power to be exercised fairly and contextually.
The court distinguished Fitzpatrick v Powell [1946] IR 32 and L.D. v N.D. [2020] IEHC 267, stressing that in S v E affidavit evidence had been heard in the Circuit Court.
Applying fairness and the interests of justice, Jordan J granted special leave for the wife to adduce the proposed professional evidence, and reciprocally granted the husband liberty to call additional witnesses.
The fresh evidence is to be furnished by affidavit within strict timelines, with mandatory attendance of all deponents (other than solicitors for the special-leave application) for cross-examination at the appeal hearing.
Costs of the application were reserved and liberty to apply was granted.

3. Analysis

3.1 Precedents Cited and Distinguished

(a) L.D. v N.D. [2020] IEHC 267

Concerned an appeal under s.38 (i.e., oral evidence had been heard below).
Jordan J highlighted that s.38 appeals differ procedurally; therefore, the approach to fresh evidence in L.D. is of limited application to a s.37 appeal.

(b) Fitzpatrick v Powell [1946] IR 32

Haugh J refused to admit evidence where no evidence – oral or affidavit – had been given in the Circuit Court.
Key dictum: fresh evidence power is meant for clearing up doubts, not for converting the High Court into a court of first instance.
Jordan J accepted the dictum but distinguished the facts: in S v E the case was indeed “heard and dealt with” below on affidavit and submissions, satisfying the statutory trigger.

3.2 Legal Reasoning

Statutory Framework – s.37(1) & (2) of the 1936 Act confers:
- An automatic right of appeal where the matter below involved no oral evidence;
- A rehearing model; and
- A prohibition on fresh evidence unless special leave is granted.
Rules of Court – Order 61 r.8 RSC elaborates procedural steps for introducing fresh evidence, including affidavit disclosure and the court’s residual power to admit evidence “at any time … on such terms as the Court shall think fit.”
Nature of “Special Leave” – Jordan J construed “special leave” as a discretionary gateway, not fettered by the narrow interpretation in Fitzpatrick. Relevant considerations include:
- Whether the appeal remains a rehearing or morphs into a first instance trial;
- Procedural fairness to the respondent (advance notice, opportunity to reply);
- The interests of justice – especially in family-law enforcement contexts, where equitable outcomes often depend on professional evidence of settlement context and financial data.
Distinguishing Total Absence of Evidence – The Circuit Court in S v E actually had affidavit testimony and counsel submissions; therefore, allowing fresh professional evidence supplements rather than supplants the existing record.
Practical Directions – By ordering affidavit exchange and compelling deponents’ attendance, the court preserved:
- The rehearing character;
- Efficiency (avoiding remittal to the Circuit Court); and
- The respondent’s right to cross-examination.

3.3 Anticipated Impact

Clarified Threshold for Special Leave – Practitioners now have authority that the High Court’s discretion under s.37(2) is broader than previously perceived; it is not confined to “matters left in doubt.”
Strategic Considerations on Affidavit-Only Hearings – Litigants may approach Circuit Court motions more carefully, knowing that fresh evidence can be permitted on appeal yet will attract scrutiny and reciprocal rights for the opposing party.
Procedural Economy – The decision discourages automatic remittal to the Circuit Court, promoting finality by equipping the High Court to fill evidential gaps.
Family-Law Enforcement – In consent-order disputes, the ruling facilitates a fuller exploration of the settlement matrix (professional negotiations, financial assessments) on appeal, potentially improving enforcement efficacy.
Future Case Law – Courts may reference S v E when balancing fairness against the risk of turning a rehearing into a new trial, especially in affidavit-based proceedings.

4. Complex Concepts Simplified

Section 37 Appeal: An appeal from the Circuit Court where no oral evidence was taken; heard as a rehearing in the High Court.
Special Leave: Court permission required to introduce evidence not presented below. It is discretionary and context-dependent.
Rehearing vs. First Instance: A rehearing reviews the lower court’s decision with a possibility of additional evidence, whereas a first-instance hearing determines facts for the first time.
Affidavit Evidence: Sworn written testimony; admissible in lieu of, or in addition to, oral testimony.
Consent Order: A settlement agreement endorsed by the court, carrying the same enforceability as a judgment.
Reservation of Costs: The court postpones its decision on which party must pay legal costs until a later stage.

5. Conclusion

S v E [2025] IEHC 377 establishes a modern, flexible interpretation of “special leave” under s.37(2) of the Courts of Justice Act 1936. Jordan J confirmed that the High Court may admit fresh evidence where the Circuit Court has already engaged with affidavit material, provided procedural fairness is maintained. The judgment balances appellate efficiency with the parties’ rights to a full evidential platform, refining the procedural toolkit for family-law and broader civil appeals in Ireland. Its emphasis on discretion, reciprocal fairness, and targeted directions is likely to resonate in future litigation strategy and judicial decision-making alike.