Desmond v Moriarty, Supreme Court of Ireland, Judgment, Law, casemine.com

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McKechnie J.

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Desmond v. Moriarty

Smart Summary

Factual and Procedural Background

The Appellant commenced plenary proceedings in 2010 seeking to set aside earlier High Court and Supreme Court judgments delivered in 2003–2004 (the “2003 proceedings”). Those earlier judgments had rejected the Appellant’s judicial‐review challenge to rulings of a public tribunal (chaired by the Respondent) that had permitted questioning of witnesses about a public document known as the “Glackin Report”.

In the present action the Appellant alleged that the 2003 judgments were procured by fraud because an affidavit sworn for the Respondent in May 2003 allegedly contained misleading, inaccurate and incomplete averments concerning legal advice (“the Nesbitt Opinion”) and the relevance of the Glackin Report. The Respondent applied to strike out the new proceedings under Order 19, rule 28 of the Rules of the Superior Courts and/or the inherent jurisdiction, arguing that the statement of claim disclosed no reasonable cause of action and was an abuse of process. The High Court (Judge A) struck out the action in 2012. The Appellant appealed to the Supreme Court.

Legal Issues Presented

What quality or degree of fraud must be pleaded before a court may set aside a final judgment for fraud?
Whether the alleged misleading affidavit evidence, if proved, was capable of affecting the 2003 judgments in a fundamental way.
Whether a final judgment may be set aside for breach of constitutional rights or fair procedures where the alleged breach is attributed to a party (rather than to the court itself).
Whether the High Court correctly exercised its strike-out jurisdiction under Order 19, rule 28 and/or the inherent jurisdiction.

Arguments of the Parties

Appellant's Arguments

The strike-out jurisdiction must be exercised sparingly; complex factual disputes and legal questions in the pleadings warranted a plenary trial.
Fraud “in the true sense” includes reckless misstatements; deliberate dishonesty is not required. His pleadings, taken at their height, alleged such fraud.
Even if fraud were not proved, the Respondent’s conduct amounted to a fundamental breach of fair procedures and constitutional rights that justified setting aside the 2003 judgments.
The High Court wrongly relied on a single reply to particulars and failed to allow amendment of the statement of claim.

Respondent's Arguments

Kenny v Trinity College Dublin establishes that only deliberate and purposeful dishonesty can ground an action to set aside a judgment for fraud; recklessness is insufficient.
The Appellant expressly disavowed any allegation of intentional dishonesty, so his claim was bound to fail.
The impugned affidavit averments, even if inaccurate, were irrelevant to the ratio decidendi of the 2003 judgments, which rested on the broad discretion of tribunals and the public nature of the Glackin Report.
The exceptional jurisdiction to reopen a final judgment for breach of constitutional justice applies only where the breach is attributable to the court itself, not to the conduct of a litigant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kenny v Trinity College Dublin [2008]	Three prerequisites for setting aside a judgment for fraud: (1) deliberate dishonesty; (2) effect must be fundamental; (3) fraud must be pleaded with particularity.	Adopted as the controlling test; the Court found the first and second prerequisites were not met.
Ampthill Peerage Case [1977]	Only conscious and deliberate dishonesty will justify reopening a final judgment.	Cited as historical authority supporting the Kenny standard.
Tassan Din v Banco Ambrosiano [1991]	Pleadings to set aside for fraud must allege fraud with particularity and prove it.	Cited when describing the heavy onus on an applicant.
Re Greendale Developments (No. 3) [2000]	Exceptional inherent jurisdiction to reopen a final order to protect constitutional justice.	Considered on whether jurisdiction exists for breaches of fair procedures.
L.P. v M.P. [2002]	Final orders may be revisited only where there is a fundamental denial of justice.	Relied on to define the exceptional nature of the jurisdiction.
Bula v Tara Mines (No. 6) [2000]	Supreme Court’s inherent jurisdiction to protect constitutional rights even after a final order.	Cited for the same exceptional-circumstances threshold.
Aer Rianta v Ryanair [2004]	Strike-out jurisdiction under O.19 r.28 should be exercised sparingly.	Guided the Court’s approach to the Respondent’s motion.
Barry v Buckley [1981]	Basis and limits of the inherent jurisdiction to strike out vexatious claims.	Used to explain when affidavit evidence may be considered.
Sun Fat Chan v Osseous Ltd [1992]	Caution against using the inherent jurisdiction as a summary disposal tool.	Cited on the limits of strike-out.
Jodifern v Fitzgerald [2000]	Right of access to courts limits summary dismissal.	Referenced when discussing the need for clear cases.
Fay v Tegral Pipes Ltd [2005]	Purpose of strike-out is to avoid abuse and unnecessary litigation.	Supported dismissal where the claim could not succeed.
Lopes v Minister for Justice [2014]	Relationship between O.19 r.28 and the inherent jurisdiction.	Explained why affidavit evidence was permissible.
Keohane v Hynes [2014]	Limitations on resolving factual conflicts in strike-out motions.	Applied when evaluating affidavits in the High Court.
Moylist Construction v Doheny [2016]	Strike-out not appropriate for complex legal issues needing full trial.	Considered and distinguished by the Court.
Dublin Corporation v BATU [1996]	Finality of litigation and public interest in res judicata.	Underpinned the emphasis on certainty of judgments.
Flood v Lawlor (2000)	Wide discretion accorded to tribunals of inquiry.	Supported view that the Glackin Report was within tribunal remit.
Bailey v Flood (2000)	Judicial reluctance to intervene in tribunal procedure.	Same application as Flood.
O’Callaghan v Mahon [2006]	Inquisitorial nature of tribunals and deference owed.	Cited in evaluating relevance of tribunal evidence.
Goodman v Hamilton [1992]	Purpose of tribunals is to ascertain and report facts to Parliament.	Reinforced tribunal’s latitude.
Haughey v Moriarty [1999]	Extent of tribunal’s investigative power.	Further authority on tribunal discretion.
Vico Ltd v Bank of Ireland [2016]	Court of Appeal affirmation of the Kenny fraud test.	Cited as contemporary support for deliberate-dishonesty standard.
Superwood Holdings v Sun Alliance [2017]	Re-affirmation that deliberate dishonesty is required.	Used to bolster the High Court’s interpretation.
Jonesco v Beard [1930]	Fraud must be pleaded with exact particulars.	Quoted when stressing pleading requirements.
R v Bow Street Magistrates, ex p Pinochet (No. 2) [2000]	Example of exceptional circumstances warranting reopening of a case.	Referenced in general discussion of rare jurisdiction.
McIlkenny v Chief Constable [1980]	Test of whether new evidence “changes the whole aspect of the case”.	Adopted as part of the fundamental-effect criterion.
Waite v House Spring Gardens Ltd (1985)	Courts’ power to set aside a judgment obtained by fraud.	Provided historical context.
Derry v Peek (1889)	Definition of fraud includes reckless misstatements (general tort principle).	Mentioned by Appellant; distinguished as inapplicable to set-aside applications.

Court's Reasoning and Analysis

(1) Degree of Fraud Required
The Court reaffirmed that, under Kenny v Trinity College Dublin, only deliberate and purposeful dishonesty amounting to intentional deceit of the court can justify reopening a final judgment. Recklessness, even if negligent or misleading, does not suffice. Because the Appellant explicitly disclaimed any allegation of intentional deceit, the first prerequisite for setting aside was absent.

(2) Fundamental Effect on 2003 Judgments
Even assuming the affidavit averments were inaccurate, the 2003 High Court and Supreme Court judgments had rested on: (a) the tribunal’s wide terms of reference; (b) the public nature of the Glackin Report; and (c) strong deference to tribunal discretion. The alleged misstatements about the Nesbitt Opinion did not “change the whole aspect of the case” and thus failed the second Kenny criterion.

(3) Breach-of-Fair-Procedures Ground
Drawing on Re Greendale, Bula v Tara Mines and L.P. v M.P., the Court accepted that it possesses an inherent jurisdiction to set aside a final order for fundamental breaches of constitutional justice. However, such jurisdiction is confined to breaches attributable to the court itself. The Appellant alleged procedural unfairness arising from the Respondent’s conduct, not from the courts that decided the 2003 proceedings, so this ground was unavailable.

(4) Exercise of Strike-out Jurisdiction
Applying Aer Rianta v Ryanair and subsequent authorities, the Court found the High Court had properly invoked Order 19 rule 28 and the inherent jurisdiction. Because the statement of claim could not satisfy the Kenny criteria even if every fact alleged were true, the claim was bound to fail and its continuation would be an abuse of process.

Holding and Implications

APPEAL DISMISSED

• The Supreme Court upheld the strike-out of the proceedings.
• It confirmed that only intentional deceit can ground an action to impeach a final judgment for fraud, and that the court’s exceptional jurisdiction to reopen a case for breach of constitutional justice is confined to misconduct by the deciding court itself.
• The decision re-emphasises litigation finality and gives clear guidance on the narrow circumstances in which Irish courts will entertain proceedings seeking to set aside their own final orders.