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Nolan -v- Carrick; O'Toole -v- Carrick
Factual and Procedural Background
The plaintiffs obtained damages against the defendant following trials before judge and jury on 20th and 21st November 2012, arising from allegations of sexual abuse by the defendant. After judgments were entered, the plaintiffs sought and obtained orders to prevent the defendant from dissipating assets. The actions were listed for trial commencing 13th November 2012. On that date, an order was made permitting the defendant's solicitors to come off record, with the defendant's written consent. An application to remove the cases from the list was made based on medical evidence that the defendant was housebound and scheduled for hip replacement surgery on 20th November 2012. However, the cases remained in the list and the defendant was informed by his former solicitors. The defendant did not appear at trial and judgments were entered against him, awarding damages of €700,000 and €4 million respectively, along with costs.
The defendant, now represented by new solicitors, brought a series of motions seeking to lift injunctions and set aside the judgments and verdicts, including an application pursuant to Order 36, rule 33 of the Rules of the Superior Courts to set aside the judgments and verdicts, and an application under the inherent jurisdiction of the court on grounds of alleged lack of mental capacity to defend the actions. The court heard both applications together, as the issues and arguments were identical.
Legal Issues Presented
- Whether the application to set aside the judgment and verdict pursuant to Order 36, rule 33 of the Rules of the Superior Courts, made out of time, should be granted.
- Whether the court should exercise its inherent jurisdiction to set aside the verdict and judgment and order a new trial on the basis that the defendant lacked the mental capacity to properly defend the actions.
- The scope and application of the inherent jurisdiction of the court to set aside final orders in exceptional circumstances involving breach of constitutional rights or natural justice.
- The appropriate test for assessing mental capacity in the context of litigation.
Arguments of the Parties
Defendant's Arguments
- The defendant submitted that the judgments should be set aside pursuant to Order 36, rule 33 despite the application being out of time, relying on English authorities allowing extension of time in exceptional circumstances such as illness or accident.
- The defendant argued that he lacked the mental capacity to properly defend the actions at the time of trial due to mild cognitive impairment, depression, and pain, supported by expert psychiatric and neuropsychological evidence.
- It was contended that the court should exercise its inherent jurisdiction to set aside the judgments on grounds of fundamental denial of justice stemming from incapacity.
- The defendant emphasized that an appeal would be limited in scope due to the absence of participation at trial and therefore might not provide an adequate remedy.
- The defendant sought to draw an adverse inference from the plaintiffs’ failure to call an expert witness who examined the defendant on mental capacity.
Plaintiffs' Arguments
- The plaintiffs contended that the application pursuant to Order 36, rule 33 was out of time and not justified, as the defendant deliberately chose not to attend trial despite notice and opportunity.
- They argued that the inherent jurisdiction to set aside final orders is limited to exceptional circumstances involving breach of constitutional rights or natural justice, and is not available where an appeal remedy exists.
- The plaintiffs submitted that the defendant had capacity to litigate in November 2012, as evidenced by his participation in earlier criminal proceedings and the absence of contemporaneous concerns about capacity.
- It was argued that the defendant’s failure to appeal or arrange representation was a matter of poor judgment rather than incapacity.
- The plaintiffs did not call the expert who examined the defendant on mental capacity, relying on the court’s jurisdictional ruling.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Schafer v. Blyth [1920] 3 K.B. 140 | Discretion to extend time for application under Order 36, rule 33 where illness or accident prevents timely application. | The court acknowledged the rule’s discretionary nature but found no justification to extend time in this case due to deliberate non-attendance. |
| Wise v. Swami Omkarananda (1985) | Court’s unfettered discretion under Order 36, rule 33 to do justice between parties. | Referenced to support discretionary power but rejected application as defendant did not act promptly or with justification. |
| Hayman v. Rowlands [1957] 1 All E.R. 321 | New trial should be ordered if non-appearance was by mistake and injustice would result, with costs compensation. | Distinguished as no mistake or surprise was found; defendant deliberately did not attend. |
| Shocked and Another v. Goldschmidt and Another [1994] Times | Guidelines for setting aside judgment regularly obtained, including real prospects of success and conduct of parties. | Applied as a useful guide; defendant failed to demonstrate real prospects of success or excusable absence. |
| In Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514 | Recognition of inherent jurisdiction to set aside final orders in exceptional circumstances involving breach of constitutional rights. | Confirmed the heavy burden on applicant and limited scope of inherent jurisdiction. |
| Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412 | Summary of inherent jurisdiction principles to set aside final orders in exceptional circumstances. | Reiterated exceptional nature and heavy onus on applicant. |
| Desmond v. Moriarty [2012] IEHC 202 | Inherent jurisdiction to set aside judgments relates to court’s conduct and breach of natural justice. | Clarified that jurisdiction is limited to correcting breaches in court proceedings, not merits of case. |
| L.P. v. M.P. [2002] 1 IR 219 | Inherent jurisdiction to set aside final orders where no other remedy exists and fundamental denial of justice established. | Held jurisdiction not to be exercised where appeal remedy exists; applicable to High Court. |
| M.D. v. Minister for Health [2002] IEHC 128 | Distinction between Supreme Court and High Court jurisdiction to set aside final orders on grounds of natural justice breaches. | Supported principle that appeal is primary remedy where available. |
| People (DPP) v. McKevitt [2009] IESC 29 | Exceptional jurisdiction requires cogent and substantive grounds, not mere dissatisfaction or subjective assertions. | Emphasized high threshold for inherent jurisdiction. |
| Cooper Flynn v. R.T.E. (Unreported, 2004) | Appeal limitations on new trial grounds and miscarriage of trial affecting fairness. | Referenced to demonstrate limitations of appeal as remedy. |
| Masterman-Lister v. Brutton and Company (Nos. 1 and 2) [2003] 1 WLR 1511 | Test for mental capacity in litigation context requiring ability to understand, retain, weigh information, and make decisions. | Applied to assess defendant’s capacity to litigate; defendant failed to show incapacity to required standard. |
| Fitzpatrick v. K.F. [2009] 2 IR 7 | Test for capacity to refuse medical treatment, involving understanding nature, purpose, effects and consequences of decision. | Modified test used as guidance for assessing capacity in litigation context. |
| Dunhill v. Burgen (No. 2) [2012] 1 WLR 3739 | Capacity to enter settlement and requirement for court approval where party lacks capacity. | Referenced to support protection of parties lacking capacity in litigation. |
| Presho v. Doohan [2009] IEHC 631 | Definition of "unsound mind" for statutory limitation exceptions, requiring incapacity to manage affairs related to claim. | Used to support understanding of capacity in legal context. |
| Wiszniewsky v. Central Manchester Health Authority [1998] PIQR 324 | Principles for drawing adverse inferences from absence of material witness. | Applied to consider plaintiffs’ failure to call expert witness on mental capacity. |
Court's Reasoning and Analysis
The court first considered the application under Order 36, rule 33, noting the statutory requirement that such applications be made within six days of trial. The defendant’s application was significantly out of time. While English authorities recognize the court’s discretion to extend time in exceptional circumstances such as illness or accident, the court found no such excusing circumstances here. The defendant had consented in writing to his solicitors coming off record, had been notified that the cases remained in the list, and deliberately chose not to attend or arrange representation. There was no element of mistake or surprise. The defendant failed to demonstrate any real prospects of success if the judgments were set aside. Accordingly, the court refused the application under Order 36, rule 33.
Turning to the inherent jurisdiction to set aside final orders, the court reviewed the jurisprudence establishing that such jurisdiction is exceptional, requiring a fundamental denial of justice through no fault of the party, and is not available where an appeal remedy exists. The defendant had an appeal remedy, although limited in scope, and the court declined to exercise the inherent jurisdiction.
The court then examined the evidence regarding the defendant’s mental capacity at the time of the trials in November 2012. Expert evidence from psychiatrists and a neuropsychologist established that the defendant suffered from mild cognitive impairment, likely evolving dementia, depression, pain, and other medical conditions. However, the evidence showed variability in the defendant’s functioning, and that he retained intellectual ability, understanding of the allegations, and the capacity to provide detailed accounts of the proceedings and background.
The court applied the test derived from Masterman-Lister v. Brutton and Fitzpatrick v. K.F., requiring sufficient cognitive ability to understand, retain, weigh information, and make decisions relevant to the litigation. It found that despite the defendant’s medical conditions, the evidence did not establish on the balance of probabilities that he lacked capacity to make the necessary decisions in November 2012. The defendant’s failure to attend trial and arrange representation was attributed to poor judgment rather than incapacity.
The court also considered but rejected the defendant’s submission for an adverse inference from the plaintiffs’ failure to call an expert witness who examined the defendant, finding that such inference would not materially affect the evidence before the court.
Holding and Implications
The court REFUSED the defendant’s application to set aside the judgments and verdicts entered against him in the two actions.
The direct effect of this decision is that the judgments stand and the defendant remains liable for the damages awarded. The court emphasized the limited and exceptional nature of the inherent jurisdiction to set aside final orders, particularly where an appeal remedy exists. No new precedent was established; the ruling reaffirms existing principles regarding applications under Order 36, rule 33 and the inherent jurisdiction of the court in cases involving mental capacity and finality of judgments.
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