Factual and Procedural Background
This judgment addresses two motions: the Plaintiff's motion seeking to adduce new evidence and the Defendant's motion to strike out the Plaintiff's proceedings. The Plaintiff is the registered owner of lands and property comprising showrooms, offices, warehouses, a courtyard, a yard, and approximately six acres of undeveloped land at a commercial park in County Kilkenny, acquired in or around 1996 from Company A.
The dispute arises from the Defendant's claim of adverse possession over the yard and six acres of land adjoining the Plaintiff's property. Historically, the Defendant leased a showroom and facilities from Company A from about 1986 and continued occupation under various arrangements after the Plaintiff's purchase in 1996, including paying rent until around 2002. Following non-payment of rent, the Plaintiff commenced ejectment proceedings in 2010, resulting in Orders from the Circuit Court and High Court directing the Defendant to vacate.
Subsequent proceedings arose when the Defendant, after vacating a unit in July 2019, moved building materials to the adjacent yard. The Plaintiff issued proceedings resulting in a Circuit Court Order dated 6 March 2020 mandating the Defendant to remove all such materials. The Defendant sought to stay and later strike out this Order and filed a Notice of Appeal which was not progressed. The Defendant claimed adverse possession of the yard and six acres during hearings before His Honour Judge Comerford on 6 December 2021, who made an Order directing the Defendant to remove all materials and declaring that the Defendant had no entitlement to occupy the property.
The Plaintiff's application to adduce fresh evidence relates to new witnesses addressing the Defendant's claim of adverse possession, particularly concerning the six acres of undeveloped land, which was first clearly identified during the 6 December 2021 hearing. The Defendant opposed this application and sought to strike out the Plaintiff's proceedings relying on the rule in Henderson v Henderson and the doctrine of laches.
Legal Issues Presented
- Whether the Plaintiff should be granted leave pursuant to Order 61, rule 8 of the Rules of the Superior Courts 1986 to adduce fresh evidence from three witnesses at the hearing of the appeal.
- Whether the Defendant's application to strike out the Plaintiff's proceedings on the basis of the rule in Henderson v Henderson or alternatively the doctrine of laches should be granted.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff seeks to adduce fresh evidence from three witnesses whose evidence was not obtained with reasonable diligence for the original trial and would have an important influence on the case.
- The evidence addresses the Defendant's claim of adverse possession over the yard and six acres, a claim first clearly identified during the hearing before Judge Comerford.
- The Plaintiff contends that the Defendant's adverse possession claim over the six acres was not previously identified and could not have been properly addressed without the new evidence.
Defendant's Arguments
- The Defendant objects to the new evidence, arguing that one witness had no real knowledge of the Defendant's use of the yard/lands and that dates of tenancy were ambiguous.
- The Defendant contends that the Plaintiff misrepresents the involvement of the second witness with the land and the use of the six acres.
- The Defendant challenges the credibility of the third witness, alleging misrepresentations regarding prior agreements and payments related to statutory rights.
- The Defendant relies on the rule in Henderson v Henderson, arguing that the Plaintiff should have raised the lands in earlier proceedings and is now estopped from doing so.
- The Defendant invokes the doctrine of laches, alleging significant delay leading to loss of memory and prejudice, and submits that the Plaintiff's delay should bar the claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Henderson v Henderson (1843) 3 Hare 100 |
Preclusion of raising claims in subsequent proceedings that should have been raised earlier |
The Court found the Defendant's reliance on this rule inapplicable as the claims before the Court arose from different facts and were not matters that could have been raised in prior proceedings. |
| Murphy v Minister for Defence [1991] 2 I.R. 161 |
Criteria for admitting fresh evidence on appeal under Order 61, rule 8 RSC 1986 |
The Court applied the three-part test from this case to determine that the fresh evidence sought to be adduced by the Plaintiff met the criteria for admission. |
| Doyle v Leahy t/a Ideal Kitchens and Bedrooms [2019] IEHC 192 |
Findings on possession and rights under prior proceedings |
The Court referred to this judgment for factual background and to note that the Defendant had previously sought adverse possession as a bargaining tool, and that the extent of the Defendant's claim was not fully before the earlier court. |
| McMullin v Kennedy [2012] IESC 56 |
Application of principles for admitting fresh evidence |
Cited in support of the principles established in Murphy v Minister for Defence regarding fresh evidence. |
Court's Reasoning and Analysis
The Court carefully examined the Plaintiff's application to adduce fresh evidence pursuant to Order 61, rule 8 of the Rules of the Superior Courts 1986. Applying the three-part test from Murphy v Minister for Defence, the Court found that the intended evidence from the three witnesses was in existence at the time of trial but could not have been obtained with reasonable diligence previously. The evidence was considered likely to have an important influence on the outcome, though not necessarily decisive, and was apparently credible.
The Court noted the Defendant's adverse possession claim was only clearly defined during the hearing before Judge Comerford when the Defendant marked a map indicating an area including six acres of land, which had not been previously identified. The Plaintiff could not have addressed this claim without the new evidence, as the Plaintiff's occupation began in late 1996/early 1997.
Regarding the Defendant's strike-out application, the Court analyzed the reliance on the rule in Henderson v Henderson and the doctrine of laches. The Court found that the matters before it were not claims that could or should have been raised in prior proceedings, and thus the rule did not apply. The Defendant's delay and alleged loss of memory were considered but found insufficient to justify striking out the proceedings, especially as the Defendant had previously unsuccessfully relied on laches in earlier proceedings. The Court acknowledged that the Defendant may seek to plead laches in due course but declined to strike out the case on that basis at this stage.
The Court also considered correspondence from the Property Registration Authority rejecting the Defendant's adverse possession applications due to procedural and substantive deficiencies, noting this did not amount to a refusal on the merits but was relevant to clarifying the Defendant's claims.
Holding and Implications
The Court GRANTED the Plaintiff leave to adduce fresh evidence from the three witnesses at the hearing of the appeal pursuant to Order 61, rule 8 RSC 1986.
The Court REFUSED the Defendant's application to strike out the Plaintiff's proceedings.
The Defendant was granted liberty to file an affidavit addressing the fresh evidence within four weeks of the Order's perfection. The substantive appeal proceedings were to be listed in the Non-Jury/Judicial Review List, with a further hearing to address costs.
This decision directly affects the parties by allowing the appeal to proceed with the admission of new evidence and denying the Defendant's attempt to dismiss the case prematurely. No new precedent was established by this ruling.