S v E (Approved)

Factual and Procedural Background

The case concerns an appeal by the Appellant (wife) against a decision of the Circuit Court dated 27 March 2025. The Circuit Court had refused relief sought by the Appellant related to the Respondent's (husband's) alleged failure to comply with a consent order made in May 2022 in family law proceedings. The original motion was based on affidavits from both parties and supplemental affidavits, with no oral evidence given in the Circuit Court. The Appellant sought leave in the High Court to adduce oral evidence not presented in the Circuit Court as part of the appeal process.

Legal Issues Presented

1. Whether the Appellant is entitled to call oral evidence on appeal that was not given in the Circuit Court, pursuant to section 37(2) of the Courts of Justice Act, 1936.
2. The scope and discretion of the High Court in admitting fresh evidence on rehearing appeals from the Circuit Court where no oral evidence was originally given.
3. The procedural requirements and limitations on admitting new evidence on appeal under Order 61 Rule 8 of the Rules of the Superior Courts.

Arguments of the Parties

Appellant's Arguments

• The Appellant requested special leave under section 37(2) to call oral evidence in support of her appeal, which was necessary to properly present her case on rehearing.
• The Appellant proposed to call two professional witnesses: the Junior Counsel who concluded the settlement terms and a forensic accountant involved for the Appellant.

Respondent's Arguments

• The Respondent opposed the admission of fresh oral evidence not heard in the Circuit Court and suggested that if such evidence were allowed, the matter should be remitted for a fresh hearing in the Circuit Court.
• The Respondent reserved the right to challenge the admissibility, relevance, and weight of any additional evidence presented by the Appellant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
L.D. v N.D. [2020] IEHC 267	Distinguished on grounds that it concerned an appeal under s.38 where oral evidence was heard in the Circuit Court.	The court found this precedent inapplicable because the current appeal was governed by s.37 where no oral evidence was given below.
Fitzpatrick v Powell [1946] IR 32	Clarified that s.37 appeals do not allow for fresh evidence to be admitted if no evidence was given in the Circuit Court, except with special leave.	The court distinguished this case as it involved no evidence given or pleadings opened in the Circuit Court, unlike the present case where affidavit evidence and submissions were heard.

Court's Reasoning and Analysis

The court analysed the statutory framework under section 37 of the Courts of Justice Act, 1936, which governs appeals from the Circuit Court where no oral evidence was given. The appeal is by way of rehearing, and fresh evidence not presented in the Circuit Court requires the court's special leave. The court examined Order 61 Rule 8 of the Rules of the Superior Courts, which sets out procedural requirements for submitting fresh evidence on appeal.

The court distinguished the cited precedents, noting that unlike Fitzpatrick v Powell, where no evidence was heard below, the present case involved affidavit evidence and submissions. The court emphasized that the discretion to admit fresh evidence is to be exercised fairly and depends on the circumstances of each case.

The Respondent's proposal to remit the matter to the Circuit Court if fresh evidence were admitted was rejected as unnecessary because the High Court has discretion to admit such evidence on appeal. The court concluded that admitting further affidavit evidence from the proposed professional witnesses was in the interests of justice.

The court also considered fairness to both parties, directing that deponents of affidavits used in both courts attend for cross-examination at the appeal hearing, excluding solicitors who swore affidavits related to the special leave application.

Holding and Implications

The court granted the Appellant special leave to adduce additional evidence by way of affidavits sworn by two professional witnesses, with similar leave granted to the Respondent to submit further evidence by affidavit from witnesses he may nominate.

The court ordered that all deponents of affidavits used in the Circuit and High Courts, except solicitors involved in the special leave application, must attend for cross-examination at the appeal hearing. The court reserved costs and liberty to apply.

The decision allows the appeal to proceed as a rehearing with the admission of additional evidence, ensuring procedural fairness and the proper presentation of the case. No broader precedent was established beyond the exercise of judicial discretion to admit fresh evidence under s.37 and the Rules of the Superior Courts.