Supreme Court Clarifies when new arguments and new evidence can be admitted in Non-Plenary Appeals

In delivering its judgment in Ennis vs Allied Irish Bank plc¹ , the Supreme Court provided useful guidance as to the tests to be applied when assessing whether new arguments and new evidence may, in certain circumstances, be adduced in an appeal against a summary judgment and / or an interlocutory order. 

Policy Considerations

In delivering its judgment, the Court addressed the competing policy considerations that need to be weighed up, in assessing whether or not a party should be permitted to make new arguments on appeal.  

While parties have a right to litigate and to bring a case, this right is not unlimited. The Court noted that while a person otherwise entitled to win a case, should not be faced with the prospect of losing because a valid and decisive point was not made at first instance, there are real dangers in allowing a practice which is over-lax, in permitting new grounds to be raised on appeal.  

Parties to litigation are obliged to set out their case fully at trial. Finality of litigation underpins our legal system. To allow new arguments to be made in all appeals could very significantly and adversely affect the Court system's ability to bring disputes to a conclusion. More often than not, this would lead to significantly increased legal costs.  

Appeals from Plenary Judgments

At the outset, the Court considered the test for making new arguments on an appeal from a plenary judgment, as set out in its judgment in Lough Swilly Shellfish Growers Co-operative Society Ltd and Anor v Bradley and Anor²  (the Lough Swilly Judgment).  

The Lough Swilly Judgment was delivered almost 30 years after an earlier Supreme Court decision of K.D. V M.C³ in which it was noted that it was only in the most exceptional circumstances that the Court should hear and determine an issue that had not been tried and determined in the High Court. The Court in K.D. v M.C noted that exceptions to this general rule should only be permitted where it is clearly required in the interests of justice.  

In delivering the Lough Swilly Judgment, the Court noted that an appellate Court needs to adopt a "sensible flexibility" regarding the possibility of raising new grounds on appeals in plenary proceedings, having regard to the "interests of justice".  The Lough Swilly Judgment drew a distinction between arguments which could amount to a reformulation of arguments made at first instance on the one hand, and on the other hand, an entirely new argument, noting that a Court would be less inclined to admit the latter on appeal. This is in part due to the fact that in certain circumstances, the making of a new argument may necessitate the admission of new evidence before the appellate Court.   

Appeals from Summary Judgment / Interlocutory Orders

Having considered the Lough Swilly Judgment, the Court in Ennis considered whether, "if there is to be a "sensible flexibility" in appeals from plenary proceedings, whether, subject to sensible limitations, an analogous approach should be adopted in appeals from a summary judgment?". 

The Court noted an analogy between appeals from a summary judgment and appeals from interlocutory orders. The key distinction between (i) summary judgment and/or interlocutory orders and (ii) judgments / orders made consequent to a plenary hearing, is that the former are decided by way of affidavit evidence. For the most part, the parties to summary proceedings or interlocutory hearings will not be afforded the full suite of procedures designed to elicit truth in plenary proceedings, such as discovery and cross-examination. This has been a major factor in the Courts permitting greater leeway to applicants seeking to make new arguments on appeal from interlocutory orders and summary judgments. 

The Court reviewed a number of its previous decisions on the admissibility of new arguments to be made on appeal where the judgment / order was determined on foot of affidavit evidence (the Relevant Authorities)⁴ . The Court in the Relevant Authorities applied a proportionate, and more flexible approach than was applicable to appeals from plenary judgments. This reflected the fact that the protections afforded to a defendant in summary proceedings or interlocutory applications, are less than those afforded to a defendant in plenary proceedings by virtue of the differing procedures.  

New Evidence

Where a party in an appeal from a summary judgment, seeks to introduce new evidence on appeal, the party will need to comply with the test as explained by Finlay C.J. in Murphy v Minister for Defence5. In Murphy, the Court explained the three fold test in the following terms: (1) the evidence to be adduced must have been in existence at the time of the trial and must be such that it could not have been obtained with reasonable diligence for use at the trial; (2) it would probably have had an important influence on the result of the case, though it need not be decisive; and (3) the new evidence must be presumed to be believed, that is, it must be apparently credible, though it need not be incontrovertible. 

Application to Present Facts

Following the grant of summary judgment in favour of the bank, the appellant issued a Notice of Appeal and subsequently successfully brought an application permitting him to adduce his bank statements and certain emails of the bank, which had not been before the High Court.  At the hearing of the appeal, the appellant made a number of new arguments relating to alleged non-compliance by the bank with the Consumer Credit Act 1995, which had not been made before the High Court and which did not appear in the Notice of Appeal or in submissions. 

In delivering its judgment, the Court of Appeal held that the appellant was not entitled to advance new arguments that had not been made before the High Court. The Supreme Court noted that had the Court of Appeal permitted this argument to be made on appeal, it would likely have remitted the matter back to plenary hearing in light of the very low threshold which a defendant in summary proceedings must establish in order to be entitled to a plenary trial. 

While the Court of Appeal referred to K.D. v M.C and the Lough Swilly Judgment, it did not make any reference to the Relevant Authorities in which the Supreme Court had made it clear that a more flexible application of the principles enunciated in K.D v M.C. and in the Lough Swilly Judgment, was more appropriate in appeals from summary judgment.

The Court concluded that had the Court of Appeal considered the Relevant Authorities, that it would have adopted a more flexible approach and permitted the new argument to be made on appeal. Had this been the case, then the Court of Appeal would have remitted the matter to a plenary hearing.  

The Court also noted that the bank emails, which were not before the High Court, potentially supported an argument that the parties were not agreed.  The Court noted that this additional evidence assisted in meeting the threshold as set out in Murphy. 

The cumulative effect of the above facts placed this case in a "truly exceptional" and "rare" category. On this basis, the Court concluded that the judgment of the Court of Appeal should be set aside and made an order remitting the matter to the High Court for plenary hearing, having regard to the "overarching consideration of the balance of justice to both parties". 

Comment

At first blush, parties who commonly seek summary judgment, primarily financial institutions, may not welcome this decision. However, this decision of the Supreme Court does not create new law. It clarifies the principle that more latitude will be afforded to those seeking to advance a new argument on appeal, where the appeal is an appeal from a summary judgment.  

It is not the case that the Courts will, in every instance, permit a party to advance a new argument on appeal, as to do so would undermine the integrity of the legal system. An appellant seeking to advance new arguments on an appeal from a summary judgment, will still have to comply with the Lough Swilly Judgment, although the principles enunciated in that case, will be more flexibly applied. 

In deciding whether or not to bring summary proceedings, a party should consider whether there are any arguments which a defendant could make which, if made, could result in proceedings being remitted to plenary hearing. If there are, strong consideration should be given as to whether or not it is appropriate to bring plenary proceedings. Otherwise it may elongate the process by which judgment is obtained and may add unnecessary legal cost. 

For more information on this please contact Joe Kelly, Partner, Greg Cooney, Associate or your usual contact on the A&L Goodbody Litigation & Dispute Resolution team.

Date published: 24 March 2021

¹ [2021] IESC 12
²  [2013] IESC 16    
³  [1985] 1 I.R. 697
⁴  Lopez v Minister for Justice, Equality and Law Reform [2014] IESC 21, IBRC v McCaughey [2014] IESC 24 & Moylist Construction Limited v Donehy [2016] IESC 9.
⁵  [1991] 2 I.R. 161